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HomeMy WebLinkAboutHinshaw Purchase Agreement - MOnon TrailREAL ESTATE PURCHASE AGREEMENT APPROVED, AS TO FORM BY:e, This Real Estate Purchase Agreement ("Agreement") is made this lath day of April 2001 by and between the City of Carmel, Indiana ("City") and Vera J. Hinshaw, Trustee of the Vera J. Hinshaw Revocable Trust ("Seller"), WITNESSETH: Recitals WHEREAS, City is undertaking the creation and construction of a linear park and recreational trail to be known as the Monon Trail (herein the "Project"); and WHEREAS, in furtherance of the Project, City needs to acquire from Seller, and Seller is willing to grant and convey to City, an easement interest in approximately 1.08 acres of real estate described on Exhibit A attached hereto and incorporated herein, and FWREASrCity-hasthe-pewet_teacquirothe-abeve-desc1ibcd-property-pursaant-te-the- LJ NOW, THEREFORE, in consideration of the foregoing Recitals, the following mutual covenants and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Purchase Price and Payment. For the real estate described in Exhibit A (the "Property"), the City agrees to pay the sum of Forty -Five Thousand and 00/100 Dollars ($45,000.00) (the "Purchase Price"). The Purchase Price shall be paid by City to Seller at the Closing (as hereafter defined). 2. Title to the Property. The Property to be sold and conveyed to the City shall be an easement which easement shall grant to City the rights and obligations described in the form of easement agreement attached hereto and incorporated herein as Exhibit B. Such easement shall be conveyed by Seller to City with all of the warranties of title that pertain to a conveyance as if by warranty deed and as provided by I.C. 32-1-2-12. /A1Gwr� Sat/ ( r 1-41,17h•t; yC30) 1.47:s 3. Closing. The transaction contemplated hereby shall be closed within ten (10) days following the approval of this conveyance by the City common council (the "Closing"). �t the Closing, Seller shall deliver to City the following documents against simultaneous delivery of the consideration described in Paragraph 1: (a) A properly executed Easement Agreement in the form of Exhibit B; and (b) A completed IRS Form W-9; and (c) A certificate of non -foreign status with respect to Seller as required by Section 1445 of the Internal Revenue Code. 4. Taxes and Assessments. Seller shall pay, or cause to be paid, on or before Closing, all property taxes and assessments, whether special or otherwise, relating to the Property described in Exhibit A and which are due and payable on or before the Closing. Possession/Right of Entry. From and after the date hereof, City shall have, and Seller hereby grants to City and its agents. the right to enter upon any of the Property, including without limitation, for the purpose of constructing the Project. Such right to enter shall ipso facto terminate in the event the common council of the City fails to approve this Agreement. Upon any such termination, City shall promptly remove any equipment or improvements installed or placed upon the Property by City and restore the Property to substantially the condition that existed prior to entry thereon by the City. 6. Dismissal of Action. At the time of Closing, Seller and City shall dismiss without prejudice the pending eminent domain action in Hamilton Superior I (Cause No. 29D01 -0011 -CP -727). 7. Entire Agreement; Written Modifications: Survival of Representations, Warranties and Agreements. This Agreement contains the entire agreement between Seller and City with respect to the subject matter hereof. All representations, promises and prior or contemporaneous understandings between the parties are merged into and expressed in this Agreement, and any and all prior agreements between the parties are hereby canceled. This Agreement shall not be amended, modified or supplemented without the written agreement of Seller and City at the time of such amendment, modification or supplement. All representations, warranties and agreements made herein shall be merged by the delivery of the Easement Agreement by and between the parties. 8. Default. In the event of a default on the part of Seller hereunder, City may exercise any or all of the rights and remedies to which it may be entitled at law or in equity, including without limitation, the remedy of specific performance. In the event of a default on the part of City under this Agreement. Seller may exercise any or all of the rights and remedies to which it may be entitled at law or in equity, including without limitation, the remedy of specific performance. 9. Expenses: Brokerage. Except as herein specifically provided in this Agreement, Seller and City shall each bear its own expenses incurred in connection herewith, and neither shall be liable to the other for any of such expenses, whether or not the transaction contemplated hereby is consummated. Each of the parties covenants that it has not employed or used any broker, finder or agent in connection herewith or with the transaction contemplated hereby. Each party agrees to defend, indemnify and hold the other harmless from and against any damage, loss, 2 liability, claim, expense, cost or fee suffered or incurred by such indemnified party arising out of any breach or rnisrepresentation under this Paragraph 9. 