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HomeMy WebLinkAboutCommon Services Easements and Restrictions - i o w ~.. '\ , Cross Reference This instrument burdens real estate located in Hamilton County, state of Indiana. The last deed conveying the burdened real estate was recorded in the office of the Recorder of Hamilton County as Instrument Number COMMON SERVICES EASEMENTS AND RESTRICTIONS FOR MURPHY HALL "Effective Date": L-day of ~<i ~ c-:?' , 200 5:'" "Grantor": Corporate/Company Name: State of Organization: Address: Estridge Development Company, Inc. Indiana 1041 W. Main St, Carmel, Indiana 46032 "Grantee": Company Name: State of Organization: Address: Centennial Access Properties, LLC Indiana 1041 W. Main St Carmel, Indiana 46032 THIS COMMON SERVICES EASEMENTS AND RESTRICTIONS (this "Easement") is made and entered into on the Effective Date by and between the Grantor and the Grantee. Capitalized terms not otherwise defined in this Easement shall have the meanings ascribed to them in AtJpendix A attached hereto and by this reference incorporated in this Easement. The terms or phrases "Effective Date", "Grantor" and "Grantee" shall have the meanings ascribed to them above. ARTICLE I - RECITALS 1.01. WHEREAS, Grantor is, and at all relevant times has been, the fee simple title owner of the Development. 1.02. WHEREAS, Grantor represents and warrants to the Grantee that Grantor is, and at all relevant times has been, the true and lawful owner of the Development; and, that Grantor has the full right and power to grant and convey the rights set forth in this Easement. 1.03. WHEREAS, Grantor wishes to grant to Grantee the perpetual and exclusive private easements set forth below, subject only to the terms and limitations of this Easement. 1.04. WHEREAS, Grantor represents and warrants to the Grantee that Grantor is, and at all relevant times has been, the true and lawful owner of the Development; and, that Grantor has the full right and power to grant and convey the rights set forth in this Easement. 1.05. WHEREAS, Grantee desires the private and personal grant of an In Gross Easement over and across the Development, privately and personally vesting in Grantee the exclusive and perpetual right to identify and privately contract with Common Service Providers for the use of the In Gross Easement Area. 1.06. WHEREAS, Grantee desires the private and personal grant of a Service Easement over and across designated portions of the Development, privately and personally vesting in Grantee the exclusive and perpetual right to ~vatelY contract for the establishment of Facilities within the Service Easement Area. ~<S> ~\-\.,<O ~~6~ \ ~~'-> ~\0<VS ! o u , 1.07. WHEREAS, Grantor also retains, reserves and intends to grant certain Plat Utility Easements pursuant to the Declarations which are conveyed by the Declarant in the Declarations or by separate private easements in the Declarant's sole and complete discretion; the areas of the Plat Utility Easements are designated as Utility Easements within the Platted Easement Area on the Plats; and such Plat Utility Easements created in the Declaration or by private easements are created for the exclusive use of each grantee by the Grantor, and not a public right-of-way, or public easement or otherwise available for general use by the public. 1.08. WHEREAS, Grantee shall cause, by virtue of private contracts, improvements to be made to and within the Development for the Common Services, which improvements shall be situated on, over, under and across the Service Easement Area and make available the Common Services within the Development. 1.09. WHEREAS, certain Common Service Providers have developed expertise in providing Common Services to their customers, which expertise are currently and on a continuing basis being employed to develop superior and cost competitive Communications and Entertainment Services. 1.10. WHEREAS, Grantor desires to have said Communications and Entertainment Services made available to the extent technologically feasible, on a bundled basis at the Development. 