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HomeMy WebLinkAboutCC-09-17-01-02 Mueller Settlm'tSPONSOR(S): Councilor Kirby RESOLUTION NO. CC 09-17-01-02 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, REGARDING SETTLEMENT OF CAUSE NO. D01-9709-MI-542 WHEREAS, on September 16, 1997, the City of Carmel, Indiana ("City"), commenced an action in Hamilton County, Indiana (Cause No. DO1-9709-MI-542), seeking to condemn real estate owned by The Helen M. Mueller Conservatorship CMueller"), consisting of approximately ten (10) acres together with associated land improvements and other interests (collectively, the "Roadway Real Estate") and needed by the City for the construction of a public right of way known as Hazel Dell Parkway (the "Project"); and WHEREAS, on November 12, 1997 the Court in such cause appointed appraisers to determine the fair market value of the Roadway Real Estate and any damages and benefits accruing to the residue of Mueller's property adjoining the Roadway Real Estate; and WHEREAS, such appraisers determined that Three Htmdred Nine Thousand Nine Hundred Fifty Dollars ($309,950.00) constituted such fair market value and the appraisers filed their report on December 4, 1997; and WHEREAS, within the applicable statutory time period, Mueller filed objections to the report of such appraisers, following which the court in such cause initially set this matter over for trial on July 23, 2001; and WHEREAS, on or about July 20, 1998, Mueller withdrew such Three Hundred Nine Thousand Nine Hundred Fifty Dollars ($309,950.00); and WHEREAS, Mueller alleges that a portion of Mueller's property lying east of and adjacent to the Roadway Real Estate and consisting of approximately 29.628 acres (herein referred to as "Parcel B") suffered severance damages as a result of the Project; and WHEREAS, City, upon further investigation and in consultation with a licensed, independent appraiser retained by City, likewise determined that severance damages exist in connection with Parcel B as a result of the Project; and WHEREAS, Parcel B and a portion of Mueller's property located west of Hazel Dell Parkway is subject to a long-term mineral extraction lease a~eement between Mueller as landlord and Martin Marietta Materials, Inc. ("Martin") as tenant (the "Lease"); and WHEREAS, City has determined that City's Utility Department is able to utilize Parcel B for the benefit of the City; provided the Lease is amended to limit Martin's mining rights in a manner consistent with the City's intended use of Parcel B; and Page One of Three Pages Prepared by Robert A. Hicks, Esq., HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. Approved by Douglas C. Haney, Carreel City Attorney [C:\TEMP\CC 09 17 01-02.docg/I 1/01] SPONSOR(S): Councilor Kirby WHEREAS, to settle the dispute between Mueller and the City, Mueller is willing, in exchange for a purchase price of Five Htmdred Forty Thousand Dollars ($540,000.00), to: (a) deed Parcel B to the City; (b) deed to the City approximately 2.65 acres for new 106th Street right of way consistent with the official thoroughfare plan, (c) deed to the City between .0861 acres and 1.34 acres for 106th and Gray intersection improvements; and (c) grant an easement for approximately 1.0 acre for a new multi-use path connecting Carmelot Park to 106th Street; and WHEREAS, Martin, although not a party to the dispute, is willing because of its mining interest under the Lease, to (a) amend the Lease; (b) deed to the City approximately 0.5 acres for 106th and Gray intersection improvements; (c) give free fill dirt to the City for the future construction of a water utility plant; (d) give free water to the City from Martin's de-watering activities related to Martin's mining operations; and (e) make water well sites available to City if needed for future water supply; and WHEREAS, the City-retained appraiser determined the proposed purchase price of Parcel B and the other real estate to be conveyed to City by Mueller and Martin to be consistent with the fair market value of such real estate; and WHEREAS, attached hereto and incorporated herein as Exhibit A is a copy of the proposed settlement agreement between Mueller, Martin and City. NOW, THEREFORE, BE IT RESOLVED THAT settlement of the dispute between Mueller and City in accordance with the foregoing recitals is in the best interests of the City and the City's water utility; and BE IT FURTHER RESOLVED THAT the Mayor, acting through the City's Board of Public Works and Safety, is hereby authorized to acquire the above described real estate for a purchase price of Five Hundred Forty Thousand Dollars ($540,000.00) and enter into a settlement agreement with Mueller and Martin upon substantially the terms set forth above and in the proposed draft settlement agreement attached hereto as Exhibit A; and BE IT FINALLY RESOLVED THAT the purchase price and necessary expenses attendant to the settlement agreement with Mueller and Martin shall be paid from the Carmel Utility's Water and Wastewater Operating Funds. Adopted by the Common Council of the City of Cannel, Indiana this/q/~ay of September 2001, by avote of '7 ayes and (D nays. Council Resolution No. CC-09-17-01-02 Page Two of Three Pages Prepared by Robed A. Hicks, Esq., HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. Approved by Douglas C. Haney, Carrnel City Attorney / (C/TEMP%CC-09 17 01 02 docg/I I 01] SPONSOR(S): Councilor Kirby COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA a o e rea en Diana L. Cori:lray, IAM~lerk-Treasurer Diana L. Cordray, IAMC, Cle~r~asurer Approved by me, Mayorof the City of Carmel, Indiana, at~ OO o'clock/'~.m. this ]F7''ff day of '~l~&~t'~ ,2001. ~ ~ J Brainard Mayor es , Diana L. ~C~r~ay, %k-Treasurer This instrument was prepared by Robert A. Hicks, Esq. HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. Suite 2000, One American Square, Indianapolis, Indiana 46282. Telephone: (317) 633-4884 and approved by Douglas C. Haney, Carmel City Attorney. Council Resolution No. CC-09-17-01-02 Page T~ee of Three Pages Prepared by Robert A. Hicks, Esq., HALL, RENDER, KILLIAN, HEATH a LYMAN, P.C. Approved by Douglas C. Haney, Carreel City Attorney [C %TEMP\CC 09 17-01-02 docg/I 1/01] SETTLEMENT AGREEMENT This agreement ("Agreement") is made effective as of this 27th day of August 2001 by and between The Helen M. Mueller Conservatorship CMueller"), Martin Marietta Materials, Inc. ("Martin") and the City of Carmel, Indiana by and through its Board of Public Works and Safety ("City"). RECITALS: WHEREAS, on September 16, 1997 City commenced an action in Hamilton County, Indiana (Cause No. DO1-9709-MI-542) seeking to condemn real estate owned by Mueller, consisting of approximately ten (10) acres together with associated land improvements and other interests (collectively, the "Roadway Real Estate") and needed by the City for the construction of a public right of way known as Hazel Dell Parkway (the "Project"); and WHEREAS, on November 12, 1997 the Court in such cause appointed appraisers to determine the fair market value of the Roadway Real Estate and any damages and benefits accruing to the residue of Mueller's property adjoining the Roadway Real Estate; and WHEREAS, such appraisers determined that Three Hundred Nine Thousand Nine Hundred Fifty Dollars ($309,950.00) constituted such fair market value and such appraisers filed their report on December 4, 1997; and WHEREAS, within the applicable statutory time period Mueller filed objections to the report of such appraisers following which the court in such cause set the matter over for trial on July 23, 2001; and WHEREAS, on or about July 20, 1998, Mueller withdrew such Three Hundred Nine Thousand Nine Htmdred Fifty Dollars ($309,950.00); and WHEREAS, Mueller alleges that a portion of Mueller's property consisting of approximately 29.628 acres and lying east of the Hazel Dell Parkway (herein referred to as "Parcel B") suffered severance damages as a result of the Project; and WHEREAS, City upon further investigation and review of such allegations, likewise determined that severance damages exist in connection with Parcel B as a result of the Project; and WHEREAS, the legal description of Parcel B is attached hereto and incorporated herein as Exhibit A; and WHEREAS, Parcel B and a portion of Mueller's property located west of Hazel Dell Parkway is subject to a long-term lease agreement for mineral extraction between Mueller as landlord and Martin as tenant (the "Lease"); and WHEREAS, City has determined that City's Utility Department is able to utilize Parcel B for the benefit of the City; and V~IEREAS, Mueller and the City now desire to settle their dispute pursuant to the terms of this Agreement; and WHEREAS, this Agreement is subject to (a) approval of the court that has jurisdiction over Mueller's conservatorship and (b) Mueller's ability to procure a partial release of the Lease which partial release shall limit Martin's fights to extract minerals pursuant to the Lease as more specifically set forth herein. NOW, THEREFORE, in consideration of the foregoing Recitals, all of which are incorporated herein by this reference, the following mutual covenants and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows: Compensation. In addition to the amount of Three Hundred Nine Thousand Nine Hundred Fifty Dollars ($309,950.00) previously paid to Mueller by the City for the Roadway Real Estate, at the Closing (as hereinafter defined) the City shall pay Mueller the sum of Five Hundred Forty Thousand and No/100 Dollars ($540,000.00) for Parcel B. Mueller shall, within fifteen (15) days following execution of this Agreement and approval hereof by the court having jurisdiction over Mueller's conservatorship but in no event later than October 1, 2001 (the "Closing"), convey Parcel B to the City by general warranty deed subject only to: (a) the lien for taxes not delinquent, and (b) that certain sanitary sewer easement agreement between Mueller and the Town of Cannel dated June 28, 1973 and recorded in Book 267, Page 231 in the Office of Recorder of Hamilton County, Indiana. Partial Release of Lease/New Agreement with City. At the Closing, the Lease shall be terminated and released as to Parcel B and the Path Easement Parcel (as hereinafter defined). However, upon the request of Martin at any time during the term of the Lease, City shall enter into one or more agreements with Martin mutually acceptable to City and Martin that, subject to the procurement by Martin of all necessary approvals from all applicable governmental authorities, including without limitation, all zoning approvals, variances and other approvals required by law, allows Martin: (a) the fight and easement of underground ingress and egress to and from property mined by Martin (other than Parcel B) and to and from other property mined by Martin (other than Parcel B) and located under Parcel B generally near the intersection of Hazel Dell Parkway and 106th Street (as if extended east of Hazel Dell Parkway), but in an exact location acceptable to City and which does not interfere with (i) any surface use by City of Parcel B, or (ii) any subsurface use of Parcel B by the City related to City's intended use of Parcel B for water wells, a water utility plant and similar uses; and (b) the fight, to mine under Parcel B at a depth, location and upon such other terms, conditions and indemnities contained herein and otherwise reasonably imposed by City such that Martin's exercise of such mining rights does not interfere with City's use of Parcel B; and (C) the right to mine under the Path Easement Parcel (as hereinafter defined) at a depth, location and upon such other terms, conditions and indemnities contained herein and otherwise reasonably imposed by City. Martin's fight to mine under Parcel B and the Path Easement Parcel, subject to the procurement of the afore-described approvals, shall in no event extend beyond the sum of the original twenty (20) year term of the Lease (a tree copy of which is attached hereto and incorporated herein as Exhibit B), plus any of the four (4) five (5) year options to extend if in fact exercised by Martin, its successors and assigns (the "Term"). Additional Provisions re~ardin~ Martin's Mining: Operations. The right to mine beneath Parcel B and the Path Easement Parcel shall be governed by the following provisions: (a) Martin's rights shall include the right of access for ingress and egress under Parcel B and the Path Easement Parcel to tunnel, mine, and remove gravel, stone, and other aggregate; and to remove from other properties and transport under the Parcel B and the Path Easement Parcel, rock, stone, gravel, sand, limestone and/or minerals as may exist under the Parcel B and the Path Easement Parcel and other properties owned or controlled by Martin as of the date on which this Agreement is executed by all parties hereto, together with the right to construct and install, maintain, operate, repair, inspect, protect, remove and replace such underground appurtenances and facilities as may be necessary in Martin's exercise of its rights hereunder. Notwithstanding the foregoing, Martin hereby acknowledges that the City will install within Parcel B underground equipment by which to perform City's utility service which service will not be interrupted and/or disturbed by Martin. (b) Indemnification. During the Term and for a period of two (2) years thereafter, Martin shall indemnify, defend and save harmless the City from and against all claims, judgments, liabilities, fines, penalties or expenses caused by Martin's exemise of its rights hereunder. In the event that legal action is necessary by either party to enforce any provision of this Section 3(b), the prevailing party shall be entitled to recover from the non-prevailing party the expenses thereof, including reasonable attorneys' fees. (C) Removal of Equipment and Reclamation. Unless otherwise agreed to in writing by the City, Martin shall remove all of the equipment and related facilities of Martin under Parcel B and the Path Easement Parcel within one hundred twenty (120) days after the termination of Martin's fights under this Section 3(c). Martin agrees and covenants with the City that Martin will, at its sole expense, complete any reclamation obligation in accordance with applicable law within one (1) year from the date Martin's mining operations under the Parcel B and the Path Easement Parcel are terminated or such other time as required by law. (d) Subjacent Support. Martin's operations shall be conducted in a good and workmanlike manner at all times and in such a manner as not to interfere with the surface use of Parcel B and the Path Easement Parcel. Martin shall conduct all such operations beneath Parcel B and the Path Easement Parcel in such a manner as to maintain adequate subjacent support for pedestrian and vehicular use of the Parcel B and the Path Easement Parcel. Martin's right to mine under Parcel B and the Path Easement Parcel shall be without the payment of rents or royalties by Martin to the City. Grant of Right of Way for 106th Street. At Closing, Mueller shall convey to the City, by general warranty deed, right of way for 106th Street (between Gray Road and Hazel Dell Parkway) such that after such grant, the total right of way width lying north of the existing centerline of 106th Street shall be forty-five (45) feet. Such conveyance by Mueller shall not adversely affect access from 106th Street to Mueller's remaining property. Mueller's Grant of Right of Way for Intersection Improvements. At Closing or at such later time determined by City, Mueller shall convey to the City, by general warranty deed, a sufficient amount of Mueller's real estate not to exceed .0861 acres at the northeast quadrant of the existing intersection of Gray Road and 106th Street for the construction of right of way improvements for the intersection of Gray Road and 106th Street. Such conveyance by Mueller shall not adversely affect access from 106th Street to Mueller's remaining property. Manin's Grant of Rip-,ht of Way for Intersection Improvements. At Closing, or at such later time determined by City, Martin shall convey to the City, by general warranty deed, a sufficient amount of Martin's real estate not to exceed .1736 acres at the southeast quadrant of the existing intersection of Gray Road and 106th Street and a sufficient amount of Martin's real estate not to exceed .4342 acres at the southwest quadrant of the existing intersection of Gray Road and 106th Street all for the construction of right of way improvements for the intersection of Gray Road and 106th Street. Such conveyance by Martin shall not adversely affect access from 106th Street to Martin's remaining property. Relocation of Intersection Improvements. Mueller and Martin acknowledge that the design of the intersection improvements for Gray Road and 106th Street may change due to field conditions related to the existence of a Marathon Oil Co. pipeline easement. If design considerations indicate a change to the location of the center of the intersection, Martin and Mueller acknowledge that more or less acreage than what is referred to in Sections 5 and 6 hereof may be required of them and Martin and Mueller hereby consent to such changes, provided that the aggregate size of the intersection improvements does not increase from what is depicted in Attachment 1 attached hereto and incorporated herein (i.e., 1.34 acres from the northeast quadrant and 0.42 acres from the southeast quadrant). Martin's Assistance with Construction of Water Utility. During the term of the Lease, any fill dirt generated by Martin (herein "Fill") in the ordinary course of Martin's operations on any real estate which is accessed by Martin via Hazel Dell Parkway (the "HD Property"), shall be stored on HD Property and made available to City flee of charge for City's use in the construction of a water or other utility plant and associated improvements on Parcel B. From time to time during the term of the Lease and at the request of City, Martin shall, 4 10. 11. 12. solely at Martin's expense, deliver such available quantity of stored Fill to Parcel B as is requested by City. Martin's De-watering Operations. During the term of the Lease, whenever Martin pumps, diverts, relocates or otherwise moves water on the HD Property in connection with Martin's mining operations ("De-Watering Activity"), Martin shall make such water available to City free of charge; however, City shall not be obligated to accept water from Martin. When City accepts water from Martin, City shall incur and pay any and all costs and expenses required to transport said water from the HD Property to other property owned or used by City. Further, City shall indemnify, defend and save Martin harmless from any and all liability, loss, damage, cost, obligation and expense which directly arises out of or results from City's receipt, transport or other use of such water, except to the extent that such liability, loss, damage, cost, obligation and expense is caused by the negligent act, whether of commission or omission, of Martin, its employees, agents, or contractors. Notwithstanding the provisions of the immediately preceding sentence, City's obligations set forth in this Section shall be limited to the exposure of and liability of City as a governmental entity, including without limitation, actions and conditions as to which City is immtmized by the Indiana Tort Claims Act and the exemption from punitive damages, such that City's liability shall not exceed what might have been its liability to any claimant after all appropriate defenses had been raised by City. Installation of Water Wells on HD Property. City shall, from time to time, have the fight to install, at City's expense, water wells on the HD Property upon terms and conditions reasonably acceptable to Martin, but without the payment of rents, royalties, charges or fees by City to Martin. Permanent Easement for Multi-use Path Purooses. At the time of Closing, Mueller shall grant and convey to City a permanent easement upon, over, through and across that portion of Mueller's real estate depicted and shown on Exhibit C attached hereto and incorporated herein (the "Path Easement Parcel"). The Path Easement Parcel shall be dedicated to and for the use and benefit of the public for purposes of providing a ten foot (10') wide public path for walking, running, hiking, roller blading, bicycling and other forms of pedestrian, nonmotorized access, as well as for use by motorized and non-motorized City maintenance vehicles. The Path Easement Parcel shall be used to connect the existing path system serving Carmelot Park to any future path within the right of way of 106th Street between Gray Road and Hazel Dell Parkway. Except as provided in Section 2(b) hereof, Martin shall not have any fights to mine or otherwise utilize or occupy the Path Easement Parcel. The terms of the permanent easement agreement for the Path Easement Parcel shall be as set forth on Exhibit D attached hereto and incorporated herein. Such conveyance by Mueller shall not adversely affect access from th 106 Street to Mueller's remaining property. Citv's Right to Relocate Path Easement Parcel. If an artificial lake is created in the vicinity of the "possible future lake area" shown and depicted on Exhibit C, and when the intersection improvements contemplated by Sections 5 and 6 are made, City shall have the right solely at City's expense to relocate the Path Easement Parcel within the area included as the boundaries of Exhibit C and in a specific location that is reasonably acceptable to Mueller and the City so that portions of the route are proximate to the artificial lake and 13. 14. outside, but adjacent to any right of way enlargements associated with such intersection improvements. In addition, at one or more (but not more than three (3)) locations where the route is so proximate to the artificial lake, City shall be permitted to expand the Path Easement Parcel to accommodate path improvements and accoutrement, including without limitation, picnic tables, playground equipment, benches and shelters. Such expansions shall be of a shape, configuration and design determined by City, reasonably satisfactory to Mueller, and not larger than 0.10 acres each. At the time of any such relocation of the Path Easement Parcel, City shall cause to be prepared and recorded in the Hamilton County, Indiana Recorder's Office a revised description of the Path Easement Parcel. City shall upon any such relocation of the Path Easement Parcel, vacate and release of record the prior description of the Path Easement Parcel, demolish and remove any improvements related thereto and return the disturbed area to its natural condition by rough and finish grading and seeding of such area. Mueller's Future Efforts to Rezone Six Acre Parcel. Attached hereto and incorporated herein as Exhibit E is a site plan and depiction of Mueller's real estate subject to the Lease. Mueller desires to rezone from S-1 (Residential) to a zoning classification permitting office and retail uses (including gas sales and convenience store) the six (6) acre tract shown thereon at the northwest comer of the intersection of 106th Street and Hazel Dell Parkway. City and its Department of Community Services, which serves as the staff of the Plan Commission pursuant to the Carmel Clay Zoning Ordinance, will support the reclassification of the real estate to a zoning classification(s) permitting office and retail uses (including gas sales and convenience store) and any proposal by Mueller to rezone such six (6) acre tract so long as the rezoning would be consistent with the City's comprehensive plan adopted under I.C. 36-7-4-500 et seq., and the rezoning proposal contains a conunitment, pursuant to I.C. 36-7-4-615, that Mueller will not oppose any future attempt by the City to annex such tract. Mueller's Right of First Refusal to Repurchase. During the first ten (10) years following the sale of Parcel B to the City, Parcel B shall be used only for public uses and mining by Martin. Violation of such requirement by City, its lessees, licensees, grantees or assignees beyond the notice and cure period set forth herein shall give Mueller the right to repurchase Parcel B for Five Hundred Forty Thousand and No/100 Dollars ($540,000.00). In the event that, during the second ten (10) years following the closing of the sale of Parcel B to City, City receives a written offer to sell all or part of Parcel B which City desires to accept, Mueller shall have the right and option for a period of thirty (30) days following written notice to Mueller containing a copy of such offer, to repurchase all or such portion of Parcel B for the price and on the terms set forth in such offer. City shall have a period (the "Cure Period") of thirty (30) days after written notice of City's violation of this Section 14 to cure the same and an event of default shall not be deemed to exist during the Cure Period, provided further that if City commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for up to sixty (60) additional days, but in no event shall the Cure Period be longer than ninety (90) days in the aggregate. 15. 16. 17. 18. 19. 20. 21. Removal of Refuse from Mueller Pronertv. Within thirty (30) days following execution of this Agreement, Mueller shall remove from the Mueller Real Estate all rubbish and refuse to the reasonable satisfaction of City and dispose of same in accordance with all applicable laws, rules, regulations and ordinances. Vacation of River Road. City has no objection to the vacation by Mueller and Martin of River Road south of 106th Street inasmuch as (and as long as) such portion of River Road is not within the jurisdictional authority of the City. Authority of Undersi~ned. The undersigned persons executing this Agreement on behalf of Mueller, City and Martin, respectively, each represents and certifies that he or she is duly authorized and is fully empowered to execute and deliver this Agreement to the other parties hereto. Assignment; Binding Upon Successors and Assigns. The rights and obligations created herein shall run with Parcel B, the Path Easement Parcel and all other real estate described or referred to herein. This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns. No Implied Waiver. No consent or waiver, express or implied, by any party to any breach or default by any other party in the performance of obligations hereunder shall be deemed or construed to be a consent or waiver to any other breach or default in the performance of other obligations of such other party. Failure on the part of any party to declare any other party in default, irrespective of how long such failure continues, shall not constitute consent or waiver of the rights of such party. Amendments. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by the parties in writing. Notices. Any and all notices, demands, requests, submissions, approvals, consents, or other communications or documents required to be given, delivered or served or which may be given, delivered or served under or by the terms and provisions of this Agreement or pursuant to law or otherwise, shall be in writing and shall be deemed to have been duly given, delivered or served if and when sent by certified mail, return receipt requested, first- class postage prepaid thereon and deposited with any regularly maintained United States Postal Service facility and addressed, if to Mueller at: Mr. and Mrs. Erv Bruks 11173 Hazel Dell Parkway Indianapolis, IN 46280 and Mr. Eric Clark 14333 N. Gray Road Carmel, IN 46033 7 22. with a copy to: J. Michael Antrim, Esq. CHURCH, CHURCH, HITTLE & ANTRIM 938 Conner Street, P.O. Box 10 Noblesville, IN 46060 if to City at: Utilities Director City of Carmel One Civic Square Carmel, Indiana 46032 with a copy to: Robert A. Hicks, Esq. and Hall, Render, Killian, Heath & Lyman, P.S.C One American Square, Suite 2000 Indianapolis, Indiana 46282 Douglas C. Haney, Esq. City of Carmel One Civic Square Camel, Indiana 46032 if to Martin at: Mr. Robert M. Furlong Vice President & General Manager Martin Marietta Materials, Inc. P.O. Box 549 Carmel, Indiana 46032 with a copy to: Ms. Paula J. Buehrer Real Estate/Projects Manager Martin Marietta Materials, Inc. 780 N. Valley Road Xenia, OH 45385 or to such other address as a party may from time to time designate by written notice to the other parties. The date of mailing shall be deemed to be the date of such service. Captions. The titles and article or paragraph headings are inserted only for convenience and are in no way to be construed as part of this Agreement or as a limitation on the scope of the particular provisions to which they refer. 23. 24. 25. 26. 27. 28. 29. Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforeeable, the remainder of this Agreement or the application of such term of provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby and each term, covenant, condition and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. Governing Law. This Agreement shall be interpreted and construed under and governed by the laws of the State of Indiana. Construction. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular shall include the plural (and vice versa) when the sense requires. Entire Agreement. This Agreement shall constitute the entire agreement between the contracting parties regarding the subject matter hereof, and no variance or modification thereof shall be valid and enforceable except by supplemental agreement, in writing, executed and approved by all parties in the same manner as this Agreement. Counterparts. This Agreement may be executed in any number of counterparts, each one of which shall be considered an original. Standards of Consent. Where any provision of this Agreement requires the consent or approval of a party hereto, such party shall not unreasonably withhold condition, or delay such consent or approval, except as otherwise expressly provided herein (such as by words to the effect of "sole" and/or "complete" discretion). Where any provision of this Agreement requires a party to do anything to the satisfaction of the other party, each party agrees that it will not unreasonably refuse to state its satisfaction with such action by the other party. If a party request the other party's consent, approval or statement of satisfaction with respect to any matter hereunder, a failure of a party to reply to such request within thirty (30) days thereafter shall be deemed a consent, approval or statement of satisfaction as the case may be. Recordation of Memorandum. The City, upon the request of Martin, shall enter into a memorandum of this Agreement, in recordable form, setting forth the rights of Martin with respect to any future agreement referenced in Section 2 hereof and affecting Parcel B and the Path Easement Parcel. 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. MUELLER MARTIN By: By: (signature) (signamre) Eric Clark, Co-conservator (printed name and title) (printed name and title) By: (signature) Erv Bruks, Co-conservator (printed name and title) CITY OF CARMEL, INDIANA, by and through its Board of Public Works and Safety By: (signamre) By: James Brainard, Presiding Officer Betty Bruks, Co-conservator (printed name and title) Date: E & H MUELLER DEVELOPMENT COMPANY, LLC By: Mary Ann Burke, Member By: Wilbur Tyner, Jr., President Date: By: BillyWalker, Member Date: ATTEST: Diana L. Cordray, IAMC Clerk-Treasurer Date: 03669rah.doc 09/04/01 10 EXHIBIT A Legal Descril~tion of Parcel B EXHIBIT B The Lease ATTACHMENT 1 EXHIBIT C Depiction of Path Easement Parcel EXHIBIT D Form of Path Easement Parcel A~reement Cross Reference to Prior Deed of Record: County, Indiana Recorder's Office , in the Hamilton EASEMENT AGREEMENT This Easement Agreement (this "Agreement") is made and entered into this ~ day of , 2001 by and between THE HELEN M. MUELLER CONSERVATORSHIP, ("Grantor") and THE CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety ("Grantee"). RECITALS A. Grantor owns certain real property (the "Grantor Parcel") located in Hamilton County, Indiana more particularly described as follows: [INSERT LEGAL DESCRIPTION HERE] B. Grantee, in connection with Grantee's pathways system desires a permanent easement over a portion of the Grantor Parcel which permanent easement area (herein referred to as the "Path Easement Parcel") is more particularly described as follows: [INSERT LEGAL DESCRIPTION HERE] NOW, THEREFORE, in consideration of the foregoing recitals, all of which are incorporated herein by this reference, and of the grants of easements and the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Grant of Permanent Easement. Grantor hereby grants and conveys to Grantee an exclusive, perpetual easement over, under, through and across the Path Easement Parcel for the purpose of providing a ten foot (10') wide public path for walking, running, hiking, rollerblading, bicycling and other forms of pedestrian non-industrial access, as well as for use by motorized and non-motorized City maintenance vehicles. The Path Easement Parcel shall be used to connect the existing path system serving Carmelot Park to any future path within the right of way of 106th Street between Gray Road and Hazel Dell Parkway. Further, Grantee shall have the right to remove any fences, structures, asphalt or concrete paving, curbing or other improvements, trees, bushes and earth berming that exist prior to, as of the time of, or after Grantee's acquisition of such easement. 2. Citv's Right to Relocate Path Easement Parcel. If an artificial lake is created in the vicinity of the "possible future lake area" shown and depicted on Exhibit A, City shall have the right solely at City's expense to relocate the Path Easement Parcel within the area included as the boundaries of Exhibit A so that portions of the route are proximate to the artificial lake. In addition, at one or more (but not more than three (3)) locations where the route is so proximate to the artificial take, City shall be permitted to expand the Path Easement Parcel to accommodate path improvements and accoutrement, including without limitation, picnic tables, playground equipment, benches and shelters. Such expansions shall be of a shape, configuration and design determined by City, but not larger than 0.10 acres each. At the time of any such relocation of the Path Easement Parcel, City shall cause to be prepared and recorded in the Hamilton County, Indiana Recorder's Office a revised description of the Path Easement Parcel. City shall upon any such relocation of the Path Easement Parcel, vacate and release of record the prior description of the Path Easement Parcel, demolish and remove any improvements related thereto and retum the disturbed area to its natural condition by rough and finish grading and seeding of such area. 3. Obligations of Grantee. Grantee shall maintain the Path Easement Parcel in good condition and repair and shall remove and/or replace the same as necessary. 4. Rights Retained by Grantor. Grantor shall retain unto itself, and its grantees, heirs, successors and assigns, and others to whom Grantor may grant rights or easements, the right to use the Path Easement Parcel for any and all purposes and uses not inconsistent with the foregoing easement acquisition by Grantee. 5. Easement and Covenants Aopurtenant. The easements granted, created and made herein, together with the benefits thereof, shall run with the Grantor Parcel and inure to the benefit of Grantor, Grantee and their respective grantees, successors and assigns. The easements granted, created and made herein, together with the burdens thereof, shall run with and bind the Path Easement Parcel, and shall bind Grantor and its grantees, successors and assigns. All covenants and agreements of the Grantor and Grantee hereunder, together with the benefits and burdens thereof, shall be deemed to be real covenants which touch and concern the Path Easement Parcel and the Grantor Parcel, as applicable, shall run with the Path Easement Parcel and the Grantor Parcel and shall inure to the benefit of and be binding upon Grantor and Grantee, as applicable, and their respective grantees, successors and assigns. All covenants and agreements hereunder may be enforced by an action for specific performance, and in the event that a party breaches any such covenant or agreement, the other party may exercise any remedy available hereunder, at law or in equity, and recover from the breaching party all amounts expended in connection with exercising any such remedy (including without limitation, court costs and attomeys' fees). 6. Govemin~ Law. This Agreement shall be govemed by, and construed in accordance with, the laws of the State of Indiana. 2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the date first written above. GRANTOR GRANTEE By: CITY OF CARMEL, INDIANA, by and through its Board of Public Works and Safety Printed: Title: By: James Brainard, Presiding Officer Date: By: Mary Ann Burke, Member Date: By: Billy Walker, Member Date: ATTEST: Diana L. Cordray, IAMC Clerk-Treasurer Date: STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared , the of Grantor and who, having been duly swom, acknowledged the truth and accuracy of the representations made herein and the execution of the foregoing Agreement. Witness my hand and Nota~al Seal this __ day of ,2001. My commission expires: I am a resident of County, Indiana Notary Public Printed Name STATE OF iNDIANA COUNTY OF ) )ss: ) Before me, a Notary Public in and for said County and State, personally appeared James Brainard, as the Presiding Officer for the City of Carmel, Indiana Board of Public Works and Safety, who acknowledged the execution of the foregoing Agreement. WITNESS my hand and Notarial Seal this __ My Commission Expires: My County of Residence: day of ,2001. Notary Public Printed 4 STATE OF INDIANA COUNTY OF ) ) ss: ) Before me, a Notary Public in and for said Coumy and State, personally appeared Mary Ann Burke, who acknowledged the execmion of the foregoing Agreemere. WITNESS my hand and Notarial Seal this ~_ day of My Commission Expires: My County o f Residence: ,2001. Notary Public Printed STATE OF INDIANA COUNTY OF ) )ss: ) Before me, a Notary Public in and for said County and State, personally appeared Billy Walker, who acknowledged the execution of the foregoing Agreement. WITNESS my hand and Notarial Seal this __ day of My Commission Expires: My County of Residence: ,2001. Notary Public Primed 5 STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared Diana L. Cordray, who acknowledged her execution as an attesting wimess of the foregoing Agreement. WITNESS my hand and Notarial Seal this ~ day of ,2001. My Commission Expires: My County of Residence: Notary Public Printed This instrument was prepared by Robert A. Hicks, Attorney at Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.S.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4884. Return following recording to: Robert A. Hicks, Attorney at Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.S.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4884. EXHIBIT E Site Plan and Depiction of Six Acre Parcel