HomeMy WebLinkAboutCC-08-17-09-01 Land Purchase/116th-Hazel Dell/Util SPONSOR Councilor Carter
RESOLUTION CC -0 8-17 -09-01
(FORMERLY CC -07 20 09 -01)
A RESOLUTION OF THE COMMON COUNCIL OF
THE CITY OF CARMEL, INDIANA, REGARDING
PURCHASE OF REAL PROPERTY
WHEREAS, the Common Council of the City of Carmel, Indiana (the Council
is the fiscal body for the City of Carmel, Indiana (the `City and
WHEREAS, the Council has determined that a public need exists for the City s
acquisition of that certain specific property consisting of approximately 11 76 acres east of
Hazel Dell Paikway and south of 116 Street-located in the City of Cannel, County of
Hamilton, State of Indiana which Properly is mote fully described in Exhibit A attached
hereto and made a part hereof by this reference (the "Property"), and
WHEREAS the Council is interested in purchasing the Property in order to
construct wells, a raw water main and related facilities and improvements, and for all
other lawful purposes
NOW, THEREFORE, BE IT RESOLVED, that the Council hereby makes the
following findings
1 The foregoing Recitals are incorporated herein by this reference
2 The Common Council hereby approves the purchase of the Propeity pursuant
to IC 36 1 -10 5 -5
3 The purchase pnce for the Remainder Property shall not be more than the
average of the two (2),appraisals obtained by the' City pursuant to IC 36 1-
10 5 5 adjusted by reasonable and customary closing costs and other
expenses incurred by the City as a result of such purchase
4 The Common Council hereby designates John Duffy Director of the
Department of Utilities for the City of Carmel Indiana as its agent foi
purposes of completing the purchase'of the Property John Duffy is hereby
authorized to execute all documents required in connection v, ith the purchase
of the Property pursuant to this Resolution and to take all other lawful actions
necessary to complete the purchase of the Property as contemplated herein
n Passed by the Common Council of the City of Carmel Indiana this 1 day of
2009 by a vote of l ayes and 6 nays
1431393_1 DOC
SPONSOR Councilor Carter
COMMON COUNCIL FOR THE CITY OF CARMFL
Pre mg Officer Pe. w
W) nc Said. sticker, Pie ro Tempore 4 ei tn Rider�
all
ocettu a Richard L Sharp
ro
ona]d E Carter yder
ATt4T
D ,na L Cordray, IAMC Clerk T asurer
Presented by me to the Mayor of the City of Carmel Indiana this 1 8 da y of
I A Cheat 2009, at to n AM
4 A 9.4L)
Ke
Diana L Cordiay IAMG Clerk Trea
Approved by me, Mayor of the City of Carmel Indiana this 1 tday of
"-art 2009 at JO 31 AM
t
11044,0 J s Biainaid Mayor
ATT� A r
Diana L Cordiay, IAMG, Clerk T' urer
Pi epared by Tammy K Haney Bose McKinney Evans LLP, 111 Monument Ciicte Suite
2700 Indianapolis, Indiana 46204
1431393_1 DOC
SPONSOR Councilor Carter
Fxhihit A
Draw mg and Legal Description of the Remainder Property
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1431393_1 DOC
SPONSOR Councilor Carter
DESCRIPTION OF REAL ESTATE
PART OF THE NORTHWEST QUARTER OF SECTION 3 TOWNSHIP 17 NORTH RANGE 4
EAST AND PART OF THE NORTHEAST QUARTER OF SECTION 4 TOWNSHIP 17 NORTH
RANGE 4 EAST IN HAMILTON COUNTY INDIANA BEING DESCRIBED AS FOLLOWS
COMMENCING AT A MONUMENT GEAR AT THE NORTHWEST CORNER OF THE
NORTHWEST QUARTER OF SECTION 3 TOWNSHIP 17 NORTH RANGE 4 EAST THENCE
ON THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3 SOUTH 00
DEGREES 02 MINUTES 12 SECONDS EAST (ASSUMED BEARING) 77 86 FEET TO A 518
INCH STEEL REBAR WITH A YELLOW CAP STAMPED MILLER SURVEYING 50083 ON THE
SOUTH RIGHT OF WAY LINE OF 116TH STREET PER INSTRUMENT No 9809822045
THENCE ON SAID SOUTH RIGHT OF WAY LINE SOUTH 85 DEGREES 58 MINUTES 44
SECONDS EAST 10845 FEET TO A 518 INCH STEEL REBAR WITH A YELLOW CAP
STAMPED MILLER SURVEYING 50083 THENCE CONTINUING ON SAID SOUTH RIGHT OF
WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 12021 FEET TO A 518
INCH STEEL REBAR WITH A YELLOW CAP STAMPED MILLER SURVEYING S0083 AND
THE POINT OF BEGINNING OF THIS DESCRIPTION THENCE CONTINUING ON SAID
SOUTH RIGHT OF WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 76 64
FEET THENCE CONTINUING ON SAID SOUTH RIGHT OF WAY LINE SOUTH 74 DEGREES
41 MINUTES 00 SECONDS EAST 50 93 FEET TO A 518 INCH STEEL REBAR WITH A YELLOW
CAP STAMPED MILLER SURVEYING S0083 THENCE CONTINUING ON SAID SOUTH
RIGHT OF WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 46 FEET TO
THE CENTER LINE OF ST CLAIR CREEK THENCE MEANDERING ON SAID CENTERLINE
OF ST CLAIR CREEK THE FOLLOWING 6'COURSES 1) SOUTH 12 DEGREES 51 MINUTES
48 SECONDS WEST 76 44 FEET 2) SOUTH`23 DEGREES 27 MINUTES 39 SECONDS EAST
87 16 FEET 3) SOUTH 02 DEGREES 18 MINUTES 50 SECONDS WEST 195 89 FEET 4)
SOUTH 11 DEGREES 39 MINUTES 53 SECONDS WEST 162 77 FEET 5) SOUTH 00
DEGREES 32 MINUTES 22 SECONDS WEST 270 00 FEET 6) SOUTH 40 DEGREES 57
