Cross Reference: Instrument No. A199500066899 Project: 92TU000128 State Parcel No. 49-07-18-107-004.000-801 Parcel: 8033304 Date: Version: TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this "Agreement") made this _____ day of _________, ______ (the "Effective Date"), by and between THE HAMILTON COUNTY COMMISSIONERS, THE CITY OF NOBLESVILLE and THE TOWN OF FISHERS, collectively ("Grantor") and CWA AUTHORITY, INC. ("Grantee"). WITNESSETH: WHEREAS, Grantor is the owner in fee simple of the real property more particularly described on Exhibit A attached hereto and incorporated by reference herein (the "Grantor Parcel"); WHEREAS, Grantee owns and operates a sanitary sewer system (the "System"); and WHEREAS, Grantor desires to grant to Grantee, and Grantee desires to obtain from Grantor, a Temporary Construction Easement under, through, on, in, across and over that certain portion of the Grantor Parcel more particularly described on Exhibit B attached hereto and incorporated by reference herein (the "Easement Area") in order to facilitate the construction, maintenance, operation, repair and/or replacement of certain sanitary sewer facilities that will serve the Grantor Parcel, subject to the terms and conditions set forth herein. NOW THEREFORE, in consideration of the above matters, all of which are incorporated herein by reference, the mutual covenants herein contained, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. TEMPORARY CONSTRUCTION EASEMENT. Subject to the terms and conditions set forth herein, Grantor hereby grants, creates, declares, makes and conveys to Grantee, and Grantee's agents, employees and contractors, a Temporary Construction Easement under, through on, in, across and over the Easement Area (the "Temporary Construction Easement") as is necessary for Grantee, its agents, employees and contractors to erect, construct, install, reconstruct, renew, maintain, operate, continue, inspect, patrol, replace, repair, and service certain sanitary sewer facilities as described on those certain
GRANT OF TEMPORARY EASEMENTCross Reference: Instrument No.
A199500066899 Project: 92TU000128 State Parcel No.
49-07-18-107-004.000-801 Parcel: 8033304 Date: Version:
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY
CONSTRUCTION EASEMENT AGREEMENT (this "Agreement") made this _____
day of _________, ______ (the "Effective Date"), by and between THE
HAMILTON COUNTY COMMISSIONERS, THE CITY OF NOBLESVILLE and THE TOWN
OF FISHERS, collectively ("Grantor") and CWA AUTHORITY, INC.
("Grantee").
WITNESSETH: WHEREAS, Grantor is the owner in fee simple of the real
property more particularly described on Exhibit A attached hereto
and incorporated by reference herein (the "Grantor Parcel");
WHEREAS, Grantee owns and operates a sanitary sewer system (the
"System"); and WHEREAS, Grantor desires to grant to Grantee, and
Grantee desires to obtain from Grantor, a Temporary Construction
Easement under, through, on, in, across and over that certain
portion of the Grantor Parcel more particularly described on
Exhibit B attached hereto and incorporated by reference herein (the
"Easement Area") in order to facilitate the construction,
maintenance, operation, repair and/or replacement of certain
sanitary sewer facilities that will serve the Grantor Parcel,
subject to the terms and conditions set forth herein. NOW
THEREFORE, in consideration of the above matters, all of which are
incorporated herein by reference, the mutual covenants herein
contained, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. TEMPORARY CONSTRUCTION EASEMENT. Subject to the terms and
conditions set forth herein, Grantor hereby grants, creates,
declares, makes and conveys to Grantee, and Grantee's agents,
employees and contractors, a Temporary Construction Easement under,
through on, in, across and over the Easement Area (the "Temporary
Construction Easement") as is necessary for Grantee, its agents,
employees and contractors to erect, construct, install,
reconstruct, renew, maintain, operate, continue, inspect, patrol,
replace, repair, and service certain sanitary sewer facilities as
described on those certain
project plans and specifications described on Exhibit C attached
hereto and incorporated herein by reference (the "Project Plans"),
and all appurtenant structures including, but not limited to, main,
sub- main, local, lateral, outfall, force, and interceptor sewers
and all other necessary or useful equipment or appurtenances used
as part of the System for the collection, carriage, treatment,
purification and disposal of liquid and solid waste, sewage, night
soil and industrial waste (collectively, the "Sanitary Sewer
Improvements"), together with the following rights granted to
Grantee in connection with its exercise of Grantee's rights
pursuant to the Temporary Construction Easement: (i) the right to
stage and store vehicles, construction machinery, equipment,
materials and supplies in, on, and over the Easement Area, and (ii)
the right of ingress and egress in, upon over and across the
Easement Area and portions of the Grantor Parcel as
necessary.
