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P33 Merchants 450 LLCAGREEMENT REGARDING RELOCATION OF SIGN IN LIEU OF CONDEMNATION RECITALS APPROVED S TO FO X: BY: THIS AGREEMENT REGARDING RELOCATION OF SIGN IN LIEU OF CONDEMNATION (this "Agreement dated as of ®Gr 9 2009, is entered into by and between MERCHANTS 450 LLC, a Delaware limited liability company, with offices at 31500 Northwestern Highway, Suite 300, Farmington Hills, Michigan 48334 "Merchants and the CITY OF CARMEL, a properly incorporated political subdivision of the State of Indiana, located in Carmel, Indiana, with offices at 1 Civic Square, Carmel, Indiana, 46032 "City A. Merchants is the owner of certain real property which includes a shopping center commonly known as "Merchants Square Shopping Center" (the "Center located in the City of Carmel, Hamilton County, Indiana. B. Merchants is also the owner of a pylon sign with an electronic reader board currently located at the northwest corner of 116th Street and Keystone Parkway in Carmel, Indiana (the "Existing Sign which Existing Sign provides advertising for and other benefits to the Center and which Existing Sign is generally depicted on Exhibit A attached hereto. The Existing Sign is benefited by that certain Easement dated on or around February 28, 1974, and recorded at Book 272, Page 369 of the Public Records of Hamilton County, Indiana (the "Existing Easement and Merchants is the successor -in- interest of the original grantee set forth in the Existing Easement. A copy of the Existing Easement is attached hereto as Exhibit B. C. The City is undertaking a road improvement project, the purpose of which is to improve Keystone Parkway, 116th Street and Carmel Drive (the "Improvement Project and the Existing Sign and the Existing Easement will be affected by the Improvement Project. D. The City has informed Merchants that, in order to complete the Improvement Project, it will be necessary for the City to, and the City does in fact intend to, acquire fee simple title to the area upon which the Existing Sign is located and Merchants' interest in the Existing Easement and the Existing Sign by eminent domain /condemnation if necessary (such proposed action is referred to herein as the "Taking E. To avoid litigation and other undesirable matters associated with the Taking, the City has proposed to grant to Merchants a new easement (the "New Easement for a new sign (the "New Sign to be constructed upon certain land owned by the City, which land is more particularly described on Exhibit C attached hereto and made a part hereof (the "New Easement Area if Merchants will release its rights in the Existing Easement and the Existing Sign. The New Easement shall be in the form attached hereto as Exhibit D. The New Sign will be constructed pursuant to the general plans and specifications attached hereto as Exhibit E (the "Plans and Specifications F. Merchants and the City desire to enter into this Agreement to avoid litigation and other undesirable matters associated with the Taking, and to set forth their agreement with 2009061115 AGREEMENT $116.00 10/21/2009 09:45 :54A 52 PGS Jennifer J Hayden OAKLAND.1642830.8 HAMILTON County Recorder IN Recorded as Presented respect to the Existing Sign, Existing Easement, New Sign, New Easement and related matters, all as more particularly set forth herein. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Approval of New Sign. The City represents that the Existing Sign constitutes a pre- existing, non conforming use under applicable zoning and land use laws; however, the Existing Sign is nonetheless considered a permitted use under such zoning and land use laws because its use and existence have been "grandfathered" or otherwise "entitled" by the City. Upon the parties' mutual execution of this Agreement, the City shall cause the New Sign, which shall include the continued use of an electronic reader board consistent with the terms of that certain letter attached hereto as Exhibit K, to be "grandfathered "entitled" or otherwise approved by the City such that the New Sign shall be deemed to be a permitted use under applicable zoning/land use laws (the "Zoning Approval In connection with the foregoing, the City hereby represents and warrants unto Merchants that it shall coordinate and cooperate with Merchants and expedite the review by appropriate City departments of the New Sign and the Plans and Specifications (and any mutually agreeable revisions thereto), building permit applications, zoning and/or other land use applications, the Zoning Approval and any other applications and/or approvals within the control of the City. The occurrence of the Zoning Approval shall be an express condition precedent to the performance by Merchants of its obligations under this Agreement. For a period of two (2) years after the initial construction of the New Sign, if the New Sign shall be damaged, destroyed or taken down, then Merchants shall have the right to repair, replace and/or reconstruct such sign to the same specifications contained herein, and such reconstructed, repaired and/or replacement sign shall automatically be deemed to be "grandfathered "entitled" or otherwise approved by all applicable