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HomeMy WebLinkAbout04-28-2003MINUTES OF THE BOARD OiF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA ApRiL 28, 2003 Mayor Galligan called the meeting to order at 9::40 a.m. and on call of the roll those members ]present were: Councilperson Frantz and City Engineer Miller. Also present were: Planning and Zoning Director Padgett, Personnel Director Ellis, Wastewater Treatment Director Cmwford, Administrator Rich Davis, Fire Chief Smith, Police Chief Pavey, Building Commissioner Gavin, Animal Shelter Director Wilder, Vehicle Maintenance Director Dmry, Engineer Dixon, Redevelopment Director Robinson, Street Commissioner Grant, Code Enforcement Officer Decker, Sewage Manager Johnson, and Deputy Clerk Lynne Mayfield. Engineer Miller made the motion to approve the payroll as presented, seconded by Conncilperson Frantz and carded unanimously. The Mayor asked if there is anyone on the payroll that he or Personnel Director Ellis aren't aWare of. Engineer Miller made the motion to approve the minutes of April 7 and April 21, 2003 as presented, seconded by Conncilperson Frantz and can/ed unanimously. 812 INDIANA AVENUE Engineer Miller said the problem with the broken stairs has been taken care of. RESIDENT ONLY PARKING Cheryl Burrell of 1104 Blue Grass Trail requested a resident only parking sign. Police Chief Pavey will check the location. Engineer Miller made the motion to approve the resident only parking sign pending Chief Pavey's recommendation, seconded by CoUncilperson Frantz and carded unanimously. 339/341 PEARL STREET No one appeared in response to the Building Commissioner's notice of this hearing. Building Commissioner Gavin said this property has been a problem since 1996. He said the building needs to be sealed according to Ordinance No 150.017 within 10 days of receipt of the letter or the City will do the necessary work and bill the owner for the labor and material plus $1,000.00 fine. In addition, before the building can be occupied a C of O inspection must be performed by the Building Commissions Office. Engineer Miller made the motion to approve the Building Commissioner's recommendation, seconded by Councilperson Frantz and carded unanimously. RESOLUTION 03-R-14 CONFIRMING DAMAGES City Attorney Galligan presented to the Board the fourth and final resolution on the Lewman property sewer easement. She said the appraisal from James L. Bottorffis $29,100.00. Attorney Dan Moore appeared on Mr. Lewman's behalf. Mr. Moore presented an appraisal from Marvin Scbmidt establishing a value of $32,500.00 for the easement. Mr. Moore said Mr. Lev~aan has several objections to his property being taken. One was that his notification was not sufficient. Another is his concerns about how his 5 to 7 springs on the property will be affected. He feels that blasting could have an effect on them. Attorney Moore said there is also a conflict of interest on this issue because of City Attorney Galligan's interest in the land that the sewers will serve. He said MayOr Galligan should not have voted on this issue and he asked that the Board deny or stay any action. Developer Bob Lynn told the Board that he met with Mr. Lewman and that Mr. Leman did have concerns about his springs but that he knew that sewers are inevitable in that are0 eventually. Mr. Lynn assured Mr. Lewman that any problem with the sewer or springs could be solved. Mayor Galligan stated that development of homes with septic tanks would seriously damage the springs by polluting them. Mr. Lynn told the Board that he is the ideed holder on the property. Attorney Fifer representing Developer Bob Lynn said there is a need to aquire the property for an easement and the taking has been completed except for the writing of the check. He said the City of Charlestown has never said they would put sanitary sewers in if they annexed the area. Attorney Filer said Mr. Lynn has made an investment and should get a return on it. He said all of the delays have cost Mr. Lynn a lot of money. A hearing is set for May 7, 2003 on the annexation issue. City Attorney Galligan said the Lewman property has been condenmed and the damage portion and appraisal should be approved. Councilperson Frantz stated as he has before that he doesn't think city sewers should be run outside the City. After much discussion, Engineer Miller made the motion to approve granting $32,500.00 to Mr. Lewman for the easement, seconded by Councilperso9 Frantz and carried unanimously. 