2. EASEMENT RIGHTS. The rights granted to Grantee pursuant to the
Temporary Construction Easement shall be exercised by Grantee at
all times in a reasonable manner. Grantor hereby agrees that
Grantee is not, as a condition of the Temporary Construction
Easement, required to improve the Easement Area.
3. RIGHTS RETAINED BY GRANTOR. Grantor and those claiming through
Grantor reserve the right of use of the Easement Area for any legal
purposes not inconsistent with this Agreement; however, Grantor and
those claiming through Grantor shall not create, transfer or grant
any indenture, easement, license or other property interest
affecting the Easement Area to a third party and shall not place or
construct, or cause or allow any placement or construction of, any
structure, obstruction, or other improvement on the Easement Area,
without written consent of Grantee in Grantee's sole and absolute
discretion. Grantee shall have the right, privilege, and authority
to remove from the Easement Area, without liability to Grantee or
any obligation to restore, any structures, obstructions, or other
improvements which existed at the time of execution of this
Agreement or which hereafter are placed or constructed, or caused
or allowed to be placed or constructed, by Grantor, its successors,
or assigns without the written consent of Grantee. The terms
"structures" and "obstructions", as used herein, shall include,
without limitation, fences, buildings, asphalt and/or concrete
pavement, curbing or other similar items, trees, bushes, earthen or
other materials, levees, walls, berms, or other structures.
4. NATURE OF EASEMENT AND RIGHTS. The Temporary Construction
Easement and other rights created by this Agreement shall be
temporary, terminating upon the delivery of written notice from
Grantee to Grantor noting that Grantee no longer requires the
Temporary Construction Easement. Upon termination of this
Agreement, the parties shall execute a release of this Agreement
and place it of record in the Marion County Recorder's
Office.
5. LAST DEED OF RECORD. In accordance with Ind. Code 32-23-2-5, the
most recent deed of
record by which Grantor holds title is instrument # A199500066899.
6. GRANTOR'S REPRESENTATIONS AND COVENANTS. Grantor makes the
following
representations and warranties for the purpose of inducing Grantee
to accept the Temporary Construction Easement:
a. Grantor is the owner in fee simple of the Easement Area, is
lawfully seized thereof and
has a good right to grant and convey the Temporary Construction
Easement pursuant to this Agreement, warrants the quiet enjoyment
thereof, and will warrant and defend Grantee's title and interest
in said Temporary Construction Easement against all claims.
b. There are not indentures, easements, or licenses of any kind or
character on the Easement Area that would materially and adversely
affect the rights of Grantee pursuant to the Temporary Construction
Easement.
c. There are no other encumbrances, leases, liens, or options of
any kind or character on the
Easement Area as granted that would materially and adversely affect
the rights of Grantee pursuant to the Temporary Construction
Easement.
7. GRANTEE'S REPRESENTATIONS AND COVENANTS. Grantee covenants that,
subject to the rights, privileges, and authority hereunder, in the
exercise of such rights, privileges and authority, Grantee shall
restore the portion of the Easement Area and, if applicable, that
portion of the Grantor Parcel adjoining the Easement Area,
disturbed by Grantee. Said restoration shall be limited to the
Grantee re-grading and seeding the portion of the Easement Area and
Grantor Parcel adjoining the Easement Area that is disturbed by
Grantee.
