Behavioral Corp Utility Easement 200300076001
Filed for Record in
(a.,W HAMILTON COUNTY INDIANA
JENNIFER J HAYDEN
08 -01 -2003 At 08:07 am.
EASEMENTS 26.00
UTILITY EASEMENT AGREEMENT
APPROVED AS TO FORM SY
6 THIS UTILITY EASEMENT AGREEMENT (the "Agreement is made this 'sO d ay of
2003 by and between BehaviorCorp., Inc., an Indiana Corporation "Grantor
and Cit of Carmel, Indiana, an Indiana municipal corporation "Grantee
Recitals
A. Grantor is the owner of a certain tract of real estate located in Hamilton County,
Indiana, which is more particularly described in Exhibit "A" (the "Easement Parcel attached
hereto and made a part hereof.
B. Grantee desires to install a water main within the Easement Parcel for the
purposes of extending the Grantee's water service to unserviced properties.
C. Grantor desires to grant and convey to Grantee, an easement for the construction,
installation, operation, maintenance and replacement of a water main and related facilities in and
under the Easement Parcel upon the terms and conditions of this Agreement.
Now, THEREFORE, in consideration of the premises, the following, covenants and
restrictions, and other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. GRANT OF UTILITY EASEMENT. Grantor, for itself, its successors and assigns
(collectively, the "Grantor does hereby grant and convey to Grantee and its successors and
assigns (collectively, the "Grantee for the benefit of the Grantee, a perpetual and exclusive
right and easement in, on, over, under and across the Easement Parcel, as is more particularly
described and depicted in Exhibit "A," for the purpose of constructing, installing, reconstructing,
renewing, laying, maintaining, operating, patrolling, repairing and replacing a water main and
related equipment, facilities and other appurtenances necessary to provide and maintain a water
system for the Grantee (collectively, the "Water Main Improvements and together with the
following rights and privileges: (a) ingress and egress of Grantee, its employees, agents,
contractors and licensees, (the "Grantee Parties to and from said Easement Parcel from Old
Meridian Street and Pro Med Lane and ingress and egress over said Easement Parcel; and (b) to
do any act reasonably necessary for the full enjoyment of the easement granted under this
Agreement. It is understood and agreed that with the exception of any manholes as required by
the State of Indiana, local authorities or agencies, the Water Main Improvements shall be
underground and will consist of a metal pipe and proper grading. Said construction of the Water
Main Improvements shall be in accordance with the construction drawings approved by Grantor
and on file with the City of Cannel Utilities Department. Grantee expressly acknowledges and
agrees that the Easement Parcel shall not be expanded, enlarged or otherwise modified and that
the Water Main Improvements shall not be installed outside of the limits of the Easement Parcel
without the express written consent of the Grantor, which consent may be granted or withheld in
Grantor's sole discretion. Also, the easement is granted exclusively for the installation and
maintenance of a municipal water main easement and as such the easement may not be assigned
to any other utility excepting for a public, quasi- public or private water utility company which
has this water main within its distribution system.
2. GRANT OF TEMPORARY EASEMENT. Consistent with the width of the
"Installation Route as hereinafter defined, Grantor does hereby grant and convey to Grantee
and the Grantee Parties, a temporary easement of ingress and egress over and across a strip of
land five (5) feet in width and parallel with the southeast boundary of the Easement Parcel at
those points where the width of the Easement Parcel is not fifteen (15) feet in width (the
"Temporary Easement Parcel for sixty (60) days commencing on June 24, 2003, for the
purpose of installing, laying, repairing and replacing the water main and related equipment,
facilities and other necessary appurtenances.
3. RESTORATION OF EASEMENT PARCEL AND TEMPORARY EASEMENT PARCEL.
Grantee covenants that upon its exercise of the rights granted under this Agreement, it will
restore any portion of the Easement Parcel, Pro Med Lane, Old Meridian Street and /or any
adjacent real estate disturbed by its work to as near the condition that existed at the time the
portion was disturbed, as is reasonably practicable, with the exception of the replacement of
plant materials and trees, which are more specifically described below. Grantee specifically
agrees that upon receipt of written notice from Grantor of any settling of the soil, erosion or other
disturbance in the Easement Parcel or adjacent real estate that may result from and occur within
the first year following the completion of any construction activities, it will re -enter the
Easement Parcel and make any repairs reasonably necessary to correctly address the condition to
Grantor's reasonable satisfaction. In the event that a construction- related problem is not
satisfactorily corrected in Grantor's reasonable determination, within the first year, Grantee shall
perform such additional repairs as are reasonably needed until the problem is corrected. Grantee
shall compensate Grantor in the pecuniary amount of $25,148.66, (the "Compensation
Amount for the replacement and replanting of plant materials and trees, and the overall
restoration of the Easement Parcel following the initial construction. The parties hereto agree that
the Compensation Amount is based upon the initial installation and construction activities
occurring in and along an agreed upon route which is fifteen (15) feet in width, (the "Installation
Route In the event that additional damage and /or plant material and /or tree loss occurs, at any
tinge, beyond the Installation Route, Grantee will compensate Grantor for such damages based
upon the fair market value of the replacement trees and plant materials necessary to restore the
area damaged outside of the Installation Route, on an inch for inch replacement and replanting
basis using species and specifications consistent with those used to compute the Compensation
Amount. Following the initial installation and construction activities, Grantee will compensate
Grantor for any damage resulting from the use of the Easement Parcel by the Grantee and /or the
Grantee Parties to trees and /or plant material based upon the fair market value of the replacement
trees and plant materials necessary to restore the area damaged, on an inch for inch replacement
and replanting basis using species and specifications consistent with those used to compute the
Compensation Amount. It is further agreed that Grantee will compensate Grantor for the
replacement of any additional existing trees and /or existing plant materials that die within two
(2) years following any construction activities.
