HomeMy WebLinkAboutCity of Carmel/TH Midwest Inc./Turkey Hill/Relocate Sewer Pipe AGREEMENT TO RELOCATE STORM SEWER PIPE A. 4
This Agreement (the "Agreement is made and entered by and between the City of
Carmel, Indiana by and through its Board of Public Works and Safety (the "City with an
address for notice purposes of City of Carmel, Department of Law, One Civic Square, Third
Floor, Carmel, Indiana, 46032 and TH Midwest Inc., an Ohio corporation "Turkey Hill with
an address for notice purposes of 257 Centerville Road, Lancaster, Pennsylvania 17603;
WITNESSETH
WHEREAS, Turkey Hill is developing a fuel center (the "Fuel Center on the real
estate commonly known as 1221 South Rangeline Road, Carmel, IN 46032 and legally
described in what is attached hereto and incorporated herein by reference as Exhibit "A" (the
"Real Estate
WHEREAS, (i) attached hereto and incorporated herein by reference as Exhibit B is a
site plan (the "Site Plan of the Fuel Center and (ii) attached hereto and incorporated herein by
reference is Exhibit "C" which is an enlargement of the southeast corner of the Site Plan and the
area to the immediate east of the southeast corner of the Site Plan (the `Enlargement
WHEREAS, the Enlargement identifies an electrical transformer (the "Transformer
located to the east of the Real Estate, and electrical lines, which are shown in green and are
contained in conduit (the "Electrical Lines extending from the Transformer onto the Real
Estate;
WHEREAS, the Enlargement also identifies underground storm water pipe (the "Pipe
to be installed between certain between certain storm water structures identified on the
Enlargement beginning with "STR. #201 WQ "Point 1"), and continuing through STR. #200 -B
"Point 2 2 STR #200 "Point 3 2 STR #200 -A "Point 4 2 STR #199 "Point 5 and then
south of Point 5 to what is identified on the Enlargement as "Ex:Stoni Inlet
WHEREAS, the segments of the Pipe to be installed between (i) Point 1 and Point 2 and
between (ii) Point 4 and Point 5 shall collectively be referred to as "Segment X
WHEREAS, the segments of the Pipe to be installed between Point 2, Point 3 and Point
4 shall collectively be referred to as "Segment Y
WHEREAS, if Segment Y is installed at elevations sufficient to provide positive
drainage between Point 1 and Point 5, then Segment Y will conflict with the Electrical Lines and,
to avoid such conflict with the Electrical Lines, Segment Y must be installed at a depth which is
lower than the depth of Segment X and which is lower than the elevations reasonably necessary
to provide positive drainage from Point 1 to Point 5, thereby necessitating further maintenance of
Segment X and Segment Y in addition to the Maintenance identified in the Operations and
Maintenance Manual titled "Stormceptor, Underground Detention, Snout BMPs with Bio -Skirts
Operation and Maintenance Manual For Turkey Hill Minit Markets Store #602, 1221 South
Rangeline Road, Carmel, hndiana 46032" dated July 19` 2010 (the "Manual
WHEREAS, the City or some other entity may later relocate the Transformer and /or the
Electrical Lines such that, if Segment Y were raised to the elevation necessary to provide
positive drainage between Point 1 and Point 5, Segment Y would no longer conflict with the
Electrical Lines; and,
WHEREAS, on the terms and conditions which follow, the City is willing to allow
Turkey Hill to install Segment Y to a depth which is lower than Segment X and which is lower
than the elevations reasonably necessary to provide positive drainage between Point 1 and Point
5.
Section 1. Preambles and Recitations. The foregoing preambles, recitations and definitions are
made a part hereof as though fully set forth herein.
Section 2. Installation of Segment Y. Turkey Hill is allowed to install Segment Y at the depths
indicated on the Enlargement.
Section 3. Maintenance. Turkey Hill shall maintain the Segment X and Segment Y.
Section 4. Relocation of Segment Y. Within a reasonable time after the relocation by the City or
by some other entity of the Transformer and the Electrical Lines to a location which would not
conflict with Segment Y were Segment Y raised to elevations necessary to provide positive
drainage from Point 1 to Point 5, Turkey Hill shall, at its option, either (i) at its expense raise
Segment Y to those elevations necessary to provide positive drainage between Point 1 and Point
5 or (ii) pay to the City the cost, not to exceed eleven thousand dollars ($11,000.00), of raising
Segment Y to those elevations necessary to provide positive drainage between Point 1 and Point
5. For purposes of determining a "reasonable time" under this Section 4, the parties shall take
into account reasonable delays attributable to weather, seasons, and freezing and thawing.