8. MISCELLANEOUS
a. Binding Agreement. This Agreement shall run with the Easement
Area, be a burden on the Grantor Parcel and the Easement Area and
shall be binding upon Grantor, Grantee and all successors and
assigns.
b. Governing Law. This Agreement shall be governed by and construed
and enforced in
accordance with the laws of the State of Indiana. Any lawsuit filed
in connection with this Agreement shall be filed in Marion County,
Indiana.
c. Litigation. Grantor and Grantee agree that any litigation
associated with or arising from this Agreement shall be filed with
a court of competent jurisdiction within Marion County in the State
of Indiana.
d. Liens. Grantor covenants and represents that to the best of its
knowledge the Grantor Parcel is not presently the subject of any
federal, state or states, or local environmentally related lien,
proceeding, claim, liability or action or the threat or likelihood
thereof.
e. Environmental Liability. Grantor agrees that between Grantor and
Grantee, the acceptance of this Agreement by Grantee shall not
increase the liability of Grantee for environmentally related
claims arising from or related to conditions on the Grantor Parcel
prior to the acceptance of the Agreement.
f. Taxes, Assessments. Grantor agrees that this Agreement shall not
transfer to Grantee any past, present, or future obligation(s) of
Grantor to be responsible for, or to pay, any tax, assessment, or
fee associated with or related to the Grantor Parcel.
g. Modification, Release. The parties agree that this Agreement
shall only be modified or released by the express, written
agreement of both Grantor and Grantee.
h. Corporate Authority. The undersigned represents and warrants
that (he)(she) is a duly elected officer of Grantor; that Grantor
is a corporation validly existing in the State of its origin and,
where required, in the State where the real estate is situated;
that Grantor has full corporate authority to convey the real estate
interest described herein; that pursuant to resolution of the board
of directors or shareholders of Grantor or by the by-laws of
Grantor, (he)(she) has full authority to execute and deliver this
instrument on its behalf and that said authority has not been
revoked; that (he)(she) is therefore fully authorized and empowered
to convey to Grantee the real estate of Grantor and that on the
date of
execution of this Agreement (he)(she) had full authority to so act;
and that all necessary corporate action for the making of this
conveyance has been duly taken.
i. Entire Agreement. Grantor and Grantee agree that this Agreement,
and the documents incorporated herein, represent the entire
understanding between Grantor and Grantee. The signing of this
Agreement by Grantor and Grantee constitutes their mutual
recognition that no other agreements or promises, oral or written,
except as attached hereto and incorporated herein, exists between
them, and that if such oral or written agreements or promises
exist, such are hereby cancelled. Grantor and Grantee hereby
represent to the other that Grantor and Grantee will not rely upon
any agreement, promise or understanding not incorporated herein at
the time of execution of this Agreement or not reduced to writing,
incorporated in written amendments to this Agreement, and
recorded.
j. Severability. The invalidity or unenforceability of any
covenant, condition, term or
provision in this Agreement shall not affect the validity or
enforceability of any other covenant, condition, term or provision
contained herein.
k. Counterparts. This Agreement may be executed in counterparts,
and by each of the
parties on separate counterparts, each of which shall be deemed to
be an original, but all of which, taken together, shall constitute
one in the same instrument.
9. NOTICE. All notices, requests, demands, consents and other
communications required or
permitted under this Agreement shall be in writing and shall be
deemed to have been duly and properly given on the date of service
if delivered personal, or, if mailed, on the second business day
after such notice is deposited in a receptacle of the United States
Postal Service, registered or certified mail, first class postage
prepaid, return receipt requested, or on the first business day
following deposit with a nationally recognized overnight courier
service (e.g., FedEx), postage prepaid, in any event addressed
appropriately as follows: If to Grantor: Town of Fishers One
Municipal Drive Fishers, IN 46038 With a copy to: City of
Noblesville 16 S 10th Street Noblesville, IN 46060 If to Grantee:
CWA Authority, Inc. 2020 N. Meridian Street Indianapolis, IN 46202
Attn: Mark C. Jacob With a copy to: Real Estate Department Attn:
Property Planner 2150 Dr. Martin Luther King Jr. Blvd.