MINUTES 38 SECONDS EAST 225 00 FEET TO THE LOW WATER MARK OF WHITE RIVER
AS SURVEYED JULY 2005 THENCE MEANDERING ON SAID LOW WATERMARK OF WHITE
RIVER THE FOLLOWING 5 COURSES 1) SOUTH 14 DEGREES 07 MINUTES 35 SECONDS
WEST 1357 FEET 2) SOUTH 22 DEGREES 44 MINUTES 18 SECONDS WEST 18564 FEET
3) SOUTH 14 DEGREES 27 MINUTES 28 SECONDS WEST 123 34 FFEET 4) SOUTH 19
DEGREES 02 MINUTES 49 SECONDS WEST 8892 FEET 5) SOUTH 37 DEGREES 59
MINUTES 18 SECONDS WEST 75 63 FEET TO THE CENTER LINE OF COOL CREEK
THENCE MEANDERING ON SAID CENTERLINE OF COOL CREEK THE FOLLOWING 11
COURSES 1) NORTH 58 DEGREES 34 MINUTES 47 SECONDS WEST 24831 FEET 2)
NORTH 33 DEGREES 45 MINUTES 21 SECONDS WEST 18900 FEET 3) SOUTH 80
DEGREES 04 MINUTES 42 SECONDS WEST 9562 FEET 4) NORTH 58 DEGREES 54
MINUTES 00 SECONDS WEST 5627 FEET 5) NORTH 30 DEGREES 01 MINUTES 38
SECONDS WEST 6910 FEET 6) NORTH 01 DEGREES 44 MINUTES 13 SECONDS WEST
64 14 FEET 7) NORTH 09 DEGREES 14 MINUTES 01 SECONDS EAST 232 70 FEET 8)
NORTH 12 DEGREES 11 MINUTES 03 SECONDS WEST 51 53 FEET 9) NORTH 33 DEGREES
28 MINUTES 11 SECONDS WEST 95 35 FEET TO A POINT WHICH IS 211 20 FEET WEST OF
THE EAST LINE OF THE NORTHEAST QUARTER OF SECTION 4 TOWNSHIP 17 NORTH
RANGE 4 EAST 10) NORTH 71 DEGREES 24 MINUTES 19 SECONDS WEST 116 03 FEET
11) NORTH 12 DEGREES 25 MINUTES 02 SECONDS EAST 97 42 FEET THENCE SOUTH 85
DEGREES 01 MINUTES 39 SECONDS EAST 593 00 FEET TO A 518 INCH STEEL REBAR
WITH A YELLOW CAP STAMPED MILLER SURVEYING 50083 THENCE NORTH 04
DEGREES 55 MINUTES 28 SECONDS EAST 482 76 FEET TO A 516 INCH STEEL REBAR
WITH A YELLOW CAP STAMPED MILLER SURVEYING S0083 THENCE NORTH 05
DEGREES 15 MINUTES 31 SECONDS WEST 157 06 FEET TO A 5\8 INCH STEEL REBAR
WITH A YELLOW CAP STAMPED MILLER SURVEYING 50083 THENCE NORTH 72
DEGREES 27 MINUTES 18 SECONDS WEST 9407 FEET TO THE POINT OF BEGINNING
CONTAINING 11 76 ACRES MORE OR LESS
1431393_1 OOC
SPONSOR Councilor Carter
DESCRIPTION OF REAL ESTATE 10 DRAINAGE EASEMENT
PART OF THE NORTHWEST QUARTER OF SECTION 3 TOWNSHIP 17 NORTH RANGE 4
EAST AND PART OF THE NORTHEAST QUARTER OF SECTION 4 TOWNSHIP 17 NORTH
RANGE 4 EAST IN HAMILTON COUNTY INDIANA BEING DESCRIBED AS FOLLOWS
COMMENCING AT A MONUMENT GEAR AT THE NORTHWEST CORNER OF THE
NORTHWEST QUARTER OF SECTION 3 TOWNSHIP 17 NORTH RANGE 4 EAST THENCE
ON THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3 SOUTH 00
DEGREES 02 MINUTES 12 SECONDS EAST (ASSUMED BEARING) 77 86 FEET TO A 5k8
INCH STEEL REBAR WITH A YELLOW CAP STAMPED MILLER SURVEYING 50083 ON THE
SOUTH RIGHT OF WAY LINE OF 116TH STREET PER INSTRUMENT No 9809822045
THENCE ON SAID SOUTH RIGHT OF WAY LINE SOUTH 85 DEGREES 58 MINUTES 44
SECONDS EAST 108 45 FEET TO A 518 INCH STEEL REBAR WITH A YELLOW CAP
STAMPED MILLER SURVEYING S0083 THENCE CONTINUING ON SAID SOUTH RIGHT OF
WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 120 21 FEET TO A 518
INCH STEEL REBAR WITH A YELLOW CAP STAMPED MILLER SURVEYING S0083 AND
THE POINT OF BEGINNING OF THIS DESCRIPTION THENCE CONTINUING ON SAID
SOUTH RIGHT OF WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 76 64
FEET THENCE CONTINUING ON SAID SOUTH RIGHT OF WAY LINE SOUTH 74 DEGREES
41 MINUTES 00 SECONDS EAST 50 93 FEET TO A 518 INCH STEEL REBAR WITH A YELLOW
CAP STAMPED MILLER SURVEYING S0083 THENCE CONTINUING ON SAID SOUTH
RIGHT OF WAY LINE SOUTH 89 DEGREES 36 MINUTES 53 SECONDS EAST 46 36 FEET TO
THE CENTER LINE OF ST CLAIR CREEK THENCE MEANDERING ON SAID CENTERLINE
OF ST CLAIR CREEK THE FOLLOWING 3 COURSES 1) SOUTH 12 DEGREES 51 MINUTES
48 SECONDS WEST 76 44 FEET 2) SOUTH 23 DEGREES 27 MINUTES 39 SECONDS EAST
87 16 FEET 3) SOUTH 02 DEGREES 18 MINUTES 50 SECONDS WEST 50 45 FEET TO THE
POINT OF BEGINNING OF THIS 10 FOOT WIDE DRAINAGE EASEMENT THENCE SOUTH 02
DEGREES 18 MINUTES 50 SECONDS WEST 10 00 FEET THENCE NORTH 87 DEGREES 41
MINUTES 10 SECONDS WEST 86 87 FEET THENCE NORTH 04 DEGREES 55 MINUTES 28
SECONDS EAST 10 01 FEET THENCE SOUTH 87 DEGREES 41 MINUTES 10 SECONDS
EAST 86 41 FEET TO THE POINT OF BEGINNING CONTAINING 0 0198 ACRES MORE OR
LESS
1431393_1 HOC
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT Agreement is executed as of thc
day of 2009 (the Agreement Date by Mansion Real Estate LLC an
Indiana limited liability company whose address is 5801 B 116 Street Carmel, Indiana 46033
"Seller and the City of Carmel Indiana whose address is 760 Third Avenue S W Carmel,
Indrana'46032 Buyer who acknowledge that the following facts are true
A Seller is the owner'in fee simple of a parcel of real estate located at 5845 East 116
Street Cannel, Hamilton County Indiana 46033, consisting of approximately eleven and 76/100
(11 76) acres as generally shown on Exhibit A attached hereto with the final acieage and legal
description to be determined by the Survey (the `Property and
B Buyer desires to purchase, and Seller desires to sell the Property
