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HomeMy WebLinkAboutResolution BPW 04-05-23-04/Marathon Pipe Line, LLC - ENCROACHMENTRESOLUTION NO. BPW 04-05-23-04 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING AGREEMENT BETWEEN CITY AND VENDOR WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana (“City”), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City’smayor may enter into contracts on behalf ofthe City; and WHEREAS, pursuant to his authority under Indiana law, the City’smayor, the Honorable James C. Brainard, has caused to be signed the Agreement attached hereto (the “Contract”); and WHEREAS, Mayor Brainard now wishes to present the contract to the City’sBoard of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk’sOffice, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as follows: 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk and thereafter made available to the public for review. SO RESOLVED this day of , 2023. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: James Brainard, Presiding Officer Date: Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Sue Wolfgang, Clerk Date: S:\\EBass\\MyDocuments\\BPW-Resolutions\\2023\\Acknowledge Agreement Encroachment Agreement Marathon Pipe Line LLC and Carmel.docx3/21/2023 1:17PM DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D Not Present 4/6/2023 April 4/6/2023 5th 4/6/2023 T&C File No.: 11-A47-010-060 APPROVED l er wr a.memb n tt:a w M mn ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ("Agreement") is entered into this date of Effective Date") by and between Marathon Pipe Line LLC Licensor") and City of Carmel ("Licensee"). As used herein, "Party" means Licensor or Licensee and "Parties" means both of them. A. Licensor holds real property interests in the form of an Easement, as further described below. B. Licensee desires to encroach upon the Easement as further described below. C. Licensor is willing to allow such encroachment subject to the limitations and restrictions set forth in this Agreement. For and in consideration of the mutual covenants, agreements, terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, Licensee and Licensor agree to the preamble, the recitals, and the following: ARTICLE 1— DEFINITIONS 1.1 These capitalized terms have the following meanings: Easement" means that certain pipeline easement granted May 31, 1949 and recorded on July 18, 1949 in Volume 39, Pages 219-220 of the Hamilton County, Indiana recorder's office, as may have been amended. Easement Area" means the land covered by the Easement. Encroachment" means walking trail as depicted on Exhibit A. Encroachment Area" means the portion of the Easement Area upon which the Encroachment is permitted to sit pursuant to the terms of this Agreement but only as depicted on Exhibit A. ARTICLE 2 - ENCROACHMENT 2.1 Subject to the terms of this Agreement, Licensee may construct, operate, use and maintain the Encroachment upon the Encroachment Area. 2.2 Licensee may use or occupy the Encroachment Area only to the extent necessary to construct, maintain, operate, use, and repair the Encroachment, including that the Encroachment Area may be open for use by the general public for the purposes for which Form Revised. 0112112022 558337.DOC 2 ) Page 1 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D the Encroachment is constructed, operated, and maintained, and such use or occupancy is not exclusive. Licensee may not extend, expand, or alter the footprint of the Encroachment without the prior written consent of Licensor, which will be memorialized by amendment of this Agreement. 2.3 Licensee will construct and maintain the Encroachment, ensuring it is built and remains in a safe and useable condition. In addition, Licensee will construct, maintain and use the Encroachment Area subject to these specifications: a) Licensee will not plant shrubs or trees within the Encroachment Area without Licensor's prior written consent, which Licensor may withhold or condition in its sole discretion. b) Licensee will ensure a Licensor representative is present during the construction of the Encroachment or any activity within 50 feet of the pipeline. c) No construction equipment will cross Licensor's pipeline until a stress analysis has been reviewed and approved by Licensor. 2.4 If Licensee removes all or a portion of the Encroachment other than to repair, replace, or reconstruct the same, Licensee will repair and restore the Encroachment Area to its original condition and the portion of the Easement Area no longer encroached upon will revert to Licensor. 2.5 If applicable, Licensee will pay all taxes levied or imposed on the Easement Area related to the Encroachment. 