4615 E. 106th - Declaration of Mutual Access Utility, Drainage and Maintence2015041097 DECL $29.00
08/05/2015 03:13:30P 9 PGS
Jennifer Hayden
HAMILTON County Recorder IN
Recorded as IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIresented
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DECLARATION OF MUTUAL ACCESS,
UTILITY, DRAINAGE AND MAINTENANCE AGREEMENT
THIS DECLARATION OF MUTUAL ACCESS, UTILITY, DRAINAGE AND
MAINTENANCE AGREEMENT (this "Declaration") is made this 25th day of June, 2015, by and
between the City of Carmel, Indiana, on behalf of Carmel Utilities, a body politic of the State of
Indiana (the "City") and Carmel Clay Municipal Building Corporation, an Indiana non-profit
corporation (the "Corporation").
RECITALS•
WHEREAS, the City is the owner of certain real property consisting of approximately 20.0
acres of land located at 4615 E. 106th Street, Carmel, Indiana as more particularly described in
Exhibit "A" attached hereto and fully incorporated herein by this reference (the "City Property");
and
WHEREAS, the Corporation is the owner of certain real property consisting of
approximately 3.85 acres of land located at 4615 E. 106th Street, Carmel, Indiana as further
described in Exhibit "B" attached hereto and fully incorporated herein (the "Corporation Property"),
which property is located generally within the boundaries of the City Property; and
WHEREAS, the Corporation intends to construct on the Corporation Property a Fire
Training and Maintenance Facility (the "Facility") for the purposes of leasing the Facility to Clay
Township of Hamilton County, Indiana, which Township intends to enter into a Sublease and
Management Agreement with the City for the use of the Facility by the City of Carmel Fire
Department; and
WHEREAS, the City and the Corporation (individually a "Party" and collectively the
"Parties") desire to grant and establish a non-exclusive perpetual reciprocal easement for access,
utility, drainage and maintenance purposes across their respective properties in favor of the other
Party and their assigns and successors in interest, forever binding themselves and their assigns and
successors in interest to the City Property and the Corporation Property (each a "Property" and
collectively the "Properties") as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions and
restrictions contained herein, together with other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are fully incorporated herein by
this reference.
2. Grant of Easement. Each Party hereby grants and conveys to the other Party and to
its assigns and successors in interest, subject to any previous and duly recorded easements or grants
of record, a perpetual, non-exclusive easement across their Property for the following purposes: (i)
to provide access to and across each of the Properties, and to establish common entry and access
points to the Properties on, over and across each of the Properties and to adjacent rights of way for
ingress and egress for vehicular traffic over, through and across such portion of each Property as
may be from time to time paved and intended for such purposes; (ii) to provide ingress and egress
for pedestrian traffic over, through and across sidewalks, paths, lanes and walks as the same may
from time to time exist upon each Property; (iii) to allow the installation, construction, relocation,
repair and maintenance of underground utilities as may be required to adequately serve each of the
Properties; (iv) to provide storm water drainage on over and under Properties; (v) to provide the
right of entry and access on and across the Properties for the purposes of performing any repair,
maintenance or replacement of improvements on the Properties; and (vi) to exercise any other rights
established in this Declaration.
3. Easement Expenses. Each Party shall bear its own expenses incurred in exercising
its easement rights granted herein including the costs of installation and construction of any
improvement allowed herein, and shall upon request reimburse the other Party for the reasonable
actual direct costs incurred by the other Party in granting such access or easement rights, including,
but not limited to, the costs of permits and necessary improvements directly related to the exercise
of such easement rights across the other Party's Property. Except for the indemnification from
damages provided for in Paragraphs 7 and 8 below, each Party shall be responsible for all operation,
maintenance, repair and replacement of improvements on their own Property, and for the costs of
installation, construction, repair, maintenance and restoration of improvements constructed or
installed on the other Party's Property which are solely for the benefit of the installing Party's
Property. The Parties may jointly pay the costs of improvements which benefit both Properties in
such proportion as they shall agree from time to time.
4. Manner of Installation and Repair. All improvements installed, constructed,
repaired or replaced pursuant to the rights granted in this Declaration shall be installed, constructed,
repaired and replaced in a manner that does not unreasonably impair the use of each Property by its
owner and their respective tenants, employees, agents, contractors, guests, licensees and invitees.
Each Party shall promptly restore the Properties affected by any such installation, construction, or
repair or replacement to a condition comparable to that existing prior to commencement of such
work.
5. Covenant Running With the Land. The rights, agreements and covenants
contained herein shall be for the benefit of and shall be binding upon each of the Properties and
shall be deemed to be a covenant running with the land and binding upon the Parties and upon their
assigns and successors in interest to the Properties perpetually.