215 WEST MARKET STREET Building Comrmss~oner Gavin smd the property needs to be boarded up and is a safety issue. Engineer Miller made the motion to approvei having the City board up the house, seconded by Councilperson Frantz and carded unanimously. The owner has been properly notified. PROPOSAL FOR FIXED ASSET 1NVENTOR~ Lincoln Cram of Cmm's Auction made a proposal to do the fixed asset inventory for $17,500.00. It will include bm-coding of items worth $100.00 or more and will be on Microsoft Excel. He said he could begin in the next several months. Councilperson Frantz made the motion to approve the proposal pending funding, seconded by Engineer Miller and carried unanimously. FUND FOR THE ARTS Cecily Bell spoke about funding and asked for h{lp from the City of Jeffersonville this year. There being no further discussion to come befor~ the Board the motion was made by Engineer Miller to adjourn aV~ 1:00 a.m., seconded by Councilperson Frantz and carried unanimously. ATTEST: CLERK 339/341 Pearl Street 1. Nature of complaints: Building is vacant and there is evidence of vagrants using building. 2. History of complaints: Numerous complaints regarding grass, trash cans, open storage and building violation as far back as 1996. 3. Notices a) b) c) d) e) Registered mail (returned) No phone available 4 attempts to contact Regular mail returned Legal add in Evening News on 4/19/03. 4. Recommendation: To seal building according to City Ordinance No. 150.017 within 10 days of this letter or City will do the necessary work and bill you for labor and material plus $1,000.00 fine. In addition before the building can be occupied a C of O inspection must be performed by the Building Commissions Office. Jeff Fest 2003 Date and T/me: Saturday June 14, 11:00 AM to 5:00 PM. Art show will also nm Sunday 1:00 PM to 5:00 PM Location: Preservation Station Events: Run/walk (Jeff Youth / Bev Knight) Flag Day ceremony Art Show Barbeque, side dishes and drinks Nine holes miniature golf Rock climbing wall Music on Station porch Children's activities A1 Nelson, stone carver Farmers' market 10:00 AM to 1:00 PM What we request: Electric drop and panel boxes behind Evening News Cut grass at Station two to three days before event Picnic tables Trash cans Port-o-lets Close 100 block of West Market 10:00 AM to 5:00 PM . (We will post notices at Clark Arms) ~Close Preservation mediately behind the station. City equipment or personnel display? Contacts: Hem3' Faurest 282-9841 Jay Ellis 283-09301 Sonny Brewster 625-2455 Rebecca Lockard 288-4326\ Keith Stayton 282-6407 John Perkins 282-4997 Barbara Wilson 282-1707 BEFORE THE JEFFERSONVILLE BOARD OF PUBLIC WORKS STATE OF INDIANA IN RE THE MATTER OF RICHARD LEWMAN REMONSTRANCE AND OBJECTIONS OF RICHARD LEWMAN Richard Lewman, by counsel, and without waiving objections to proceedings heretofore now makes the following remonstrances before the Jeffersonville Board of Public Works on April 28, 2003: 1 To the extent Jeffersonville ("City") through its Public Works Board ("Board") begin proceedings to governmentally take easements or other aspects of Richard Leman under the procedure of I.C. 34-24-2 et. seq., that procedure is constitutionally defective under Meunonite Bd. of Missions v, Adams (1983) 462 U.S. 791 and Mullane v. Central Hanover Bank & Trust (1950) 339 U.S. 306. 2 To the extent the City and the Board sought to invoke the procedures of I.C. 32- 24-2-6, those procedures are constitutionally defective because of lack of personal service before the "taking" by the Resolution described in this section. Obviously, for there to be any meaningful opportunity to file remonstrances as to the taking under I.C. 32-24-2-6 Resolution, a person is entitled to notice reasonably calculated to apprise him/her of the governmental action and afford him/her an opportunity to be prepared and to be heard in opposition to the "taking" of the real estate interest at issue. Mere publication of the Resolution in a newspaper is not sufficient to afford such notice and an opportunity to prepare an informed remonstrance as described in I.C. 32-24-2-6(b) & (c). 