C Buyer intends to use the Property as well sites and to construct other related faeilines
on the Property Buyer s Intended Use
In consideration of the mutual covenants hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer agree
as follows
1 Purchase and Sale Seller agrees to sell and Buyer agrees to purchase thc Property for
the price and subject to the temis and conditions hereinafter set forth
2 Purchase Price The puichase pnce for the Property (the Purchase Price shall be
Four IIundred Sixty Three Thousand One Hundred Fifty Six and 00/100 Dollars ($463,156 00)
Seller acknowledges and agrees that the Pui chase Pnce represents the average of the value of two (2)
appraisals as set forth in Paragraph 7 herein
3 Payment of Purchase Pnce On closing this transaction Buyer shall pdy the Purchase
Price, plus or minus any prorations and adjustments made pursuant to this Agreement, to Seller in
Immediately available funds
4 Conditions Buyer's obligations under this Agreement are subject to the satisfaction
(or waiver in wntrng by Buyer) of the conditions in this Paragraph 4 by 5 00 p ni on July 18 2009
(the Satisfaction Date At any time after the Agreement Date, Buyer and its agents shall have the
right to (and Seller hereby grants permission to Buyer to) enter upon the Property and make all
engineering soil bonng percolation and other tests and inspections deemed necessary by Buyer to
satisfy Buyer as to the condition of the Property, provided, however, that Buyer shall restore any
damage to the Property resulting from the entry of Buyer or its agents Unless otherwise provided
herein all such tests shall be at Buyer s cost and expense In the event the following conditions are
not satisfied by the Satisfaction Date Buyer shall on or beforeae Satisfaction Date, give Seller
wntten notice that such conditions have not been satisfied and either (i) waive ally unsatisfied
1422190x1
condition and proceed to Closing of the purchase and sale, or (u) notify Seller that Buyer has elected
not to attempt to further resolve or satisfy such condition(s) and that Buyer will not complete the
purchase and sale in which case neither party shall have any further obligation hereunder
(a) Status of Title Buyer shall have received the updated Title Commitment and
Survey, as each is hereinafter defined in the condition and as required under Paragraphs 5
and 6 of this Agreement
(b) Access Buyer +and Seller shall have agreed upon the Temporary Access
Easement described in Paragraph 15
(c) Permits Buyer shall have determined in its sole discretion that all permits,
consents, approvals and other Items requited or desired by Buyer to be obtained from all
federal, state and local governmental, municipal pubhc and other authonties bodies and
agencies, including but not limited to the Hamilton County Surveyor and the Indiana
Department of Environmental Management (collectively Permits to permit Buyer to
purchase and use the Property as well sites Buyer's Intended Use' can be obtained Seller
shall cooperate with and furnish Buycl with all information necessary to obtain all such
Permits
(d) Soil Conditions Buyer shall have determined in its sole discretion, that the
surface water drainage and soil conditions, qualities density and beanng capacity of the
Property are suitable for Buyer's Intended Use without the necessity of any extraordinary
filling or compaction or any other extraordinary engineering or construction measures or
expenditui es which, In the opinion of Buyer would impair the feasibility of Buyer's Intended
Use development and improvement of the Property
(e) Environmental Condition and Wetlands Buyer shall have determined, in its
sole disci etion, that (a) the Pi operty is not contaminated with any toxic waste or hazardous
substance, (b) the Property contains no asbestos or PCB's, (c) the Property does not appear
on any state or federal CERCLA (Comprehensive Environment Responsibility Compensation
and Liability Act or Superfund) list, and (d) the Property contains no underground storage
tanks
Buyer shall have determined, m its sole discretion that the fact that any portion of the
Property is or would be designated, labeled or otherwise charactei ized as 'wetlands "natural
habitat or natural body of water by any local, state or federal agency or department or will
require state or federal permits or approvals for wetlands development pnor to construction
of impiovenients thereon, will not adversely impact Buyer's Intended Use of the Property
(f) Financing Buyer shall have obtained financing acceptable to Buyer, in its
sole discretion, for its acquisition and development of the Property, which financing may
include but is not limited to Buyer obtaining (r) consents and approvals of all applicable
municipal bodies, (u) federal, state or local grants, or (in) approval for the issuance of bonds
1 i2''i9ovi
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(g) Approvals Buyer shall have obtained any and all necessary resolutions,
consents or other approvals of all applicable municipal bodies allowing Buyer s purchase of
the Property pursuant to the tends set forth herein
(h) Utilities Buyer shall have determmed In its sole discretion, that all utilities
necessary for Buyer's Intended Use of the Property are available in such locations and
capacities as are satisfactory to Buyer
(r) Temporary Access Easement Buyer and Seller shall have agreed on the form
of the Temporary Access Easement as pi ovided in Paragraph 14
(I) Well House Buyei and Seller shall have agreed upon a conceptual plan for
the well house to be constructed on the Property as provided in Paragraph 15
5 Seller's Title
(a) Within ten (10) days after the Agreement Date, Seller, at its expense shall
cause to be delivered to Buyer an updated commitment (Order No 320807498 Effective
Date 8/22/08) for an owner's policy of title insurance (the Title Commitment issued by
Lawyers Title Insurance Company "Title Insurer in which the Title Emmet shall agree to
insure for the full amount of the Purchase Pnce, merchantable title to the Property in the
name of Buyer, free from the Schedule B standard printed exceptions and all other
exceptions except any Permitted Exceptions, after delivery of the deed required in Paragraph
12 hereof to Buyer from Seller The Title Insurer shall affirmatively insure any appurtenant
easements and shall issue any other title endorsements requested by Buyer Such Title
Commitment shall have attached thereto complete, legible copies of all instruments noted as
exceptions therein The Title Commitment shall be updated pnoi to the Closmg to reflect the
state'bf the title not mote than ten (10) days pnor to the Closing Seller shall pay any and all
costs and expenses related to the title insurance, including all seaich,fees; the premium for
the policy Buyer shall pay for all endorsements required by Buyer and issued pursuant to
the Title Commitment Any closing fee charged by the Title Insurer shall be shared equally
by Buyer and Seller
(b) Buyer shall, within five (5) days following Buyer's receipt of both the Title
Conimitnrent and the Survey review same and if (1) the Title Commitment reflects any
exceptions to title which are not acceptable to Buyer in Buyer's sole discretion, or (2) the
Survey delivered to Buyei pursuant to Paragraph 6 below discloses any state of fact not
acceptable to Buyer in Buyer's sole discretion or (3) at any time prior to the Closing title to
the Property is encumbered by any exception to title acceptable to Buyer rn Buyer s sole
discretion (any such exception or unacceptable state of fact being referred to herein as a
Title Defect then Buyer shall within the time frames provided herein or within five (5)
days following discovery of the Title Defect that did not appear on the original Title
Commitment as the case may be, may give Seller written notice of such Title Defect If
1422190%
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Buyer fails to provide notice of a Talc Defect within such five (5) day period the exceptions
set forth in the Title Commitment (other, than standard exceptions which will be removed at
the Closing) shall be deemed acceptable to Buyer "Permitted Exceptions') and the Title
Commitment and Survey shall be deemed acceptable to Buyer if Buyer timely provides a
notice of a Title Defect, Seller shall, within ten (10) days after receipt of such notice, use its
reasonable efforts to remove such Title Defect or obtain affirmative title insurance coverage
unsung and defending against any loss cost or expense arising out ofoi related to such Title
Defect "Affirmative Coverage On or before the Closing, Seller shall provide Buyer with
reasonable evidence of such removal or provide reasonable evidence that such Title Defect
will be removed or that such Affirmative Coverage shall be obtained Notwithstanding
anything contained herein to the contrary, Seller shall use reasonable efforts to cure or obtain
Affirmative Coverage for the following Title Defects pnor to, or at the Closing
(i) All mortgages, secunty deeds or other secunty instruments encumbering
the Property,
(it) All past due ad valorem taxes and assessments of any kind, whether or not
of record which constitute, or may constitute, a hen against the Property,
and
(iii) Judgments against the Seller (which do not result from acts or omissions on
the part of Buyer) which have attached to and become a lien against the
Property
(c) In the event Seller is unable to cure or obtain Affumative Coverage for any
Title Defect, Buyer shall have the option to (i) waive any Title Defect and proceed to Closing
or (n) terminate this Agreement in which case neither party shall have any further obligation
hereunder
6 Survey Within ten (10) days of the Agreement Date, Buyer shall obtain at Buyer s
expense, an updated version of the survey referenced in the Recitals for the Property (the "Survey')
The Survey shall (a) be completed in accordance with the minimum standard detail requirements for
ALTA survey and certified to Seller Buyer and the °Title Insurer, by such surveyor (b) have one
perimeter description of the Property (c) show all easements, rights of way, set back lines and
encioachments, (d) disclose on the face thereof the gross acreage of the Property, and (e) designate
any flood hazard or wetlands area
7 Appraisals Buyer has caused two (2) appraisers to appraise the fair market value of
the Property pursuant to Indiana Code 36 1 10 5 5
8 Cooperation of Seller Seller shall assist Buyer and its representatives, whenever
reasonably requested by Buyer, in obtaining information about the Property
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9 Taxes and Assessments Buyer will assume and agree to pay (a) all assessments for
municipal improvements becoming a lien against the Property after the Closing and (b) so much of
the real estate taxes and assessments assessed against the Property for and becoming a hen during the
calendar year in which such Closing occurs as shall be allocable to Buyer for the period on and after
the Closing, and Seller shall pay the balance of such taxes, using for Closing purposes the tax rate
and valuation assessment existing at the Closing Date if the applicable tax rate or assessment has not
then been deternmed Any taxes and assessments not assumed by Buyer and not due and payable at
the time of Closing, including without limitation, both installments of real estate taxes payable
dunng the calendar year 111 which Closing occurs, shall be allowed to Buyei as a credtt°agauvst the
cash payment required on Closing and Seller shall not be further liable for such taxes Inasmuch as
the Pioperty is not now and will not as of Closing be assessed and taxed as a separate tax parcel and
to the extent that the assessed valuation and tax rate are not known at time of Closing the parties
will make a reasonable allocation of assessed value to the Property and will cooperate on a post
Closing basis to reconcile the estimated assessed valuation and rate used at Closing with the actual
assessed valuation and rate determined by the assessor once the same become available This
provision shall survive Closing and delivery of the deed to Buyer
10 Insurance and Risk of Loss Insurance on the Property shall be cancelled by the Seller
as of the Closing In the event that, prior to Closing, all or anyportions of the Property, any i nterests
therein or any nghts appurtenant thereto are taken or appropriated (either permanently or for
temporary penods) under the power of eminent domain or condemnation by any authority having
such power, or by virtue of any actions or proceedings in lieu thereof or if any notice or threat of
such taking or appropnation has been gn en or is pending at the Closing, then Buyer, at its option,
may either (a) cancel this Agreement by wntten notice to Seller, in which event neither party shall
have any further obligation hereunder or (b) elect to proceed with Closing, in which event the
Purchase Price shall be reduced by an amount equal to any sums previously paid or then payable to
Seller by the condemning authonty by reason of such taking appropriation or action or proceeding to
lieu thereof, and Seller shall transfer and assign to Buyei at Closing any and alI further claims
demands, actions and choses in action which may exist by virtue of such taking, appropriation or
action or proceeding in lieu thereof, provided howevet, that until the earlier of (i) Closing or (u)
termination of this Agreement Seller shall not make any voluntary settlement or agreement
regarding any taking, appropnation or action or proceeding in lieu thereof with any condemning
authority without film obtaining Buvers written consent to such settlement or agreement
11 Closing Provided the conditions in Paragraph 5 hereof are satisfied, the closing of
the purchase and sale of the Property (the Closing shall occur at the office of Title Insurer of
another location selected by both Seller and Buyer fifteen (15) days following the later of (i) the
Satisfaction Date or (n) approval of the purchase of the Property by the Conin on Council of the
City of Carmel (the Closing Date but,not later than August 28 2009, unless Buyer and Seller
shall agree upon a different date for the Closing
12 Closing Documents At the Closing, Seller shall execute and deliver to Buyer (a) a
limited warranty deed conveying the Property to Buyer free and clear of all hens and encumbrances