1.11. WHEREAS, Grantee desires the private and personal grant of a Service Easement over and across designated portions of the Development, privately and personally vesting in Grantee the exclusive and perpetual right to privately contract for the establishment of Facilities within the Service Easement Area. 1.12. WHEREAS, the Plats to be recorded by the Grantor with respect to the Development shall designate the Service Easement Area for the Service Easement in the Platted Easement Area designated on the Plat as Drainage Utility and Sewer Easements (D.U. & S.E.). THIS INDENTURE WITNESSETH, that in consideration of ten dollars ($10.00), the mutual covenants contained in this Easement and other good and valuable consideration, the receipt and sufficiency of which are by this Easement acknowledged, the Parties to this Easement agree as follows: ARTICLE II - EASEMENT 2.01. Grant of In Gross Easement. Grantor hereby declares, creates, transfers, assigns, grants and conveys unto Grantee, its grantees, licensees, lessees, franchisees, successors and assigns, an exclusive and perpetual right, privilege and easement over, upon, under, in, through and across the In Gross Easement Area for the limited purpose of identifying and contracting, in Grantee's sole and complete discretion, any and all of the Common Service Providers allowed to provide or otherwise make available Facilities and Common Services for the Development and within the In Gross Easement Area ("In Gross Easement"). The Grantee shall have the exclusive right to identify and contract with Common Service Providers who intend to provide or otherwise make available Common Services to the Development within the In Gross Easement Area. This grant shall not entitle Grantee, its grantees, licensees, lessees, franchisees, successors or assigns to install, repair or relocate Facilities within the In Gross Easement Area, except in the Service Easement Area. Elsewhere within the In Gross Easement Area, the Owners and the Association shall be entitled to construct or otherwise erect barriers or other temporary or permanent obstructions or structures as provided in Section 2.04 hereof. Grantor and its grantees, licensees, lessees, franchisees, successors and assigns agree that no barriers or competing Facilities or other obstructions, permanent or temporary, of any form shall be placed or erected or permitted within the In Gross Easement Area so as to impair or lessen or compromise, in any fashion, directly or indirectly, Grantee's exclusive and perpetual In Gross Easement and rights affiliated with such In Gross Easement. The In Gross Easement is intended, and shall be, for the exclusive, private and personal benefit of the Grantee and its grantees, licensees, lessees, franchisees, successors and assigns who have been identified by and contracted with the Grantee to provide Common Services within the Development pursuant to this Easement. The In Gross Easement may not and shall not be impaired, limited, lessened or transferred, sold or granted, in any fashion, directly or indirectly, by Grantor or its grantees, licensees, lessees, franchisees, successors or assigns. Grantor and its grantees, licensees, lessees, franchisees, successors and assigns hereby relinquish and are prohibited from, without limitation, granting any rights, permits, licenses, rights-of-way or easements over the In Gross Easement Area to any Person, directly or indirectly, or through an intermediary or series of intermediaries or third parties, which would permit or otherwise allow the establishment of any Common Services or Facilities for Common Services on, over, under or 2 ,.., 0) w , across the In Gross Easement Area (collectively, "Prohibited In Gross Easement Transfers"). The Grantor and its grantees, licensees,lessees, franchisees, successors and assigns shall be divested of any and all authority to declare, create, transfer, assign, grant or otherwise convey any Prohibited In Gross Easement Transfers, except as provided in Section 2.08, Section 2.09 and Section 2.10 hereof. The In Gross Easement is intended, and shall, "run with the land" and be binding upon the Grantor and its grantees, licensees, lessees, franchisees, successors, and assigns, including, without limitation, any Owner, the Association and their heirs, executors, administrators, legal representatives, grantees, licensees, lessees, franchisees, successors and assigns. Any title or interest in the In Gross Easement Area shall reflect this In Gross Easement. 2.02. Grant of Service Easement. Grantor hereby declares, creates, transfers, assigns, grants and conveys unto Grantee, its grantees, licensees, lessees, franchisees, successors and assigns, an exclusive and perpetual right, privilege and easement over, upon, under and across the Service Easement Area (a) to construct, lay, install, own, operate, lease, license, franchise, alienate, assign, modify, alter, supplement, inspect, maintain, repair, reconstruct, replace, remove, relocate, expand or otherwise service in the Service Easement Area any and all necessary or desirable Facilities of any type used to provide or make available any Common Services within the Development, (b) to excavate and perform any necessary or desirable work upon and under the surface of the Service Easement Area as and when required to make available Common Services or service the Facilities in the Development, and (c) to create and provide ingress and egress to and from the Service Easement Area at any time (collectively, (a), (b) and (c) shall constitute the "Service Easement"). The Service Easement is intended, and shall be, for the exclusive private and personal benefit of Grantee and its grantees, licensees, lessees, franchisees, successors and assigns who have been identified by and contracted with the Grantee to provide Common Services within the Development pursuant to this Easement. Grantor covenants and agrees that no barriers or competing Facilities or other obstructions, permanent or temporary, of any form shall be placed or erected or permitted within the Service Easement Area so as to impair or lessen or compromise, in any fashion, directly or indirectly, Grantee's exclusive and perpetual easement and private right to exclusively and perpetually identify, or contract with, third parties that shall own and operate Facilities on, over, under and across the Service Easement Area to provide Common Services within the Development, in Grantee's sole and absolute discretion. The Service Easement is intended, and shall be, for the exclusive, private and personal benefit of the Grantee and its grantees, licensees, lessees, franchisees, successors and assigns who have been identified by and contracted with the Grantee to provide Common Services within the Development pursuant to this Easement. The Service Easement may not and shall not be further impaired, limited, lessened or transferred, sold or granted, in any fashion, directly or indirectly, by Grantor or its grantees, licensees, lessees, franchisees, successors or assigns. Grantor and its grantees, licensees, lessees, franchisees, successors or assigns hereby relinquish and are prohibited from, without limitation, granting rights, permits, licenses, rights-of-way and easements over the Service Easement Area to any Person, directly or indirectly, or through an intermediary or series of intermediaries or third party(s), which would permit the establishment of any Common Services or Facilities for Common Services on, over, under or across the Service Easement Area (collectively "Prohibited Service Easement Transfers"). The Grantor and its grantees, licensees, lessees, franchisees, successors or assigns shall be divested of any and all authority to declare, create, transfer, assign, grant or convey any Prohibited Service Easement Transfers, except as provided in Section 2.08, Section 2.09 and Section 2.10 hereof. The Service Easement is intended, and shall, "run with the land" and be binding upon the Grantor and its grantees, licensees, lessees, franchisees, successors, and assigns, including, without limitation, any Owner, the Association and their heirs, executors, administrators, legal representatives, grantees, licensees, lessees, franchisees, successors and assigns. Any title or interest in the Service Easement Area shall reflect this Service Easement. ~ Use of Easement. The Combined Easement shall be for the private, personal, exclusive and perpetual use and benefit of Grantee and its grantees, licensees, lessees, franchisees, successors and assigns who have been identified and contracted with Grantee to own, install, repair, relocate, expand, or otherwise service the Facilities used by Common Service Providers in providing Common Services to the Development in accordance with this Easement. Grantor agrees and stipulates that, due to the private, personal and exclusive nature of the grant conveyed in this Easement, no other Common Services use of the Combined Easement Area shall be made by any Person, including Grantor and its grantees, licensees, lessees, franchisees, successors or assigns. 2.04. Owner and Association Improvements. The Owners and their successors in interest, shall be entitled to place such temporary or permanent barriers or other permanent obstructions and structures within the Owner Improvement Area as the Owner desires, from time to time, except as prohibited by this Easement and the Declarations. The Association and its successors in interest shall be entitled to construct or otherwise erect barriers or other temporary or permanent obstructions or structures in the Common Areas (as defined in the Declarations), except as prohibited by this Easement and the Declarations. No barriers or other temporary or permanent obstructions or structures shall be placed by the Owners or the Association in the Service Easement Area. 3 ,~ t) U w 2.05. Reservation of Rieht to Use. Grantor hereby declares, creates, transfers, assigns, grants and conveys to Grantee and its grantees, licensees, lessees, franchisees the private, personal and exclusive right to use, temporarily, additional space within the In Gross Easement Area and outside of the Service Easement Area, when such additional space is reasonably available and necessary from time to time for ingress and egress across adjacent real estate outside of the Service Easement Area but within the In Gross Easement Area for the purposes of access to and use or improvement of the Service Easement Area, and for equipment and materials necessary for any repair, maintenance, or upgrade of the Service Easement Area and the Facilities situated on, over, under or across such area which right is for the private and personal benefit of Grantee and its grantees, licensees, lessees, franchisees, successors, and assigns who have been identified by and contracted with the Grantee to provide Common Services within the Development pursuant to this Easement. ~ Reservation of Common Services Rie:hts. Grantor hereby declares, creates, transfers, assigns, grants and conveys to Grantee the private, personal, exclusive and perpetual right to use the In Gross Easement Area, and any improvements located within the In Gross Easement Area, for any purpose which is not inconsistent with the rights granted to any Owner, the Association, or reserved in Grantor by this Easement or the Declarations; provided, further, that any such use be directed toward the protection of Grantee's exclusive rights to provide Common Services as set forth in this Easement. Grantor agrees and covenants that it will not make any use of the Combined Easement Area which is inconsistent with the uses or purposes for which either the In Gross Easement or the Service Easement has been granted to Grantee; provided, finally. that notwithstanding anything in this Easement to the contrary, Grantor expressly reserves unto itself, its grantees, licensees, lessees, franchisees, successors, assigns, the right to use the In Gross Easement Area which falls outside of the Service Easement Area in any manner not inconsistent with the grant to provide Common Services made to Grantee by this Easement and as contemplated in the Declarations. b2L Non-Interference and Repair of Service Easement Area. Grantor covenants and agrees that no barriers or competing Facilities or other obstructions or structures shall be placed or erected, temporarily or permanently, so as to impair the use of any portion of the Service Easement Area for Common Services by Grantee or third parties identified or designated by Grantee. The Grantor shall not construct Facilities or any other Common Service improvements in the Service Easement Area or change the finish grade of the Service Easement Area without the prior written consent of the Grantee, which consent may be given or withheld in Grantee's sole and absolute discretion. Neither Grantee nor third parties identified or designated by Grantee shall do or permit anything to be done within or upon the Service Easement Area which will interfere with Grantor's use, maintenance, enjoyment or possession of the Service Easement, except as may be expressly provided otherwise in this Easement. Grantee shall be obligated to repair the Service Easement Area and for any damage(s) caused by Grantee, its agents or officers, or which shall include, without limitation, restoration of the Service Easement Area following installation or removal or maintenance or upgrade of any Facility to the same condition that such Service Easement Area existed prior to such installation or removal or \ maintenance and the granting of the Service Easement contemplated by this Easement. To the extent Grantee performs any such installation or removal or maintenance or upgrade of any Facility which may be located, for whatever reason, outside of the Service Easement Area but within the In Gross Easement Area, then Grantee shall have the same responsibilities as if such work had been performed within the Service Easement Area. Grantee shall have the right to remove or trim such trees and brush in and around the Service Easement as is deemed necessary by Grantee, in Grantee's sole and absolute discretion, to exercise or protect the rights conveyed to Grantee in this Easement. 