Indianapolis, IN 46202
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first written above. GRANTOR: TOWN OF
FISHERS Signature Printed
__________________________________________________________ Title
STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared
______________________________________________,
__________________________________________ of
Construction Easement Agreement to be his/her voluntary act and
deed.
Witness my hand and Notarial Seal this _________ day of , ____.
County of Residence Signature My Commission Expires Printed
Name
GRANTOR: THE HAMILTON COUNTY COMMISSIONERS Signature Printed
__________________________________________________________ Title
STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared
______________________________________________,
__________________________________________ of
Construction Easement Agreement to be his/her voluntary act and
deed.
Witness my hand and Notarial Seal this _________ day of , ____.
County of Residence Signature My Commission Expires Printed
Name
GRANTOR: CITY OF NOBLESVILLE Signature Printed
__________________________________________________________ Title
STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared
______________________________________________,
__________________________________________ of
Construction Easement Agreement to be his/her voluntary act and
deed.
Witness my hand and Notarial Seal this _________ day of , ____.
County of Residence Signature My Commission Expires Printed
Name
GRANTEE: CWA AUTHORITY, INC. Signature: Printed: Mark C. Jacob
Title: Vice President of Capital Programs and Engineering STATE OF
INDIANA ) ) SS: COUNTY OF MARION ) Before me, the undersigned, a
Notary Public in and for said County and State, personally appeared
Mark C.
Jacob , Vice President of Capital Programs and Engineering of CWA
Authority, Inc., who acknowledged the
execution of the foregoing Temporary Construction Easement
Agreement to be his voluntary act and deed, on behalf
of CWA Authority, Inc.
Witness my hand and Notarial Seal this ____ day of , 2016. County
of Residence Signature My Commission Expires Printed Name After
recording, please return to: CWA Authority, Inc. 2020 N. Meridian
Street Indianapolis, IN 46202 Attn: Mark C. Jacob This instrument
was prepared by Lauren Toppen, Counsel, Citizens Energy Group. 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. Chris L. Kehl
EXHIBIT A
Grantor Parcel
Parcel No. 8033304 A part of the southeast quarter of Section 18,
Township 16 North, Range 4 East, described in Instrument
1995-0066899, recorded in the Office of the Recorder of Marion
County, Indiana, being all that part of the said described property
that lies southwest of the centerline of 39th Street, northwest of
the right of way of the former Norfolk & Western Railroad and
the northeasterly line of a tract of land described in Instrument
870135302.
B-1
EXHIBIT B
Easement Area
[Legal Description must be certified by a Registered Land Surveyor
or Professional Engineer; Legal Description must also include the
total legal area in square feet or acres.]
EXHIBIT “A”
Sheet 1 of 1 Project: 92TU00128 Parcel: 811 (City of Noblesville
& Town of Fishers) Temporary State of Indiana Tax Parcel ID:
49-07-18-107-004.000-801 Marion County Parcel ID: 8033304 A part of
the southeast quarter of Section 18, Township 16 North, Range 4
East, described in Instrument 1995-0066899, recorded in the Office
of the Recorder of Marion County, Indiana, depicted by the attached
plat marked EXHIBIT “B”, being all that part of the said described
property that lies southwest of the centerline of 39th Street,
northwest of the right of way of the former Norfolk & Western
Railroad and the northeasterly line of a tract of land described in
Instrument 870135302, more particularly described as follows:
Commencing at the southeast corner of said section; thence on and
along the south line of the said section South 89 degrees 52
minutes 47 seconds West 2220.59 feet; thence North 00 degrees 29
minutes 35 seconds West for 79.66 feet to a point on the north
right of way of 38th Street where it intersects the west right of
way of the former Norfolk & Western Railway at the southeast
corner of said tract of land as described in Instrument 870135302;
thence on and along the said railroad right of way and east line of
said tract North 33 degrees 08 minutes 51 seconds East 181.09 feet;
thence continuing along said east line North 39 degrees 06 minutes
22 seconds East 95.00 feet to the point of beginning designated
“812” on said plat; thence continuing along said east line North 20
degrees 10 minutes 38 seconds West 71.40 feet to point designated
“813” on said plat; thence continuing along said east line North 06
degrees 02 minutes 22 seconds East 55.00 feet to point designated
“814” on said plat; thence continuing along said east line and said
east line extended North 39 degrees 07 minutes 22 seconds East
93.24 feet to the said centerline of 39th Street at point
designated “815” on said plat; thence on and along said centerline
South 50 degrees 53 minutes 59 seconds East 91.36 to the
aforementioned west railroad right of way at point designated “816”
on said plat; thence on and along said right of way South 39
degrees 06 minutes 22 seconds West 175.81 feet to the point of
beginning, containing 0.302 acres (13160.49 square feet), more or
less. This description was prepared for Citizens Energy Group on
this 23rd day of February, 2017.
PARSONS CUNNINGHAM & SHARTLE ENGINEERS, INC.
Rodney J. Kelly, Professional Surveyor License No. LS20500006,
State of Indiana
Dimensions Shown Are From The Above Listed Record Documents.
Instrument: 1995-0066899 Dated: November 9, 1994
Owner: Parcel: County Parcel No. State Parcel No. Road: County:
Section: Township: Range:
The City of Noblesville and The Town of Fishers 811 8033304
49-07-18-107-004.000-801 38th Street Marion 18 16 N 4 E
SHEET 1 OF 2 EXHIBIT "B"
SURFACE EASEMENT PARCEL PLAT PREPARED FOR CITIZENS ENERGY
GROUP
SOUTHEAST CORNER, SECTION 18, T 16N, R 4E
Drawn By: Checked By:
18 17
19 20
18 17
811
812
813
814
815
816
2220.59'
SURFACE EASEMENT PARCEL PLAT PREPARED FOR CITIZENS ENERGY
GROUP
SURVEYOR'S STATEMENT TO THE BEST OF MY KNOWLEDGE AND BELIEF, THIS
PLAT COMPRISES A ROUTE SURVEY EXECUTED IN ACCORDANCE WITH INDIANA
ADMINISTRATIVE CODE 865 IAC 1-12 (RULE 12).
Owner: Parcel: County Parcel No. State Parcel No. Road: County:
Section: Township: Range:
The City of Noblesville and The Town of Fishers 811 8033304
49-07-18-107-004.000-801 38th Street Marion 18 16 N 4 E
Drawn By: Checked By:
POINT NORTHING EASTING
812 1667745.9505 198210.9906
813 1667812.9686 198186.3628
814 1667867.6634 198192.1494
815 1667939.9969 198250.9809
816 1667882.3753 198321.8838
17002 1670137.3014 200255.1098
17003 1667445.6164 200273.3228
17005 1667440.0070 197600.9810
PARCEL 811 DOCUMENTATION
Instrument 1995-0066899 General -
This acquisition parcel is located in Section 18, T 16N, R 4E,
Marion County, Indiana
The boundary lines of the attached parcel are depicted as apparent
per title work provided and should not be interpreted as a
retracement or original boundary survey per Title 865 IAC
1-12.
Boundary Lines –
The current deed of record offers no written bearings and
distances, and therefore the property lines were created by using
the physical location of 39th Street right of way; the physical
location of the existing rail lines and the apparent railroad right
of way, the geometry provided by the adjoining deed to the west and
an ALTA Survey (pro-forma) prepared by American Structurepointe
dated December 28, 2016 then rotated to match the section line
information as observed. The T&E report performed for this
right of way acquisition was provided on both Marion County Tax ID
parcels 8033304 and 8004430, as both parcels are covered within the
parent deed description. However, since the right of way takings
only affect Marion County Tax ID parcel 8033304, only the
encumberances provided that affect this Tax ID parcel are listed
below.
Miscellaneous –
Easements: - Perpetual Easement for the Sanitary Sewer in favor of
the City of Indianapolis, recorded as
Instrument 50261 in Deed Record 1499 in the Office of the Recorder
of said county..
Mortgages: - None
B-2
EXHIBIT C
Project Plans
Note: Include only plan sheets that are relevant to the parcel
being acquired.
90 %
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