HomeMy WebLinkAboutRight of Entry/Indiana Farmers Mutual Insurance/Illinois Street Project: Illinois
Qwo� Street Extension
11 Parcel: I
RICHT OF ENTRY
This RIGHT OF ENTRY has been executed this I Q Q �4
" day of Ochp , 2012 by
Indiana Farmers Mutual Insurance Company, an Indiana corporation ("Grantor") and the City of
Carmel, Indiana, an Indiana municipal corporation ("Grantee").
RECITALS
WHEREAS,Grantor is the owner of certain real estate(the"Grantor's Parcel")located in the
City of Carmel. Hamilton County, Indiana; and
WHEREAS,Grantee is involved in a project to construct a public roadway project being the
Illinois Street Extension (the "Project"); and
WHEREAS,Grantee has determined that it will need to acquire fee simple title to and/or an
easement on a portion of the Grantor's Parcel for the Project(the "Permanent Parcel"); and
WHEREAS, prior to the identification of and the acquisition of an interest in the Permanent
Parcel, Grantee has requested a right of entry over a portion of Grantor's Parcel (the "Right of Entry
Parcel"),which is more particularly described in Exhibit"A",attached hereto and incorporated herein
by this reference,to allow the Grantee to install a storm water outlet(the "Storm Water Outlet") from
the north phase of the Project across the Right of Entry Parcel to the creek on Grantor's Parcel shown
on Exhibit"A" (the"Creek"); and
WHEREAS,Grantor and Grantee desire to enter into this Right of Entry to allow Grantee to
start on the Project and use the Right of Entry Parcel until such time as the Permanent Parcel is
identified and Grantee obtains the necessary rights therein;
NOW THEREFORE, in consideration of the sum of One Dollar ($1.00), the foregoing
Recitals,all of which are incorporated herein,and the following mutual covenants and other good and
valuable consideration,the receipt and sufficiency of which the parties hereby acknowledge the parties
agree as follows:
I. Grant. Grantor hereby grants and provides to Grantee, its agents, contractors,
subcontractors and employees the right to enter upon and use the Right of Entry Parcel,subject to the
terms and conditions of this Right of Entry, to install the Storm Water Outlet during the period
commencing on the date of execution of this Right of Entry by Grantor, and ending thirty(30) days
thereafter, (the"Entry Period"); provided however,the Entry Period shall be extended as reasonably
necessary to allow Grantee to complete the restoration work described in Section 2(a) herein. The
Entry Period only limits the amount of time that Grantee can actively work on the Right of Entry
Parcel;Grantee's rights hereunder as to the use of the Storm Water Outlet shall continue as provided
in Sections 3 and 4 herein and the Storm Water Outlet shall remain on the Right of Entry Parcel as
provided herein.
2. Grantee Obligations. Grantee, by its acceptance of this Right-of-Entry, covenants and
unconditionally agrees that in exercising its rights under this Right of Entry, that:
(a) Grantee will not cause damage to the Grantor's Parcel,except the normal and
reasonable construction disturbance associated with the installation of the Storm Water
Outlet,and upon completion of this work,will promptly(weather permitting)return the Right
of Entry Parcel and any other affected portions of Grantor's Parcel to a condition that is equal
to or better than its condition prior to the grant of this Right of Entry;provided,however,that
the restoration of the Grantor Parcel may be affected by the scope and timing of the Project
but that Grantee will work together with Grantor in good faith to agree upon appropriate
restoration;
(b) Grantee has or will obtain all necessary permits or other approvals,from all
applicable county, local, federal and state governmental or quasi-governmental agencies or
bodies for the construction and installation of the Storm Water Outlet and the discharge of
storm water through the Storm Water Outlet into the Grantor Creek;
(c) Grantee will design and build the improvements in accordance with all
applicable drainage regulations and guidelines to provide reasonable assurance that the
amount of storm water draining from the Project through the Storm Water Outlet and into the
Creek will not exceed the current capacity for the Creek during the period of time from
Grantee commencing work on the Grantor's Parcel until completion of Illinois Street and
Grantor's conveyance of the Permanent Parcel to Grantee,or Grantee will take all measures
necessary, including modification and improvement of the Creek, to prevent flooding on
Grantor's Parcel resulting from storm water run off from the Project; and
(d) entry onto the Right of Entry Parcel will be at all times from the property
located north of the Grantor's Parcel.
3. Termination by Conveyance. Except as provided in Section 4 below,this Right of Entry
will be irrevocable until the date on which a document evidencing the conveyance and/or grant of
easement in the Permanent Parcel is recorded in the Office of the Recorder of Hamilton County.
