Carmel Drive - Kirby Park II, LLC200400050565
Filed for Record in
HAMILTON COUNTY INDIANA
JENNIFER J HAYDEN
07 -20 2004 At 12:49 pm.
EASEMENTS
Cross Reference to Prior Deed of Record: Quitclaim Deed recorded as Instrument No.: 200200038828 and
Quitclaim Deed recorded as Instrument No.: 200200038829 in the Hamilton County, Indiana Recorder's Office
23 1
DRAINAGE EASEMENT AGREEMENT
This Easement Agreement (this "Agreement is made and entered into this o' day of
2003 by and between KIRBY PARK, LLC, an Indiana limited liability
company and KIRBY PARK II, LLC, an Indiana limited liability company, each an undivided
50% interest "Grantors and THE CITY OF CARMEL, INDIANA "Grantee
RECITALS
A. Grantors own certain real property (the "Grantors Parcel located in Hamilton
County, Indiana more particularly described as follows:
See Exhibit A and Exhibit A -2 attached hereto and incorporated herein.
B. Grantee, in connection with Grantee's improvement and widening of West
Carmel Drive and Grantee's construction of certain storm water drainage improvements related to
such widening as shown in plans entitled City of Carmel Project No. 03 -01, Carmel Drive Road
Improvements -Phase 2 as designed by Crossroad Engineers, P.C., dated June 13, 2003 (the
"Project requires a permanent easement over a portion of the Grantors Parcel which permanent
easement area (herein referred to as the "Permanent Easement Parcel is more particularly
described as follows:
See Exhibit B attached hereto and incorporated herein.
NOW. THEREFORE, in consideration of the foregoing recitals, all of which are
incorporated herein by this reference, and of the grants of easements and the mutual promises
and covenants set forth herein, the parties hereto agree as follows:
1. Grant of Permanent Access. Drainage and Maintenance Easement. Grantors
hereby grant and convey to Grantee an exclusive, perpetual easement over, under, through and
across the Permanent Easement Parcel for the purpose of:
(a) Storm water drainage.
(b) Access, ingress and egress for the initial installation, fiiture maintenance,
repair and replacement of (i) other improvements related to the Project and (ii) future
improvements conducive to the drainage of storm water.
(c) Removal, without liability to Grantee (except as otherwise provided below),
of any "Improvements" (hereinafter defined) located within the Permanent Easement Parcel,
whether now existing or hereafter placed or constructed; provided, however, Grantee shall
be solely responsible for the cost and expense of removing any Improvements existing as of
the date hereof and Grantors shall reimburse Grantee (within thirty (30) days following
written demand therefor) the cost and expense of removing any Improvements placed or
constructed thereon at any time after the date hereof unless such Improvements are either
constructed by Grantee pursuant to (b) above, or approved by Grantee in advance in writing
which approval may be withheld in Grantee's sole discretion. The term "Improvements" in
the immediately' preceding sentence hereof shall include, without limitation, fences,
buildings, structures, asphalt or concrete paving, curbing or other similar improvements,
trees, bushes, earthen or other mounds, levees or berms, and other structures.
(d) Notwithstanding any provision contained herein to the contrary, Grantors
may install parking lot light poles on the Permanent Easement Parcel; provided, however,
the number, design, style and location of such parking lot light poles shall be subject to
Grantee's approval, such approval not to be unreasonably withheld, conditioned or delayed.
Further, Grantee shall have the right to withhold or condition its approval to the extent
necessary to ensure that such parking lot lights will not have an adverse effect on the
Project.
(e) Notwithstanding any provision contained herein to the contrary, the rights
granted to Grantee hereunder shall not include the right to construct or maintain an open
drainage ditch or swale within the Permanent Easement Parcel.
2. Obligations of Grantee. Subject to the terms described in Section 1, Grantee shall
restore the Permanent Easement Parcel, to the extent practicable, to the condition as existed prior to
the commencement of the Project. Grantee shall be solely responsible for all maintenance, repair
and replacement of the drainage and other improvements placed or constructed by Grantee related
to the Project.
3. Rights Retained by Grantors. Grantors shall retain unto themselves, and their
grantees, heirs, successors and assigns, and others to whom Grantors may grant rights or easements,
the right to use the Permanent Easement Parcel for any and all purposes and uses not inconsistent
with the foregoing rights granted to Grantee.
4. Obligations of Grantors. Unless the prior written consent of Grantee is obtained as
aforesaid, Grantors shall keep the Permanent Easement Parcel free of any and all Improvements.
Grantors shall mow and care for the grass located within the Permanent Easement Parcel and shall
keep the Permanent Easement Parcel free from debris, silt, weeds, refuse and any other
obstructions.
