HomeMy WebLinkAboutPond Maintenance Agreement RECORDED,2000000 9y
Cross Reference: Z O 0000 037 o06
POND MAINTENANCE REIMIBURSEMENT AGREEMENT
This POND MAINTENANCE REIMBURSEMENT AGREEMENT (hereinafter
the "Agreement dated as of the 1" day of ct 1 2009, by and among KITE
GREYHOUND III, LLC, an Indiana limited liabili company "Kite III KITE
GREYHOUND, LLC, an Indiana limited liability company (hereinafter "Kite Greyhound"
and collectively, jointly and severally, "Kite and DANBURY ESTATES HOMEOWNERS
ASSOCIATION, INC., an Indiana nonprofit corporation (hereinafter "HOA
EXEMPT FROM
SALES DISCLOSURES
WITNESSES THAT:
2010036581 AGREEMENT $33.00
08/10/2010 11:21:21A 11 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
111111I111IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII111IIii
WHEREAS, Kite III owns certain property located at the intersection of
Greyhound Pass and 146` Street in Carmel, Indiana, more particularly described in
Exhibit A attached hereto and made a part hereof and Kite Greyhound owns certain
property located on Lowe's Way south of 146 Street in Carmel, Indiana, more
particularly described in Exhibit B attached hereto and made a part hereof (collectively,
the "Kite Property and
WHEREAS, A retention pond (the "Pond is situated on property adjacent to
the Kite Property and owned in part by Lowe's Home Centers, Inc. "Lowe's and by
certain owners of residential lots located in Danbury Estates as shown on that certain plat
thereof recorded with the Recorder of Hamilton County, Indiana as Instrument No.
9429324, on June 30, 1994 (the "Residential Lots the owners of which Residential
Lots are members of the HOA; and
'WHEREAS, Kite is entitled to the use of the Pond for the benefit of the Kite
Property under that certain Easement Agreement dated July 24, 2000, and recorded with
the Recorder of Hamilton County, Indiana as Instrument No. 200000036994 on July 28,
2000 and under that certain Declaration of Easements, Covenants, Conditions and
Restrictions dated July 24, 2000, and recorded with the Recorder of Hamilton County,
Indiana as Instrument No. 200000037006, July 24, 2000 (the "Easements and
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WHEREAS, Kite III is pursuing a rezoning of its parcel of the Kite Property
under that certain petition numbers 08110007 and 08110008, filed on November 21, 2008
(the "Rezoning and the HOA is supporting such Rezoning so long as this Agreement is
in full force and effect.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are hereby
incorporated into this Agreement and made a part hereof as though set forth herein
verbatim.
2. Kite Contribution. Kite does hereby agree to contribute towards the
HOA's maintenance, repair, and operation of the Pond in an amount equal to the actual
amount incurred by the HOA in such maintenance pursuant to the Approved Maintenance
Budget (defined below), but in no event in excess of Five Thousand Five Hundred
Dollars ($5,500.00) per calendar year (the "Contribution If this Agreement shall be
fully executed within calendar year 2009, Kite shall make the Contribution for 2009
within thirty days after the execution of this Agreement. Thereafter, Kite shall make such
payment to the HOA not later than thirty (30) days after the Approved Maintenance
Budget is approved in accordance herewith. Maintenance, repairs, and operation of the
Pond shall include, but is not limited to, the following expenses: regular mowing of
common area around pond; pond management; regular pond water treatments;
installation, operation and removal of pond fountain; all repairs and maintenance of pond
fountain; annual mulching in common area around pond; annual weed control of common
area around pond; Liability insurance relating to pond and common area around pond; and
any and all other repairs and maintenance necessary to comply with any ordinance, law
or regulation concerning pond.
