2013 Parking Option Agreement/Bob Merrill PARKING OPTION AGREEMENT
This Parking Option Agreement (the "Agreement") by and between Robert Merrill (the
"Owner"), and The City of Carmel Redevelopment Commission ("CRC"), executed as of the tC(day of
:TvA e._ , 2013 (the "Effective Date"), WITNESSES:
Recitals
WHEREAS,CRC has conveyed to Owner that certain real estate commonly known as 37 W.
Main Street, Carmel, Indiana, and more particularly described on Exhibit A (the "Owner Parcel"), as of the
Effective Date (the "Conveyance");
WHEREAS, the Owner Parcel com prises a portion of the block bounded by: (a) 1st Avenue
Southwest on the west; (b)Main Street on the north;(c)South Rangeline Road on the east;and (d) 1st Street
Southwest on the south (the "Parcel 62");
WHEREAS, CRC has long sought to develop or redevelop the parking area located on, and
serving, Parcel 62 as a single, unified parking lot of similar character and quality as other parking lots
developed and/or controlled by CRC in the area commonly known as the Carmel Arts & Design District for
use by the general public; the general concept for such parking lot is depicted on Exhibit B (the "Parking
Project");
WHEREAS, as partial consideration for the Conveyance, CRC requested the Option (as
hereinafter defined) so that CRC may develop the Parking Project in the future;
WHEREAS, Owner has agreed to grant to CRC the Option, subject to the terms and
conditions of this Agreement; and
WHEREAS, parties desire to enter into this Agreement;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, CRC and Owner agree as follows:
1. Option. Subject to the terms and conditions of this Agreement, Owner hereby grants to CRC the
option (the "Option") to: (a) develop the Parking Project on, over, across, and through that portion of the
Owner Parcel described on Exhibit C (the "Option Portion"), or any portion thereof; and (b) acquire all
reasonably necessary or desirable easements for such development,including,without limitation:(i)exclusive,
temporary construction easements for the benefit of CRC and its agents and contractors for the construction
of the Parking Project; (H)non-exclusive easements for the benefit of CRC and its agents and contractors for
the maintenance and repair of the Parking Project;(Hi)non-exclusive easements for pedestrian and vehicular
easements for the benefit of the general public,on,over,across,and through the Option Portion;and (iv)non-
exclusive easements for limited motor vehicle access and short-term,temporary parking on a"first come,first
served" basis on or in the Option Portion; and for no other purpose (collectively, the "Option Rights"). In no
event shall CRC be obligated to develop the Parking Project. Owner hereby acknowledges and agrees that
CRC may terminate the Parking Project and any easements pertaining thereto, whether granted by Owner
or any other owner of real estate comprising Parcel 62, for any reason (or no reason) and at any time prior
to, or after completion of, construction of the Parking Project.
2. Exercise. To exercise the Option, CRC shall deliver to Owner written notice of its election prior to
the expiration of the Term (as hereinafter defined). Upon CRC's exercise of the Option in accordance with
the terms and conditions of this Agreement, Owner agrees to cooperate with CRC in good faith to negotiate
and enter into any instruments,agreements,or other documents reasonably requested by CRC related to the
Option Rights (the "Option Rights Documents").
3. Term. The term of the Option (the "Term") shall commence on the Effective Date and expire upon
the first to occur of: (a)the date of the 2 anniversary of the Commencement Date; or(b)the date on which
CRC provides a written notice of termination to Owner. Notwithstanding anything stated to the contrary in this
Agreement, Owner, at any time, may terminate the Option, this Agreement, and any existing Option Rights
(the "Owner Termination Option") if Owner: (a) delivers to CRC: (i) written notice (the "Owner Parcel
Redevelopment Notice") of its intent to develop or redevelop the Owner Parcel, which development or
redevelopment reasonably requires all or a material portion of the Option Portion (the "Owner Parcel
Redevelopment"); and (ii) detailed design and construction plans for the Owner Parcel Redevelopment;
(b)provides to CRC reasonably satisfactory evidence of Owner's financial wherewithal to complete the Owner
Redevelopment Project; and (c)subject to Section 10, commences material construction and/or site work on
the Owner Parcel Redevelopment within three months after the date of the Owner Parcel Redevelopment
Notice. Upon Owner's exercise of the Owner Termination Option in accordance with the terms and conditions
of this Section, CRC promptly shall execute a termination and release of the Option, this Agreement, the
Option Rights, and/or any Option Rights Documents, in form and substance reasonably satisfactory to CRC.