City departments such that it shall continue to be a permitted use under applicable zoning/land use and other applicable laws without the need for any application, approval or other action. If, after the foregoing two (2) year period, the New Sign shall be damaged, destroyed or taken down such that it shall lose its status as a permitted use under applicable zoning/land use laws, then the City agrees that it shall cooperate with Merchants in its efforts to re- acquire such status for the New Sign (or replacement thereof) and the City shall not unreasonably withhold, condition or delay its approval of same. The parties acknowledge that the City's planning departments retain discretion with respect to future zoning/land use approvals and such discretion, if it relates to the New Sign (or replacement thereof), shall be exercised reasonably and in good faith. The City's payment to Merchants of the Relocation Costs described in Section 4 below shall be deemed a representation, warranty and acknowledgment from the City to Merchants that the Zoning Approval has occurred. The City is not responsible to Merchants for acts of government agencies beyond the City's direct control. 2. Grant of New Easement. Upon the occurrence of the Zoning Approval, (i) the City shall execute the New Easement and deliver it to Merchants, and (ii) Merchants shall execute a release or discharge of the Existing Easement, which release or discharge shall be in the form attached hereto as Exhibit F (the "Easement Release Thereafter, Merchants will cause each of the New Easement and the Easement Release to be recorded in the Public Records of Hamilton County. The City represents and warrants, effective as of the date hereof through OAKLAND. 1642830.8 2 and including the time and date of the recording of the New Easement, that it owns good and marketable title, in fee simple, to the Easement Area free and clear of any encumbrances and/or restrictions that would interfere with the location, visibility or use of, or access to, the New Sign. The City represents and warrants that, at the time it grants the New Easement, the New Easement Area shall be graded, stabilized and level (and it will not be below grade level). Merchants will run electric lines from the Center to the New Easement Area in order to provide the New Easement Area (and New Sign) with adequate electrical power and the City will grant any easements (subject to Merchants' prior review and approval) required for same. 3. Removal of Existing Sign. At any time prior to the removal of the Existing Sign, Merchants shall have the right to remove any existing pylon panels from the Existing Sign and/or other portions of the Existing Sign which Merchants desires to keep. Merchants will remove and dispose of the Existing Sign. 4. Relocation Costs. Upon the occurrence of the Zoning Approval, execution and recording of the New Easement, and the written consent of Merchants' lender to this Agreement, the City shall pay Merchants the sum of One Hundred Twelve Thousand Four Hundred Eighteen and 00 /100 Dollars ($112,418.00) and reimburse Merchants up to Fifteen Thousand and 00 /100 Dollars ($15,000.00) for its legal fees, its lender's costs and fees, and title and survey costs incurred in connection with this Agreement (collectively, the "Relocation Costs provided, however, Merchants' legal fees shall not make up more than Five Thousand and 00 /100 Dollars of the Relocation Costs. Merchants will provide the City with invoices substantiating such fees and costs. Payment of the Relocation Costs by the City to Merchants shall be an express condition precedent to the performance by Merchants of its obligations under this Agreement. Subject to Section 9 below, the Relocation Costs shall constitute Merchants' sole compensation from the City for costs associated with Merchants' release of its rights in the Existing Sign and the Existing Easement and construction of the New Sign. 5. Construction of New Sign. Upon the occurrence of the Zoning Approval, Merchants, at its sole cost and expense, shall have the right to construct the New Sign upon the New Easement Area pursuant to the Plans and Specifications, and subject to any required approvals. 6. Construction of New Access Point. In connection with the construction by the City of the new access point to the Center (and elsewhere) from Keystone Parkway to Keystone Way, as generally depicted on Exhibit G attached hereto (the "Access Point Work the City hereby agrees as follows: (i) the City shall use all commercially reasonable efforts to complete the Access Point Work by November 1, 2009, and if, despite all commercially reasonable efforts, such work is not completed by such date, then the City shall use all commercially reasonable efforts to complete such work as soon as possible thereafter; provided, however, the City shall at all times minimize any interference with access to the Center, Ramco's construction of the New Sign, and visibility of the New Sign; and (ii) the City shall obtain all necessary approvals (governmental or otherwise) for the Access Point Work and construct the Access Point Work, all at its sole cost, OAKLAND. 