2nd Avenue SW Parking Lot at Monon - Purchase AgreementREAL ESTATE PURCHASE AGREEMENT
APPROVED, AS TO
lc FORM BY:
VVZ
This Real Estate Purchase Agreement ( "Agreement ") is made this l Uth day of April 2001
by and between the City of Carmel. Indiana ( "City ") and Vera J. Hinshaw, Trustee of the Vera J.
Hinshaw Revocable Trust ( "Seller "), WITNESSETH:
Recitals
WHEREAS, City is undertaking the creation and construction of a linear park and
recreational trail to be known as the Monon Trail (herein the "Project "); and
WHEREAS, in furtherance of the Project, City needs to acquire from Seller, and Seller is
willing to grant and convey to City, an easement interest in approximately 1.08 acres of real
estate described on Exhibit A attached hereto and incorporated herein, and
f WFWRERS -City hastt:te- pewor-teacqu roperty-pursuant- to-the- ?
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NOW, THEREFORE, in consideration of the foregoing Recitals, the following mutual
covenants and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Purchase Price and Payment. For the real estate described in Exhibit A (the
"Property "), the City agrees to pay the sum of Forty -Five Thousand and 00 /100
Dollars ($45,000.00) (the "Purchase Price "). The Purchase Price shall be paid by
City to Seller at the Closing (as hereafter defined).
Title to the Property. The Property to be sold and conveyed to the City shall be an
easement which easement shall grant to City the rights and obligations described
in the form of easement agreement attached hereto and incorporated herein as
Exhibit B. Such easement shall be conveyed by Seller to City with all of the
warranties of title that pertain to a conveyance as if by warranty deed and as
provided by I.C. 32- 1 -2 -12.
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Closing. The transaction contemplated hereby shall be closed within ten (10) days
following t� h e//approval of this conveyance by the City common council (the
"Closing "). VAt the Closing, Seller shall deliver to City the following documents
against simultaneous delivery of the consideration described in Paragraph 1:
(a) A properly executed Easement Agreement in the form of Exhibit B; and
(b) A completed IRS Form W -9; and
(e)
A certificate of non- foreign status with respect to Seller as required by
Section 1445 of the Internal Revenue Code.
4. Taxes and Assessments. Seller shall pay, or cause to be paid, on or before
Closing, all property taxes and assessments, whether special or otherwise, relating
to the Property described in Exhibit A and which are due and payable on or before
the Closing.
Possession /Right of Entry. From and after the date hereof, City shall have, and
Seller hereby grants to City and its agents, the right to enter upon any of the
Property, including without limitation, for the purpose of constructing the Project.
Such right to enter shall ipso facto terminate in the event the common council of
the City fails to approve this Agreement. Upon any such termination, City shall
promptly remove any equipment or improvements installed or placed upon the
Property by City and restore the Property to substantially the condition that
existed prior to entry thereon by the City.
6. Dismissal of Action. At the time of Closing, Seller and City shall dismiss without
prejudice the pending eminent domain action in Hamilton Superior I (Cause No.
29D01- 0011 -C P -727).
7. Entire Agreement; Written Modifications: Survival of Representations.
Warranties and Agreements. This Agreement contains the entire agreement
between Seller and City with respect to the subject matter hereof. All
representations, promises and prior or contemporaneous understandings between
the parties are merged into and expressed in this Agreement, and any and all prior
agreements between the parties are hereby canceled. This Agreement shall not be
amended, modified or supplemented without the written agreement of Seller and
City at the time of such amendment, modification or supplement. All
representations, warranties and agreements made herein shall be merged by the
delivery of the Easement Agreement by and between the parties.
8. Default. In the event of a default on the part of Seller hereunder, City may
exercise any or all of the rights and remedies to which it may be entitled at law or
in equity, including without limitation, the remedy of specific performance.