3. Budget. The HOA shall prepare and submit to Kite a proposed
maintenance budget for the operation, repair, and maintenance of the Pond for the
forthcoming calendar year. The proposed budget shall be delivered to Kite no later than
May 1st of each calendar year. In the event HOA shall not have timely delivered such
proposed budget, Kite shall provide written notice to HOA of such failure, and if HOA
shall not have provided such proposed budget within sixty days after such written notice
from Kite, Kite shall have no obligation to make any Contribution for the calendar year
for which such proposed budget is delinquent. Kite will consider the proposed budget
and then will consult with the HOA prior to the commencement of the forthcoming
calendar year in order to approve an "Approved Maintenance Budget," which approval
shall not be unreasonably withheld, delayed, conditioned or denied. Kite shall not be
deemed to have reasonably disapproved a proposed Maintenance Budget if any line item
in such budget relates to the cost under a contract entered into by the HOA for the
performance of services over a multiple -year period, provided the material terms of such
multiple -year contract shall have been disclosed by Kite in a prior Approved
Maintenance Budget. In the event Kite desires to disapprove a proposed Maintenance
Budget on the basis that a service provider whose costs or fees are set forth in such
proposed Maintenance Budget is unacceptable to Kite, Kite shall propose an alternative
provider for such service who shall have agreed to perform such service at a lower cost.
In such event, the proposed Budget shall be deemed approved with respect to such item at
the lower cost so proposed by Kite's alternative provider. If written approval or
disapproval for the proposed Maintenance Budget has not been received by the HOA
within thirty days of its delivery to Kite, such budget shall be deemed to be the Approved
Maintenance Budget. The HOA agrees to use diligence and to employ all reasonable
efforts to ensure that the actual costs of maintaining, repairing and operating the Pond
shall not exceed the total Approved Maintenance Budget pertaining thereto and that such
costs are kept as low as commercially reasonable. During the calendar year, the HOA
shall inform Kite not less than quarterly of increases in costs and expenses that were not
foreseen during the budget preparation period. Upon such notice, Kite shall reimburse
the HOA for all such unforeseen expenses within thirty (30) days, provided that Kite's
total annual contribution shall not exceed $5,500.00 as set forth above.
4. Reimbursements from Lowe's. In the event the HOA shall be or
become entitled to any reimbursement of maintenance costs relating to the Pond from
Lowe's, or its successors or assigns, Kite shall be entitled receive such reimbursement to
the extent of any amounts theretofore paid by Kite under this Agreement. Kite shall be
entitled to pursue any and all such reimbursements from Lowe's and the HOA does
hereby assign to Kite any and all rights the HOA may have to such reimbursement from
Lowe's. Any assignment of rights under this section is limited to the actual expenses
reimbursed by Kite to the HOA.
5. Maintenance Obligation. Kite does hereby assign to the HOA, on a non-
exclusive basis, any rights Kite may have with respect to the maintenance of the Pond
under the Easements. The Contribution is and shall be given by Kite to the HOA in trust
for the sole and exclusive purpose of performing the maintenance contemplated in an
Approved Maintenance Budget and the HOA shall be obligated to perform such
maintenance and shall use the Contribution solely for such maintenance and repairs and
for no other purpose whatsoever.
6. Adequate Maintenance by Lowe's. In the event as of the date a
Maintenance Budget shall be submitted by the HOA to Kite, Lowe's or its successors or
assigns shall maintain the Pond in a manner mutually determined by Kite and the HOA to
be consistent with standards regularly found in residential neighborhoods located in
Carmel, Indiana (e.g., retention ponds located in the following Carmel subdivisions:
Bayhill, Plum Creek, Copperwood, Avon Glen, and Autumn Woods), then Kite and the
HOA shall terminate the agreement whereupon, Kite shall not be obligated to make the
Contribution for the upcoming year. In the event Kite ceases making the Contribution in
accordance with this Section 6 for any year, Kite shall again make the Contribution in
future years if, as of the date the HOA submits a proposed Maintenance Budget, Kite and
the HOA shall mutually determine that Lowe's shall not have maintained the Pond in a
manner to be consistent with standards regularly found in residential neighborhoods
located in Carmel, Indiana (e.g., retention ponds located in the following Carmel
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subdivisions: Bayhill, Plum Creek, Copperwood, Avon Glen, and Autumn Woods). If
in the event Lowe's is maintaining the pond but not consistent with the standards, Kite
and the HOA shall mutually determine the outstanding items for funding by Kite.