1642830.8 3 expense and risk, in compliance with all applicable laws and the City shall be responsible, at it sole cost, expense and risk, for maintaining, repairing and replacing the Access Point Work as shall be necessary to keep it in operation and reasonable repair; provided, however, in connection with any such maintenance, repair or replacement work, the City agrees that it (a) shall minimize any interference with access to the Center and visibility of the New Sign, and (b) shall not perform such activities between the dates of October 15 through January 15 of any year (the "Blackout Dates and, during the Blackout Dates, the City shall ensure access to the Center via the Access Point Work and maintain the visibility of the New Sign without interference, except for emergencies or circumstances beyond the City's control. The parties hereto acknowledge that while the Access Point Work will serve as a new access point to the Center, Merchants shall have no responsibilities, obligations or liability with respect to the Access Point Work since the Access Point Work will involve a public road, which, along with the balance of the Access Point Work, shall be the responsibility of the City or some other governmental agency. In the event that some other governmental agency shall be responsible for the Access Point Work (or any portion thereof), the City shall be responsible for ensuring that such agency complies with the City's obligations under this Section 6, as applicable. In addition, upon request from the City and after the occurrence of the Zoning Approval and Merchants' receipt of the Relocation Costs and the New Easement, Merchants shall deliver to the City a quit claim deed conveying that portion of the Center which is depicted and/or described on Exhibit H attached hereto (the "Quit Claim Property which Quit Claim Property shall be used by the City as part of the Access Point Work. Subject to the foregoing terms and conditions related to the Access Point Work, Merchants hereby grants to the City a non exclusive, temporary construction license over that certain area of land more particularly described and/or depicted on Exhibit I attached hereto (the "Temporary License Area for ingress and egress and construction of the Access Point Work, which shall include the right to use the Temporary License Area for temporary storage (but not staging) and use of equipment and materials necessary for the construction of the Access Point Work. The City shall use the Temporary License Area only for the purposes set forth herein, and the City shall use all commercially reasonable efforts to minimize any interference with the commercial activities at the Center. This temporary construction license shall terminate upon the earlier to occur of (i) the date of completion of the Access Point Work and the restoration work to be performed by the City (as set forth in the following sentence) or (ii) six (6) months from the date hereof. Upon completion of the Access Point Work, the City shall, at its cost, restore the Temporary License Area to a rough graded and stabilized condition. The City shall take all necessary safety precautions in connection with the performance of its activities hereunder, and the City shall be solely responsible for, and shall hold Merchants harmless from and indemnify Merchants against, all damage or injury to person (including death) and/or property which shall occur during the performance of the Access Point Work (unless caused solely by Merchants). In addition, upon Merchants' receipt of the Relocation Costs and the New Easement, Merchants hereby grants to the City a non exclusive, temporary construction license over that certain area of land more particularly depicted on Exhibit J attached hereto (to the extent owned by Merchants) (the "Second Temporary License Area for ingress and egress and construction OAKLAND. 1642830.8 4 of a modular block wall in the area and as indicated on Exhibit J (the "Block Wall which shall include the right to use the Second Temporary License Area for temporary storage (but not staging) and use of equipment and materials necessary for the construction of the Block Wall. The City shall use the Second Temporary License Area only for the purposes set forth herein, and the City shall use all commercially reasonable efforts to minimize any interference with the commercial activities at the Center. This temporary construction license shall terminate upon the earlier to occur of (i) the date of completion of the Block Wall and the restoration work to be performed by the City (as set forth in the following sentence) or (ii) six (6) months from the date hereof. Upon completion of the Block Wall, the City shall, at its cost, restore the Second Temporary License Area to the same (or better) condition as which existed immediately before the construction of the Block Wall. The City shall take all necessary safety precautions in connection with the performance of its activities hereunder, and the City shall be solely responsible for, and shall hold Merchants harmless from and indemnify Merchants against, all damage or injury to person (including death) and/or property which shall occur during the performance of the work related to the Block Wall (unless caused solely by Merchants). The City shall obtain all necessary approvals (governmental or otherwise) for the Block Wall and construct the Block Wall, all at its sole cost, expense and risk, in compliance with all applicable laws. The City shall be responsible for the maintenance, repair and replacement of the Block Wall, all of which shall be subject to the same terms and conditions as the Access Point Work as set forth above. The City shall not perform any of the foregoing work during the Blackout Dates. 