Indiana at which time this Right of Entry shall terminate.
4. Termination by Order. Neither party hereto waives any of their rights with respect to the
acquisition of the necessary interest in the Permanent Parcel in the event negotiations fail and it
becomes necessary for Grantee to institute eminent domain proceedings via the filing of a
condemnation complaint. In such event,however,this Right of Entry shall nevertheless be irrevocable
until the date on which an Order of Appropriation is issued by the applicable Court having jurisdiction
regarding eminent domain matters and such Order is recorded in the Office of the Recorder of
Hamilton County,Indiana:Notwithstanding anything in this Right of Entry to the contrary,the parties
agree that if they have not reached agreement with respect to the terms for the acquisition of an interest
in the Permanent Parcel(fee simple title or an easement)on or before a date six(6)months following
the date upon which Grantor receives an offer to acquire an interest in the Permanent Parcel,
negotiations shall be deemed to have failed and Grantee shall promptly institute eminent domain
proceedings.
5. Notice. Any and all notices,demands,requests,submissions,approvals,consents,or other
communications or documents required to be given, delivered or served or which may be given,
delivered or served under or by the terms and provisions of this Agreement or pursuant to law or
otherwise, shall be in writing. All notices shall be either (a) sent by overnight delivery using a
nationally recognized overnight courier, in which case notice shall be deemed delivered one business
2
day after deposit with such courier,(b)sent by certified or regular U.S.mail,postage prepaid,in which
case notice shall be deemed delivered two business days after deposit in such mails, or(c) sent by
personal delivery, in which case notice shall be deemed delivered upon receipt or refusal of delivery.
All notices shall be addressed to the respective parties as follows:
If to Grantee: City of Carmel
One Civic Square
Carmel, Indiana 46032
Attn: Carmel City Attorney
With a Copy to: City of Carmel
One Civic Square
Carmel, Indiana 46032
Attn: Director of Engineering
If to Grantor: Indiana Farmers Mutual Insurance Group
I0 West I 06th Street
Indianapolis. IN 46290
Attn: KIM 0 . SM1T►-1
With a Copy to Indiana Farmers Mutual Insurance Group
10 W. I 061h Street
Indianapolis, IN 46290
Attn: Kim O. Smith, Senior Vice President&
General Counsel
Paul G. Reis, Esq.
Krieg DeVault LLP
12800 North Meridian Street, Suite 300
Carmel, IN 46032
Any such notice will be effective three days after the notice has been deposited in the United States
mail, as provided above, or earlier upon receipt.
6. Warranty. Grantor, by executing below, hereby warrants Grantor is the lawful owner of
the Grantor's Parcel; that no other approvals or consents are necessary for Grantor to grant the rights
provided in this Right of Entry;and the undersigned has been duly authorized to execute this Right of
Entry on behalf of Grantor
7. Indemnification.Grantee shall indemnify,defend and save Grantor harmless from(i)any
breach of this Right of Entry by Grantee, and (ii)any and all liability, loss, damage, cost,obligation
and expense which arises out of or results from the use of the Right of Entry Parcel, construction of
the Project and any negligent act, whether of commission or omission, of Grantee, its agents,
employees, contractors, subcontractors, licensees or other claiming by, through or under Grantee,
occurring in or about the Right of Entry Parcel whether in the exercise of Grantee's rights hereunder
or in breach or excess thereof.
3
8. No Recording. Neither this Right of Entry,nor any memorandum hereof is to be recorded
in the Office of the Recorder of Hamilton County, Indiana.
IN WITNESS WHEREOF,Grantor and Grantee herein have executed this Right of Entry as
of the day first above written.
GRANTOR: GRANTEE:
Indiana Farmers Mutual Insurance The City of Carmel, Indiana
Company
BY Ay/ 72.----a__ _1_
K.U. C . ...cw-+L
Printed Name Printed Name
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CITY 40 'ARM EL
JAMES BRAINARD, MAYOR
LETTER OF TRANSMITTAL
Date: October 19, 2012
To: Doug Haney
City Attorney
From: Mike McBride
Dept. of Engineering
RE: Illinois Street Parcel 1(Indiana Farmer's) ROE
Please find attached the original signed ROE from Indiana Farmer's for you final
review. Please return to Engineering so that we may have it executed at the
BPW meeting on November 5th
DEPARTMENT OF ENGINEERING
ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAN 317.571.2439
EMAIL engineering @carmel.in.gov