HomeMy WebLinkAboutLandscape Buffer letter 01-10-08 January 10, 2008
Mr. and Mrs. Andrew Crook
2288 W. 136 Street
Carmel, Indiana 46032
Re: Landscape Buffer with Westwood Estates
Dear Mr. and Mrs. Crook:
In response to your proposal and in good faith, we propose the following agreement for the
settlement of the landscape buffer matter (the "Agreement consistent with your email of
October 9, 2007. The easement will extend the full length of the joint property line. The
easement area shall extend ten feet south from the property line. The design of the landscape
buffer and of the drainage for the easement shall be done by a qualified landscape architect. The
design will be based upon your request for all the trees to be evergreens, with a minimum height
of 12 feet to be planted on or along a berm of not less than two feet in height within four feet of
the easement's north boundary line. The current fence will be removed and re- installed on the
south boundary line of the easement area at the sole cost and expense of Justus Home Builders,
Inc. "Justus as provided for below.
1. Within 2 days of acceptance of this Agreement and the approval of the size, type and
number of trees, the design of the landscape buffer and been, plant location and the
wording to be placed on the sigtiage required under paragraph 4(g) below (the "Landscape
Buffer Design by Mr. and Mrs. Crook, Justus will deliver a check in the amount of
$5,000.00 as a non refundable payment to Mr. and Mrs. Crook.
2. Within two days of written approval of the landscape buffer design by Scott Brewer,
Environmental Planner City of Carmel, and by Mike Hollibaugh, Director of the Carmel
Department of Community Services, Justus will prepare and deliver to Mr. and Mrs. Crook
a draft of the easement agreement for the landscape buffer "Easement Agreement
consistent with the terms and conditions of this Agreement. Mr. and Mrs. Crook will have
5 days to review the proposed agreement with their legal counsel and to submit proposed
modifications to Justus. Justus will have 3 days from receipt of the modifications to accept
the modifications or to request a meeting with legal counsel for Mr. and Mrs. Crook to
finalize the terms of the proposed Easement Agreement. Upon the agreement of the parties,
the Easement Agreement shall be signed and held in escrow by Mike Hollibaugh pending
Mr. and Mrs. Andrew Crook
January 10, 2008
Page 2
satisfaction of the conditions set forth in paragraph 3 below, and subject to any
modifications required by the Plan Commission. Concurrently upon placing the Easement
Agreement in escrow with Mike Hollibaugh, Justus will deliver a check in the amount of
$5,000.00 as a non refundable payment to Mr. and Mrs. Crook.
3. Upon the satisfaction of all of the following:
(a) the approval of the landscape buffer design, the form of the landscape easement, and
the change in the condition to the approval of the Primary Plat of Westwood Estates
by the Plan Commission;
(b) the receipt by Justus and Mr. and Mrs. Crook of a letter from Mike Hollibaugh and
Scott Brewer to the Plan Commission stating their support that the landscape buffer
meets the requirements for a Class A buffer for any development that might occur on
the Crook property; and
(c) the dismissal with prejudice of all litigation and the release of all claims by the City
of Carmel and its Plan Commission against Justus Home Builders, Inc. and the
owners of Lots 17 through 21 inclusive of Westwood Estates, arising from or
otherwise relating to the failure to install the landscape buffer required as a condition
to the approval of the primary plat of Westwood Estates;
Justus will deliver a check in the amount of $10,000.00 as a non refundable payment to Mr. and
Mrs. Crook.
4. Within five business days of the satisfaction of all of the conditions set forth in paragraph 3
above, Mr. and Mrs. Crook, representatives from Justus and Mike Hollibaugh shall meet
for a closing on the easement transaction and the following shall occur:
(a) Justus will deliver a check in the amount of $30,000.00 to Mr. and Mrs. Crook.
(b) Justus will deliver a 5 -year maintenance agreement for the care and maintenance of
the landscape buffer and easement area, in a form reasonably acceptable to Mr. and
Mrs. Crook.
(c) Justus, at its sole cost and expense, will provide to Mr. and Mrs. Crook a staked
survey of the easement area.
(d) Mr. and Mrs. Crook shall grant a temporary license for entry upon the landscape
buffer and easement area from time to time to perform the obligations under the
maintenance agreement. It being understood and agreed that entry to the landscape
buffer and easement area shall be from the Westwood Estates subdivision. The
Easement Agreement and temporary license shall specifically exclude the residents of
the Westwood Estates subdivision from entering upon or otherwise using the
easement area.
(e) Mr. and Mrs. Crook shall deliver an unconditional release (the "Release of any and
all claims against Justus and the owners of Lots 17 through 21 inclusive of Westwood
Estates arising from, in connection with, or in anyway related to the failure,
heretofore, to install the landscape buffer required as a condition to the approval of
Mr. and Mrs. Andrew Crook
January 10, 2008
Page 3
the primary plat of Westwood Estates. The Release shall not apply to or affect any
future claim or claims Mr. and Mrs. Crook may have against Justus for any breach of
this Agreement under paragraphs 9 and 10 below.
(f) Mike Hollibaugh will release and Justus will record the final, executed Easement
Agreement in the Office of the Recorder of Hamilton County.