7. Insurance. Each party hereto shall be responsible for obtaining and maintaining sufficient insurance during the performance of its obligations under this Agreement so as to adequately protect itself and the other party hereto from any and all damage and liability as a result of its (and/or its agents') actions and activities under this Agreement. Each party, in connection with the performance of its obligations hereunder, shall comply with all applicable laws. 8. Merchants' Breach. In the event that Merchants breaches any of its obligations, representations or warranties set forth in this Agreement, Merchants shall indemnify and defend the City, and hold the City harmless, from and against any and all costs, claims, damages, liabilities or other causes of action which the City may incur or otherwise suffer as a result of such breach of this Agreement by Merchants. In addition, Merchants shall indemnify and defend the City, and hold the City harmless, from and against any and all costs, claims, damages, liabilities or other causes of action based on personal injury (including death) or property damage which the City may incur or otherwise suffer as a result of actions performed by Merchants or its agents pursuant to this Agreement. In the event of such breach by Merchants, the City may, in its sole discretion, seek to acquire or extinguish Merchants' interest in the Existing Easement or the Existing Sign through the exercise of eminent domain or condemnation. 9. City's Breach. In the event that the City breaches any of its obligations, representations or warranties set forth in this Agreement, the City shall indemnify and defend Merchants, and hold Merchants harmless, from and against any and all costs, claims, damages, liabilities or other causes of action which Merchants may incur or otherwise suffer as a result of such breach of this Agreement by the City. In addition, the City shall indemnify and defend Merchants, and hold Merchants harmless, from and against any and all costs, claims, damages, OAKLAND. 1642830.8 5 liabilities or other causes of action based on personal injury (including death) or property damage which Merchants may incur or otherwise suffer as a result of actions performed by the City or its agents pursuant to this Agreement. For purposes of this Section 9, the term "Merchants" shall be deemed to include any of Merchants' agents, owners (direct and indirect), and any successors in interest thereto. 10. Involuntary Action. Notwithstanding anything in this Agreement to the contrary, but without affecting the validity or enforceability of this Agreement, the parties hereto acknowledge that Merchants' decision to enter into this Agreement, and the performance by Merchants of its obligations hereunder, shall be deemed to be involuntary actions taken in response to the lawful threat of the City to exercise its police power and power of eminent domain/condemnation to effectuate the Taking had Merchants not entered into this Agreement. The City hereby agrees that it shall not acquire or extinguish Merchants' interest in the Existing Easement or the Existing Sign through the exercise of eminent domain or condemnation for a period of five (5) years. 11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. Delivery by facsimile or e -mail of this Agreement or an executed counterpart hereof shall be deemed a good and valid execution and delivery hereof, and any electronic copies of signatures hereon shall be deemed originals for all purposes. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Indiana (to the exclusion of all other laws) notwithstanding the possibility that any choice of law rules, conflict of laws rules or any other laws (including Indiana law) would otherwise direct a court to apply some other law. If any of the provisions of this Agreement or the application thereof to any persons /entities or circumstances shall, to any extent, be deemed invalid or unenforceable, the remainder of this Agreement and the application of such provisions to persons /entities or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby, and every provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 13. Miscellaneous. As used in this Agreement, the words "hereunder "herein "hereof and other words of similar import refer to this entire Agreement. Pronouns and relative words used herein shall be read interchangeably in masculine, feminine, or neuter, singular or plural, as the respective case may be. Section headings used herein are merely for reference purposes only and shall not be used to interpret the terms and conditions of this Agreement or for any other purpose. Each exhibit attached to this Agreement is incorporated herein and made a part of this Agreement as though more fully set forth in this Agreement. The Recitals, above, are true and accurate and are hereby incorporated herein and made a part hereof. The terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the "drafter" of this Agreement. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly enforced for or against either party. OAKLAND. 1642830.8 6 14. Authority. Each party hereto represents and warrants unto the other party hereto that (i) it has the requisite power and authority to enter into this Agreement and perform its obligations hereunder, (ii) its signatory hereto has the requisite power and authority to bind such party, and (iii) any consents or approvals necessary to effectuate the foregoing have been obtained. 15. Entire Agreement. This Agreement shall only be amended, modified or terminated by the written agreement of all of the parties to this Agreement (or their respective successors or assigns), and this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and all prior negotiations, agreements, statements and representations are hereby merged herein. Neither this Agreement nor any memorandum or other notice of this Agreement shall be recorded in any public records without the prior written consent of each party hereto. The parties further acknowledge that they have received independent legal advice from their attorney or attorneys with respect to the advisability of signing this Agreement. 16. Lender Consent. Notwithstanding anything in this Agreement to the contrary, the City acknowledges that Merchants' obligations hereunder are expressly conditioned upon Merchants obtaining the consent of its lender to the terms and conditions of this Agreement. Merchants will use commercially reasonable efforts to obtain such lender's consent as soon as reasonably possible, but no later than ninety (90) days from the date this Agreement is fully executed. The City hereby consents to such lender taking a security interest(s) in the New Easement and/or the New Sign. 17. Outstanding Claims. The City and Merchants hereby represent that they know of no claims, rights, demands, or causes of action which they have or may have against each other or each other's agents, employees, officers, directors, attorneys, representatives, insurers, successors, or assigns arising out of or relating to the subject matter(s) of this Agreement other than those claims, rights, demands, or causes of action which are being released, discharged, exercised and/or performed pursuant to this Agreement. 18. Continuing Cooperation. To the extent good faith questions, concerns or disputes develop concerning the fee simple or other interest transferred pursuant to this Agreement, or the intent of the City or Merchants under the terms of this Agreement, then the City and Merchants shall cooperate, in good faith, to resolve the same in a prompt and reasonable manner; provided, however, that in the event the City and Merchants are not able to resolve any such questions, concerns or disputes to their mutual satisfaction, the foregoing shall not prohibit a party from seeking judicial resolution thereof. Where appropriate and upon mutual agreement, the City and Merchants shall agree upon and execute additional documentation reasonably necessary to carry out the purposes and intent of this Agreement, or to document a mutually agreeable resolution to any such questions, concerns or disputes. 19. Severability. If any part, term, or provision of this Agreement should be found to be invalid or unenforceable by any applicable law or court of applicable jurisdiction, that part, term or provision shall be replaced by a provision which comes as close as possible to the intended result of the invalid provision, and the economic purpose thereof, and which is valid and enforceable. The invalidity or unenforceability of any provision hereof shall in no way OAKLAND.] 642830.8 7 affect the validity or enforceability of any other provision. Each party represents to the other that it has no knowledge or belief that any part, term or provision of this Agreement is or would likely be found to be invalid or unenforceable. OAKLAND. 1642830.8 [Remainder of page intentionally left blank; signatures on following page(s).] 8 IN WITNESS WHEREOF, the City and Merchants have executed this Agreement Regarding Relocation Of Sign In Lieu Of Condemnation as of the date first written above. OAKLAND. 1642830.8 "MERCHANTS" MERCHANTS 450 LLC, B y: Name: Its: a Delaware li 'ted liability company CE PRESIDENT ASSET MANAGEMENT [Lender Consent Page to Agreement Regarding Relocation Of Sign In Lieu Of Condemnation] OAKLAND. 1642830.8 TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New Y k corporation By: 4de Name: VINCENT P. COS NZO Its: D(RFCTOR IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety BY: BY: J es Brainard, Presiding Officer Date: t7 D Mary n Burke, ember Date: 7 -07 r Lori S. Watso ember Date: /0/--7 /07 ATTEST: Diana Cordray, Date: C, Treasurer [Z:\E Bass\My Docum mis\Prof.sional Strviccs\FORMS\Profcisiooal Suviu. FORM Rev 2007.doc9/30/2009 10:16 AM] Authorized Signature Printed Name: Title: FID /TIN: SSN if Sole Proprietor: Date: