Rosemeade Commons Overhead Easement Duke Energy2007061353 EASEMENTS $27.00
10/30/2007 09:33:57A 8 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
APPROVED AS TO FORM BY
GRANT OF OVERHANG EASEMENT
In consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, THE CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety
(hereinafter referred to as "Grantor hereby grants unto DUKE ENERGY INDIANA, INC, an Indiana corporation and its
successors and assigns (hereinafter referred to as "Grantee a perpetual, non exclusive easement, to construct, reconstruct,
operate, patrol, maintain, repair, replace, relocate, add to, modify and remove electric and /or telecommunication overhead line or
lines (hereinafter referred to as the "Facilities for the transmission and distribution of electrical energy and for technological
purposes (including but not limited to telecommunications) over, along, and across the following described real estate:
Situate in Part of the Southeast Quarter of Section 36, Township 18 North, Range 3 East, Clay Township, Hamilton
County, State of Indiana as recorded in Instrument Number 9909911464, 9909911394, 9809852740, 9909942119,
199909954333, and 200500010925 in the Office of the Recorder of Hamilton County, Indiana (hereinafter referred
to as "Grantor's Property"), and being more particularly described as follows:
Commencing at the northeast corner of Lot 10 in Rosemeade Commons, the Secondary Plat of which is recorded in
Instrument Number 9360093 in the Office of the Recorder of Hamilton County, Indiana; thence South 89 degrees 26
minutes 15 seconds West (grid bearing based on Indiana State Plane East Zone, North American Datum of
1983)along the north line of said Lot a distance of 100.22 feet (all distances are ground distances) to the Point of
Beginning being on the east right -of -way line of the former Monon Railroad; thence South 48 degrees 42 minutes 24
seconds West along said east right -of -way line a distance of 57.27 feet; thence South 87 degrees 59 minutes 20
seconds West a distance of 104.38 feet to the west right -of -way line of said former Monon Railroad; thence North 48
degrees 48 minutes 01 seconds East along said west right -of -way line a distance of 52.49 feet; thence North 48
degrees 42 minutes 24 seconds East along said west right -of -way line a distance of 66.07 feet; thence North 87
degrees 59 minutes 20 seconds East a distance of 104.24 feet to said east right -of -way line; thence South 48 degrees
42 minutes 02 seconds West along said east right -of -way line a distance of 61.19 feet to the Point of Beginning,
containing 0.18 acres, more or less (hereinafter referred to as "the Easement Area
This easement grant shall include, but not be limited to, the following respective rights and duties of Grantor and Grantee:
1. Grantor has constructed a linear park and recreational trail (the "Trail which includes the Easement Area. Grantee
understands and recognizes that the Trail is open to the public and that Grantee must coordinate its use of the Easement Area with the
Grantor as provided herein and provide for the safety of Trail users during such time as Grantee is exercising its rights hereunder.
2. The Facilities shall consist of overhead lines. Grantee shall have no right to construct any improvements, above ground
structures, or supporting structures (such as a tower or pole) on the surface and/or subsurface of the Easement Area.
3. Grantee shall have the right of ingress and egress over the Easement Area, and over the adjoining land of Grantor's
Property (using lanes, driveways, and adjoining public roads where practical as determined by Grantee) when exercising Grantee's
rights hereunder.
4. Grantee shall be removing virtually all trees, bushes, shrubs and other landscaping from the Easement Area to
accommodate the construction of the Facilities. Upon completion of the construction of the Facilities, Grantee, at Grantee's sole
expense, shall promptly landscape the Easement Area in accordance with the written landscape plan which has been approved by
Grantee and Grantor. Grantee understands that Grantor requries significant replacement landscaping and will cooperate in good faith
to complete the landscape plan prior to completion of the construction of the Facilities. Grantor understands that the replacement
landscaping must be compatible with the type and location of the Facilities. Thereafter, Grantee shall not clear or trim any trees, roots,
brush, vines, overhanging limbs or other vegetation or obstruction from on, in or above the surface of the Easement Area without the
prior written consent of the Grantor, which consent shall not be unreasonably withheld. It shall not be unreasonable for Grantor to
withhold its consent to any such clearing until Grantee presents a valid public safety, or facilities reliability concern in support for such
clearing or trimming. After consultation with Grantor and Grantor's written approval of a landscaping plan for replacing any removed
trees, shrubs and/or other vegetation. Grantee shall also have the right to cut down, clear, trim, remove, and otherwise control any
trees, shrubs, overhanging branches, and/or other vegetation which are immediately adjacent to the Easement Area and located on
Grantor's Property but only to the extent such vegetation may endanger, as reasonably determined by Grantee, the safe or reliable
operation of the Facilities. All trimming of vegetation by Grantee shall be completed using generally accepted arboricultural practices.