7. Termination. This Agreement and all rights and obligations of the parties
hereunder may be terminated upon the occurrence of any of the following circumstances:
a. If either party shall default in the performance of any of its respective
duties and obligations hereunder, the party not in default may terminate
this Agreement upon thirty days written notice to the defaulting party,
unless the default is cured within said thirty -day period, or if the nature of
the default will not permit it to be cured within said thirty -day period, the
defaulting party commences to cure such default within such thirty -day
period and thereafter proceeds to complete the same with reasonable
diligence and the default is cured within the sixty -day period following the
written notice. Any monetary default must be cured within ten business
days of written notice.
b. If the HOA shall execute an agreement with Lowe's or its successors or
assigns whereby Lowe's or its successors or assigns agrees to reimburses
the HOA directly for any maintenance costs which would otherwise be
reimbursed by Kite hereunder.
c. If for five consecutive years, the Contribution shall not be due from Kite
due to the provisions of Section 6 or if the HOA shall not submit to Kite
proposed Maintenance Budgets in such five consecutive years.
d. In the event that a party hereto shall be dissolved or otherwise no longer in
existence as an entity in the jurisdiction of its incorporation (with the
exception of any belated filings required by the secretary of state), or
adjudged bankrupt or insolvent by a court of competent jurisdiction, or
any order shall be made by a court of competent jurisdiction for the
appointment of a receiver, conservator, or liquidator or trustee of such
party, or of all or substantially all of its property by reason of the
foregoing, or approving any petition filed against a party for its
reorganization and such judgment or order shall not be vacated within
thirty days; or a party shall institute proceedings for voluntary bankruptcy
or shall file a petition seeking reorganization under the federal bankruptcy
laws, or for relief under any law for the relief of debtors, or become
adjudicated a bankrupt or insolvent, or shall consent to the appointment of
a receiver or itself or all or substantially all of its property, or shall admit
in writing its inability to pay its debts- generally as they become due, then
upon such occurrence of such a default the non- defaulting party may at
any time during the term of this Agreement by written notice, take any one
or more of the following actions:
i. perform or attempt to perform any unfulfilled duty or obligation of
the defaulting party hereunder,
ii. terminate this agreement upon written notice to the defaulting
party, or,
iii. exercise any and all rights, remedies, powers and privileges
afforded by the laws in the state in which the Property is located.
In the event of a default by any party of any of the terms, covenants or agreements
hereof, the other party shall notify the breaching party in writing. Kite acknowledges that
the HOA's corporate status is "administratively dissolve" as of the date hereof and that
such status, in and of itself, shall not constitute a default under Section 7(d) above so long
as the HOA continues to use diligent efforts to file with the Indiana Secretary of State and
other relevant governmental authorities, such documents, reports and other instruments so
required in order to have its corporate status reinstated and achieve an "active" corporate
status. If the breach is not cured within any applicable cure period provided above, if
any, such party shall be in default and the other party shall be entitled forthwith to all
rights and remedies provided for in law or equity, including the right of specific
enforcement. After a party is in default, the non defaulting party may, at its election,
undertake the obligations of the defaulting party, on such party's behalf, and shall be
entitled to recover the cost and expense of such action from the defaulting party. The
non defaulting party shall be entitled to recover from the defaulting party all of its
reasonable expenses incurred in enforcing such obligations, including, without limitation,
all attorney fees and other costs of enforcement Any amounts owing by a party to the
other party shall bear interest at the rate of twelve percent per annum from the date the
same is due.
8. Successor and Assigns. This Agreement and the rights and obligations of
each party hereto shall be binding upon the successors and assigns of each party hereto
and shall run with the land described herein.
9. Execution Authority. The individuals signing this Agreement on behalf
of each party represents and warrants that he or she has the full power and authority to
execute this Agreement for the party upon whose behalf he or she is executing same, and
that upon such execution, such party shall be fully bound by each and every provision of
this Agreement.
10. Relationship. Nothing contained herein shall be deemed or construed to
create between the parties any joint venture or partnership nor otherwise grant to one
another the right, authority or power to bind the other party hereto to any agreement
whatsoever.
11. Amendments. Except as otherwise herein provided, any and all
amendments, additions or deletions to this Agreement shall be null and void unless
approved by each of the parties in writing.
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12. Headings. All headings herein are inserted only for convenience and ease
of reference and are not to be considered in the construction or interpretation of any
provision of this Agreement.
13. Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the activities noted herein and supersedes and takes
the place of any and all previous agreements entered into between the parties hereto
relating to the transactions contemplated herein. All prior representations, undertakings,
and agreements by or between the parties hereto with respect to the subject matter of this
Agreement are merged into, and expressed in, this Agreement, and any and all prior
representations, undertakings, and agreements by and between such parties with respect
thereto hereby are canceled.