10. Authority of Undersigned. The undersigned persons executing this Agreement on behalf of Seller or City, respectively. each represents and certifies that he or she is duly authorized and is fully empowered to execute and deliver this Agreement or the acceptance thereof to the other party hereto. Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of such counterparts shall together constitute but one and the same instrument. 12. Attorneys' Fees. In addition to any other right or remedy granted hereunder each party shall be entitled to recover from the other (the "defaulting party") reasonable attorneys' fees and court costs incurred by such party in connection with the enforcement of its rights and remedies hereunder resulting frorn the default or breach of the defaulting party. 13. Landscaping. Seller shall be given a choice of three (3) different vegetation plans of varying depth, and may elect any one (1) of three (3). This provision regarding vegetation plans shall survive the Closing and the delivery of the Easement from Seller to City. IN WITNESS WHEREOF, the undersigned City and Seller have duly executed and delivered this Agreement as of the day and year first above written. VERA J. HINSHAW, trustee of the VERA J. HINSHAW REVOCABE TRUST _i�GC�'-GSC_; , �� C -C Q � Vera J. Hinshaw, trustee CITY OF CARMEL, INDIANA By an. through its Board of Public Works and Safety mes Brainard, Presiding Officer ate: N r27'D / 3 ain-AgLIAf MarlAtn�n B44 -Ke, Member Date: / - '047—W Billy Walker, Member Date: ATTEST: agka ceicyash Diana Cordray, I bA, Clerk -Treasurer 03606rah 04/10/01 4 EXHIBIT A TO PURCHASE AGREEMENT Part of the Southeast Quarter of Section 12, Township 17 North, Range 3 East, Clay Township, Hamilton County, Indiana and more particularly described as follows: Beginning at the Northwest corner of the Southeast Quarter of Section 12, Township 17 north, Range 3 East; thence South 89 degrees 51 minutes 56 seconds East (assumed bearing) 33 feet; thence South 00 degrees 08 minutes 04 seconds West 1350 feet; thence North 89 degrees 51 minutes 56 seconds West 33 feet to the West line of said Quarter Section; thence north 00 degrees 08 minutes 04 seconds East 1350 feet to the Point of Beginning and containing 1.08 acres more or less. Page 1 of 2 ,RCEL NO. : 13-12-00-00-003.000 tOJECT NO. : /UNITY : HAMILTON _CT1ON : 12 �VNSHIP : 17 ANGE : 3 3 O'1riE9 `ERA J. H'\S",AW TRUSTEE DEED RECORD : 9101594 DRAWN BY : D.T. CHECKED BY : M.L.C. H°iched Areo = RtU Tccing Ouorter Section Line 13-12-00-00-003.000 Res. Area = 75.978 Ac. Page 2 of 2 SCALE : 1� = 400 1 12I 7 121 7 1 1 402 i° to 402' EASEMENT AND COVENANTS Vera J. Hinshaw, trustee of the Vera J. Hinshaw Revocable Trust ("Grantor"), of Hamilton County, Indiana, for the sum of Ten Dollars ($10.00) and other consideration, the receipt and sufficiency of which are hereby acknowledged, grants and conveys a perpetual, non- exclusive easement ("Easement") to the CITY OF CARMEL, INDIANA ("Grantee") on, over and along the following described real estate located in I-Iamilton County, Indiana (the "Easement Area"): See Exhibit A attached hereto and made a part hereof. 1. Use. The use of the Easement Area shall be limited to a linear park and recreational trail; provided, however, Grantee shall have all rights necessary and incidental to construct and maintain the linear park and recreational trail which rights include, but are not limited to, clearing vegetation, planting vegetation and landscaping, and paving a portion of the recreational trail. The term "recreational trail" shall mean a trail or path that is used for activities including, but not limited to, bicycling, exercising, walking, hiking, roller blading and running. The term does not include a highway, road, street, Light or heavy rail, bus or other motorized mass transit system. Grantor retains and shall own all rights available under the law which may now or hereafter exist in favor of the owner of the Easement Area Real Estate with respect to fiber optic cable or other telecommunications system(s) which is(are) presently installed, or in the future may be installed, below the surface of the Easement Area Real Estate. Notwithstanding the foregoing, relocation of said cables or system(s) and/or authorization of new cable or system(s) and/or the right to authorize the installation of any new or additional cables or system(s) shall take place only with the consent of the Grantor and Grantee. 2. Covenants of Grantee. As part of the consideration for this Easement the foregoing easement, Grantee covenants as follows: A. The trail will be closed from sunset to sunrise, with the exception of occasional special events, e.g. a Christmas luminary walk. B. The trail will be monitored and patrolled at irregular intervals by trained law enforcement personnel using electrically powered or other silently powered vehicles during the hours it is closed. C. The trail will also be monitored and patrolled at irregular intervals by trained law enforcement personnel using electrically powered or other silently powered vehicles during the hours it is open. D. Grantee or its designee will maintain natural vegetation as an, on average, twelve foot (12') wide barrier on the outer edges of the trail so that, in general, there will be a continuous barrier of trees, brambles, undergrowth, raspberry -type bushes and/or other similar thick vegetation running the entire length of the outer edges of the trail. In areas where no such Exhibit B to Purchase Agreement Page 1 of 5 -f natural vegetation barrier currently exists, Grantee will consult with Grantor and plant appropriate vegetation. E. The construction of the trail will take place during normal construction daylight hours. F. Access to the trail will be provided only through publicly owned property unless a particular adjoining landowner or neighborhood association requests other access in the area. G. Bollards (security posts) will be placed and maintained across the entrances to the trail. H. Dedicated trail parking will be provided, the adequacy of which will be periodically reassessed by Grantee as the usage of the trail is monitored. I. Trash pick up along the trail will be performed with sufficient frequency to insure that the trail remains substantially trash -free. J. The use of firearms and motorized vehicles on the trail, other than emergency and other official vehicles, including, but not limited to, law enforcement, fire, medical and maintenance vehicles and motorized wheelchairs used by handicapped persons, will be prohibited. K. The trail will not now, nor in the future, be used as a light or heavy rail, bus or other motorized mass transit system. L. Grantee shall locate all fiber optic cables and other underground utilities prior to digging, and shall hold Grantor harmless from any damage to any such utilities which is caused by Grantee or its employees or agents. Provided, however, Grantee's obligations set forth in this Section L shall be limited to the exposure of and liability of Grantee as a governmental entity, including without limitation, actions and conditions as to which Grantee is immunized by the Indiana Tort Claims Act and the exemption from punitive damages, such that Grantee's liability shall not exceed what might have been its liability to any claimant after all appropriate defenses had been raised by Grantee. Grantee may invade below the surface of the Easement Area only as may be reasonably necessary to accomplish the foregoing covenants. The foregoing covenants of Grantee and all rights which are retained by Grantor with respect to the fiber optic cable or other telecommunications system(s) shall be for the benefit of the following described real estate located in Hamilton County, Indiana, and shall run with the land (the "Benefitted Property"): See Exhibit B attached hereto and incorporated herein by this reference. Exhibit B to Purchase Agreement Page 2 of 5 3. Consent of Mortgagee. Grantor hereby acknowledges and agrees that Grantor shall obtain the consent of any mortgagee(s) of the Easement Area to this Easement. 4. Enforcement. Each party shall have the right to enforce the terms of this instrument in accordance with all remedies available both at law and in equity. 5. No Right to Relocate or Construct Improvements/Ancillary Rights of Grantor. The Grantor, its successors or assigns shall have no right to relocate the Easement Area. The Grantor shall not construct any improvements, maintain any landscaping or remove any vegetation or improvements in or on the Easement Area. Grantor may construct a fence on the Benefitted Property adjacent to the Easement Area. One (1) area of pedestrian ingress and egress ("Point of Access") shall be allowed to Grantor on the Benefitted Property to and from the Easement Area. Grantor shall not allow such Point of Access to be used by anyone for vehicular ingress or egress to and from the Easement Area. Moreover, Grantor shall take all reasonable action to ensure that the Access Point is limited to the private use of Grantor, the successors and assigns of Grantor and the licensees, invitees, lessees, employees and agents of Grantor, through for example, the construction of an appropriate gate or barrier upon the Benefitted Property. Grantor shall defend and hold Grantee harmless from and against any claims, losses, liabilities, damages or injuries to person or property resulting from use by Grantor or others of the Point of Access. 6. Maintenance and Repair. Grantee shall maintain and/or repair the Easement Area and the improvements located thereon in good condition and repair, at Grantee's cost and expense. Notwithstanding the foregoing, in the event that any such maintenance and/or repair is necessary due to any negligent or willful act of Grantor, Grantor shall be responsible for reimbursing Grantee for the cost of such maintenance and/or repair. 