3 To the extent that the City and the Board sought to utilize the procedures of I.C. 32-24-2~7 to take any interest in the Lewman real estate, that action was outside the scope and purview of I.C. 32-24-2-6 (a) which allows this procedure for specific purposes that do not include taking sewer easements that are not "in the municipality" which are unlikely to ever be hooked up or connected under prevailing law with some other distant location or site. Under the decision of Town ofP!ainfield v. Town of Avon (Ind. App. 2001 757 N.E.2d 705), the Indiana Cou~ of Appeals: "The right of a municipality to exercise its powers to provide sewer service extraterritorially is not absolute; ... A municipalities power to establish, operate, maintain and regulate sewers, sewage disposal systems and systems to collect and dispose of waste substances typically may be exercised only within the corporate boundaries of the municipality... A municipality has exclusive jurisdiction over sewers within its corporate boundaries ... Any (other) municipality whose corporate boundaries are intruded upon must agree to another muncipality's exercise of its powers extraterritorially) under I.C. 36-9-2-16, & 17 and I.C. 36-9- 23-36." 4 Moreover, Avon also holds, at 711: A. "An interlocal cooperation agreement is a condition precedent to the valid exercise by a municipality of its powers extraterritorially to provide sewer services outside ~ts corporate boundaries. 5 The current Lewman plan appears to be some form of leg or connecter that will grossly disrupt the natural quality, value and beauty of his real estate in the apparent hope of connecting it with other real estate or potential subdivisions within the corporate boundaries of Charlestown, Indiana. The City and Board's actions thus far have taken place without the legally-required "condition precedent" of an interlocal agreement and those actions are probably void or voidable. Absent meeting this condition, all actions of the City and Board to try to wrest away control of certain parts and interests of the Lewman real estate, when no interlocal agreement exists under Avon, is outside the scope and purview of any of the extended sewer powers within unincorporated areas of Indiana, as sited above. Further, in these circumstances, 2 ail actions taken against the Lewman real estate pursuant to I.C. 32-24-2 heretofore are legally void under Avon. 6 That the words "condition precedent" have been defined to have the following legai meaning: ... (it) is either a condition which must be performed before an obligation becomes binding, or a condition which must be fulfilled before the duty to perform an existing obligation arises Graybar Electric Co. v. State Board of Tax Comm'r (Ind. Tax Ct. 2000) 723 N.E.2d 491. In the case of Decker v. State (4th Dist. 426 N.E.2d 151) ~vhen applying the appropriate condemnation statutes to take another's reai property interest, the court stated "Statutes relating to the same general subject matter are inpari materia and should be construed together so as to produce a harmonious system (citations omitted at 153) ... When two statutes on the same subject matter must be construed together, the court should attempt to give effect to both. (except when repugnant to each other)" 7 At 153 the Court further stated that the duty imposed on a (condemning authority) "is not an unduly burdensome one, since it is settled law that a condemnor is obligated ... to tender a reasonable offer honestly and in good faith. The "condition precedent" requirement of Decker in eminent domain "takings" that require a good faith offer before appropriation under I.C. 32-11-1-2.1, is not unreasonable, comports with the Indiana constitution and further grants definition to the "condition precedent" language of.Avon in a condemnation setting. The principles of Mennonite_, Mullane and Decker have been grossly abrogated, and not followed, in Lewman proceedings to date. 8 Until such time as the "condition precedent" of the interlocal agreement from Avon is met, between the City and Charlestown, Richard Lewman's real estate interests are put at risk in that the City and Board will not be able to hook up at the Charlestown end of the proposed connecter, which will result in disruption and damage to the Lewman real estate for no valid legal purpose. Until the interlocal agreement is executed by both cities, the City and Board are powerless to use I.C. 32-24-2-6 as a means by which to put the Lewman real estate and at least five natural springs on that real estate, at risk. 9 Among all of the situations to which I.C. 32-24-2-6 applies, it does not apply in cases (like Lewman) when an appellate court decision governs and limits the extraterritorial powers of the City and the Board. The statute makes no mention of this interlocal dimension that is necessary under Avon. The Avon decision is controlling law in this situation and the City and Board may not exercise powers under I.C. 36-9-2-16 & 17, I.C. 36-9- 23-36 or I.C. 32-24-2 until the Avon requirements are met. 10 That even standing alone without a consideration of Avon, the project for which the Lewman real estate is sought clearly does not fall within I.C. 32-24-2-6 (a). 