In the event of a default on the part of City under this Agreement, Seller may
exercise any or all of the rights and remedies to which it may be entitled at law or
in equity, including without limitation. the remedy of specific performance.
9. Expenses: Brokerage. Except as herein specifically provided in this Agreement,
Seller and City shall each bear its own expenses incurred in connection herewith,
and neither shall be liable to the other for any of such expenses, whether or not the
transaction contemplated hereby is consummated. Each of the parties covenants
that it has not employed or used any broker, finder or agent in connection
herewith or with the transaction contemplated hereby. Each party agrees to
defend, indemnify and hold the other harmless from and against any damage, loss,
2
liability, claim, expense, cost or fee suffered or incurred by such indemnified party
arising out of any breach or misrepresentation under this Paragraph 9.
10. Authority of Undersigned. The undersigned persons executing this Agreement on
behalf of Seller or City, respectively, each represents and certifies that he or she is
duly authorized and is fully empowered to execute and deliver this Agreement or
the acceptance thereof to the other party hereto.
Counterparts. This Agreement may be executed in separate counterparts, each of
which when so executed shall be an original, but all of such counterparts shall
together constitute but one and the same instrument.
12. Attorneys' Fees. In addition to any other right or remedy granted hereunder each
party shall be entitled to recover from the other (the "defaulting party ") reasonable
attorneys' fees and court costs incurred by such party in connection with the
enforcement of its rights and remedies hereunder resulting from the default or
breach of the defaulting party.
13. Landscaping. Seller shall be given a choice of three (3) different vegetation plans
of varying depth, and may elect any one (1) of three (3). This provision regarding
vegetation plans shall survive the Closing and the delivery of the Easement from
Seller to City.
IN WITNESS WHEREOF, the undersigned City and Seller have duly executed and
delivered this Agreement as of the day and year first above written.
VERA J. HINSHAW, trustee of the VERA J.
HINSHAW REVOCABE TRUST
Vera J. Hinshaw, trustee
CITY OF CARMEL, INDIANA
By an through its Board of Public Works and Safety
4
mes Brainard, Presiding Officer
ate: N r27'D /
3
t;, 4 , 2^— � �
Mar /Ann, Bu ice, Member
Date: y-7 -��
Billy Walker, Member
Date:
ATTEST:
Diana Cordray, I uA.Clerk- Treasurer
03606rah
04/10/01
4
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EXHIBIT A TO PURCHASE AGREEMENT
Part of the Southeast Quarter of Section 12, Township 17 North, Range 3 East, Clay Township,
Hamilton County, Indiana and more particularly described as follows:
Beginning at the Northwest corner of the Southeast Quarter of Section 12, Township 17 north,
Range 3 East; thence South 89 degrees 51 minutes 56 seconds East (assumed bearing) 33 feet;
thence South 00 degrees 08 minutes 04 seconds West 1350 feet; thence North 89 degrees 51
minutes 56 seconds West 33 feet to the West line of said Quarter Section; thence north 00
degrees 08 minutes 04 seconds East 1350 feet to the Point of Beginning and containing 1.08 acres
more or less.
Page 1 of 2
,RCEL NO. : 13- 12- 00 -00- 003.000
tOJECT NO. :
)LINTY : HAMILTON
TI ON : 12
Y'NSNIP : 17
ANGE : 3
O'MEP•: V_3A J. i SMAW TRUSTEE
DEED RECORD : 9101594
DRAWN BY : D.T.
CHECKED BY : M.L.C.
Notched Arec = R /'N Tczing
SCALE : 1 = 400
Quarter Section Line
13-12-00-00-003.000
Res. Area = 75.978 Ac.
402
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402'
Page 2 of 2
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EASEMENT AND COVENANTS
Vera J. Hinshaw, trustee of the Vera J. Hinshaw Revocable Trust ( "Grantor "), of
Hamilton County, Indiana, for the sum of Ten Dollars ($10.00) and other consideration, the
receipt and sufficiency of which are hereby acknowledged, grants and conveys a perpetual, non-
exclusive easement ( "Easement ") to the CITY OF CARMEL, INDIANA ( ".Grantee ") on, over
and along the following described real estate located in Hamilton County, Indiana (the "Easement
Area "):
See Exhibit A attached hereto and made a part hereof.
1. Use. The use of the Easement Area shall be limited to a linear park and recreational
trail; provided, however, Grantee shall have all rights necessary and incidental to construct and
maintain the linear park and recreational trail which rights include, but are not limited to, clearing
vegetation, planting vegetation and landscaping, and paving a portion of the recreational trail.
The term "recreational trail" shall mean a trail or path that is used for activities including, but not
limited to, bicycling, exercising, walking, hiking, roller blading and running. The term does not
include a highway, road, street, light or heavy rail, bus or other motorized mass transit system.
Grantor retains and shall own all rights available under the law which may now or
hereafter exist in favor of the owner of the Easement Area Real Estate with respect to fiber optic
cable or other telecommunications system(s) which is(are) presently installed, or in the future
may be installed, below the surface of the Easement Area Real Estate. Notwithstanding the
foregoing, relocation of said cables or system(s) and/or authorization of new cable or system(s)
and/or the right to authorize the installation of any new or additional cables or system(s) shall
take place only with the consent of the Grantor and Grantee.
2. Covenants of Grantee. As part of the consideration for this Easement the foregoing
easement, Grantee covenants as follows:
A. The trail will be closed from sunset to sunrise, with the exception of
occasional special events, e.g. a Christmas luminary walk.
B. The trail will be monitored and patrolled at irregular intervals by trained law
enforcement personnel using electrically powered or other silently powered vehicles during the
hours it is closed.
C. The trail will also be monitored and patrolled at irregular intervals by trained
law enforcement personnel using electrically powered or other silently powered vehicles during
the hours it is open.
D. Grantee or its designee will maintain natural vegetation as an, on average,
twelve foot (12') wide barrier on the outer edges of the trail so that, in general, there will be a
continuous barrier of trees, brambles, undergrowth, raspberry-type bushes and/or other similar
thick vegetation running the entire length of the outer edges of the trail. In areas where no such
Exhibit B to Purchase Agreement
Page 1 of 5
natural vegetation barrier currently exists, Grantee will consult with Grantor and plant
appropriate vegetation.
E. The construction of the trail will take place during normal construction
daylight hours.
F. Access to the trail will be provided only through publicly owned property
unless a particular adjoining landowner or neighborhood association requests other access in the
area.
G. Bollards (security posts) will be placed and maintained across the entrances to
the trail.
H. Dedicated trail parking will be provided, the adequacy of which will be
periodically reassessed by Grantee as the usage of the trail is monitored.
I. Trash pick up along the trail will be performed with sufficient frequency to
insure that the trail remains substantially trash -free.
J. The use of firearms and motorized vehicles on the trail, other than emergency
and other official vehicles, including, but not limited to, law enforcement, fire, medical and
maintenance vehicles and motorized wheelchairs used by handicapped persons, will be
prohibited.
K. The trail will not now, nor in the future, be used as a light or heavy rail, bus or
other motorized mass transit system.
L. Grantee shall locate all fiber optic cables and other underground utilities prior
to digging, and shall hold Grantor harmless from any damage to any such utilities which is
caused by Grantee or its employees or agents. Provided, however, Grantee's obligations set forth
in this Section L shall be limited to the exposure of and liability of Grantee as a governmental
entity, including without limitation, actions and conditions as to which Grantee is immunized by
the Indiana Tort Claims Act and the exemption from punitive damages, such that Grantee's
liability shall not exceed what might have been its liability to any claimant after all appropriate
defenses had been raised by Grantee.
Grantee may invade below the surface of the Easement Area only as may be reasonably
necessary to accomplish the foregoing covenants.
