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HomeMy WebLinkAboutClay Terrace PartnersAPPROVED AS TO FORM 6Y Cross'References: Instrument No. 200387400 MAINTENANCE AND EASEMENT AGREEMENT TI4IS MAINTENANCE AND EASEMENT AGREEMENT (this "Agreement") is entered into by and among the City of Carmel, Indiana, by and through its Board of Public Works (the "City"), the Hamilton County of Commissioners (the "Board"), and Cly Terrace Partners, LLC, an Indiana limited liability company ("Developer") as of the jt day of 2004. WITNESSETH: WHEREAS, Developer is developing a certain retail shopping and office center (the "Center") on real estate located within the City of Carmel's corporate limits at the Southwest cornerof the intersection of U.S. Highway 31 and 146' Street, as more particularly described in Exhibit A attached hereto and made part hereof (the "Center Real Estate"); WHEREAS, in accordance with County Resolution No. 3-24-03-1, Developer conveyed to the Board approximately sixteen (16) acres for the construction of public infrastructure and other uses related to the Center, as more particularly described in Exhibit B attached hereto-and made part hereof (the "Infrastructure Area"); WHEREAS, a portion of the Infrastructure Area depicted in Exhibit C attached hereto and made part hereof (the "Clay Terrace Boulevard Real Estate") is to be used for construction of a public right-of way designated of Clay Terrace Boulevard and related improvements (the "Clay Terrace Boulevard Improvements); WHEREAS, a portion of the Infrastructure Area depicted in Exhibit D attached hereto and made part hereof (the "Detention Pond Real Estate") is to be used for construction of a detention pond and related drainage facilities serving the Center (he "Detention Pond Improvements','); WHEREAS, a portion of the.Infrastructure Area depicted in Exhibit E attached hereto and made part hereof (the "Greenbelt Real Estate") is to be used for construction of a_bike path and landscaping improvements serving the Center (the "Greenbelt Improvements"); WHEREAS, the Clay Terrace Boulevard Improvements, the Detention Pond Improvements, and the Greenbelt Improvements have been designed as an integrated part of the Clay Terrace development, have been fully approved by the Carmel Common Council on September 3, 2002, by and through its ordinance No. Z-386-02 and received Architectural, Design and Landscaping approval by the Carmel Plan Commission on June 19, 2003, and Final Development Plan approval by the Carmel Plan Commission on July 1, 2003; and WHEREAS, the City, the Board and Developer desire to clarify certain obligations and responsibilities with respect to the maintenance of the Clay Terrace Boulevard Improvements, the Detention Pond Improvements and the Greenbelt Improvements and to grant Developer a certain non-exclusive, access easement for the purpose of carrying out its rights and responsibilities as set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the agreements and promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Right of Way Maintenance Responsibilities. On and after the dates of substantial completion of the Clay Terrace Boulevard Improvements, the Detention Pond Improvements and the Greenbelt Improvements, respectively, Developer and the City, as applicable, shall have the following responsibilities: a. Clay Terrace Boulevard Improvements. The City shall have sole responsibility to maintain, at the'City's expense, the Clay Terrace Boulevard Improvements in good condition and repair and free of trash, rubbish, garbage and other refuse; provided, however, that Developer shall maintain, repair, restore and replace the landscaping and related improvements in the roundabout, median and other landscaping areas located on the Clay Terrace Boulevard. Real Estate, as depicted on Exhibit F attached hereto and made part hereof, all in a manner consistent with the landscaping as originally installed by Developer. b. Detention Pond Improvements. Developer shall have sole responsibility to maintain, at Developer's expense, the Detention Pond Improvements, in good condition and repair and free of trash, rubbish, garbage and other refuse. Such responsibilities shall include, but not be limited to, (i) maintaining and keeping functional at all times the storm water drainage system located over, across and under the Clay Terrace Boulevard Real Estate and the Detention Pond Real Estate, including, but not limited to the detention pond located on. the Detention Pond Real Estate, and (ii) causing the Detention Pond Real Estate to be mown at regular intervals so as to keep its appearance consistent with the first class character of the Center. c. Greenbelt Improvements. Developer shall have sole responsibility to maintain, at Developer's expense, the Greenbelt Improvements in good. condition and repair and free of trash, rubbish, garbage and other refuse. Such responsibilities shall include, but not be limited to, maintaining, repairing, restoring and replacing the bike path and landscaping located on the Greenbelt Real Estate. 