Illinois Street - JEC Partnership ROW Hamilton County Superior Court RIGHT OF ENTRY -
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THIS RIGHT OF ENTRY has been executed this
day of August,2012(the"Effective
Date"),byJEC Partnership II,LLC,an Indiana limited liability company("Grantor"),and the City of
Carmel, Indiana, an Indiana municipal corporation ("Grantee").
RECITALS
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WHEREAS,Grantor is the owner of certain real estate(the"Grantors Parcel")located in the
City of Carmel, Hamilton County, Indiana, and described on Exhibit"A",which is attached hereto
and incorporated herein by this reference; and
WHEREAS,Grantee is involved in a project to construct a public improvement project
entitled Illinois Street Extension (the "Project"); and
WHEREAS, the Project affects a portion of the Grantor's Parcel and Grantee desires to
acquire fee simple title a portion of the Grantor's Parcel, which portion (the "Fee Parcel") is more
particularly described and depicted on Exhibits "B-1" and "B-2", respectively, which are attached
hereto and incorporated herein by this reference; and
WHEREAS,Grantor and Grantee have not concluded their negotiations with respect to the
acquisition of Fee Parcel but desire to enter into this Grant of Right of Entry to allow Grantee to start
on the Project until such time as a fee title to the Fee Parcel is acquired.
NOW THEREFORE,in consideration of the sum of One Dollar($1.00),and 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:
1. Grant; Grantor hereby grants and provides to Grantee, its agents, contractors,
subcontractors and employees,as of the Effective Date,the right to use the Fee Parcel for any lawful
purpose related to work on the Project, including but not limited to, installation of public utilities,
surveying, testing, moving dirt or ground, removal of dirt or ground, landscaping and constructing
roadways as would be permitted if the Fee Parcel had been acquired.
2. Farm Access. In conjunction with the work associated with the Project, Grantee
further agrees to the following:
(i) Grantee will allow Grantor and/or Grantor's farm tenant access across the Fee Parcel
for farming equipment only at specific access points to be mutually agreed upon by
Grantor and Grantee for the purpose of continuing farming activities on the Grantor's
Parcel. Such access shall terminate on the earlier of(a)the termination of this Right
of Entry pursuant to Sections 3 or 5; or(b)the Project is completed and open to the
public; and..
(ii) Grantor shall terminate the existing farm lease with respect to the Fee Parcel on or
before the Effective Date of this Right of Entry.
3. Termination by Conveyance. Except as provided in.Section 5 below, this Right of
Entry shall be irrevocable with respect to Fee Parcel until such time as a Deed(or a judgment entered
in connection with any condemnation action) is recorded in the office of the Recorder of Hamilton
County, Indiana, at which time this Right of Entry shall terminate.
4. Additional Conditions. Notwithstanding anything herein contained to the contrary,
the parties agree as follows:
(i) Within five (5) days after the Effective Date, if the parties have not reached
agreement with regard to the purchase and sale of the Fee Parcel, Grantee shall
initiate an action to condemn the Fee Parcel through an eminent domain action
brought by Grantee pursuant to I.C. §32-24-1-1 et seq.(the"Condemnation Act")in
the applicable Hamilton Circuit or Superior Courts(the"Court")in accordance with
the terms of the Condemnation Act. In connection therewith, both parties shall
stipulate to the right and authority of Grantee to acquire the Fee Parcel, and
simultaneously with the filing of the condemnation action, shall jointly request that
the Court promptly proceed to appoint appraisers to determine appropriate damages
in accordance with I.C. §32-24-1-9. Further,the parties acknowledge and agree that
(A) Grantee has offered to purchase the Fee Parcel by presenting JEC Partnership,
L.P.with a Uniform Land Acquisition Offer(the"Offer")equal to such appraised fair
market value and in accordance with the Condemnation Act on December 16,2011;
(B)JEC Partnership,L.P.is the sole member of Grantor;and(C)Grantor agrees that
the Offer is a Uniform Land Acquisition Offer under the Condemnation Act,properly
provided to and received by Grantor and JEC Partnership, L.P. at least ninety (90)
days prior to the Effective Date.Grantor waives any objections based upon failure of
such Offer, and shall stipulate thereto in the condemnation action.
(ii) Grantee shall pay the Court,within thirty(30)days of the filing of the condemnation
action,the sum of Two Hundred Seventy-Five Thousand Dollars($275,000),which
shall be deemed a deposit ("Deposit") towards the purchase of the Fee Parcel, and
credited against the purchase price therefore in connection with any purchase and sale
thereof agreed upon by the parties, or otherwise credited against any condemnation
award resulting from the taking of the Fee Parcel. In addition, Grantee shall
contemporaneously therewith pay to the Court the sum of Five Thousand Dollars
($5,000) for damages relating to the lost income relating to farm crops on the Fee
Parcel, which amount shall be part of the Deposit. Upon Grantee making such
Deposit,Grantor and Grantee shall stipulate to(i)the Deposit being made in advance
of the receipt of the Court-appointed appraisers' award; (ii) the Deposit being fully
applicable to the Court-appointed appraisers' award such that the amount to be
deposited with the Court by Grantee upon receipt of the Court-appointed appraisers'
award shall be reduced by the Deposit; and (iii) consent to Grantor's immediate
withdrawal of such Deposit,without the need for Grantor to provide security for the
repayment of the Deposit.
(iii) The parties agree that for purposes of any such condemnation action,the date of the
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taking,for purposes of calculating interest due and payable on any award made in the
condemnation action, shall be the Effective Date,provided that no interest shall be
paid on the Deposit except as may be required by the Condemnation Act.