2.6 Licensee will ensure that the Encroachment and any associated activities comply with Law, this Agreement, and the terms of the Easement. As used in this Agreement, "Law" means any applicable treaty, constitution, charter, act, statute, federal, state and local laws, ordinance, code, rule, regulation, resolution, permit, order, decree, mandate, injunction, writ, directive, interpretation, or final non -appealable judgment adopted, enacted, issued, promulgated or ratified by any governmental entity, including tribal entities, and having the force of law. 2.7 If the Encroachment interferes with Licensor's operations, use and enjoyment of the Easement Area, or Licensor's ability to maintain its rights thereunder, at Licensor's sole option, Licensee will promptly upon written notice from Licensor (a) temporarily remove or relocate all or part of the Encroachment at Licensee's sole cost; or (b) reimburse Licensor for relocating all or part of the Encroachment. 2.8 Licensor may, in its sole discretion, restrict use and/or access to the Encroachment at any time for any length of time and for any reason. Licensee does hereby fully waive, release and discharge Licensor for any claims or liability arising' from such restriction. Licensee acknowledges and agrees that Licensor has no obligation to repair, replace or maintain the Encroachment. Licensee acknowledges and accepts that (i) Licensor's operations may occur in the daytime, evenings, nights, weekends, and holidays, and (ii) it may be necessary and convenient for Licensor to operate machinery and equipment (including lighting) that will be visible and audible on the Easement Area. In consideration of Licensor granting this Agreement, Licensee, on behalf of itself and its successors, assigns, invitees and licensees, Form Revised: 0112112022 558337.DOC 2 ) Page 2 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D hereby waives and releases Licensor and its affiliates and their employees, insurers, agents, contractors, and all their successors and assigns from any current and future claims and liabilities of any nature relating in any way to the use and enjoyment of the Encroachment by Licensee and its affiliates and their predecessors in title, agents and contractors, including claims of nuisance, loss of use and enjoyment, lost profits, loss of business opportunity, or other similar claims known or unknown at this time, whether the claims arise under common law, statutory law or otherwise. ARTICLE 3 - WAIVER 3.1 Licensee understands that Licensor uses and enjoys its rights under the Easement and maintains active operations in the Easement Area. Licensee hereby waives, releases, and forever discharges all Claims (as defined below) against Licensor for business interruption or delays, lost profits or revenue, lost commercial opportunities, or other similar damages arising or resulting from Licensor exercising its rights under the Easement or this Agreement. 3.2 Licensor and its designees will, from time to time, conduct activities in close proximity to the Encroachment. Licensee hereby waives, releases, and forever discharges all Claims against Licensor for damage to the Encroachment caused by Licensor or its designees, except for damages to the Encroachment caused by the gross negligence or willful misconduct Licensor or its designees. 3.3 "Claims" means all claims or causes of action of any nature, whether known or unknown, that a) relate to the Agreement, (b) sound in law or in equity, whether in contract or tort, or are based upon fraud or misrepresentation, breach of duty, common law, or arise under or by virtue of any judicial decision, constitutional provision, statute or regulation, and (c) are for damages, including, actual, consequential, punitive or exemplary damages, costs, expenses, interest, demands, suits, reasonable attorneys' fees, losses, injuries, injunctive relief, or other remedies of any nature, whether equitable or legal. ARTICLE 4 — DEFAULT; TERMINATION FOR CONVENIENCE 4.1 If Licensee breaches the provisions of this Agreement, Licensor may terminate this Agreement and pursue available remedies of any nature, whether equitable or legal. Licensee consents to Licensor seeking injunctive relief or an emergency order to enforce the provisions of this Agreement, or prevent breach thereof, without the necessity to post a bond. 4.2 Nothing contained herein will be deemed to constitute any warranty or representation by Licensor as to its authority to permit the Encroachment upon the Encroachment Area as proposed by Licensee, except regarding Licensor's rights as set forth in this Agreement that may restrict the Encroachment. Licensee understands that Licensor is under no obligation to renew or amend the Easement and that if the Easement terminates, Licensee's rights hereunder also terminate and Licensee will be obligated to remove the Encroachment prior to termination of the Easement. Licensee's obligations under this Section will survive termination of this Agreement. Form Revised: 0112112022 558337.DOC 2 ) Page 3 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D 4.3 Licensor may terminate this Agreement without cause and at any time (a) by giving at least 90 days written notice to Licensee; or (b) upon termination of any other interest or permission that Licensor holds in the Easement. 4.4 Licensee explicitly recognizes that notwithstanding the costs of improvements of and alterations to the Easement Area incurred by Licensee hereunder, Licensor's right to terminate this Agreement will be without compensation to Licensee in any manner including replacement value or for the fair market value of any improvement placed on or near the Easement Area. Licensee will, upon termination or expiration of this Agreement, remove the Encroachment, rehabilitate and leave the Easement Area in a safe and useable condition. Licensee acknowledges that the Encroachment may have to be damaged, destroyed or removed in the course of Licensor's operations. Licensee hereby fully releases Licensor from any and all liability arising from any such damage, destruction or removal. ARTICLE 5 — MISCELLANEOUS 5.1 INTERPRETATION. Unless the context as used in this Agreement clearly indicates otherwise: (a) words in the singular include the plural and words used in the plural include the singular; (b) references to any Party include such Party's successors and assigns; (c) the words include", "includes" and "including" will be deemed to be followed by the words "without limitation"; (d) any addendum, exhibit or schedule attached is deemed to be incorporated by reference into the Agreement; and (e) reference to any Law will be deemed to also refer to all rules and regulations promulgated thereunder. 5.2 COUNTERPARTS. Licensor and Licensee acknowledge that this Agreement may be executed in counterparts, each of which will be deemed to be an original and taken together will be considered as one document. 5.3 BINDING ON SUCCESSORS AND ASSIGNS. Licensee will not assign this Agreement, or an performance of this Agreement, without the prior written consent of Licensor. Any attempted assignment in violation of this Section will be void and will in no way release Licensee from its obligations under this Agreement, including Section 6, Indemnity. This Agreement is binding upon and inures to the benefit of each of the Parties and their respective heirs, successors, and assigns, including successor owners and occupants of the Encroachment. 5.4 GOVERNING LAW. The validity, interpretation or performance of this Agreement and any disputes arising hereunder will be governed and construed in accordance with the Laws of the state where the Encroachment is located. 5.5 AMENDMENTS. Except as otherwise expressly set forth herein, this Agreement will not be modified, in whole or in part, except by a written amendment signed by both Parties and expressly identified as an amendment or modification. Any attempt by either Party through any document to vary any of the terms of this Agreement will be deemed void. 5.6 CONSPICUOUS. TO THE EXTENT REQUIRED BY LAW TO BE EFFECTIVE, THE PROVISIONS IN THIS AGREEMENT IN BOLD -TYPE FONT ARE CONSPICUOUS" FOR THE PURPOSE OF ANY LAW. Form Revised: 0112112022 558337.DOC 2 ) Page 4 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D 5.7 SEVERABILITY. Each clause and provision of this Agreement is severable. If any clause or provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, all other clauses or provisions of this Agreement will remain in full force and effect in such jurisdiction and will not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in this Agreement in any jurisdiction. If any clause or provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, such clause or provision will be restricted in applicability, reformed to the minimum extent required for such clause or provision to be enforceable or the Parties will amend or otherwise modify this Agreement to replace such clause or provision with a valid and enforceable clause or provision giving effect to the intent of the Parties. 5.8 WAIVER. Neither action taken nor inaction pursuant to this Agreement will be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained herein by the Party committing such action or inaction. A waiver by any Party of a particular right, including breach of any provision of this Agreement, will not operate or be construed as a subsequent waiver of that same right or waiver of any other right. 5.9 This Agreement, as may be amended in accordance with the terms herein, contains the entire agreement of the Parties related to the Encroachment and supersedes any and all prior negotiations, agreements, or understandings, written or oral, with respect to the Encroachment or Licensee's use or occupancy of the Encroachment Area. Each Party warrants to the other that no promises or inducements for this Agreement have been made except as herein set forth. This Agreement is the result of negotiations between the Parties and no Party will be deemed to be the drafter of this Agreement. The language of all parts of this Agreement will be in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any Party. ARTICLE 6 — INDEMNITY 6.1 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE WILL PROTECT, INDEMNIFY, HOLD HARMLESS, RELEASE, DISCHARGE AND DEFEND LICENSOR, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INVITEES, JOINTLY AND SEVERALLY, FROM AND AGAINST ALL CLAIMS BECAUSE OF: a) BODILY INJURY OR DEATH; b) DAMAGE TO PROPERTY; OR c) CONTAMINATION OF OR ADVERSE EFFECTS ON THE ENVIRONMENT, INCLUDING THE COST OF ASSESSMENT AND REMEDIATION, WHICH, IN EACH CASE, OCCUR IN CONNECTION WITH (x) LICENSEE'S USE OR OCCUPANCY OF THE EASEMENT OR (y) ANY ACTIVITY ASSOCIATED WITH THE ENCROACHMENT CONDUCTED BY LICENSEE OR ITS AFFILIATES, OR THEIR EMPLOYEES, AGENTS, CONTRACTORS OR INVITEES Form Revised.