except such as have been approved in writing by Buyei, (b) a Vendor's Affidavit in a form
1422190v4
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satisfactory to the Buyer and the Title Insurer (c) a Certification of Non Foreign Status pursuant to
Section 1445(b)(2) of the Internal Revenue Code (d) an IRS Form 10995 Disclosure Statement (if
1 equired under the internal Revenue Code), (e) a closing statement, (1) a certificate stating that no
disclosure document is required under the Indiana Responsible Property Transfer Law, (g) an Indiana
Disclosure of Sales Information Form, and (h) such other instruments, certific'ites or affidavits as
maybe provided herein or as Buyer or Title Insurer may reasonably request to effect the intention of
the parties hereunder
13 Possession Possession of the Property shall be delivered to Buyer on the Closing
Date in the same condition a it is now, Acts of God excepted and otherwise free and clear of the
claims of any other party
14 Temporary Access Easement At Closing Seller shall grant to Buyer a temporary
easement upon terms and conditions reasonably acceptable to the parties (the "Temporary Access
Easement in, under over across and through the existing driveways and paths on Seller s adjacent
property Temporary Access Easement Area for ingress and egress fa' pedestnan and vehicular
traffic between the Property and 116 Street Thirty (30) days after the earlier of (i) Seller s sale or
redevelopment of Seller s adjacent property or (ii) Buyer s installation of a dnmeway on the
Property, or (in) the two year 'anniversary of closing, the Temporary Access Easement shall
terminate
15 Use of Property In developing the Property for Buyer's Intended Use, Buyer shall
use reasonable efforts to maintain the natural landscaping on the Property Notwithstanding the
foregoing, Buyer shall have the nght to construct on the Property any and all improvements
necessary for Buyer's Intended Use as well as public park amenities such as multipurpose paths and
other similar improvements Upon Buyer s installation and operation ofwell site(s) on the Property,
Buyer shall construct a well house(s) on the Property generally in accordance with the preliminary
well house plan to be agreed upon by and Seller pnoi to the Satisfaction Date Final plans for
the well house(s) will be agreed upon by Buyer and Seller, each acting in good faith In the event
Buyer must vary the plans for the construction of the well house Seller and Buyer shall cooperate in
good faith to agree upon modifications thereof Pnor to the installation of above ground
improvements on the Property (other than any well house) Buyer shall Consult the Seller as to such
above ground improvements Buyer shall not be required to obtain Seller s consent to any such
improvements Buyer s obligation to consult with Seller regarding such above ground improvements
shall apply to Seller only and shall not transfei to any other entity or owner of property and shall
continue only for so long as Seller owns property adjacent to the Property Nothing in this
Agreement shall be deemed to interfere with Buyer's nght to use the Property for Buyer's Intended
Use or the right of Buyer to convey all or a portion of the Property including but not limited to
conveyance for a public park or other public purpose This Paragraph 15 shall survive Closing
16 Rights and Obligations The rights and obhgations of Seller and Buyer herein
contained shall inure to the benefit of and be binding upon the parties hereto and their respective
personal representatives heirs, successors and assigns
1422190v1
6
17 Notices All notices required or permuted to be given hereunder shall be in writing
and delivered either in person or by certified or registered first -class prepaid mall return receipt
requested to Seller or Buyer at their respective addresses set forth below, or at such other address,
notice of which may have been given to the other party in accordance with this Paragraph 17
Seller Mansion Real Estate, LLC
5801 E 116` Street
Carmel, Indiana 46033
Attention Robert Zehr
Copy to Robert A Hicks
Hall Render Killian, Heath Lyman P C
Suite 2000, One American Square
Indianapolis, IN 46282
(317) 977 1433
(31 7) 633 4972 (fax)
rhicks@hallrender com
Buyer City of Carmel
760 Third Avenue S W
Carmel, Indiana 46032
Attention John Duffy
(317) 71-2443
(317) 571 -2462 Fax
jduffy®carmel 1n gov
Copy to Bose McKinney Evans LLP
Meridian Corporate Plaza Two
301 Pennsylvania Parkway, Suite 300
Lidianapolrs, Indiana 46280
Attn Tammy K Haney, Esq
Any notice given in accordance with this Paragraph 17 shall be deemed to have been duly given or
delivered on the date the same is peisonally delivered to the recipient or received by the recipient as
evidenced by the return receipt
18 Representation Regal dingllazardous Waste Seller hereby warrants and represents to