11 The 2001 Avon decision, as a matter of law, contemplated the existence of earlier cases like Vickery v. City of Carmel (2nd Dist. 1981) 424 N.E. 2d 147, which recognized the appropriate condemnation procedures of I.C. 32-11-1.5-3 when a municipality sought to condemn real estate interests outside its corporate boundaries..Avon is controlling in all respects. 12 That the instant proceedings to date taken by the Board and the City are defective in that they prevent a meaningful remonstrance from being presented when the landowner only first learns ora proposed "taking" via a chance newspaper article. Here, Mr. Lewman had no opportunity to form and present a meaningful remonstrance involving, not only the real estate interest at issue, but the minimum five nattucal springs potentially subject to damage by the blasting and digging activities planned. Noticeably absent from Resolution 03-R-13 is any consideration of these natural water springs, sites and sources. Thus, even when trying to 4 conduct themselves under I.C. 32-24-2-6, the City and Board failed to include any scientific data, study, analysis or consideration of these natural water sources as a part of its "condemned property." 13 That the "damage award" put forth by the Board and City on March 24, 2003 in the cited Resolution is unreasonably low, defective, devoid of considerations and protections for the water sources/springs and incomplete in terms of the statutory proceedings and other prevailing law. Even a legal condemnation award must contain long-term, comprehensive indemnification and repair obligations for, at a minimum, twenty (20) years relative to the natural springs likely to be disrupted by blasting and other excavation at the site. Indiana Department of Natural Resources (IDNR) experts should render opinions as to the risk and protection of the Lewman springs, yet City and Board records to date do not include such considerations. 14 No proceedings that administratively try to "take" or "compensate" the Lewmans under the mixed proceedings to date should occur until the Clark Circuit Court hears and determines the rights of the parties (and Richard Lewman who will seek to Intervene) under Cause 10C01-0303-PL-185. Richard Lewman, in order to see that his rights are protected, must now seek to join litigation which is testing the validity of the Board and City's actions to date, including notices issues, insufficient procedural compliance, disregard of Avon, little or no consideration of valuation and protection of the water rights and whether or not the City and Board can operate to take his real property interests from him for a sewer line that will likely never be hooked u~o, at least and until Avon is overturned, modified, or otherwise given new definition at the Circuit Court or Appellate Court level. 15 Being apprised of these infirmities and deficiencies beginning with the failure to include the water resources, failure of notification and due process, etc., the City and the Board are requested to generally continue any proceedings of condemnation (as they see it) pending a judicial decision in Cause No. 10C01-0303-PL-185. The Lewman real estate will be placed at greater risk if the City disregards this request. Mr. Lewman recognizes that, at some time in the future, development and sewer lines may likely cross his farm. However, he will seek judicial interpretation of his rights under the present circumstances and does not desire to be placed "in the middle" between competing sewer interests and the notoriety and contentious nature of some rushed process to use his property as a starting point to reach other real estate when the Avon decision may not ever allow that. Mr. Lewman seeks court guidance before his property is damaged and disrupted. He requests the Board and the City to also be guided by he ultimate court decision in the above-described lawsuit. 16 That the procedures contained in I.C. 32-11-1 (cited in Decker and Vickery) are the only valid procedures to utilize when a governmental entity attempts to condemn real estate interests for known real estate owned by known persons. The alternative procedures under I.C. 32-24-2 are not applicable when owners are known and available for service of notices before state or local condemnation begins. To the extent they have been utilized to date in this case, such actions are void as a matter of law. 17 No clear, valid, legal, immediate public need or use to invoke an,/eminent domain proceedings with respect to the Lewman real estate. To the extent the current holders of title or mortgage for some