14. Notices. All notices, demands, consents and reports provided for in this
Agreement shall be in writing and shall be given to Kite or the HOA at the address set
forth below or at such other address as they individually may specify thereafter in
writing:
KITE:
HOA:
c/o Kite Realty Group
30 S. Meridian Street, Suite 1100
Indianapolis, Indiana 46204
Attention: Vice President of Operations
Danbury Estates Homeowners' Association
1950 E. Greyhound Pass
#18 -343
Carmel, IN 46033
15. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Indiana, without giving effect to the provisions,
policies, or principles thereof relating to choice of law or conflict of law.
16. Counterparts. This Agreement may be executed in separate counterparts,
each of which when so executed shall be an original, but all of which together shall
constitute but one and the same instrument.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
"Kite III" "Kite Greyhound"
KITE GREYHOUND III, LLC, an Indiana
limited liabilii ompany
KITE GREYHOUND, LLC, an Indiana
limited liability company
By: By:
omas K. McGowan, President homas K. McGowan, President
I N and Chief Operating Officer and Chief Operating Officer
"HOA"
DANBURY ESTATES HOMEOWNERS
ASSOCIATION, INC., an Indiana nonprofit
corporation
By:
Name: a Sy DICc,
Danba r NOR- »c-y J t
Title:
k,
s: \properties \indiana \greyhound \reimbursement agreement (ponds) v6 (krg 5- 14- 2009).doc5/14/2009 11:59 AM
STATE OF INDIANA
COUNTY OF MARION
My commission expires:
My county of residence:
STATE OF INDIANA
COUNTY OF MARION
efore me, a Notary Public in and for said County and State, personally appeared
this day of 3 1 ,W 20a, Thomas K. McGowan, the President and Chief
Operating Officer of KtE GREYHOUND III, LLC, an Indiana limited liability company,
who acknowledged the execution of the foregoing instrument for and on behalf of said
limited liability company.
to
Witness my hand and Notarial Seal this 7 day of &II
Notary Publi
to
2069:
*E K i Y iULLAND
Not V, ViNTIP Indiana
Marion County
Commission 534094
My Commission Expires
,,;s July 13, 2012
efore me, a Notary Public in a&ld for said County and State, personally appeared
this day of Li 2049; Thomas K. McGowan, the President and Chief
Operating Officer of KI GREYHOUND, LLC, an Indiana limited liability company, who
acknowledged the execution of the foregoing instrument for and on behalf of said limited
liability company.
Witness my hand and Notarial Seal this 7 t day of
My commission expires:
My county of residence:
8
Io
2009;
Printed Name
KIMBERLY L. HOLLAND
Notary Public, State of Indiana
Marion County
Commission 534094
My Commission Expires
July 13, 2012
STATE OF INDIANA
COUNTY OF MARION
Before me, a Notary Public in and for said County and State, personally appeared
this 2_9 day of c,<4,,,,. 2989, Zot D the 7
of DANBURY ESTATE'S HOMEOWNERS ASSOCIATION, INC., an Indiana nonprofit
corporation, who acknowledged the execution of the foregoing instrument for and on
behalf of said limited liability company.