(iv) Promptly upon the return of the Court-appointed appraisers' award in connection
therewith, Grantee shall (but in no event later than thirty(30) days from receipt of
such Court-appointed appraisers' award) deposit with the Clerk of the Court the
amount,if any,by which the Court-appointed appraisers'award exceeds the Deposit
made by Grantee hereunder,and consent to the withdrawal thereof by Grantor,upon
Grantor providing adequate security for the repayment thereof(consistent with the
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provisions of the Condemnation Act)in the event the matter is resolved by settlement
or entry of final judgment for a lesser amount.
(v) Grantor shall promptly,but in any event prior to Grantor's withdrawal of the Deposit,
(i) pay any amounts due with respect to any agreement which affects the Fee Parcel,
to any third party, whether or not such agreement is recorded, including but not
limited to any amounts due to Gersham Brown Crowley, Inc. and Grantor's farm
tenant; or(ii) obtain a release from such third party.
(vi) Grantee accepts the Fee Parcel in its As-Is,Where-As condition;provided,however,
the parties acknowledge and agree that each party shall have whatever warranties or
protections.as to the condition of the Fee Parcel such party would have under the
Condemnation Act and nothing in this Right of Entry shall expand or diminish such
warranties or protections.
5. Termination by Order.Neither party hereto waives any of their rights with respect to
the Fee 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 such time as an Order of Appropriation, under the
terms of which Grantee acquires the Fee Parcel,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.
6. Warranty. Grantor, by executing below, hereby warrants that Grantor is the lawful
owner of the Grantor's Parcel, that all approvals from Grantor and any other party with a right or
interest in the Grantor's Parcel have been obtained and that there is no encumbrance, restriction,
agreement or other circumstance which would prohibit Grantor from providing the Right of Entry.
Specifically, Grantor has obtained the necessary consents and/or releases from Gersham Brown
Crowley,Inc. and Grantor's farm tenant.The undersigned persons executing this Right of Entry on
behalf of Grantor represent and certify that he is a duly elected officer, partner or representative of
Grantor and has been fully empowered, by proper resolution,consent or other action of Grantor,to
execute and deliver this Right of Entry; that Grantor has full corporate capacity to convey the real
estate described herein; and that all necessary action for the making of such conveyance has been
taken and done.
7. Indemnification.Grantee shall indemnify,defend and save Grantor harmless from(a)
any breach of this Right of Entry by Grantee, and (b) any and all liability, loss, damage, cost,
obligation and expense which arises out of or results from any actual or alleged negligent act,
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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 Fee Parcel
whether in the exercise of Grantee's rights hereunder or in breach or excess thereof, or otherwise.
Grantor shall indemnify,defend and save Grantee harmless from any breach of this Right of Entry by
Grantor.
8. Insurance. Prior to taking physical possession of the Fee Parcel,Grantee shall provide
to Grantor evidence of the existence of general commercial public liability insurance, reflecting
either Grantee or its project contractor, as insureds, and Grantee, as an additional insured, in any
such circumstance providing insurance for the benefit of Grantee(among others) with respect to all
activities to be undertaken pursuant to this Right of Entry, with limits of not less than Two Million
Dollars ($2,000,000) per person, and Five Million Dollars ($5,000,000) per occurrence. Such
insurance shall be written by an insurance company licensed to do business in the State of Indiana,
and shall not be cancellable upon less than thirty (30) days prior written notice to Grantor.
9. Notices. All notices authorized or required under this Right of Entry shall be in
writing, and shall be given by registered or certified mail, return receipt requested and postage
prepaid,or by hand delivery,or by email addressed to the parties to whom notice is given as follows:
If to Grantor: JEC Partnership II, LLC
do Pittman Partners
PO Box 554
Carmel, IN 46082
Attn: John Pittman
E-mail: johnpittman@me.com
With a copy to: Zeff A. Weiss, Esq.
Ice Miller LLP
One American Square, Suite 2900
Indianapolis, IN 46282
E-mail: zeff.weiss@icemiller.com
if to Grantee: City of Carmel
City Hall
One Civic Square
Carmel, IN 46032
Attn: Douglas Haney, City Attorney
E-mail: dhanev@carmel.in.gov
City of Carmel
City Hall
One Civic Square
Carmel, IN 46032
Attn: Mike McBride, City Engineer
E-mail: mmcbride@carmel.in.gov
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With a copy to: Tammy K. Haney,Esq.
Keller Macaluso LLC
770 3'"Avenue SW
Carmel, IN 46032
E-mail: thanev@kellermacaluso.com
IN WITNESS WHEREOF, Grantor and Grantee herein, by their duly authorized
representatives or agents,have executed this Grant of Right of Entry as of the day first above written.
GRANTOR GRANTEE
JEC Partnership II, LLC The City of Carmel, Indiana
By: JEC Partnership, LP, its sole member
By:
By: Pittman Management, LLC, (Signature)
sole _eneral partner
I Its:
By: lit en 2 (Printed Name and Title)
fohn Pittman, Aut orized Agent
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Approved and Adopted thif/1 midday of 7litrigt— , 204&r'
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
J es Brainard, Presiding Officer
Date: 4t ti9 u s Z' .2, 2 017
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garta
Mary A Burke, Member
Date:
Lori S. Watson, Member
Date:
ATTEST:
,I1 • '/
P ana . d , IMC• /erk-Treasurer
Date: ✓ate