other tracts of real estate, within Charlestown city limits, are the real party in interest motivating, in whole or in part, the City and the Board to try to utilize eminent domain authority to cross the Leman real estate so as to benefit such other tracts, 6 eminent domain powers may not be used in such circumstances to appropriate any interest in the Lewman real estate. This is especially true when such other tracts have not received final plat approval or final zoning approval from Charlestown, and in view of the missing condition precedent/interlocal agreement required by Avon. Richard Lewman's real estate is legally beyond the scope of Jeffersonville's eminent domain powers for any purpose in these circumstances. 18. Votes heretofore taken may not have been properly taken without full disclosures of interests, possible conflicts of interests. It is likely that the Mayor - Member of the Board should/should have abstained from participation or voting. (see attached deed and mortgage.) In view of the foregoing facts and circumstances all votes of the Board are likely either void ab initio or voidable. Other members of the Board would be prudent not to create potential legal liabilities for themselves by voting to rescind all action to date, or "stay" further action pending resolution of the above complex and multMevel legal questions in the above cited court case. (Deed and Mortgage attached are incorporated into this Remonstrance filing) 7 I affirm under the penalty of perjury that the above representations are true. Prep~ ~ ~arguments pr°vided by: 1N Supre] ~e Ct. No.: 9997-10 411 Watt treet Jeffersonville, 1N 47131-0925 (812) 288-4442 CERTIFICATE OF SERVICE Anne Marie Galligan, Robert Hollis, Juanita Peyton (f/k/a Juanita Ward)/l>y-~a~ted facsimile, or personal delivery on this 28th dayof April, 2003, in accord,a~e }~'t?/l~ of Trial Procedure. Daniel E. Moore The undersized hereby certifies that a copy of the foregoing pleading was served upon States Mail, ules Shirley Holo~ 6P CLI~K COUHTY RECORDER Clark ¢oung¥ Re=order Z 2~22555~ Page 2 o¢ 6 C2 DaLe 20/16/2~e2 T~me t3:24:45 MORTGAGE THIS MORTGAGE, made and entered into this 15th day of Octobcr, 2002, by and between ROBERT LYNN COMPANY, INC, an Indiana corporation with its principle office located at 713 Mount Tabor Road, Suite 4, New Albany, Indiana 47150 (hereinafter called the "OBLIGOR"), and ANNE MARIE SEDWICK GALLIGAN, as Trustee under the Last Will and Testament of Robert H. Kempf, Jr., having an address of 1613 Tall Oaks Drive, J effersonvillc, Indiana 47130 (hereinafter called the "MORTGAGEE"). WHEREAS, OBI,IGOR is indebted to the MORTGAGEE, as evidenced by the OBLIGOR'S Notes of even date herewith (the "Notes"), with interest at the rate provided for therein, payable in accordance with the terms of said Notes, maturing December 30, 2002, January 1, 2003 and January 1, 2004, respectively. Now in order to secure the payment of said Notes and any and all renewals, modifications, substitutions and extensions thereof according to the terms thereof, and for the purpose of securing the payment of the indebtedness herein mentioned and any "Additional Indebtedness" of the OBLIGOR to the MORTGAGEE, for additional loans or otherwise, whether direct, indirect, existing, future, contingent or otherwise, which is hereby expressly authorized pursuant to IC 32-8-11-9 (thc total of the indebtedness evidenced by the Notes and any Additional Indebtedness is hereinafter called the "Mortgage Indebtedness"), and to secure thc performance of all covenants and agreements herein contained, thc OBI,IGOR does hereby grant, warrant and convey unto the MORTGAGEE, its successors and assigns forever, in fee simple, with covenant of General Warranty, the following described real estate, including the improvements thereon, thc appurtenances thereto and the rents, issues and profits therefrom (hereinafter called the "Mortgaged Premises"), located in Clark County, Indiana, and more particularly described as follows: SEE EXHIBIT "A," attached and incorporated by reference hcrcin. The OBLIGOR xvarrants that it is lawfully seized of the Mortgaged Premises, has full fight and power to convey the same, and that the Mortgaged Premises is free from all encumbrances, except: (1) Cu~/.ent ad valorem property taxes; and Easements, restrictions and stipulations of record and applicable zoning rules and regulations. PROVIDED, HOWEVER, that should the OBLIGOR pay off and discharge the aforesaid Mortgage Indebtedness according to the terms thereof, and keep and perfomn each and every covenant and agreement herein on its part to be performed, then this mortgage shall be void, and thc MORTGAGEE shall release this mortgage upon paymcnt by the OBLIGOR of the fee of the Recorder in connection xvith such release. Otherwise, this mortgage shall remain in full force and effect. The OBLIGOR'S covenants and agreements axe as follows: 1. Thc OBLIGOR shall keep thc improvements, if any, on the Mortgaged Premises insured against loss by fire, and such other hazards as are covered by a standard extended coverage endorsement from an insurance company or companies authorized to do business in the State of Indiana and acceptable to MORTGAGEE, until the Mortgage Indebtedness is fully paid. The policy or policies for said insurance bearing such standard extended coverage must be in such amounts as MORTGAGEE may require, and shall include MORTGAGEE as an additional named insured. In the event of loss by fire or other causes insured by said coverage, the OBLIGOR shall give immediate notice thereof by mail to MORTGAGEE, who may make proof of loss if not made promptly by OBLIGOR; and thc insurance company or companies concerned are hereby authorized and directed to make payment for loss directly to MORTGAGEE, and MORTGAGEE may, at her option, apply such insurance proceeds, or any part thereof, to the payment or reduction of the Mortgage Indebtedness hereby secured or to the restoration or repair of such improvements. 2. The OBLIGOR shall pay all taxes, charges, fines, liens and assessments imposed against the Mortgaged Premise before they become delinquent, and upon request, the OBI,IGOR shall exhibit receipts thereof to MORTGAGEE. 3. In the event the OBLIGOR fails to keep thc required insurance in force or fails to pay any taxes, charges, fines, liens and assessments, MORTGAGEE may acquire the required insurance and/or pay the taxes, charges, fines, liens and assessments. The OBLIGOR must repay any sums so expended by MORTGAGEE, with interest thereon at the rate of fifteen percent (15% ) per annum, and any such sums and the interest thereon shall be deemed a part of the Mortgage Indebtedness secured hereby and included therein. 4. The OBLIGOR shall pay to the MORTGAGEE at the MOKI'GAGEE'S address stated above, thc Mortgage Indebtedness or any installment thereon when the same becomes due and payable. 5. The OBLIGOR must take good and proper care of the Mortgaged Premises and may not sell, transfer or encumber the Mortgaged Premises or permit the Mortgaged Premises to be sold, transferred or encumbered while any of the Mortgage Indebtedness is unpaid without the written consent of the MORTGAGEE. 6. Should the OBLIGOR fail to perform any one of the covenants herein contained, the MORTGAGEE may enter on the Mortgaged Premises, collect the rents, issues and profits therefrom, and after paying all expenses of such collection, apply them to the satisfaction of the balance owed on the Mortgage Indebtedness, or at her option, the MORTGAGEE has the right to, without notice, declare the unpaid balance of the Mortgage Indebtedness at once due and payable, and file suit to enforce this Mortgage lien by a judgment sale of the Mortgaged Premises to pay the balance of the Mortgage Indebtedness plus reasonable attorney's fees, costs and expenses, including without limitation the cost of appraisals or environmental assessments, to the maximum extent permitted by law, in connection with the collection of thc balance due hereunder. In the event of default in the payment of any Note, or any installment on any Note secured hereby, the OBLIGOR agrees to pay to the MORTGAGEE, as compensation for additional expenses and labor thereby entailed, a "late charge" equal to eight percent (80/0) of each installment more than ten (10) days in arrears. 7. If it becomes necessary for the MOKI~GAGEE to file suit in order to collect thc Mortgage Indebtedness, then immediately upon the filing of the lawsuit, the MORTGAGEE shall be entitled to the appointment of a Receiver with power to collect the rents, issues and profits arising out of the Mortgaged Premises during the pendency of the lawsuit; and until the time expires to redeem the Mortgaged Premises under any sale that may be made under any judgment for a sale of the Mortgaged Premises, the rents, issues and profits, when collected, may be applied toward the payment of the Mortgage Indebtedness and court costs. 