The foregoing covenants of Grantee and all rights which are retained by Grantor with
respect to the fiber optic cable or other telecommunications system(s) shall be for the benefit of
the following described real estate located in Hamilton County, Indiana, and shall run with the
land (the "Benefitted Property "):
See Exhibit B attached hereto and incorporated herein by this reference.
Exhibit B to Purchase Agreement
Page 2 of 5
3. Consent of Mortgagee. Grantor hereby acknowledges and agrees that Grantor shall
obtain the consent of any mortgagee(s) of the Easement Area to this Easement.
4. Enforcement. Each party shall have the right to enforce the terms of this instrument
in accordance with all remedies available both at law and in equity.
5. No Right to Relocate or Construct Improvements /Ancillary Rights of Grantor. The
Grantor, its successors or assigns shall have no right to relocate the Easement Area. The Grantor
shall not construct any improvements, maintain any landscaping or remove any vegetation or
improvements in or on the Easement Area. Grantor may construct a fence on the Benefitted
Property adjacent to the Easement Area. One (1) area of pedestrian ingress and egress ( "Point of
Access ") shall be allowed to Grantor on the Benefitted Property to and from the Easement Area.
Grantor shall not allow such Point of Access to be used by anyone for vehicular ingress or egress
to and from the Easement Area. Moreover, Grantor shall take all reasonable action to ensure that
the Access Point is limited to the private use of Grantor, the successors and assigns of Grantor
and the licensees, invitees, lessees, employees and agents of Grantor, through for example, the
construction of an appropriate gate or barrier upon the Benefitted Property. Grantor shall defend
and hold Grantee harmless from and against any claims, losses, liabilities, damages or injuries to
person or property resulting from use by Grantor or others of the Point of Access.
6. Maintenance and Repair. Grantee shall maintain and/or repair the Easement Area and
the improvements located thereon in good condition and repair, at Grantee's cost and expense.
Notwithstanding the foregoing, in the event that any such maintenance and/or repair is necessary
due to any negligent or willful act of Grantor, Grantor shall be responsible for reimbursing
Grantee for the cost of such maintenance and/or repair.
7. Modification. This Easement may be modified only by a writing signed by all of the
then current owners of the Easement Area and the Grantee.
8. Easement Appurtenant. This Easement shall be binding upon and inure to the benefit
of Grantor and Grantee and their respective successors and assigns. In addition, this eEasement
shall be binding upon, and shall run with title to and for the benefit of the Easement Area
Property and the Benefitted Property.
9. Governing Law. This Easement shall be governed by and construed in accordance
«ith the laws of the State of Indiana.
10. Granting of Additional Easements. Grantor may grant additional easements in the
Easement Area with the prior written consent of the Grantee, which consent shall not be
unreasonably withheld, so long as such proposed easements do not interfere with Grantee's use of
the Easement Area as set forth herein.
11. Taxes. In the event that Grantor or its successors or assigns fail to pay all real estate
taxes and assessments levied on, assessed against or attributable to the Easement Area prior to
Exhibit B to Purchase Agreement
Page 3 of 5
the same becoming delinquent. Grantee may, at its sole option, pay such taxes and/or
assessments. In such event, Grantee is afforded a lien upon the Easement Area to secure the
payment of such taxes, and assessments and the costs and expenses related thereto.
12. Grantee's Rights Unimpaired. This Easement shall be deemed prior to any mortgage,
deed or trust or other lien against all or any part of the Easement Area and a foreclosure of any
such lien or encumbrance against the Easement Area or any part of the Easement Area will in no
event affect or impair the rights of Grantee under this Easement.