Witness my hand and Notarial Seal this 2.J day of
My commission
My county of residence:
Katy gift*
Commission Wu:025.21 e
w Carmiwionr K:SIMIo
w COO alRadom IWO
9
Notary Public
20
Printed Name
This instrument was prepared by and upon recording must be returned to:
Robert G. Solloway, Esq., Kite Realty Group, 30 South Meridian Street, Suite 1100,
Indianapolis, Indiana 46204.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each
Social Security number in this document, unless required by law. Robert G. Solloway
Exhibit "A" Kite Greyhound Legal Description
A part of the Northwest Quarter of Section 19, Township 18 North, Range 4 East, Clay
Township, Hamilton County, Indiana, described as follows:
Beginning at a point at the intersection of the north line of the south half of said quarter section
with the eastern boundary of State Road 431, said point being North 89 degrees 15 minutes 32
seconds East 609.82 feet from the northwest corner of the south half of said quarter section;
thence along said eastern boundary Northwesterly along a curve to the right with a radius of
5671.60 feet, the radius point which bears North 66 degrees 06 minutes 18 seconds East a
distance of 292.04 feet to a point which bears South 69 degrees 03 minutes 19 seconds West
from said radius point; thence North 69 degrees 03 minutes 19 seconds East 47.00 feet; thence
North 90 degrees 00 minutes 00 seconds East 130.48 feet to a non tangent curve having a radius
of 270.00 feet the radius point which bears South 55 degrees 55 minutes 0.0 seconds East, thence
Northeasterly 365.41 feet along said curve to a point which bears North 21 degrees 37 minutes
34 seconds East from said radius point; thence North 89 degrees 14 minutes 07 seconds East
192.22 feet; thence South 00 degrees 10 minutes 51 seconds West 526.33 feet to a point on a
non tangent curve having a radius of 278.87 feet, the radius point of which bears North 67
degrees 12 minutes 27 seconds West; thence Southwesterly, Westerly, and Northwesterly along
said curve 630.33 feet to a point which bears South 62 degrees 17 minutes 54 seconds West from
said radius point, said point lies on the aforesaid Easterly limited access right of way line (the
next two courses are along said right of way): 1) thence North 24 degrees 51 minutes 15 seconds
West 72.38 feet to a curve having a radius of 5671.60 feet, the radius point of which bears North
65 degrees 06 minutes 51 seconds East; 2) thence Northwesterly along said curve an arc distance
of 102.38 feet (101.7 feet deed) to the Point of Beginning which bears South 66 degrees 08
minutes 54 seconds West from said radius point, containing 8.498 acres, more or Tess.
Legal Description:
Exhibit "B" Kite Greyhound HI Legal Description
Parcel I
Part of the North Half of the Northwest Quarter of Section 19, Township 18 North, Range 4 East
in Hamilton County, Indiana, more particularly described as follows:
Commencing at the Northeast corner of the North Half of the Northwest Quarter of said Section
19; thence South '89 degrees 05 minutes 16 seconds West (bearings based on NAD83 State Plane
Coordinates -East Zone) along the North line of the said Northwest Quarter 783.77 feet; thence
South 00 degrees 54 minutes 44 seconds East 75.46 feet to the Point of Beginning which lies on
the South right of way line of 146 Street; thence South 89 degrees 05 minutes 16 seconds West
along said right of way line 406.64 feet; thence South 00 degrees 10 minutes 51 seconds West
501.95 feet; thence North 90 degrees 00 minutes 00 seconds East 386.39 feet to the
Northwesterly line of Lot 73 in Danbury Estates, Section 1, as per plat thereof, recorded as
Instnunent No. 9429324 in Plat Cabinet No. 1, Slide No. 435 in the Office of the Recorder of
Hamilton County, Indiana (the next nine courses are along the boundary .lizie of said Danbury
Estates); 1) thence North 49 degrees 18 minutes 28 seconds East 36.71 feet; 2) thence North 34
degrees 01 minutes 44 seconds .East 59.82 feet; 3) thence North 18 degrees 45 minutes 00
seconds East 59.82 feet; 4) thence North 03 degrees 57 minutes 34 seconds East 59.87 feet; 5)
thence North 05 degrees 22 minutes 45 seconds West 166.65 feet; 6) thence South 72 degrees 03
minutes 23 seconds West 28.56 feet to a curve having a radius of 175.00 feet, the radius point of
which bears North 17 degrees 56 minutes 37 seconds West; 7) thence Southwesterly along said
curve an arc length of 4.27 feet to a point which bears South 16 degrees 32 minutes 46 seconds
East from said radius point; 8) thence North 16 degrees 32 minutes 46 seconds West 50.00 feet;
9) thence North 00 degrees 54 minutes 44 seconds West 114.92 feet to the point of beginning,
containing 5.108 acres, more or less.
Parcel 11
Easement rights for pond parcel drainage facilities set out in Easement Agreement by and
between Kite Greyhound, LLC, and Bayview Development Company, Inc. dated July 24, 2000,
and recorded July 28, 2000, as Instrument 2000- 36994, and as amended by Amendment to
Easement dated and recorded as Instrument
Note: The acreage is included above for descriptive purposes only. The policy, when issued, should not
be construed as to insuring the amount of acreage contained therein.
End of Legal Description