6. Recordation. The Parties shall record this instrument in a timely fashion in the
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official records of Hamilton County, Indiana and may re-record it at any time as may be required to
preserve the rights, covenants and agreements contained herein.
7. Negligence. Each Party shall be liable for the expense of any repair or replacement
of improvements to the other Party's Property rendered necessary by its act, neglect or carelessness
or by that of its tenants, employees, agents, contractors, guests, invitees or licensees.
8. Indemnification. Each Party agrees to the fullest extent permitted by law to
indemnify, defend and hold harmless the other Party and their respective officers, employees and
agents from and against all claims, losses, damages, personal injuries (including, but not limited to
death), or liability, arising from, out of, or caused by such Party, its officers, employees, agents,
contractors, guests, invitees and licensees for all negligent or intentional acts, errors, omissions in
the operation, maintenance, construction, repair or other use of the Properties contemplated herein,
except to the extent of negligence or misconduct of the other Party. The indemnification provided
herein shall obligate the responsible Party to defend at its own expense, or to provide for such
defense at the option of the other Party as the case may be, of any and all claims of liability and all
suits and actions of every name and description that may be brought against such Party which may
result under this Declaration. In all events, the indemnified Party shall be permitted to choose legal
counsel of its sole choice, the fees for which shall be subject to and included with this
indemnification provided herein, as long as such fees are not greater than a rate deemed reasonable
in Hamilton County, Indiana.
9. Injunctive Relief. The Parties agree that, in the event of default under this
Declaration, there may not be an adequate remedy at law, and therefore, it is agreed that the Parties
shall each be entitled to seek injunctive relief, including specific performance, under this
Declaration.
10. Governing Law and Venue. This Declaration shall be governed by the laws of the
State of Indiana and venue for all disputes shall be properly placed in Hamilton County, Indiana.
The Parties agree that this Declaration was consummated in Hamilton County, Indiana and the site
of the Properties is in Hamilton County, Indiana.
11. Notice. All notices, requests, consents, approvals or other communications
(collectively "Notices") required or permitted to be given hereunder or which are given with respect
to this Declaration shall be effective only if in writing and if delivered be personal service, or
delivered to an overnight courier service with guaranteed next day delivery or mailed by registered
or certified mail, return receipt requested, postage prepaid addressed as follows:
If to the Corporation:
Carmel Clay Municipal Building Corporation
Attention: President
c/o Clay Township Trustee
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With Copy to:
If to the City:
10701 N. College, Suite B
Indianapolis, Indiana 46280-1089
317-846-2773 (telephone)
317-846-0744 (fax)
Kroger, Gardis & Regas, LLP
111 Monument Circle, Suite 900
Indianapolis, IN 46204-5125
317-692-9000 (telephone)
317-264-6832 (fax)
Office of the Mayor
City of Carmel
One Civic Square
Carmel, IN 46032
317-571-2401 (telephone)
317-844-3498 (fax)
With Copy to: City Attorney
City of Carmel
One Civic Square
Carmel, IN 46032
317-571-2472 (telephone)
317-571-2484 (fax)
or to such other address as such Party shall have specified most recently by like Notice. Any Notice
given as provided herein shall be deemed received as follows: if delivered by personal service, on
the date of delivery; if delivered to an overnight courier service, on the business day immediately
following delivery of such service; and if mailed, on the third business day after mailing.
12. Modification. This Declaration shall only be modified by a written instrument
executed by the Parties hereto or their respective assigns or successors in interest to each Property.
13. Entire Agreement. This Declaration constitutes the full and entire agreement
between the Parties related to the subject matter herein and supersedes any oral or written prior
communication between the Parties related to the subject matter contained in this Declaration.
14. Severability. In the event any provision of this Declaration shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
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15. Counterparts. This Declaration may be executed simultaneously in several
counterparts, each of which shall be deemed an original and all of which together shall constitute
but one and the same instrument.
16. Captions. The captions or headings in this Declaration are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Declaration.
IN WITNESS WHEREOF, the Parties have caused this Declaration to be executed in their
respective names and attested by the authorized officers, all as of the date first written above.
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CARMEL CLAY MUNICIPAL BUILDING
CORPORATION
By: .,t) at'
AMINO
Andrew Williams, President
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me the undersigned a Notary Public in and for said County and State, personally
appeared Andrew Williams, the President of the Carmel Clay Municipal Building Corporation,
who acknowledged the execution of the foregoiryg'Instrument as of this 30th of June, 15.