Section 5. Updated Manual. Within thirty (30) days after the execution of this Agreement,
Turkey Hill shall provide to the City an updated Operations and Maintenance Manual outlining
the maintenance to be regularly performed on Segment X and Segment Y
Section 6. Termination. The Agreement shall terminate at such time as (i) Segment Y is raised
to the elevations necessary to provide positive drainage between Point 1 and Point 5 or (ii) the
Pipe between Point 1 and Point 5 is otherwise reconfigured or relocated to the City's reasonable
satisfaction.
Section 7. Miscellaneous Provisions. The following additional provisions shall be applicable:
A. Headings. Headings inserted at the beginning of each section and subsection of this
Agreement are for convenience, only, and do not add to or subtract from the meaning of
the contents of this Agreement.
B. Modifications and Terminations. This Agreement cannot be changed or terminated orally
or in any manner other than by a written agreement executed by both parties.
C. Joint Preparation. Preparation of this Agreement has been a joint effort of the parties and
this Agreement shall not, therefore, be construed more severely against one of the parties
than the other.
D. Successors and Assigns. This Agreement shall be binding upon the parties and their
successors and assigns.
E. Governing Law. This Agreement shall be construed, interpreted, and enforced under the
laws of the State of Indiana.
F. Notices. All notices required or permitted hereunder shall be in writing and deemed
served upon any owner upon hand delivery to such owner or upon deposit of such notice
in the United States mail, postage prepaid, certified or registered mail, return receipt
requested, and addressed to such owner at the last known address of its principal place of
business.
G. Severability. No determination by any court, governmental body or otherwise that any
provision of this Agreement is invalid or unenforceable in any instance shall affect the
validity or unenforceability of any other such provision, or such provision in any
circumstances not controlled by such determination.
H. Waiver. No waiver of any provision hereof shall be deemed to imply or constitute a
further waiver thereof or any other provisions set forth herein.
I. Counterparts. This Agreement may be executed in several counterparts, each of which
may be deemed an original, and all of such counterparts together shall constitute one and
the same Agreement.
Remainder of page intentionally left blank. Signature page to follow.
TH Midwest Inc., an Ohio corporation
Dater /l/ Pare I b. P1(‘-;-(('
ce freS;CJeA-f-
CITY OF CARMEL BOARD OF PUBLIC WORKS SAFETY
James Brainard, Mayor
Datc:
Mary Ann Burke
Date:
Lori Watson
Date:
ATTEST:
Diana L. Cordray, IAMC, Clerk Treasurer
Date:
1
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EXHIBIT A
(LEGAL DESCRIPTION)
A part of the Southwest Quarter of Section 31, Township 18 North, Range 4 East, Hamilton
County, Indiana, more particularly described as follows:
Beginning at a point on the West line of said section, distant 1752.85 feet measured North 1
degree 04 minutes 45 seconds West along said West line from the Southwest comer thereof;
running thence North 1 degrees 04 minutes 55 seconds West and along said West line
215.15 feet to a point 693 feet South of the Northwest corner of the South half of said
section; thence North 89 degrees 55 minutes East and parallel with the North line of said '/V
section 250 feet; thence South 1 degree 04 minutes 45 seconds East 215.15 feet; thence
South 89 degree 55 minutes West 250 feet to the point of beginning, containing 1.235 acres
more or less.
Except: That part of the above described real estate deeded to the town of Carmel for Right
of Way purposes for Carmel Drive and Rangeline Road in Deed Record 312 Page 367.
Owners Consent 03(19 0
EXHIBIT B
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TH Midwest Inc., an Ohio corporation
By Ili_
//Dare/ A
Date: V1 ce Pre s;d e nf
CITY OF CARMEL BOARD OF PUBLIC WORKS SAFETY
A/07
James Brainard, Mayor
Date: 4 7
Ma An t urke
Date:
Lod Wat f4 e *N'
Date: Si/('a
ATTEST:
41
mill
P a L. Cordr y, IAMC Jerk- Treasurer
Date: IA/
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ning S. Real Est ie Matters\Turkc■ 11111 \Camx1 Rangclinc\Dramage AgrecmentAGREEMENT TO RELOCATE STORM SEWER PIPE 032511.doc