4. Impositions. Owner covenants and agrees to pay all real estate taxes, assessments, and other
governmental charges assessed upon the Option Portion or otherwise related to the ownership of the Option
Portion,which may be due and payable as a lien upon the Option Portion or any part thereof during the Term.
5. Warranty. Owner covenants and warrants to CRC that: (a) Owner is the owner of the Owner Parcel
and has full power and authority to grant the Option; (b) the Owner Parcel is not subject to any agreements,
encumbrances, or other restrictions which materially would impair the anticipated use of the Option Portion
by CRC as set forth in this Agreement; and (c) Owner shall defend against all lawful claims CRC's rights as
set forth in this Agreement.
6. Assignment. Neither CRC nor Owner shall assign this Agreement without the prior written consent
of the other party; provided that,without the prior written approval of Owner, CRC may assign this Agreement
to another agency or instrumentality of the City of Carmel, Indiana(the"City"). If CRC assigns this Agreement
to another agency or instrumentality of the City that: (a) has full power and authority to accept an assignment
of this Agreement and carry out the obligations of CRC hereunder; and (b) expressly assumes all such
obligations in writing; then CRC shall be released from liability under this Agreement for all obligations to be
performed after the date of such assignment and assumption.
7. Binding Effect. The obligations im posed pursuant to this Agreementshall run with the Owner Parcel.
Accordingly,this Agreement shall bind,and inure to the benefit of,Owner, its heirs, successors, and assigns,
and CRC, as long as the terms and conditions of this Agreement with respect to the obligations binding, and
the benefits inuring to,the parties remain in effect. No member of the public or any party other than CRC shall
have any right to make a claim against Owner, its heirs, successors, and assigns, under this Agreement.
Accordingly: (a) only CRC shall have the right to make such a claim; (b) all claims against Owner, its heirs,
successors, and assigns, under this Agreement or with respect to the easements granted under this
Agreementshall be made exclusively by CRC;and (c)no member of the public or other party shall be deemed
to be a third-party beneficiary of this Agreement.
8, Notice. Any notice required or permitted to be given by either party to this Agreement shall be in
writing, and shall be deemed to have been given when: (a)delivered in person to the other party; or (b) sent
by national overnight delivery service, with confirmation of receipt, addressed as follows: to CRC at 30 West
Main Street, Suite 220, Carmel, Indiana 46032, Attn: Les Olds, with a copy to: Karl P. Haas, Esq., Wallack
Somers & Haas, PC, One Indiana Square, Suite 2300, Indianapolis, Indiana 46204; and to Owner at 9589
Valparaiso Court, Indianapolis, Indiana 46268, Attn: John Levinsohn. Either party may change its address
for notice from time to time by delivering notice to the other party as provided above.
9. Authority. Each undersigned person executing this Agreement on behalf of CRC and Owner
represents and certifies that: (a) he or she has been empowered and authorized by all necessary action of
CRC and Owner, respectively, to execute and deliver this Agreement; (b) he or she has full capacity, power,
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and authority to enter into and carry out this Agreement; and (c)the execution, delivery, and performance of
this Agreement have been authorized by CRC and Owner, respectively.
10. Force Majeure. Notwithstanding anything to the contrary set forth herein, if either party is delayed
in, or prevented from, observing or performing any of its obligations under,or satisfying any term or condition
of, this Agreement as a result of: (a) an act or omission of the other party; or (b) any other cause that is not
within such party's reasonable control (including,without limitation,unusually inclement weather,the unusual
unavailability of materials, equipment, services or labor, and utility or energy shortages or acts or omissions
of public utility providers) (collectively,the "Force Majeure");then: (a)the party asserting Force Majeure shall
deliver written notice to the other party; (b) such observation, performance, or satisfaction shall be excused
for the period of days that such observation, performance,or satisfaction is delayed or prevented;and (c)the
deadlines for observation,performance,and satisfaction,as applicable,shall be extended for the same period.