5. Easement and Covenants Appurtenant. The easement and other rights granted,
created and made herein, together with the benefits thereof, shall run with the Grantors Parcel
and inure to the benefit of Grantee and its grantees, successors and assigns. The easement
granted, created and made herein, together with the burdens thereof, shall run with and bind the
Grantor Parcel, and shall bind Grantors and their grantees, successors and assigns. All covenants
2
and agreements of the Grantors and Grantee hereunder, together with the benefits and burdens
thereof, shall be deemed to be real covenants which touch and concern the Permanent Easement
Parcel and the Grantors Parcel, as applicable, shall run with the Permanent Easement Parcel and
the Grantors Parcel, and shall inure to the benefit of and be binding upon Grantors and Grantee,
as applicable, and their respective grantees, successors and assigns. All covenants and
agreements hereunder may be enforced by an action for specific performance, and in the event
that a party breaches any such covenant or agreement, the other party may exercise any remedy
available hereunder, at law or in equity, and recover from the breaching party all amounts
expended in connection with exercising any such remedy (including without limitation, court
costs and attorneys' fees).
6. Notices. Any and all notices, demands, requests, submissions, approvals,
consents, or other communications or documents required to be given, delivered or served or
which may be given, delivered or served under or by the terms and provisions of this Agreement
or pursuant to law or otherwise, shall be in writing. All notices shall be either (a) sent by
overnight delivery using a nationally recognized overnight courier, in which case notice shall be
deemed delivered one business day after deposit with such courier, (b) sent by certified or regular
U.S. mail, postage prepaid, in which case notice shall be deemed delivered two business days
after deposit in such mails, or (c) sent by personal delivery, in which case notice shall be deemed
delivered upon receipt or refusal of delivery. All notices shall be addressed, if to the Grantee, to
Grantee at:
City of Carmel
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
Attn: President
with a copy to:
Hall, Render, Killian, Heath Lyman, P.S.C.
One American Square, Suite 2000
Indianapolis, Indiana 46282
Phone: 317 -633 -4884
Fax: 317 -633 -4972
Attn: Robert A. Hicks, Esq.
or to such other address as Grantee may from time to time designate by written notice to Grantor,
or if to Grantors, addressed to Grantors at:
KIRBY PARK, LLC and KIRBY PARK II, LLC
298 Carmel Drive West
Carmel, IN 46032
or to such address as may be designated by the Grantors from time to time.
3
7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Indiana.
IN WITNESS WHEREOF, Grantors and Grantee have executed this Agreement as of the
date first written above.
GRANTORS:
KIRBY PARK, LLC, an Indiana limited
liability company, an undivided 50% interest By:
B a
Jo N�, K (z13
Printed Name and Title
KIRBY PARK II, LLC, an Indiana limited
liability company, an undivided 50% interest
By:
STATE OF INDIANA
COUNTY OF
Before me, a Notary Public in and for said County a d State, personally appeared
i n h N KR the I) -4-4(� aI BY PARK, LLC, Grantor(s) and
who, having been duly worn, acknowledged the uth and accuracy of the representations made
herein and the execution of the foregoing Agreement.
Witness my hand and Notarial Seal this,
My commission expires:
I am a resident of y (t h u
GRANTEE
Printed:
Title: Director of Administration
lid 3
County, Indiana
4
Stephen Engelking
ay of 2003.
0. f
T
13ARRakki j,
Printed Name
Not Public
STATE OF INDIANA
SS:
I
COUNTY OF t l��
Before me, a Notary Public in and for said Count nd,State, personally appeared
n h N h� RBy the u 1 N KIRBY PARK II, LLC, Grantor(s)
and who, having been duly sworn, acknowledged t e truth and accuracy of the representations
made herein and the execution of the foregoing Agreement.
Witness my hand and Notarial Seal this
My commission expires
I am a resident of 1 T\ ('t h Irk County, Indiana
STATE OF INDIANA
SS:
COUNTY OF 1- 0/
7
My commission expires: O 7 P
I am a resident of P r N County, Indiana
day of CO r l o-tr- k) 20O3�,1
Nota Public '1'� -1 :4s
3 AK6A01 I f I (.0
Printed Name
5
Notary Public
Printed Name
Before me, a Notary Public in and for said County and State, personally appeared
Stephen Engelking, the Director of Administration of Grantee, who, having been duly sworn,
acknowledged the truth and accuracy of the representations made herein and the execution of the
foregoing Agreement for and on behalf of said Grantee.
Witness my hand and Notarial Seal this 1 day orD Qc.Rt'✓l 2003.
STATE OF INDIANA
COUNTY OF HAMILTON
Signature:
Printed:
AFFIDAVIT OF AUTHORITY
SS:
John Kirby, being first duly sworn under oath does hereby asserts and states:
1. Kirby Park, LLC and Kirby Park II, LLC, are Indiana Limited Liability Companies which each own
an undivided 50% interest in (and jointly own a 100% interest in) the real estate commonly
known as Kirby Park in Carmel, Indiana.