Buyer as follows, that to the best of Seller's knowledge (a) the Property is not property' under the
Indiana Responsible Property Transfei Law (I C 13 -7 22 5), and no Environmental Disclosure
Document need be provided pursuant thereto (b) the Property is not in any way contaminated' 1th
any hazardous substance, (c) the Property does not appear on any state or federal CERCL k
(Comprehensive Environmental Responsibility, Compensation, and LiabilityAct or Superfrmd) lists,
(d) there is no asbestos or PCP's on the Property (e) there are no underground storage tanks on the
Property, (t) neither Sellei nor any of Seller's employees, agents, licensees or invitees have placed or
142219014
7
permitted the placement of any hazardous substances in, on or over the Pi operty, (g) no other party
has placed any hazardous substances in, on or over the Properly (h) the Property has not been used
as a plant or site where hazardous substances are subjected to treatment, storage disposal or
recovery (i) the Property is not subject to any federal state or local Superfund hen proceedings
claim, liability or action, of the threat or likelihood thereof, for the clean -up, removal or remediation
of any such hazardous substance from the Property (j) by acquiring the Property Buyer will not
incur or be subjected to any liability for the clean-up removal or reinediation of any hazardous
substance from the Property and (k) Seller shall indemnify defend and hold Buyer harmless from
and against any and all claims, demands, liabilities damages suits, actions, judgments, fines
penalties, loss, costs and expense (including, but not limited to attorneys fees) arising or resulting
from or suffered, sustained or incurred by Buyer as a result (direct and indirect) of the uiiti uth or
inaccuracy of any of the foregoing,matters represented and warranted by Seller to Buyer or the
breach of any of the foregoing covenants and warranties of Seller, which indemnity shall survive the
Closing heieof
The fact that Buyer undertakes or obtains any environmental audit or assessment of the
Property shall not release or relieve Seller of or from any of the foregoing covenants repi esentations
and warranties In the event that any such environmental audit or assessment reflects that any of the
foregoing representations and warranties are not true and correct Seller Immediately shall reimburse
Buyer for the cost of such environmental audit or assessment which reimbursement shall be in
addition to all other nghts and remedies of Buyer against Seller The terms' hazardous substance
"release' and removal as used herein shall have the same meaning and definition, as set forth in
paragraphs (14) (22), and (23), respectively, of Title 42 U S C 9601 and I C 13 -7 -8 7 -1 provided,
however, that the term' hazardous substance as used herein shall also include 'hazardous waste" as
defined in paragraph (5) of 42 U S C 6903 and "petroleum as defined in paragi aph (8) of 42 U 5 C
6991 The term underground storage tank' as used herein shall have the same meaning and
definition as set forth in paragraph (1) of 42 U S C 6991
19 Further Representations and Warranties of Seller Seller hereby represents and
warrants that
(a) Seller has full power and authority to enter into and consummate the
transaction contemplated by this Agreement, and all consents and approvals necessary
therefor have been obtained
(b) The execution, delivery and performance by Seller'of its obligations under this
Agreement will not conflict with or result in a breach of or constitute a default under, any of
the provisions of' any law, govenunental rule, regulanons judgment, decree or order by
which the Seller is bound or by any of the provisions of any contract to which the Seller is
bound, or if Seller is not an individual by the Seller's declaration of trust certificate of
incorporation, bylaws or partnership agreement as the case may be
(c) Seller has, as of the Agreement Date, and will have as of the date of the
Closing, good, marketable and indefeasible title to the Property, subject only to those
exceptions shown on the Title Commitment and Survey
1422190%
8
(d) To Seller's knowledge, there is no litigation or proceeding pending or
tlueatened against or relating to Seller, the Property or the use thereof nor does Seller know
of or have reasonable grounds to know of any basis for any such action or claim
(e) There are no hens of other encumbrances against the Property which will
remain after the Closing
(f) There are no covenants, agreements, restrictions or other arrangements or
understandings (whether in wnttng or of record) respecting the Seller, the Property, or the
use or possession of the Property which would require payment by Buyei to any person,
owners' association or other entlty<of or for shared easements, improvements, utilities or