2.08. Termination of Exclusivitv (Failure to Identify Provider). Grantee shall, within one hundred twenty (120) days from the date this Easement is recorded in the office of the Recorder of the county in which the Development is located, identify and provide access to the Mandatory Common Service Providers for each of the Mandatory Common Services. The initial Mandatory Common Service Providers are identified on Exhibit E attached hereto. Upon the request of the Grantor, from time to time, Grantee shall promptly up-date and provide the list of the names and addresses of the current Mandatory Common Service Providers to the Grantor. Failure by Grantee to identify and provide access to each of Mandatory Commons Services Providers in a timely manner pursuant to this Easement shall result in the termination of Grantee's exclusivity within the Combined Easement with respect to each of the Mandatory Common Services Providers not identified or granted access by the Grantee. Upon such termination, Grantor shall have the right to identify and grant access to an Alternative Mandatory Common Service Providers for Mandatory Common Services not identified or granted access by the Grantee in accordance with this Easement ("Initial Mandatory Alternative Provider"); provided, however, such Initial Mandatory Alternative Provider shall be granted access subject to and in accordance with this Easement and the Declaration. 2.09. Termination of Exclusivitv (Inadequate or Costlv Service). The Mandatory Common Services to be furnished by each Mandatory Common Service Provider shall be reasonably adequate based upon like services available to the general area 4 ~-- o w around the Development from third party Common Service Provider(s). The charges made by the Mandatory Common Service Provider for such Mandatory Common Services shall be reasonable and just. A charge which is equal to, or less than, the standard, nonpromotional charge for like services shall be conclusively presumed reasonable and just. For purposes of identifying third party Common Service Provider for Telephone Services (Local), telephone services and charges shall be compared to corresponding telephone services and charges of Ameritech, or its successor, and a Common Service Provider for Cable Television Services, cable services or charges shall be compared to corresponding Cable Television Services and charges of Comcast, or its successor. It is the intent of the parties to this Easement to evaluate all services and charges against those existing and available to the Development on a consistent basis, from time to time for Mandatory Common Services. Upon a final, nonappealable determination by the appropriate authority (a) that the Mandatory Common Services being furnished by a Mandatory Common Service Provider to the Development are not reasonably adequate based upon like services available to the Development from a third party Mandatory Common Service Provider, or (b) that the charges made by Mandatory Common Service Provider(s) for such Mandatory Common Services are not reasonable and just; then, the exclusivity within the Combined Easement with respect to each Mandatory Common Service subject to such determination shall terminate. Upon such determination and termination, the Grantee shall have the right to identify and grant access to another Mandatory Common Service Provider to provide the same Mandatory Common Service subject to such determination ("Subsequent Mandatory Alternative Service"); provided, however, such new Mandatory Common Service Provider providing the Subsequent Mandatory Alternative Service shall be granted access subject to and in accordance with this Easement and the Declarations. 2.10. Grantee's Consent; Approval of Declarations and Plats. Notwithstanding any other provision in this Easement, the Grantor may grant or convey rights, permits, licenses, right-of-way and easements which are expressly prohibited in this Easement, including, without limitation, Prohibited In Gross Easement Transfers and Prohibited Service Easement Transfers upon the prior written consent of Grantee, which consent may be given or withheld in the Grantee's sole and absolute discretion. For example, it is contemplated herein that the Grantor shall declare and create the Declarations and Plats which shall be reviewed and approved by the Grantee in writing prior to the recording of such Declarations and Plats in accordance with this Section 2.10. 2.11. Private Grant. The Parties do, understand, and intend to, privately declare, create, and grant the Combined Easement set forth in this Easement in order to allow the Grantee, its grantees, licensees, lessees, franchisees, successors and assigns only and exclusively the limited rights and privileges set forth in this Easement. The Combined Easement is not declared, created, or granted for public or general utility use, and shall not be so construed. 