11. Miscellaneous. Either party, at its cost, may record this Agreement. Subject to Sections 6 and 7,
this Agreement shall inure to the benefit of, and be binding upon, CRC and Owner, and their respective
successors and assigns. This Agreement shall be governed by, and construed in accordance with,the laws
of the State of Indiana. All proceedings arising in connection with this Agreement shall be tried and litigated
only in the state courts in Hamilton County, Indiana, or the federal courts with venue that includes Hamilton
County, Indiana. Owner waives, to the extent permitted under applicable law: (a) the right to a trial by jury;
and (b)any right Owner may have to: (i)assert the doctrine of"forum non conveniens"; or(ii)object to venue.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter
hereof, and may be modified, amended, or revised only by a written agreement signed by each of the parties.
The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement
shall not affect the validity,legality,or enforceability of the remaining terms and conditions hereof. The section
headings shall not be considered in any way to affect the interpretation of this Agreement. All Exhibits to this
Agreement are attached hereto and incorporated herein by reference. This Agreement shall not be construed
to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of,
anyone other than the parties hereto.
[Signature page to follow.]
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IN WITNESS WHEREOF,CRC and Owner have executed this Agreement as of the date set
forth above.
CRC:
T H E C I T Y O F . C A R M E L
REDEVELOPMENT CO I ISSION
By: Il _��(
William H. •• e 'resident
OWNER:
By: /
Robert Merrill
ACKNOWLEDGMENTS
STATE OF INDIANA
I SS:
COUNTY OF Ii-u„
Before me, a Notary Public in and for the State of Indiana, personally appeared William
Ham mer,the President of the City of Carmel Redevelopment Commission,who acknowledged the execution
of the foregoing Parking Option Agreement on behalf of such entity.
— a a A/.IJN,ESI$.r}ZykaG.O aticyNotarial Seal this kday of_ 1,-ut_ _, 2013.
1 MATTHEW DANE WORTHLEY 1
Notary Public -Seal ( By. — ��--
State of Indiana ` Notary Public
I My Commission Expires Jan 16,2019 v% // / /
1
Printed Name:
! r4 T/ 6�'F'I.�,ll2y
dPerriergaluelleplesupplre
I am a resident of_tlet&sl t i10.—.County, Indiana.
My commission expires _ Vito/ I _
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STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me,a Notary Public in and forthe State of Indiana,personally appeared Robert Merrill,
who acknowledged the execution of the foregoing Parking Option Agreement.
WITNESS my hand and Notarial Seal thislj day of TILAQ �/-/;- , 2013.
MATTHEW DANE WORTHLEY I
By: /17-71—
( G `=-- _----
Notary Public -Seal I Notary Public
State of Indiana A/1�_�/ 1/00/÷k iey
I My Oommibsion Expires Jan 16,2019 Printed Name: 7_/ 1
tremliMPIWorrilleirfrriliaa
I am a resident of_ ItOtpci (Ion County, Indiana. ?c�`
My commission expires _ 1/ i 1 _ �,
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t
Return after recording to: "- i%
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This instrument was prepared by Ryan R.Wilmering,Attorney-At-Law,Wallack Somers& Haas,One Indiana
Square, Suite 2300, 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.
Ryan R. Wilmering
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Exhibit A
Part of Lot Number 15 in Warren and Phelps Addition to Bethlehem, now Carmel, Hamilton County, Indiana, as
per plat thereof, recorded in Deed Record H, page 258 in the Office of the Recorder of Hamilton County, Indiana,
described as follows, to-wit:
Begin 2 'A feet East of the Northwest corner of said Lot and run thence South 132 feet; thence East 28 feet;
thence North 132 feet; thence West 28 feet to the place of beginning
•
Legal Description
13-0434/22
EXHIBIT B
Depiction of the Parking Project
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EXHIBIT C
Description of the Option Portion
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