8. This Mortgage and the Mortgage Indebtedness are agreements entered into pursuant to the hws of the State of Indiana. IN TESTIMONY WHEREOF, wimess the &fly authorized signature(s) of the OBLIGOR the day and year first above written. ROBERT LYNN COMPANY, INC. Robert F. Lynn, Pr~ident I STATE OF INDIANA ) ) SS: COUNTY OF CLARK ) BEFORE ME, the unde .rsi~[xed, a Notary Public, in and for the above- named County and State, this ./~ 9 day of October, 2002, personally appeared Robert F. Lynn, president of Robert Lynn Company, Inc., an Indiana corporation, and acknowledged the execution of the foregoing Mortgage on behalf of said corporation. coromission_ expires: WITNESS my hand and notarial seal. Notary ~ubl~c Printed name Resident of County This instrument prepared by: Anne Marie Galligan 1613 Tall Oaks Drive Jeffersonville, Indiana 47130 (812) 218-8330 EXHIBIT A Being part of Survey No. 71 of the Illinois Grant in Clark County, Indiana, bounded as follows: Beginning at a stone at the North corner of said Survey 53; running thence with the llne dividing Surveys 71 and 53 South 53 degrees 39' West 1320.5 feet to its intersec- tion with the Westerly right-of-way line of State Highway 62; thence with said right-of-way line South 5 degrees 54' West 384.6 feet to an iron pipe; thence North 67 degrees 09' West 308.15 feet to an iron pipe in the line common to Surveys 71 and 53; thence North 66 degrees 06.6' West 819.30 feet to a point in the Westerly right-of-way line of the B & O Railroad (80- foot right-of-way), the true place of beginning of land to be herein described. Thence with same Southwardly to a point in the line of said Survey 71 and 53; thence South 49-1/2 degrees West with said llne to a corner of the 38 acre tract which was formerly J.F. Kiger's corner; thence with lines of said 38 acre tract North 40 degrees 20' West 87 1/4 poles to a stake and North 49-1/2 degrees East 70 poles and 2 links to a stake; thence North 40-1/2 degrees West 74 poles 5.42 links to a stone corner to what was formerly Hikes land; thence with another line of same North 49~1/4 degrees East 147 poles 17-1/6 links to a stone in the original dividing line of Surveys 71 and 72; thence South 40-1/2 degrees East along said divid- ing line to the Westerly right-of-way line of the B & O Railroad; thence with Sazae Southwardly to the place of beginning. Excepting therefrom, the following described real estate: Commencing at the most Northerly corner of Survey No. ?1 of the Illinois Grant and running thence along the Northeasterly line of said Survey No. 71, South 36 degrees 16'20" East 2435.76' to a railroad spike in the centerline of Bethany Road, the true point of beginning. Thence continuing along said centerline and said. Survey line, South 36 degrees 16' 20" East, 490.85 feet to a railroad spike in the Westerly right- of-way line of the B & 0 Railroad, said right-of-way being 80 feet in width: thence S. 22 degrees 01' 30" West along said Westerly right-of-way line, 2619.30 feet to an iron pipe; thence North 54 degrees 13' 44" West, 319.04 feet to an iron pipe; thence on a curve to the right, said curve having a central angle of 7 degrees 15' 14", a radius of 345.70' to a chord which bears South 39 degrees 23' 53" West, 43.74 feet to an iron pipe; thence North 46 degrees 58' 30" West, 345.70 feet to an iron pipe; thence North 36 degrees 20' 22" West, 445.14 feet to a 1/2 inch iron pipe; thence North 36 degrees 37' 42" West, 786.93 feet to an iron pipe; thence North 53 degrees 39' 33" East, 2438.82 feet to the place of begin~ing. Also excepting therefrom the following described real estate: Beginning at a stone on the common corner of Surveys 70 and 71 in the northern line of Survey ~53 of said Illinois Grant; Thence N. 40 degrees W., along the line dividing said Surveys 70 and 71, 1458.50 feet to a point in the centerline of Stacy Road; Thence N. 49 degrees 32' E., 1160.15 feet, more or less, to a stone on the westernmost corner of a tract of land described in Deed Drawer 8, InstrLunent 11187, THE TRUE PLACE OF BEGINNING. Thence continuing N. 49 degrees 32' E., along the northwest line of said tract, 293.24 feet to an iron pin on the east corner of a tract of land described in Deed Drawer 10 Instrument 12171 of said county records; Thence S. 40 degrees 34' 24" E., 148.55 feet to an iron pin; Thence S. 49 degrees 32' W., 293.24 feet to an iron pin in the westernmost line of said tract in Deed Drawer 8 Instrument 11187; Thence N. 40 degrees 34' 24" W., along said westernmost line, 148.55 feet to THE TRUE PLACE OF BEGINNING. Containing 1.00 acre, more or less. All of which is subject to 10 foot wide water line easement along a~d adjoining the northern line of the described tract, which easement is more fully described in Deed Drawer 20, Instrument 3935 of the records of the Clark County, Indiana, Recorder, and all other easements, restrictions, and encumbrances of record. STATE OF INDIANA, COUNT~ OF CLAR~ I, Shirley Nolot the uad~'slgned, Record~ of fc~olngisa~,l, tmeandcomplet~copyofa~t [~7 from ~t~ I~G~ ~ I D~._& iu ~he office of th* Recorder of Cl~k County~ Indiank w~c~ Records I m the sole cusl~an. Witness m> hand aha t,fficial se~ Wis RECOR6E~ GE ~LA~ COUNTY, IND~NA iii I Sh~.r ley Nolo[ 4P CLflRK COUNTY RECORDER C[~l:k Co~_n~y Recorder ! 