13. Grantor's Full Warranties of Title. Grantor hereby grants to Grantee all warranties of
title that are provided by Indiana Code Section 32- 1 -2 -12 in the same manner and effect as if this
Easement were a conveyance in fee simple by warranty deed, including, without limitation: (a)
the covenant that Grantor for herself, and her heirs and assigns, and personal representatives that
she is lawfully seized of the Easement Area, (b) that Grantor has good right to convey the same,
(c) that Grantor guarantees the quiet possession thereof, (d) that the Easement Area is free from
all encumbrances and (e) that Grantor will warrant and defend titles to the same against all lawful
claims. Notwithstanding the immediately preceding sentence, Grantor's total liability under this
paragraph 13 shall not exceed the sum of Forty -Five Thousand Dollars ($45,000.00).
14. Abandonment/Option to Repurchase. Upon the abandonment of the Easement Area
by Grantee, Grantor shall have. in addition to any other rights, the right and option to repurchase
the Easement Area for the sum of Forty-Five Thousand Dollars ($45,000.00).
IN WITNESS WHEREOF. Grantor has executed this instrument this day of
, 2001.
Grantor:
Signature
Printed Trustee of the Vera J. Hinshaw
Revocable Trust
STATE OF INDIANA )
) SS:
COUNTY OF
Before me, a Notary Public in and for said county and State, personally appeared Vera J.
Hinshaw, trustee of the Vera J. Hinshaw Revocable Trust, who acknowledged the execution of
the foregoing Easement and Covenants.
Witness my hand and Notarial Seal this day of , 2001.
Exhibit B to Purchase Agreement
Page 4 of 5
My Commission Expires:
Signature
Printed , Notary Public
Resident of County, Indiana
This instrument prepared by Robert A. Hicks, Attorney at Law, Hall, Render, Killian, Heath &
Lyman, P.S.C., Suite 2000, Box 82064, One American Square, Indianapolis, IN 46282
03607rah
04/10/01
Exhibit B to Purchase Agreement
Page 5 of 5
City of Carmel
ONE CIVIC SQUARE
CARMEL, INDIANA 46032
FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL - 1997
INDIANA RETAIL TAX EXEMPT
CERTIFICATE NO. 003120155 002 0
FEDERAL EXCISE TAX EXEMPT
35- 6000972
PAGE
of
PURCHASE ORDER NUMBER
5)sS
THIS NUMBER MUST APPEAR ON INVOICES, A/P
VOUCHER, DELIVERY MEMO, PACKING SLIPS,
SHIPPING LABELS AND ANY CORRESPONDENCE.
'URCHAS ORDER DATE
DATE REQUIRED
REQUISITION NO.
VENDOR NO.
DESCRIPTION
❑E
VENDOR
V-Q-i:0.. �. I i fJ 3 0.uJj T1i U Y-fie.
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41\.QAC2e.uOca.`Q-, 41"-Z4-
SHIP
TO
ZONFIRMATION
BLANKET
CONTRACT
PAYMENT TERMS
FREIGHT
QUANTITY I UNIT OF MEASURE
DESCRIPTION
rn o 00
UNIT PRICE
EXTENSION
PLEASE INVOICE IN DUPLICATE
W'S,000
DEPARTMENT
ACCOUNT
PROJECT
PROJECT ACCOUNT
AMOUNT
aa00 CC Goo
SHIPPING INSTRUCTIONS
• SHIP PREPAID.
• C.O.D. SHIPMENTS CANNOT BE ACCEPTED.
• PURCHASE ORDER NUMBER MUST APPEAR ON ALL
SHIPPING LABELS.
• THIS ORDER ISSUED 114 COMPLIANCE WITH CHAPTER 99, ACTS 1945
AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO.
DOCUMENT CONTROL NO. 0 515 9
PAYMENT
NP VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O.
NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND
VOUCHER HAS THE PROPER SWORN AFFIDAVIT ATTACHED.
I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN
THIS A•" IATION SUFFICIENT TO PAY FOR THE ABOVE ORDER.
ORDERED BY
TITLE (/�(. f b(ri_(r-u'R
CLERK - TREASURER
OFFICE COPY