Monon Trail - Addendum-Engledow Properties/MCI1099317v1
EASEMENT ADDENDUM
2008034840 EASEMENTS $21.00
07/02/2008 02:25:03P 6 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
APPROVED AS TO FORM B
This Easement Addendum (the "Addendum is attached to the foregoing Right of Way and Easement Agreement (the
"Easement by and between Engledow Properties, LLC "Engledow and MCI Communications Services, Inc. "Grantee dated
2008. This Addendum is entered into by and between the City of Carmel, Indiana (the "City and Grantee.
1. This Addendum controls the foregoing Easement. If any terms of the Easement are in conflict with this Addendum, this
Addendum will be superior to the Easement and this Addendum shall control.
2. The City owns the Easement Property. The City has constructed a linear park and recreational trail (the "Trail which
includes the Easement Property. Grantee understands and recognizes that the Trail is open to the public and that Grantee must
coordinate its use of the Easement Property with the City as provided herein and provide for the safety of Trail users during such time
as Grantee is exercising its rights hereunder.
3. The City grants to Grantee a non exclusive easement to install, construct and repair in the Easement Property the
following: two (2) 1 HDPE innerducts and one (1) fiber optic cable (the "Facilities Nothing in the Easement or this Addendum
shall allow Grantee to replace (except with substantially similar facilities and equipment) the Facilities or construct or install
additional facilities or equipment on the Easement Property.
4. Grantee shall not undertake any soil or engineering tests, 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 Property, install any gates in fences or install any
wires, cables, or other related fixtures, equipment, marker posts and /or appurtenances upon, across or above the Easement Property
without the prior written consent of the City, which consent shall not be unreasonably withheld. It shall not be unreasonable for City
to withhold its consent to any such tests, clearing, or the placement of fixtures or other objects until Grantee presents a valid public
safety concern, federal or state law, or material facilities reliability concern in support of such clearing or trimming and the extent of
same. After consultation with the City and obtaining the City's written consent, Grantee shall have the right to cut down, clear, trim,
remove, and otherwise control any trees, shrubs, overhanging branches, and /or other vegetation and /or to place such fixtures or other
objects upon, across or over the Easement Property as approved by the City. All trimming of vegetation by Grantee shall be
completed using generally accepted arboricultural practices and at times as agreed to by the City.
5. Excluding the removal of vegetation and obstructions as provided herein, any physical damage to the surface area of the
Easement Property and the adjoining City property resulting from the exercise of the rights granted herein to Grantee shall be
promptly paid by Grantee, or repaired or restored by Grantee, at Grantee's expense, to a condition which is reasonably close to the
condition said property was in prior to the damage. Grantee shall not disturb any pavement or other surface covering, any subsurface
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bedding, any drainage patterns, any improvements and /or any utilities or other lines laid, constructed or placed by or on behalf of the
City in connection with the Trail. However, and subject to the requirements of this Addendum, in the event it is reasonably necessary
for Grantee's construction, installation or repair 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 City in connection with the Trail, Grantee shall, at its own expense, promptly repair or replace such
improvements and return the property to the condition it was in immediately before being disturbed by Grantee or to such other
condition as agreed upon, in writing, by the parties hereto.
6. The City shall have the right to use the Easement Property and the adjoining City property to construct improvements in
and on the Easement Property and change, by grading or otherwise, the surface of the Easement Property in connection with the
development, repair or modification of the Trail.
7. The Easement and this Addendum shall not be modified without the prior written consent of the City, which consent
shall not be unreasonably withheld. It shall not be unreasonable for the City to withhold its consent if, by way of example only, the
modification materially impairs the use, development or operation of the Trail, or violates any other agreement or covenant applicable
to the Trail.
8. 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
Property and the Trail to conduct any repairs or other activities within the Easement Property and /or the Trail in connection with
Grantee's installation, use and operation of its Facilities, or otherwise. Such notice shall include a detailed description of the type and
location of such installation, repair or activity and an anticipated timeframe for the completion of same. Grantee shall use its best
efforts to coordinate and time such repairs or activities with the City 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 Addendum, in connection with Grantee's installation, use, repair 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, the City
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 Property. Notwithstanding the
foregoing, Grantee shall comply with the City's rules and regulations regarding the use of the Trail unless such rules and regulations
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conflict with this Addendum or the 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 the City, 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.
9. Grantee shall indemnify, defend and hold harmless the City, its officers, officials, employees, attorneys and agents,
from and against any loss, damages, injuries or liability, arising or relating directly or indirectly, in whole or part, from Grantee's
actions near or upon, or Grantee's use of the Easement Property. Grantee shall maintain adequate public liability and property
damage insurance covering Grantee's activities within the Easement Property, the City's adjoining property and the Trail. At the
City's request, Grantee shall provide satisfactory evidence of such insurance to the City
1099317v1
[Signature Page(s) follow]
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IN WITNESS WHEREOF, Grantor has caused this Easement Addendum to be signed by its duly authorized
representative(s), effective the ,2 t day of M Zt.41 2008.
THE CITY OF CARMEL
By and through its Board of Public Works and Safety
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Date:
Date:
By:
Date:
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James Brainard, Presiding Officer
Mary n Burke, Member
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Lori Watson. M nbej
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ATTEST:
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Diana L. Cordray, IAMC, Clerk- Treasurer
Date: S 0 11 /01
STATE OF INDIANA
COUNTY OF HAMILTON
Personally appeared before me this day James Brainard, Mary Ann Burke, and Lori Watson, who having been duly sworn/affirmed,
state(s) that they are members of the City of Carmel's Board of Public Works and Safety and have executed the foregoing instrument
on behalf of such entity.
WITNESS my hand and notarial seal, this 02/ day of /f14/ 2008.
My Commission Expires: ?/0 9 Signed Name: e L AC-4-Uv4--
My County of Residence: f7 /X-7D N Printed Name: 2, 4A✓A/ G7Yf ✓�S
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Grantee
MCI Communications Services, Inc.
By:
Printed:
Date:
STATE OF TEXAS
COUNTY OF DALLAS
My Commission Expires:
My County of Residence:
I099317vI
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SS:
Personally appeared before me this day A/iI (a) duly authorized representative(s) of Grantee and
acknowledged the signing of this Easement Addendum to be a voluntary act and deed for and on behalf of Grantee, and having been
duly sworn/affirmed, state(s) that any representations contained therein are true to the best of their personal knowledge.
WITNESS my hand and notarial seal, this
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Signed Name:
Printed Name:
6
-day of )0,6 2008.
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Ca-1A- PDLE
This Instrument Prepared by Douglas C. Haney, Esq., City of Carmel, One Civic Square, Carmel, Indiana 46032.
1 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. Douglas C. Haney