2. Upon negotiations with the City of Carmel, Carmel, Indiana, Kirby Park, LLC, and Kirby Park II,
LLC, agreed to transfer certain property interests in Kirby Park to the City of Carmel.
3. Under the authority of a written Co- Ownership Agreement between myself and Kirby Family
Limited Partnership I and Kirby Family Limited Partnership H, the owners of Kirby Park, LLC and
Kirby Park II, LLC, I executed the documents entitled "DRAINAGE EASEMENT AGREEMENT" and
"LIMITED WARRANT DEED" on behalf of Kirby Park, LLC, and Kirby Park II, LLC, grantor, to
grantee, the City of Carmel.
4. I certify that I had full power and authority to execute said documents on behalf of Kirby
Park, LLC, and Kirby Park II, LLC, and to consummate said transfer.
And further affiant sai h aught.
hn Ki
Before me, a notary Public in'.nd for said county and state personally appeared John Kirby
who acknowledged the execution of the foregoing Affidavit and who, having been duly sworn, stated
that any representations therein contained are true.
.Witness my hand and Notarial Seal t CIO) day of March 2004.
M‘' commission expires: Signature l.tl),'(a J o Printed t3ARem_i4 c
Resident of 11 n.± i,, County, I N
This instrument prepared by Christine Crull Altman, Attorney at Law.
Return to:
The undersigned, as the holder of a lien on the Grantor Parcel, hereby consents to the
foregoing Agreement and agrees that the lien of that certain Mortgage dated August 10, 1999 and
recorded on September 23, 1999 as Instrument No. 99- 55963, together with all documents
executed in connection with such Mortgage and of that certain Modification of Mortgage dated
July 8, 2002 and recorded on July 15, 2002 as Instrument No. 2002 50058, together with all
documents executed in connection with such Modification of Mortgage, are subject to and
subordinate to the Agreement and that any foreclosure or deed -in -lieu under such Mortgage or
such Modification of Mortgage shall not extinguish or invalidate the Agreement or the rights,
benefits, duties and burdens of the parties thereto and their respective successors and assigns.
STATE OF
COUNTY OF
49077_1 RAH
CONSENT AND SUBORDINATION
SS:
WITNESS my hand and Notarial Seal this �tday of
My commission expires:
I am a resident of County, Indiana
The Huntin
By:
Printed:
ANNE L. CLARK
Marion County
My ^remission Expires
?_rrii 6, 2007
C� E L-U'Ni «Cf
ton National
Befor me, a Notary Public in and for said County and State, personally appeared
the duly authorized officer of The Huntington National Bank, who acknowledged
execution of the foregoing Consent and Subordination for and o behalf of The Huntington National Bank.
c f ,1-2 ,'7
Notary Public
Printed Name
2003.
This instrument was prepared by and, following recording, should be returned to: Robert A. Hicks, Attorney at
Law, HALL, RENDER, KILLIAN, HEATH LYMAN, P.S.C., One American Square, Suite 2000, Box 82064,
Indianapolis, Indiana 46282, (317) 633 -4884.
Project No.: 03 -01
Parcel No.: 2A
Exhibit "9"
A PART OF THE EAST HALF OF SECTION 36, TOWNSHIP 18 NORTH, RANGE 3 EAST
IN HAMILTON ILTON COUNTY, INDIANA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
Commencing at the Northeast comer of the Northeast Quarter of Section 36, Township 18 North,
Range 3 East, Clay Township, Hamilton County, Indiana;
Thence South 00 degrees 00 minutes 00 seconds East (assumed bearing), along the East line of
said Northeast Quarter, a distance of 1188.00 feet;
Thence South 89 degrees 27 minutes 30 seconds West a distance of 2461.54 feet;
Thence South 00 degrees 02 minutes 00 seconds West a distance of 1885.26 feet to the North
right -of -way line of Carmel Drive;
Thence South 85 degrees 00 minutes 00 seconds East, along said North right -of -way line, a
distance of 989.43 feet to a point on the East right -of -way line of Third Avenue S.W, said
point also being the Southwest Corner of a parcel conveyed to John S. Kirby III and Jean
H. Kirby as described in Instrument No. 90 -08711 of the records on file in the Office of
the Hamilton County Recorder;
Thence Southeasterly, along the aforesaid North right -of -way line of Carmel Drive and along a
curve concave southwesterly, whose radius point bears South 05 degrees 00 minutes 00