ANDREA KAY KECK
Marion County
My Commission Expires
November 30, 2015
NOTARY PUBLIC
Printed Name
My Commission Expires: County of Residence:
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CITY OF CARMEL, INDIANA, by its Board of Works
By:
By:
By:
ATTEST:
Clerk -Treasurer
M. John
so eputy
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
fNot Present)
James B =: i ard ayor
aA
giri
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VI. • i it
Lor
atson, Member
urke, Member
Before me, a notary public in and for said county and state, personally appeared a
majority of the members of the Board of Works and the Deputy Clerk -Treasurer of the City of
Carmel, Hamilton County, Indiana, who acknowledged the execution of the foregoing
Declaration for and on behalf of said entity and who, having been duly sworn, stated that the
representations therein contained are true.
Witness my hand and notarial seal this 25th day of June, 2015.
e. CL4x�r-J
epee //, M L/o.)
p fe 5 Fid/e//%
Notary Public")
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(Printed)
This Instrument prepared by: Brian C. Bosma, Kroger, Gardis & Regas, LLP, 111 Monument
Circle, Suite 900, Indianapolis, IN 46204-5125 (317) 692-9000.
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. Brian C. Bosma, Esq.
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EXHIBIT "A"
The City Property
A part of the West Half of the Northwest Quarter of Section 9, Township 17 North, Range 4 East of
the Second Principal Meridian, situated in Clay Township, Hamilton County, Indiana and being
more particularly described as follows:
Commencing at the Northeast corner of the West Half of the Northwest Quarter of said Section 9,
Township 17 North, Range 4 East; thence North 89 degrees 55 minutes 56 seconds West (basis of
bearings) on and along the North line of said West Half 60.00 feet; thence South 00 degrees 11
minutes 24 seconds West parallel with the East line of said West Half 60.00 feet to a point on the
South line of 106th Street as described in Instrument Number 199500052806 on file in the Office of
the Recorder of Hamilton County, Indiana and the Point of Beginning of this description; thence
continuing South 00 degrees 11 minutes 24 seconds West parallel with the East line of said West
Half 728.11 feet; thence North 89 degrees 48 minutes 48 seconds West 1216.15 feet to a point on
the Easterly line of Gray Road as described in Instruments Numbered 200500039772 and
200500075502 (Office of the Recorder); thence on and along said East line of Gray Road by the
following three (3) courses: 1.) North 00 degrees 11 minutes 15 seconds East 379.71 feet; thence 2.)
North 15 degrees 38 minutes 57 seconds East 187.53 feet; thence 3.) North 00 degrees 11 minutes
17 seconds East 165.23 feet to a point on the South line of 106th Street; thence South 89 degrees 55
minutes 56 seconds East on and along said South line 1166.19 feet to the Point of Beginning,
containing 20.00 acres, more or less.
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EXHIBIT "B"
The Corporation Property
That part of the West Half of the Northwest Quarter of Section 9, Township 17 North, Range 4 East
of the Second Principal Meridian, City of Carmel, Clay Township, Hamilton County, Indiana,
situated 559 feet above mean sea level described as follows (surface rights only):
Commencing at the northeast corner of the West Half of the Northwest Quarter of Section 9,
Township 17 North, Range 4 East; thence North 89 degrees 55 minutes 53 seconds West
(NAD83(2011) Indiana State Plane East Zone) 60.00 feet along the north line of said half -quarter
section; thence South 0 degrees 11 minutes 27 seconds West 501.89 feet to a point on the east line
of the property described in said Instrument Number 2009027537 in the Office of the Recorder of
Hamilton County; thence South 89 degrees 58 minutes 27 seconds West 161.06 feet to a 5/8 inch
rebar with orange cap stamped "VSEI 0063" (hereinafter referred to as "Rebar with Cap") set at the
Point of Beginning of this description; thence South 0 degrees 09 minutes 49 seconds West 236.00
feet to a Rebar with Cap set; thence South 89 degrees 58 minutes 27 seconds West 715.00 feet to a
Rebar with Cap Set; thence North 0 degrees 09 minutes 49 seconds East 236.00 feet to a Rebar with
Cap Set; thence North 89 degrees 58 minutes 27 seconds East 331.00 feet to a Mag Nail set; thence
South 0 degrees 01 minutes 33 seconds East 30.00 feet to a Rebar with Cap Set; thence North 0
degrees 01 minutes 33 seconds West 30.00 feet to a Mag Nail set; thence North 89 degrees 58
minutes 27 seconds East 354.00 feet to the Point of Beginning and containing 3.853 acres more or
less, subject to all pertinent rights-of-way and easements.
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