(g) Justus, at its sole cost and expense, will erect and maintain two signs one on each
side of Azteca Lane on the northern boundary of the easement area that state the
following: "Private Property No Trespassing The area beyond this point is not part
of any privately owned or common area of Westwood Estates"
5. The Easement Agreement will terminate at the earlier of the date five years from the date
of recording or the date that the Crook property is conveyed to a third party. However, to
ensure access for the maintenance of the landscape buffer, Mr. and Mrs. Crook shall for
themselves and their successors in interest, grant a temporary license for entry upon the
Crook property from time to time to fulfill the obligations of the maintenance agreement.
6. Upon the execution of this Agreement, Justus will reimburse Mr. and Mrs. Crook for all
reasonable legal expenses incurred by Mr. and Mrs. Crook for the drafting and review of
the same, not to exceed $1,500.00. Upon the execution of the Easement Agreement, Justus
will reimburse Mr. and Mrs. Crook for all reasonable legal expenses incurred by Mr. and
Mrs. Crook for the drafting and review of the same, not to exceed $1,750.00. Additionally,
if the City and/or Plan Commission require that Mr. and Mrs. Crook have legal
representation at any City required meetings, including the Plan Commission, Justus will
reimburse Mr. and Mrs. Crook for all reasonable legal expenses incurred by Mr. and Mrs.
Crook for such representation, not to exceed $2,500.00. Justus will pay for all recording
and Plan Commission filing fees incurred in connection with the settlement of this matter
and the satisfaction of the conditions contained in this Agreement. Mr. and Mrs. Crook
shall pay for all Board of Zoning Appeals filing fees and legal fees associated with any
petition or other action for the development of the Crook property for single- family
residences.
7. Following the closing:
(a) Justus may commence construction of the berm. Justus will notify Mr. and Mrs.
Crook a minimum of 5 days before construction of the berm begins. Berm
construction, including removal and re- installation of the fence, must be completed
within 5 days of commencement of construction, weather permitting.
(b) The construction of the berm and the installation of trees will be completed no later
than May 1, 2008, subject to weather conditions and other factors beyond the
reasonable control of Justus. If the planting of the trees requires temporary removal of
the fence, Justus will provide notice to Mr. and Mrs. Crook at least 5 days prior to
removal. All costs and expenses associated with the temporary removal and re-
installation of the fence will be borne by Justus. The fence must be re- installed within
2 days of its temporary removal.
Mr. and Mrs. Andrew Crook
January 10, 2008
Page 4
8. Wherever and whenever practicable, all access by Justus and/or its contractors to and from
the easement area will be from and through Westwood Estates. Otherwise, Justus may
access the easement area from and through the Crook property. Mr. and Mrs. Crook shall
grant to Justus and/or its contractors a temporary license for entry upon the Crook property
to fulfill the obligations of the Easement agreement. Any damage resulting from easement
related activities done outside of the easement area will be promptly repaired, subject to
weather conditions and other factors beyond the reasonable control of Justus, by Justus at
its expense, including, but not limited to, grading to remove ruts and re- seeding of pasture
land.
9. If Justus does not perform the requirements of this Agreement concerning the installation
of the landscape buffer, the repair of damages caused by the installation and/or the
maintenance of landscape buffer and easement area in a commercially reasonable manner,
based upon an independent inspection/review by a qualified landscape expert selected by
the Department of Community Services (the "Expert"), Justus will be given 15 days
following written notice from Mr. and Mrs. Crook and the Expert to remedy the breach of
performance. Provided, however, in the event that the cure cannot be reasonably completed
within the 15 -day period and Justus has commenced and is continuously working toward
completion of the cure, then Justus shall be given additional time to reasonably continue to
complete the cure, but not to exceed an additional 45 days.
10. It is understood and agreed that if the breach of performance described in paragraph 9
above is not corrected based upon a follow up inspection/review by the Expert, within the
time periods set forth in paragraph 9 above, Justus will be required to pay $75,000.00 to
Mr. and Mrs. Crook as liquidated damages. The actual damages that would be suffered by
Mr. and Mrs. Crook due to breach of this Agreement by Justus are uncertain, and the
parties hereby agree that $75,000.00 is a reasonable estimate of such damages. Mr. and
Mrs. Crook acknowledge and agree that the payment of the $75,000.00 shall be their sole
remedy at law or in equity upon a breach of performance and failure to cure as described in
paragraph 9 and that they waive and forever release Justus from any and all other claims
for any damages, costs, expenses or otherwise.
11. Mr. and Mrs. Crook agree to fully cooperate with and assist Justus in obtaining the
governmental and regulatory approvals outlined in this Agreement and in performing its
(Justus') obligations under this Agreement. Both parties agree to negotiate in good faith.
Time is of the essence.
12. This Agreement shall be construed pursuant to the laws of the State of Indiana and shall be
binding upon the parties, their heirs, successors and assigns.
Mr. and Mrs. Andrew Crook
January 10, 2008
Page 5
Justus Home Builders,
By: \ate
Walter E. Justus, P i77 ent
ACCEPTED:
ANL
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Da a Rhonna Crook Date
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