Grantee shall promptly replace any such removed trees, shrubs and/or other vegetation in accordance with the landscaping plan
approved by Grantor.
5. To the best of Grantor's knowledge, the Easement Area and the adjoining land of Grantor's Property have never been
used to release, discharge, generate or store any toxic, hazardous, corrosive, radioactive or otherwise harmful substance or material,
although it may have in the past been traversed by a railroad and/or an interurban line.
6. Grantor shall not place, or permit the placement of any obstructions, within the Easement Area which may unreasonably
interfere with the exercise of the rights granted herein to Grantee. Upon notice to Grantor as provided in Paragraph 12, Grantee shall
have the right to remove any such obstruction.
7. Excluding the removal of vegetation and obstructions as provided herein, any physical damage to the surface area of the
Easement Area and the adjoining land of Grantor's Property resulting from the exercise of the rights granted herein to Grantee, shall be
promptly paid by Grantee, or repaired or restored by Grantee to a condition which is reasonably close to the condition it was in prior to
the damage, all to the extent such damage is caused by Grantee or its contractors, employees or agents. In the event that Grantee does
not, in the opinion of Grantor, satisfactorily repair any such damage, Grantor must, within one hundred eighty (180) days after such
damage occurs, file a claim for such damage with Grantee at (a) 1000 E. Main St., Plainfield, IN 46168, Attn: Right of Way Services,
or (b) by contacting an authorized Right of Way Services representative of Grantee.
8. Grantor shall have the right to use the Easement Area and the adjoining land of Grantor's to construct improvements in
and on the Easement Area and change, by grading or otherwise, the surface of the Easement Area in connection with the development,
repair or modification of the Trail and shall comply with all applicable codes when making use of the land near the Facilities. Any
activities of Grantor pursuant to this paragraph shall be coordinated with Grantee's use of the Easement Area and in a manner as such
that they will not materially interfere with or obstruct, and will not damage the Facilities.
9. Notwithstanding anything to the contrary contained herein, Grantor shall not, without the prior written consent of
Grantee, which consent shall not be unreasonably withheld or delayed (a) construct or install, or permit the construction or installation
of any building or house, upon the Easement Area; or (b) excavate or place, or permit the excavation or placement of any dirt or other
material upon or below the Easement Area; or (c) cause, by excavation or placement of material, either on or off the Easement Area, a
pond, lake, or similar containment vehicle that would result in the retention of water in any manner within the Easement Area.
10. The respective rights and duties herein of Grantor and Grantee shall inure to the benefit of, and shall be binding upon the
respective successors, assigns, heirs, personal representatives, lessees, licensees, and/or tenants of Grantor and Grantee. Grantor and
Grantee, as used herein, shall be deemed to be plural, when required to be so.
11. The Easement consented to by Grantor herein shall not be modified without the prior written consent of Grantor, which
consent shall not be unreasonably withheld. It shall not be unreasonable for Grantor to withhold its consent if, for example, the
modification materially impairs the use, development or operation of the Trail, or violates any other agreement or covenant applicable
to the Trail.
12. Grantee shall not excavate within the Easement Area to construct, locate, repair or maintain the Facilities or for any other
purpose whatsoever. Grantee shall not disturb any pavement or other surface covering, any subsurface bedding, any drainage patterns,
any improvements and/or any utilities or other lines laid, constructed or placed by or on behalf of the Grantor in connection with the
Trail. However, and subject to the requirements of this Easement, in the event it is reasonably necessary for Grantee's use and
operation of the Facilities to disturb any improvements (including, but not limited to, pavement or other Trail surfaces, benches, signs,
bollards, rail guides, trash bins, telephone enclosures and landscaping) constructed or installed by or on behalf of the Grantor in
connection with the Trail, Grantee shall, at its own cost and expense, promptly repair or replace such improvements and return the
property to its condition immediately before being disturbed by Grantee or to such other condition as agreed upon, in writing, by the
parties hereto.