2.12. Construction and Usaee of "exclusivitv" term. Reference to the term "exclusive" or "exclusivity" shall mean and refer to the right of Grantee to provide Common Services and to use the Combined Easement Area for such use. The term shall not be construed as prohibiting Grantor from permitting other uses or easements upon the Development or Combined Easemet;lt Area which do not involve the provision of Common Services or any interference with the rights of Grantee to provide Common Services under this Easement. For example, it is contemplated that the Grantor shall declare and create a utility easement for the sanitary waste disposal system and drainage system in the Development. ARTICLE III - INDEMNIFICATION AND RIGHT TO DEFEND 3.01. Indemnification. Grantee agrees to indemnify, defend and hold harmless the Grantor and the heirs, executors, administrators. legal representatives, successors, licensee, and assigns of the Grantor, including, but not limited to, the Owners, the Association. and their successors in interest ("Indemnitees") from and against any and all losses, claims, damages and liabilities, joint or several (including reasonable investigation fees, attorneys' fees, accountant's fees, expert witness fees, and other related expenses incurred in connection with any action, suit or proceeding or any claim asserted), to which the Indemnitees may become subject as a result of this Easement, and/or the enforcement of the rights of Grantee under this Easement; provided, however, that Grantee shall not be required to indemnify. defend or hold harmless Indemnitees from Indemnitees' own negligence, or any act or omission which is wrongful on Indemnitees part. 3.02. Rieht to Defend. Grantee has the right of notice and to defend any controversy or claim arising out of or relating to this Easement. any alleged breach, any question as to the validity of its terms or conditions or legal effect. the construction of its terms or conditions or legal effect, and the interpretation of the rights and duties of the Parties under this Easement. The Grantor and its grantees, licensees, lessees, franchisees, successors and assigns, including, without limitation, any owner, the Association and their heirs, executors, administrators, legal representatives, grantees, licensees, lessees, franchisees, successors, and assigns shall notify Grantee of any claim, suit, administrative proceeding (including regulatory proceedings), or any other action or 5 . . . . (' u w I threatened action which may, either presently or at a future date. give rise to Grantee's duty to indemnify or Grantee's right to defend, which notice shall be in writing and provided to Grantee promptly but in no event more than fifteen (15) business days from the date that Grantor or the Grantor's successors in interest, becomes aware of such claim, suit or proceeding, or potential claim, suit or proceeding. ARTICLE IV - NOTICES 4.01. Notices to Grantor. Any notice to be given or served upon Grantor in connection with this Easement must be in writing and shall be deemed to have been given and received when delivered to the following address, certified mail, return receipt requested, or by personal service: Grantor: Estridge Development Company, Inc. 1041 W. Main Street Carmel, Indiana 46032 Attn: Nick Bacon Copies to: Frank A. Hoffman Krieg DeVault LLP One Indiana Square Suite 2800 Indianapolis, Indiana 46204-2079 4.02. Notices to Grantee. Any notice to be given or served upon Grantee in connection with this Easement must be in writing and shall be deemed to have been given and received when delivered to the following address, certified mail, return receipt requested, or by personal service: Grantee: Centennial Access Properties, LLC 1041 W. Main Street Carmel, Indiana 46032 Attn: Nick Bacon Copies to: Frank A. Hoffman Krieg DeVault LLP One Indiana Square Suite 2800 Indianapolis, Indiana 46204-2079 4.03. Address Chanees. Either Grantor or Grantee may change its address as specified for notices under this Easement by designating a new address, in writing, and recorded in the office of the Recorder of Hamilton County, Indiana, and delivered in accordance with this Part IV of this Easement to the other Party. IN WITNESS WHEREOF, the Parties have executed this Easement as of the date first above written. "GRANTOR" "GRANTEE" By: Printed: Title: 1r1~ ~tJ1. Michael J. eller By: Printed: Mv-A..~~ Michael J. Keller Vice President Title: Manager Date: ~ -l-o~ Date: y -t -<>~ STATE OF INDIANA ) ,,~'i'<V PU(J )SS' ~8'f; DONNA ARONSON . * SEA.L * R f M . C ty COUNTY OF HAMILTON ) . es.o anon oun 01 =>.~~ Comm. Expires: 12/17/2006 Before me, f notary publi~and forl~id Cpunty and State this ~ day of /f-U!a.()S T, 20t) f' personally appeared /)? /'c ntj t! l ::::J. K e.. /.1-e,.- , wh acknowledged the execution of the foregoing instrument on behalf of such entity and by its authority for the purposes set forth in such instrument. Witness my hand and NolMial Seal thi~ d~-r.~OJ;5' My Commission Expires:!;{ -11-~ dtJ ~~ VYJ ' .J N.Ptilf.YP~blic A!1 n OS oJ My County of Residence is: r / I 4- t / () Ic/ 0 1/1'111- n Printed Name 6