4. LANDSCAPE PLAN. A landscape plan, (the "Landscape Plan if necessary, as
approved by Grantor and its arborist, will be filed, by Grantee, at its sole cost and expense,
pursuant to Carmel /Clay Zoning Ordinance, (the "Ordinance and the Commitments
Concerning The Use and Development of Real Estate recorded as Instrument No. 9020917, to be
approved pursuant to the Ordinance. Grantor agrees to cooperate with Grantee in the approval of
the Landscape Plan.
5. EXISTING UTILITY SERVICE LINES. The Grantee will bear any and all costs and
expenses incurred with the relocation and /or repair of any existing utility service lines (i.e.
electrical, gas, water, communication, data service lines) in connection with the initial
construction or maintenance of the easement. The Grantee shall also be responsible for and shall
indemnify and hold Grantor hannless for and against any and all claims, damages, expenses and
any and all other costs and liabilities that may arise or which Grantor may incur due to any
interruption of utility service.
6. MONUMENT SIGN. The Grantee agrees that it will not object to the encroachment
of a monument sign into the Easement Parcel, subject to compliance with any and all terms and
conditions of the Ordinance and Grantee's full enjoyment of the rights granted hereunder and of
the use of the Easement Parcel.
7. U.S. HIGHWAY 31 UPGRADE. The Easement Parcel has been designed and laid
out so that the future upgrade of U.S. Highway 31 under the options developed and distributed
by the Parsons Transportation Group does not in anyway interfere with or otherwise impact or
affect the easement granted hereunder.
8. PERMITS AND APPROVALS. Grantee shall obtain all necessary permits and
approvals for the construction and installation of any equipment and facilities prior to
commencing construction.
2
�Y
9. MECHANIC'S LIENS. Grantee agrees to promptly discharge (or cause to be
discharged) any mechanic's or materialmen's liens asserted against the real estate constituting
the Easement Parcel or any of Grantor's other property that arise out of or in connection with
Grantee's construction or installation of any equipment or facilities, use of the Easement Parcel
or the exercise of Grantee's rights under this Agreement.
10. USE OF EASEMENT PARCEL. Grantor covenants that it will not erect or maintain
any buildings or other structures or obstructions or otherwise use the Easement Parcel in such a
way that will interfere with or defeat the purpose of the easements granted except by express
written permission of Grantee. Grantee's use of the Easement Parcel and the exercise of the
rights granted herein shall be conducted in such a manner that the Grantor's use of the Easement
Parcel, consistent with this Agreement, shall not be unreasonably impaired. Excepting for the
Water Main Improvements, Grantor shall have the primary duty to maintain the Easement Parcel
at its own expense. Only the Grantee and its officers, employees, agents and contractors shall be
allowed to enter upon the easement and perform work. The Grantee and its related parties shall
be liable in all instances for any damages which results from the performance of any work within
the Easement Parcel or adjacent real estate. Grantee acknowledges that Grantor may request
permission to encroach upon and into the Easement Parcel to erect and maintain a monument
sign identifying the Grantor.
11. GRANTOR'S RIGI -IT To TAP WATER MAIN. Subject to the approval and
satisfaction of all requirements of all state and local agencies having jurisdiction over the water
main, (including, but not limited to, all necessary licenses and permits), Grantor, at its sole cost
and expense shall have the right to tap into and use the water main and related facilities installed
by Grantee in the Easement Parcel for potable water service for Grantor's property.
12. COVENANT OF TITLE. Grantor hereby covenants that it is the owner in fee simple
of said Easement Parcel is lawfully seized thereof, has a good right to grant and convey the
foregoing easements.
13. PAYMENT OF FEES. The Grantee shall present and obtain all necessary approvals
and reimburse Grantor for the reasonable costs of a consulting arborist and the reasonable
attorney fees incurred in connection with this grant of easement.