13. Except as is necessary for the performance of bona fide unscheduled and unforeseen emergency repairs, Grantee shall
provide fifteen (15) days advance written notice to the Director of the Carmel Communications Center at 31 First Avenue, N.W.,
Carmel, IN 46032, (317) 571 -2586, the Office of the Mayor, City Hall, One Civic Square, Carmel, IN 46032, (317) 571 -2401, and the
Carmel Clay Parks Department at 1055 3rd Avenue Southwest, Carmel, IN 46032, (317) 571 -7275, prior to entering on the Easement
Area and the Trail to conduct any activities within the Easement Area and/or the Trail in connection with Grantee's use and operation
of its Facilities. Such notice shall include description of the type and location of such repair and an anticipated timeframe for
completion of such repair. Grantee shall use its best efforts to coordinate and time such activities with Grantor in order to minimize
any interference with the use of the Trail. Except as is necessary for the performance of bona fide unscheduled and unforeseen
emergency repairs, Grantee shall not conduct any activities, pursuant to this Easement, in connection with Grantee's use and operation
of its Facilities during periods of peak use of the Trail, which shall include, but not be limited to, all holidays and weekends. From
time to time, Grantor shall give notice to Grantee of other specific dates and hours of peak Trail use. Grantee shall comply with all
applicable rules, regulations, codes, ordinances and guidelines for the erection of barricades and the posting of appropriate warnings to
restrict access to any area of construction being performed by Grantee (the "Guidelines in, on or over the Easement Area.
Notwithstanding the foregoing, Grantee shall comply with Grantor's rules and regulations regarding the use of the Trail unless such
rules and regulations conflict with this Easement grant or applicable federal or state laws or codes. In the event of bona fide
unscheduled and unforeseen emergency repairs, Grantee shall provide as much notice as possible to Grantor, by contacting
telephonically and by facsimile transmission the Director of the Carmel Communications Center at 31 First Avenue, N.W., Carmel IN
46032, (317) 571 -2586 and the Chief of Police at Carmel Police Headquarters at 3 Civic Square, Carmel, IN 46032 (317) 571 -2500.
Grantee shall also comply with the Guidelines in the event of an emergency.
14. Grantee shall indemnify, defend and hold harmless Grantor, its officers, officials, employees, attorneys and agents, from
and against any loss, damages, injuries or liability, arising directly or indirectly, in whole or part, from Grantee's actions near or upon,
or Grantee's use of, the Easement Area. Grantee shall maintain adequate public liability and property damage insurance covering
Grantee's activities within the Easement Area, Grantor's Property and the Trail. Grantee may self insure for such obligations provided
that Grantee's net worth exceeds $25,000,000.00 and such self insurance is maintained consistent with all applicable laws, rules, codes
and ordinances. At Grantor's request, Grantee shall provide satisfactory evidence of such insurance to Grantor.
[Signature page follows.]
IN WITNESS WHEREOF, Grantor has caused this Grant of Easement to be signed by its duly authorized
representative(s), effective the 25+ nt�
day of l`�IG'-b'( 2007.
By and through its Board of Public Works and
Safety
B
James Braina
Presi ng Officer
Date:
THE CITY OF CARMEL
Grantor
By:
Date:
Mary Burke, ember
/o s=ue
Sandra M. Johnson,
Deputy Clerk for
STATE OF INDIANA
COUNTY OF HAMILTON
SS:
Personally a s peared before me th ss day James Brainard, Presiding Officer, Mary Ann Burke, Member, Lori Watson,
Member, and Clerk real i rer duly authorized representatives of Grantor and acknowledged the signing of
this Grant of Easement to be a voluntary act and deed for and on behalf of Grantor and having been du1yisworh affirmed state(s) that
any representations contained therein are true to the best of their personal knowledge.
WITNESS my hand and notarial seal, this Zak day of n C,er 2007. x
T
My Commission Expires: if f/��d 9
My County of Residence: \k-('4t t
Signed Name:
Printed Name:
O 4.1.3 c
101AtJA
C
p„„, \.J; S
Printed: Kristina L. Breeding
Date: October 19, 2007
STATE OF INDIANA
COUNTY OF HAMILTON
My Commission Expires: 11 a 067
My County of Residence:
SS:
DUKE ENERGY INDIANA, INC.
Grantee
Personally appeared before me this day Kristina L. Breeding, Manager, Right of Way, a duly authorized representative of Grantee and
acknowledged the signing of this Grant of Easement to be a voluntary act and deed for and on behalf of Grantor, and having been duly
sworn/affirmed, states that any representations contained therein are true to the best of their personal knowledge.
e. V�I.',
A, !t/ e
d
WITNESS my hand and notarial seal, this 19th day of October, 2007.
Signed Name:
Printed Name:
A
j Cm A. oirgeraUc
This Instrument Prepared by John B. Scheidler, Attorney -at -Law, 1000 E. Main St., Plainfield, IN 46168.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document,
unless required by law. Kristina L. Breeding