services, provided, however in the event any such covenant, agi Bement restnctton or other
arrangement or understanding exists and has been approved in wnting by Buyer Seller shall
pay at or prior to Closing all amounts accruing or becoming due and payable on or pnor to
Closing and any regular penodic payments thereunder accruing in the year of Closing shall
be prorated to the date of Closing
(g) No mechanic or matenalmen shall claim a hen against the Property for labor
or materials furnished with respect to improvements on the Property
20 Survival of Representations. Warranties and Covenants Each of the obligations
covenants representations and warranties of parties hereto set forth in this Agreement shall
survive the Closing and shall not be merged in the deed or other instruments of conveyance
21 Assignment Buyer may assign this Agreement and all of its interests herein to a
related municipal corporation created for and /or charged with the development, maintenance and
operation of well sites in the Carmel, Clay Township, Hamilton County, Indiana, area without the
consent of Seller Upon such assignment or nomination the assignee or nominee shall have and be
subject to all the nghts, benefits, duties and obligations of Buyer hereunder and Buyer shall be
released from all further liability or obligation hereunder
22 Complete Agreement This Agreement represents the entire agreement between
Seller and Buyer covenng everything agreed uponior understood in this transaction There are no
oral promises conditions, representations understandings interpretations or terms of any kind as
conditions or inducements to the execution hereof of in effect between the parties No change or
addition shall be made to this Agreement except by a wntten agreement executed by Seller and
Buyer
23 Authonzed Signatories The persons executing this Agreement for and on behalf of
Buyer and Seller each represent that they have the requisite authority to bind the entities on whose
behalf they are signing
142' 190
9
24 Partial Invalidity If any term, covenant or condition of tlus Agreement is held to be
invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision
had never been contained herein
25 Use of Brokers Each party represents and warrants to the other that it has dealt with
no broker, finder or other person with respect to this Agreement or the transactions contemplated
hereby othei than Stan Elser Broker of Grubb Ellis Harding Dahm representing Seller Seller
shall be responsible for any commission due to Broker Seller and Buyer each agree to indemnify
and hold harmless one another against any loss, liability, damage cost expense or claim incurred by
reason of any brokerage commission or finder's fee alleged' to be payable because of any act,
omission or statement of the indemnifying party Such indemnity obligation shall be deemed to
include the payment of reasonable attorneys' fees and court costs incurred in defending any such
claim
26 Attorneys' Fees In the event that either party shall bring an action or legal proceeding
for an alleged breach of any provision of this Agreement or any representation, warranty, covenant or
agreement herein set forth, or to enforce, protect, determine or establish any term, covenant or
provision of this Agreement or the rights hereunder of either party the prevailing party shall be
entitled to recover from the nonprevailing party, as a part of such action or proceedings, or in a
separate action brought for that purpose reasonable attorneys' fees and costs expert witness fees and
court costs as may be fixed by the court or btu y
27 Governing Law. Construction
(a) This Agreement shall be interpreted and enforced according to the laws of the
State of Indiana
(b) All headings and sections of this Agi eement are inserted for convenience only
and do not form part o f this Agreement or limit expand or otherwise alter the meaning of any
provisions hereof
(c) This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an anginal and all of which shall constitute one and the same
agreement
(d) The provisions of this Agreement are intended to be for the sole benefit of the
parties hereto and their respective successors and assigns, and none of the provisions of this
Agreement are intended to be, nor shall they be construed to be for the benefit of any third
party
(e) Seller and Buyer hereby acknowledge that upon execution by ail parties this
Agreement is and will iemam a public record under applicable laws rules and ordinances
1422190%1
10
IN WITNESS WHEREOF thi s Agieement has been executed by the parties hereto as of the
date first above written
MANSION REAL ESTATE, LLC,
an Indiana limited liability company
By
Printed
Title
'SELLER
TIIE CI rY OF CARMEL, INDIANA
By
Printed
Title
"BUYER
142219011
11
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