2. Additional Responsibilities. In addition to the foregoing, Developer and the City, as applicable; shall have the following additional responsibilities: 2 a. Street Lighting. Developer shall maintain, repair, restore and replace, at Developer's expense, the street lighting installed by Developer and located from time to time on the Clay Terrace Boulevard Real Estate, including the related lighting facilities installed on the Center Real Estate in the areas depicted on Exhibit G attached hereto and made part hereof. Developer shall pay all energy costs associated with street lighting. b. Snow Removal. The City shall make reasonable efforts to promptly remove snow and ice from Clay Terrace Boulevard, including slip roads, at the City's expense, for access to the Center. c. Irrigation System. Developer shall maintain, at Developer's expense, the irrigation system to be installed by Developer within the Clay Terrace Boulevard Real Estate, and ensure that it functions properly at all times. d. Traffic Signals. The City shall maintain, at the City's expense, all stoplights directing automotive and pedestrian traffic and any other authorized. signage regulating the flow of traffic installed by Developer and from time to time located on the Clay Terrace Boulevard Real Estate. e. Parking Meters. The City shall be responsible for the maintenance of and collection from, at the City's expense, parking meters located on the Clay Terrace Boulevard Real Estate, and the enforcement of corresponding local parking regulations with respect thereto. 3. Failure to Perform. In the event either party fails to perform its obligations set forth in this Agreement and does not correct such failure within five (5) business days after notice from the non-breaching party, the latter shall be entitled, but not obligated, to cause the' failed obligations to be performed on the breaching party's behalf. The breaching party shall promptly reimburse the non-breaching party upon demand for all costs incurred by the latter as a result thereof. 4. Access Easements. The City and the Board, as their interests may appear, for themselves and their respective grantees, transferees, successors and assigns, do:hereby grant, bargain, sell and convey to Developer, its successors, assigns, agents, and contractors a non- exclusive perpetual easement over, across and through the Infrastructure Area for the benefit of the Center Real Estate for the purpose of carrying out Developer's maintenance responsibilities under Section I and 2 and the curative rights under Section 3 of this Agreement, such easement to exist only so long as the improvements to said property, as referenced herein, themselves exist. Developer shall be entitled to interrupt the flow of traffic over Clay Terrace Boulevard for reasonable, temporary periods of time in furtherance of such rights, upon 24 hours prior written notice to the City, and with the approval of the proper regulatory agencies. Further, The City and the Board, as their interests may appear, for themselves and their respective grantees, transferees, successors and assigns, do hereby grant, bargain, sell and convey to Developer, its successors, assigns, agents, and contractors a 3 temporary and non-exclusive easement across that portion of the Infrastructure Area depicted on Exhibit H (the "Storage Area") attached hereto and made part hereof for the benefit of the Center Real Estate for the purposes of accessing, storing, removing and hauling to the Center Real Estate compactible earthen fill and top soil for the development of the Center Real Estate, all in a manner consistent with applicable zoning and ordinances. Prior to accessing the Storage Area, Developer shall have obtained an appropriate.ri ght-of-way permit to the extent Developer must cross any City right-of-way. Developer shall have no right to strip existing topsoil from the Storage Area. The easement over the Storage Area granted hereby shall expire three (3) years from the date hereof. 5. Non-Liability. Subject to the indemnification obligations of Section 6, no party hereto shall have any liability arising out of or in connection with any act or omission attributable to another party hereto or its agents, contractors or employees, in the maintenance of the Clay Terrace Boulevard Improvements, the Detention Pond Improvements or the Greenbelt Improvements. If requested by City, Developer shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals,-materials, substances and items used in the course of activities described hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. Prior to and with the execution of the services provided hereunder, Developer agrees to furnish to City written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of services. 