14. COVENANTS TO RUN WITH THE LAND. The grants and obligations, and benefits
and burdens created by this Agreement shall run with the real estate burdened and /or benefited
hereby, as the case may be, and shall apply to and be binding upon and inure to the benefit of the
Easement Parcel and the parties under this Agreement.
15. SEVERABILITY. The illegality, invalidity or unenforceability under law of any
covenant, restriction, condition or other provision of this Agreement shall not impair or affect in
any manner the validity, enforceability or effect of the remaining provisions of this Agreement.
16. APPLICABLE LAW. This Agreement shall, in all respects, be governed, construed,
applied and enforced in accordance with the laws of the State of Indiana.
17. MODIFICATION. This Agreement may not be modified or amended, except
pursuant to a written agreement in recordable form executed by each of the parties hereto.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and
agreement between the parties and supersedes all prior agreements (whether written or oral),
representations and understandings of the parties relating to the subject matter of this Agreement.
No representations have been made to induce the other party to enter into this Agreement except
as expressly set forth herein.
The remainder of this page intentionally left blank.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this day and
year first above written.
GRANTEE GRANTOR
City of Carmel, Indiana BehaviorCorp., Inc.
an Indiana municipal corporation an Indiana corporation
By: City of Carmel Board of By:
Public Works and Safety arry L.Burch
Executive Director
James Brainard, Mayor
Mary Ann Burke, Member
Lori Watson, Member
Approved as to form by:
Robert A. Hicks, Esq.
Hall, Render, Killian, _Heath Lyman, P.S.C.
Attorney for City of Cannel, Indiana
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said county and state, personally appeared James Brainard,
Mary Ann Burke and Lori Watson who being first duly sworn by me upon their oath, that they are the
elected and appointed members of the City of Carmel Board of Public Works and Safety, they are duly
authorized to execute the foregoing on its behalf, that any statements or representations of fact contained
therein are true, and he acknowledged execution of the foregoing.
Witness my hand and Notarial Seal this day of 2003.
NOTARY PUBLIC
Printed:
My Commission Expires: My County of Residence:
4
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said county and state, personally appeared Larry L. Burch,
who being first duly sworn by me upon his oath, stated that he is Executive Director of BehaviorCorp,
Inc., he is duly authorized to execute the foregoing on its behalf, that any statements or representations of
fact contained therein are true, and he acknowledged execution of the foregoing.
Witness my hand and Notarial Seal this 30 day of .3-ct n 2003.
NOTARY PUBLIC
r,c W 0—Clq/LCJ
Printed: (o 4m6 c Sch eF 1 1e
j
l4K n neon Expires: My County of Residence:
Y a
This instrument was prepared by Paul G. Reis, Attorney -at -Law, Drewry Simmons Pitts
Vornehm, LLP, 8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240.
G: \I3ehaviorCorp \Utility Easement Agreement_4.doc
5
Exi -nBIT "A"
Description of Easement Parcel
r
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS
AND SAFETY
OV Jai! L tLi)
James Brainard, Presiding Officer
Date:
8 ..„(A
Mary Ann rke, Member
Date: 7 /i ?3
If
Lori atson, e v'. er
Date: 1
i
T. ,„l
Y yeti
8 a h '..4 -`il San& M. Johnson,
1 1 i D Clerk for
Blau I'; Cordrpy, I" y C Clerk Treasurer
y 1r
STATE OF INDIANA
SS:
COUNTY OF Ham a
Before me, a Notary Public in and for said County and State, personally appeared James
Brainard, Mary Ann Burke, and Lori Watson, by me known to be the Members of the City of
,.,st. e.A- M Z ft..->S ON- a breFtIry Fist-
Carmel Board of Public Works and Safety, and Diana L. Cordray, Clerk Treasure of the City of
Carmel, who acknowledged the execution of the foregoing "Non- Remonstration Agreement" on
behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this 611` day of 2003.
y
NOTARY PUBLIC ;'J` 4r.
c P\(\ i a 1 il' .l ',6 +0 �f i4,474.
My My Commission Expires: Printed Name 1,'
14// �f
4 k My County of Residence: 1' 'c `1
Date: /e R
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JUL 14 2000 3 HP LASERJET 3200 p.1
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Exhibit A
A part of deed Record No 954 page 4.54 to 8ehaviorcorp Inc.,
an Indiana Corporation recorded in the Office of the Recorder of
Hamilton County, Indiana which easement is more particularly
described as follows:
Easement Description
A utility easement along the northwest property line as shown
below containing .20 acres more or less.
o'
/e
19280'S45'1 24'W
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Witty
Ememet71 9a90 1 i' t
11288 S45•4125'W 1 1 1' 5 1
?1883839' 1 62.31' S34 :s2r2
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27a88' SJ1 3828"Yi'
11.083 Acrcs
8314' 143700'411V
10'
96.41' S00116
31'
1.88' /1"
t .118. 13%;r 36'
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Scale 1' -200'
661 -5362
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