• 0112112022 558337.DOC 2 ) Page 5 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D 6.2 LICENSEE WILL PAY ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY FEES AND ALL OTHER EXPENSES OF LITIGATION INCURRED BY LICENSOR TO ENFORCE LICENSEE'S OBLIGATIONS AS SET FORTH IN THIS ARTICLE OR TO ENFORCE LICENSEE'S INSURANCE CARRIER'S OBLIGATIONS UNDER ARTICLE 7. ARTICLE 7 — INSURANCE 7.1 Without limiting in any way the scope of any obligations or liabilities assumed hereunder by Licensee, Licensee will procure or cause to be procured and maintained at its expense, for the duration of this Agreement with insurance companies designated by A.M. Best Company with a rating of A- or better and found acceptable to Licensor, the insurance policies described below. Prior to commencement of any work within the Easement Area, Licensee will furnish Licensor with valid and, as needed to maintain compliance with this Article, updated certificates of insurance which document that all coverages and endorsements required by have been obtained; provided that Licensee is only required to maintain one certificate of insurance with Licensor demonstrating the required coverages and endorsements in this Agreement and any other agreement with Licensor or its affiliates. Licensee's obligation to comply with the insurance requirements of this Article is a material obligation of this Agreement. a) Workers' compensation for all benefits required of Licensee by Law, U.S. longshore and harbor workers' compensation insurance, the Outer Continental Shelf Lands Act, with voluntary compensation for marine operations, to include transportation, wages, maintenance, and cure, and under applicable maritime law (including Jones Act Coverage) where required, or other statutory insurance Laws in the area having jurisdiction over such employees, agents, servants and borrowed servants, or over the location where the work is being performed. b) Employer's liability insurance covering the employees of Licensee with limits of at least $1,000,000 per occurrence. c) General liability insurance including contractual liability, explosion, collapse and underground hazards and completed operations with a combined single limit of at least 1,000,000 per occurrence. d) Business automobile liability insurance, if owned, hired or non -owned automotive equipment is used in the performance of this Agreement, with a combined single limit of at least $1,000,000 per occurrence. e) Pollution liability insurance to cover third -parry claims for losses including bodily injury, property damage and clean-up costs arising from pollution conditions that occur from the ongoing operations or in connection with a release, spill, discharge or leak into the environment of pollutants, with a combined single limit of $15,000,000 per occurrence. f) The insurance limits in this Section can be satisfied through any combination of primary and excess liability policies. Form Revised: 0112112022 558337.DOC 2 j Page 6 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D 7.2 The general liability and business automobile liability policies will include Licensor and its affiliates as additional insureds for liabilities arising out of the performance under this Agreement to the same and full extent of coverage provided to Licensee under those policies and to the full extent allowed under Law. Such policies will be primary to any other insurance of Licensor. Such insurance will specifically provide that it applies separately to each insured against which Claim is made or suit is brought, except with respect to the limits of the insurer's liability. 7.3 The workers' compensation and employer's liability policies will provide that all rights of subrogation against Licensee and its affiliates are waived when permitted by Law. IN WITNESS WHEREOF, the Parties hereto by their duly authorized representatives have executed this Agreement as of the Effective Date. MARATHON PIPE LINE LLC By: _ Name: Title: State of County of ss The foregoing instrument was acknowledged before me this 20 by Signature: Name: My commission expires: Form Revised: 0112112022 55833TDOC 2 } Page 7 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D CITY OF CARMEL By: Name: James Brainard Title: Mayor State of Indiana ss County Of Hami 1 t-nn The foregoing instrument was acknowledged before me this March 20th 2023 by James Brainard R,ra&4 SHARO7M. BBE A Resident oon Co. My Commxpiresuly6 Si ature' A a l Name: Sharon M. Kibbe My commission expires: Ju ly 12 , 2 0 2 6 I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. This instrument prepared by: Brian Phillips 539 South Main Street Findlay, Ohio 45840 Form Revised: 0112112022 558337.DOC 2 } Page 8 of 8 DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D DocuSign Envelope ID: 3717C19A-663A-4AD0-AF36-36AF52C04B9D