20022,~% ~ Page I at 4 C2 ~6/2~2 ~ Time 13:23:58 W~~ DEED THIS INDENTU~ WITNESSETH that ~NE MARIE SEDWICK G~LIGAN as T~stee unde~ ~e Last W~ and Test~ent of Robert H. Kempf, Jr. ("G~TOR"), for Ten Do~ars ~10.005 and o~er good and valuable considera~on, CONEYS ~D W~TS to ROBERT L~N COMPAq, INC., an ~ana co~ora~on ~"G~TEE"), whose m~ng address fo~ ~eceipt of pmpe~ tax statements is 7~3 Mount Tabor Road, Suite 4, New Albany, ~n~ana 47~ 50, a~ of he~ right, rifle and ~terest in ~e ~o~o~ng described ~eal e~tate in Cla~k Coun~~, ~n~ana: See Ex,bit & attached hereto and inco~omted herein by reference. This conveyance is subiect to ~ covenants, resections and easements of reco~d. Grantee assumes and agrees to pay ~ ~eal pmpe~ t~es assessed on &e estate from the ~e of ~is conveyance fo~aM. IN WITNESS WHE~OF, the G~to~ has executed ~s Warran~ Deed this ]~day of October, GRANTOR: rAnne Marie Sedwick Galligan, Trustee u~de the Last Will and Testament of Robert H. Kemp£, Jr. STATE OF INDIANA ) · SS: COUNTY OF CLARK Before me, a Notary Public in and for said County and State, this/~ day of October, 2002 personally appeared Anne Marie Sedwick Galligan, in her capacxty as Trustee under the Last Will and Testament of Robert H. Kempf, Jr., Grantor herein, and acknoxvledged the execution of the foregoing Warranty Deed. WITNESS mv hand and Notarial Seal this /,~'~ day of'October, 2002: M · ~/,~ommission Expires: Printed Name: L~/~ff/~/ /_.- .,~A,]~'' Resident of Clark County, Indiana This Instrument prepared by: Anne Marie Gall/gan 1613 Tall Oaks Drive Jeffersonville, Indiana 47130 (812) 218-8330 EXHIBIT A Being part of Survey No. 71 of the Illinois Grant in Clark County, Indiana, bounded as fcllows: Beginning at a stone at the North corner of said Survey 53; running thence with the line dividing Surveys 71 and 53 South 53 degrees 39' West 1320.5 feet to its intersec- tion with the Westerly right-of-way line of State Highway 62; thence with said right-of-way line South 5 degrees 54' West 384.6 feet to an iron pipe; thence North 67 degrees 09' West 308.15 feet to an iron pipe in the llne conunon to Surveys 71 and 53; thence North 66 degrees 06.6' West 819.30 feet to a point in the Westerly right-of-way line of the B & O Railroad (80- foot right-of-way), the true place of beginning of land to be herein described. Thence with sa~e Southwardly to a point in the line of said Survey 71 and 53; thence South 49-1/2 degrees West with said line to a corner of the 38 acre tract which was formerly J.F. Ki~er's corner; thence with lines of said 38 acre tract North 40 degrees 20' West 87 1/4 poles to a stake and North 49-1/2 degrees East 70 poles and 2 links to a stake; thence North 40-1/2 degrees West 74 poles 5.42 links to a stone corner to what was formerly Hikes land; thence with another line of same North 49-1/4 degrees East 147 poles 17-1/6 links to a stone in the original dividing line of Surveys 71 and 72; thence South 40-1/2 degrees East along said divid- ing line to the Westerly right-of-way line of the B & 0 Railroad; thence with sa~e Southwardly to the place of beginning. Excepting therefrom, the following described real estate: Conunencing at the most Northerly corner of Survey No. 71 of the Illinois Grant and running thence along the Northeasterly line of said Survey No. 71, South 36 degrees 16'20" East 2435.76' to a railroad spike in the centerline of Bethany Road, the true point of beginning. Thence continuing along said centerline and said Survey line, South 36 degrees 16' 20" East, .490.85 feet to a railroad spike in the Westerly right- of-way line of the B a 0 Railroad, said right-of-way being 80 feet in width: thence S. 22 degrees 0!' 30" West along said Westerly right-of-way line, 2619.30 feet to an iron pipe; thence North 54 degrees 13' 44" West, 319.04 feet to an iron pipe; thence on a curve to the right, said curve having a central angle of 7 degrees 15' 14", a radius of 345.70' to a chord which bears South 39 degrees 23' 53" West, 43.74 feet to an iron pipe; thence Worth 46 degrees 58' 30" West, 345.70 feet to an iron pipe; thence North 36 degrees 20' 22" West, 445.14 feet to a 1/2 inch iron pipe; thence North