7. Modification. This Easement may be modified only by a writing signed by all of the then current owners of the Easement Area and the Grantee. 8. Easement Appurtenant. This Easement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors and assigns. In addition, this eEasement shall be binding upon, and shall run with title to and for the benefit of the Easement Area Property and the Benefitted Property. 9. Governing Law. This Easement shall be governed by and construed in accordance with the laws of the State of Indiana. 10. Granting of Additional Easements. Grantor may grant additional easements in the Easement Area with the prior written consent of the Grantee, which consent shall not be unreasonably withheld, so long as such proposed easements do not interfere with Grantee's use of the Easement Area as set forth herein. 11. Taxes. In the event that Grantor or its successors or assigns fail to pay all real estate taxes and assessments levied on, assessed against or attributable to the Easement Area prior to Exhibit B to Purchase Agreement Page 3 of 5 the same becoming delinquent. Grantee may, at its sole option, pay such taxes and/or assessments. In such event, Grantee is afforded a lien upon the Easement Area to secure the payment of such taxes, and assessments and the costs and expenses related thereto. 12. Grantee's Rights Unimpaired. This Easement shall be deemed prior to any mortgage, deed or trust or other lien against all or any part of the Easement Area and a foreclosure of any such lien or encumbrance against the Easement Area or any part of the Easement Area will in no event affect or impair the rights of Grantee under this Easement. 13. Grantor's Full Warranties of Title. Grantor hereby grants to Grantee all warranties of title that are provided by Indiana Code Section 32-1-2-12 in the same manner and effect as if this Easement were a conveyance in fee simple by warranty deed, including, without limitation: (a) the covenant that Grantor for herself, and her heirs and assigns, and personal representatives that she is lawfully seized of the Easement Area, (b) that Grantor has good right to convey the same, (c) that Grantor guarantees the quiet possession thereof, (d) that the Easement Area is free from all encumbrances and (e) that Grantor will warrant and defend titles to the same against all lawful claims. Notwithstanding the immediately preceding sentence, Grantor's total liability under this paragraph 13 shall not exceed the sum of Forty -Five Thousand Dollars ($45,000.00). 14. Abandonment/Option to Repurchase. Upon the abandonment of the Easement Area by Grantee, Grantor shall have. in addition to any other rights, the right and option to repurchase the Easement Area for the sum of Forty -Five Thousand Dollars ($45,000.00). IN WITNESS WHEREOF, Grantor has executed this instrument this day of , 2001. Grantor: Signature Printed Trustee of the Vera J. Hinshaw Revocable Trust STATE OF INDIANA COUNTY OF ) SS: Before me, a Notary Public in and for said county and State, personally appeared Vera J. Hinshaw, trustee of the Vera J. Hinshaw Revocable Trust, who acknowledged the execution of the foregoing Easement and Covenants. Witness my hand and Notarial Seal this day of , 2001. Exhibit B to Purchase Agreement Page 4 of 5 My Commission Expires: Signature Printed , Notary Public Resident of County, Indiana This instrument prepared by Robert A. Hicks, Attorney at Law, Hall, Render, Killian, Heath & Lyman, P.S.C., Suite 2000, Box 82064, One American Square, Indianapolis, IN 46282 03607rah 04/10/01 Exhibit B to Purchase Agreement Page 5 of 5 City of Carmel ONE CIVIC SQUARE CARMEL, INDIANA 46032 FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL - 1997 INDIANA RETAIL TAX EXEMPT CERTIFICATE NO. 003120155 002 0 FEDERAL EXCISE TAX EXEMPT 35-6000972 PAGE or I PURCHASE ORDER NUMBER 5159 THIS NUMBER MUST APPEAR ON INVOICES, A/P VOUCHER, DELIVERY MEMO• PACKING SLIPS, SHIPPING LABELS AND ANY CORRESPONDENCE. PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION LA•1a_0' VENDOR \te a a__ -3" . , r.> 3\ 0„0, Ta u s -22 vEach_ 1U.J5`•o-u, OC QAQeQJca. \Q 4('`z -- SHIP TO CONFIRMATION BLANKET CONTRACT PAYMENT TERMS FREIGHT QUANTITY UNIT OF MEASURE DESCRIPTION Yy,p00-lRCJt"a SQ UNIT PRICE EXTENSION PLEASE INVOICE IN DUPLICATE �I S, o00 DEPARTMENT ACCOUNT PROJECT PROJECT ACCOUNT AMOUNT c aov e c2 -PE-coo SHIPPING INSTRUCTIONS • SHIP PREPAID. • C.O.D. SHIPMENTS CANNOT BE ACCEPTED. • PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABELS. • THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945 AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. DOCUMENT CONTROL NO.0 515 9 PAYMENT • NP VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN AFFIDAVIT ATTACHED. • I HEREBY9CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN THIS A• • G • • • ION SUFFICIENT,TO PAY FOR THE ABOVE ORDER. ORDERED BY / (� TITLE CLERK -TREASURER OFFICE COPY