6. Insurance and Indemnification. Developer shall maintain commercial general liability insurance in such amount and with such insurance companies as is commercially reasonable and commensurate with the exercise of its rights under this Agreemenvand shall name the City and Hamilton County, Indiana, but in no event less than the following amounts: combined limits for personal injury and death and property damage of not less than Two Million Dollars (52,000,000) for each occurrence, and the Board so long as they hold an interest in the Clay Terrace Boulevard Real Estate, the Detention Pond Real Estate or the Greenbelt Real Estate, as additional named insureds. Certificates of said insurance shall be provided to the City and the Board annually. Each party (the "Indemmifying Party") shall indemnify and hold harmless the other (the "Tndemnified Party") from and against any and all liabilities,. claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with the Indemnifying Party's provision of services pursuant to or under this Agreement, the Indemnifying Party's use of the Indemnified Party's property, or otherwise, except for such liabilities, claims or demands that arise directly and solely out of the negligence of the Indemnified Party. The Indemnifying Party further agrees to indemnify, defend and hold harmless the Indemnified Party and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by.any act or omission of the Tndemnifying Party and/or of any of the Indemnifying Party's agents, officers, employees, contractors, subcontractors and other persons in the performance of this Agreement, or otherwise. These indemnification obligations shall survive the termination of this Agreement. 4 7. Notice. Any notice required hereunder shall be in writing and shall be deemed to have been properly given (a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three business days after mailing; (c) if by Federal Express or other reliable overnight courier service, on the next business day after delivered.to such courier service; or (d) if by telecopy on the day of transmission so long as copy is sent on the same day by overnight courier All notices to the City shall be sent to - Doug Haney, City Attorney, One Civic Square, Carmel, Indiana, 46032, Facsimile: 317-571- 2484. All notices to the Board shall be sent or delivered to: , Attention: , Facsimile: . Until otherwise advised of a change by notice in writing given five (5) days prior to the effective date, all notices to Developer shall be delivered to: Clay Terrace Partners, LLC, 9777 North College Avenue, Indianapolis, Indiana 46280, Attention: Joe Downs, Facsimile: 317-564-3076 and Simon Property Group, Inc., 115 west Washington Street, Indianapolis, Indiana 46204, Attention: Wayne Hunt, Facsimile: 317- 263-2363. 8. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the successors of the City, the Board, and Developer and shall run with and be binding on the Infrastructure Area and the Center Real Estate. 9. Counterparts. This Agreement may be executed in, any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. 10. Modification; Amendment. This Agreement contains the entire understanding among the parties with respect to the subject matter discussed in it. This Agreement may not be amended, modified or supplemented without the written agreement of the parties. 11. Due Authorization. Each of the undersigned executing this Agreement, certifies, represents and warrants to the other parties hereto that he/she is duly authorized by all action necessary on the part of the party on whose behalf each is executing this Agreement to execute and deliver this document and that this document constitutes a legal, valid and binding obligation of such party in accordance with its terms. [SIGNATURES ON FOLLOWING PAGES] 5 IN WITNESS WHEREOF, this Agreement is executed is to be effective as of the date first written above. CLAY TERRACE PARTNERS, LLC. an Indiana limited liability corporation By: Simon Property Group, L.P., a Delaware limited.partnership, its Managing Member By: Simon Properly Group, Inc., a Delaware corporation, its general partner By• _ ame: Title: R. "" sidsal-- Oommunity Center Division CITY OF. CARIyIEL, INDIANA By and through its Board of Public Works and Safety BY inard, Pre idin O e? ? cer ate: : 12 " ATTEST: Cordray,TAW, Clerkjreasurer Date: 6 BOARD OF CO&IMI SIONERS OF HAMILTON COUNTY, INDIANA By: _ Name: Tithe: 7 STATE OF INDIANA ) SS: COUNTY OF f!f?I%?t? e?^ ) Before me, a Notary Public in and for',said County and State, personally appeared 1 c kae-1 E. fficco-' (I , thelunQSNr,?? ?of`?imon Property Group, Inc., the general partner of Simon Property Group, L. P., the Managing Member of Clay Terrace Partners, LLC, after having been duly sworn, acknowledged the execution of the foregoing Maintenance and Easement Agreement. WITNESS, my hand and Notarial Seal this d of , 2004. ( ) Notary Public My Commission Expires: My County of Residence: Oayla -J. Garvin, Notary Public County of Residence: Marion Commission Expires: 9119107 STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared James Brainard, the Presiding Officer of the Board of Public Works of the City of Carmel, Indiana, who after being duly sworn, acknowledged the execution of the foregoing Maintenance and Easement Agreement. WITNESS, my hand and Notarial Seal this daffy of 1 2004. ( ) Notary Public My Commission Expires: My Cou/pty of Residence: `f//9/C" j- 8 STATE OF INDIANA ) SS! COUNTY OF HAMILTON ) Before me, a Notary Pubiic:in and`,for said.County and State, personally appeared Lori S. Watson, a Member of the Board of Public Works,-,of the City of°Carmel, Lidiana, who after being 'duly sworn, acknowledged the execution of the foregoing 'Maintenance and Easement Agreement. WITNESS, my hand and :Notarial Seal this day of My Commission Expires: My County of,Residence: STATE OF iNl71ANA } S5: COUNTY OF HAMILTON ) 2004. Notary Public Before me, a Notary Public in.aad-for.said Countyand State, personally appeared-Mary Ann Burke, a Member of the Board of Public Works of:the?City of Carmel, Indiana, who after being duly sworn; acknowledged the execution of the foregoing Maintenance and Easement Agreement. WETNESS, my hand and `Notarial Seal this day of , 2004. ( ).Notary Public My Commission Expires; My County gfResidence: STATE OF INDIANA SS": COUNTY OF HAMTLTON } Before me, a.Notary Public' in and. for said County and State, personally appeared the: of the Board Of Cdtmnissioner•"s: Of Hamilton County,.Indiana, who after 'being duly sworn, acknowledged the execution of the foregoing Maintenance and-Easement-Agreement. WITNESS, my hand and-Mtarial Seal this day of My Commission Expires;. 2004. My County of Residence: ) Notary-Public This instrument' prepared by E. Joseph Kremp„Attorney at Law, Wooden & McLaughlin LLP, One. Indiana Square, Suite 1.800, Indianapolis, Indiana, 46204-4208. l0 19fi582"9 iir 7 I fTl i ? ? i w i i o? I I J ?I I Li L?J H? ,IIS? `? x t 14M ?U lia I I I 1T ? ??? ill -?1U . a . ?I I ?L ??I ?fl III °' ?'' m 4 Ila .0 El" III T???N?.'AY P T lil?Ci?? I JL-j K Cl) RESOLUTION NO. 2-14-05-A A RESOLUTION OF THE BOARD OF COMMISSIQNERS RATIFYING,'A.MA[NTENANCE,AND EASEMENT AGREEMENT WITNESS THAT: WHEREAS, the City of Carmel„through its Board of Public Works and Safety ("the City") and;Clay Terrace Partners, LLC, an Indiana limited company ("the Developer") have approved a Maintenance and Easement Agmernentas of the?151F day of December, 2004; and, WHEREAS,. the Maintenance„ and Easement Agreement assigns to the City and the Developer'the rightsand responsibilities associated with the public infrastructure=and right of way located within the City of'Carmel's corporate limits at the southwest corner of intersections,of US-31 and 146`" Street-("the Center Real.E'state"); and, WHEREAS, the Hamilton County Redevelopment Commission, acting on behalf:of Hamiiton Couhty; has-funded and the Hamilton; County Highway Department has supervised the construction of public:infrast'ructure.located within'the Center Real Estate including the construction of Clay Terrace Boulevard, drainage.improvements, bike paths; and landscaping improvements; and, WHEREAS, the construction of the public infrastructure on,the.Cernter Real Estate is substantially complete and available for use; and,;, WHEREAS', the Board of Commissioners previously agreed that upon the completion of the public infrastructure, that!the City and/or the. Developer,, as their interest would appear, shall have all maintenance responsibilities-associated, with the. public infrastructure located within.the Center Real Estate. IT IS THEREFORE RESOLVED by the Board of Commissioners of Hamilton County as follows: 1. The Maintenance and Easement Agreement, a copy of which is attached hereto is hereby ratified and approved. 2. The County by this Resolution hereby transfers all rights and responsibilities for maintenance of the public infrastructure within the Center Real Estate to the City and the Developer as set out in the Maintenance and Easement Agreement. 3. The Maintenance and Easement Agreement is amended to require any Notices to the Board of Commissioners shall be send to the attention of the Board of Commissioners, c/o of the Hamilton County Auditor, 33 N. 91h Street, Suite L-21, Noblesville, Indiana 46060. ALL OF WHICH IS RESOLVED by the Board of Commissioners of Hamilton County this 14`h day of February, 2005. ATTEST: BOARD OF COMMISSIONERS OF HFLZU NTY Ctman Steven C. 6& 6 Dillinger e Steven A. Holt 91 - rw i;--, hn xnAa) Robin Mills, Auditor Ha' to lton- C6ti l editor, - c . Robih A Auditor' Mill's . , ?Phona (317 776 8401 33 North N,iiAh Suite. L21 . . Pax {317776-6454 `NoE?1e@yille;Indiana'4506D-22D0 www. co:h21rulton.i11 . us February, 162005 ;. , Diana Co-dray. ` - Carmel Clerk Treasurers - - One CMcZenier Cannel; IN'46032- Dear Diana "teHamilfonCouniy.BoardafC mnusst neptpas e Resolution2--405 A A iResolution oFthe) and of Comm srt ME.' nEN aidtenahce and Basement Agrc ment-,for I46 Street and s 3 nelq?sed.isione,gnDnai or)your files. If you have any, questionsrregardmp fh solu Qn, pleasftontact=any of the ycommissicners or Mike How . d r b ? `" j Sincerely;, . - - f • / Kim Rauch w P ` -Bnclosures-, '• a ` Jj % ?