seconds West 490.00 feet, through a central angle of 04 degrees 37 minutes 10 seconds,
an arc distance of 39.51 feet to a point which bears North 09 degrees 37 minutes 11
seconds East from the aforesaid radius point, said point being the PLACE OF
BEGINNING;
Thence North 55 degrees 02 minutes 04 seconds West a distance of 11.43 feet to a point on a
curve which bears North 08 degrees.25 minutes 27 seconds East 495.00 feet from the
radius point of said curve;
Thence Southeasterly, parallel to the aforesaid North right -of -way line of Carmel Drive and along
a curve concave southwesterly, through a central angle of 31 degrees 26 minutes 23
seconds, an arc distance of 271.62 feet to a point which bears North 39 degrees 51
minutes 50 seconds East from the aforesaid radius point;
Thence South 50 degrees 08 minutes 10 seconds East, parallel to said North right -of -way line of
Carmel Drive, a distance of 50.31 feet to a point on a curve on the West right -of -way line
of the L N Railroad and the East Line of the aforesaid parcel which bears South 51
degrees 15 minutes 30 seconds East 1877.09 feet from the radius point of said curve;
Thence Southwesterly, along said Railroad right -of -way and along said the East line of said
parcel, being a curve concave northwesterly, through a central angle of 00 degrees 09
minutes 10 seconds, an arc distance of 5.01 feet to the aforesaid North right -of -way line of
Carmel Drive and the Southeast Corner of said parcel, said point bearing South 51
degrees 06 minutes 20 seconds East from the aforesaid radius point;
Thence North 50 degrees 08 minutes 10 seconds West, along said North right -of -way line and
along said South line of said parcel, a distance of 50.40 feet to a point of curvature which
bears North 39 degrees 51 minutes 50 seconds East 490.00 feet from the radius point of
said curve;
Thence Northwesterly, along said North right -of -way line and along a curve concave
southwesterly, through a central angle of 30 degrees 14 minutes 39 seconds, an arc
distance of 258.65 feet to the PLACE OF BEGINNING.
CONTAINING 0.036 ACRES MORE OR LESS, BEING SUBJECT TO ANY EASEMENTS,
RIGHTS -OF -WAY OR RESTRICTIONS OF RECORD OR OBSERVABLE.
I, TRENT E. NEWPORT, a Registered Land Surveyor in the State of Indiana, do hereby certify
that this legal description was prepared by me on June 13, 2003, from the current deed record of
the property described and from road plans prepared by CrossRoad Engineers, P.C. for the City
of Carmel Project No. 03 -01. I further certify that to the best of my belief and knowledge this
description is in accordance with Title 865, Article I, Rule 12 of the Indiana Administrative Code.
TRENT E. NEWPORT
INDIANA LAND SURVEYOR
NO. LS 29600021
C1
C2
A 04'3710'
A
31'26'23'
0 11'41'35"
0
11'34'30"
R 490.00'
R
495.00'
T 19.76'
T
139.32'
L 39.51'
L
271.62'
CL= 39.50'
CL= 268.22'
C8 N 82'41'24 "W
CB
S 6551'21 "E
C3
C4
A 00'09'10`
A
30'14'39"
D 03'03'09'
0
11'41'35"
R 1877.09'
R
490.00'
T= 2.50'
T
132.41'
L 5.01'
L
258.65'
CL= 5.01'
CL= 255.66'
CB S 38'49'05 "W
C8 N 6515'29 "W
PARCEL #2A
PROJECT NO.: 03 -01
ROAD NO. CARMEL DRIVE WEST
COUNTY HAMILTON
ADDITION: N/A
SECTION: 36
TOWNSHIP: 18N
RANGE: 3 EAST
NE COR
NE 1/4
SEC. 36
T18N, R3E
S 8 27'30" W
2461.54'
PROPOSED R/W
1
KIRBY PARK, LLC (50% INT) 3 540
INST. #200200038828
KIRBY PARK II, LLC (50% INT)
INST. #200200038829
EAST R/W
3RD AVE SW
PROPOSED
DRAINAGE
EASEMENT
0.036 AC.±
C2
S 50'08'10" E
50.31'
N
to
co
co
/1
S 8500'00"
989.43'
0
CO
N 55'02'04" W
11.43'
OWNER KIRBY PARK, LLC
INST. #200200038828
DATE: 5 -29 -2002
P.O.B.
This plat was prepared from information obtained
from the Recorder's office and from plons prepared
by CrossRocc Engineers. F.C. dotea April. 2003 for
the City of Carmel (Project No. 03 -01) and wos not
necessorily checked by a field survey.
/7--f
EXHIBIT 8'
C�
C4 41 DI?
OWNER KIRBY PARK II, LLC
INST. #200200038829
DATE: 5 -29 -2002
HATCHED AREA IS THE
APPROXIMATE TAKING
NORTH R/WJ
CARMEL DR.
N 50'08'10" W
50.40'
DRAWN BY
CHECKED BY
SCALE 1" 100'
1
SCALE: 1 100'
WEST R/W
L N RAILROAD
PREPARED BY:
Transportation
Development Consultants
3417 S. SHER",1AN 00.
BEECH GROVE, IN 46107 (317)780 -1555