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Home My WebLink AboutENCROACHMENT-CTE-Duke Energy Indiana-20220304FDS 2022011754 ENCR $25.00 03/04/2022 03:06:22PM 8 PGS Jennifer Hayden Hamilton County Recorder IN Recorded as Presented II II II II II I I I I IIII III III CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Duke Energy Indiana, LLC, anIndiana limited liability company (individually and collectively, `Owner"), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ("City"). WITNESSETH: WHEREAS, Owner owns in fee simple certain real estate which is located within the corporate limits of the City of Carmel, Indiana at 866 N. Rangeline Rd., Carmel, Hamilton Comity, Indiana 46032, and is more particularly described in Exhibit A (the "Real Estate'), attached hereto and incorporated herein by this reference; and WHEREAS, Owner wishes to install stonnwater infrastructure on the Real Estate (the "Encroachnnent") which will encroach into those segments of N. Rangeline Road (the "Right of Way") which are contiguous to the Real Estate and which are identified on the drawing attached hereto and incorporated herein by reference as Exhibit B (the "Drawing"), in the manner and locations shown on the Drawing; and WHEREAS, City of Carmel Board of Public Works and Safety approves the Owner's request for a variance from Carmel City Code Section 6-227(4); and WHEREAS. Owner and City acknowledge the location of the Encroaclnnent; and WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not indicated by Owner on Exhibit B; and NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration. the sufficiency and receipt of which are hereby acknowledged, the parties mutually promise, agree and covenant as follows: The foregoing preambles, recitations and definitions are made a part hereof as though such were fully set forth herein. The City consents to the Encroachment for only so long as (i) the Encroaclunent exists; and (ii) Owner complies with all of the terms and provisions of this Agreement. Owner covenants and agrees not to extend, increase, modify, alter, landscape, reconfigure or otherwise change the Encroachment from its original, approved engineering design, without the consent of the City, which shall not be unreasonably withheld, and to maintain the Encroachment in good condition and repair. Owner agrees that City, upon providing notice and consulting with Owner, shall have the right to remove any portion of the Encroachment as City deems necessary for a public improvement project, to repair damage to the Right of Way, or as necessary in an event of emergency, , should the City take such action, the City shall incur no obligation to repair, replace or reimburse Owner for the cost of any damages thereby caused to the Encroachment, the Real Estate, or to Owner. However, in this event, City shall provide Owner an alternative or additional area in the Right of Way, as needed, to provide adequate stormwater infrastructure to the Real Estate, and this new or additional area will be considered a part of the Encroachment. Owner agrees and acknowledges that the City's consent to encroach within the Right of Way, as provided in this instrument, regards the City's Right of Way interests only, and does not constitute permission or authority for the Owner to otherwise enter on, in, under, over, or upon the property interests of any other person without that person's consent even if such property interests are also located within the Right of Way. At the time of execution of the Agreement, the parties agree and acknowledge that to the best of their knowledge the Encroachment, as provided in this instrument, does not violate any covenants and restrictions applicable to the Encroachment. Owner agrees that its installation, maintenance and/or operation of the Encroachment will not create standing water and/or other drainage problems that affect the City or adjacent property owners and that, if such problems arise, the City shall notify Owner who shall then promptly remove, all or any portion of the Encroachment as is necessary to correct such problems, at Owner's sole cost and expense. If Owner refuses or otherwise fails to correct such problems, the City upon providing notice to Owner, may itself remove all or any portion of the Encroachment as is necessary to correct such problems. Owner agrees to reimburse the City for any and all costs and expenses incurred by the City to replace or repair any damage to the Encroachment and any City -owned improvements located therein caused by such problems. Owner agrees that the water flow from the Encroachment shall be directed away from all street travel lanes and that water from the Encroachment shall not be permitted to spray onto, traverse or otherwise come into contact with any travel lanes or paved areas of any street or street intersection. Owner agrees to repair or replace, at Owner's sole cost and expense and to the City's reasonable satisfaction, any utilities or improvements (whether located above, below or on the surface of the Right - of -Way) damaged as a result of the installation, construction, maintenance or operation of the Encroachment. 10. Owner agrees to install identification tape or identification wire on the Encroachment that will allow the City to readily determine the underground location of any Encroachment, if any. 11. Subject to Section 3 of this Agreement, Owner agrees not to alter the ground surface elevation within the limits of the Right of Way at any time. 12. Owner agrees to reimburse the City for any and all costs and expenses incurred by the City to replace or repair any damage to the Right of Way and any improvements located therein caused by Owner's installation, construction, maintenance and/or operation of the Encroachment. The City shall first notify Owner who shall then have the opportunity to promptly correct such problems, at Owner's sole cost and expense, prior to the City taking action under this Section 12. 13. Owner shall defend, indemnify and hold harmless the City from and against any claim or action by a third party against the City, for death, personal iuljury or property daunage arising from the exercise by Owner or an agent of Owner of the rights herein, but excluding the sole negligence or willful misconduct of the City or an agent of the City; provided, the City provides Owner with timely notice of said claim or action. 14. The parties agree that the terns of this Agreement shall be binding upon and inure to the benefit of their respective heirs, aduninistrators, successors and assigns. 15. The parties executing this Agreement represent and warrant that they are authorized to enter into and execute this Agreement for and on behalf of the parry which they represent. 16. This Agreement shall be effective as of the date on which it is last executed by a parry hereto. 17. Owner agrees to provide full disclosure of this Agreement to all persons, entities and others who acquire by or through Owner any interest in the Real Estate on and after the effective date of this Agreement. DocuSign Envelope ID: 19225BEO-4115-4986-BFAE-5804BOD556B7 "OWNEK' PROPERTY OH'NF.R J r Albt c I'rintcd Nanie r— S gnature s,rA'rG OF INDIANA SS: COUNTY Or HGNDRICKS ) Before rne. a Notary Public in and for said County and Staler crs_� nppcarcd 71MC)P y 1.)-ttcy the li'%1NA��;,CX � LArv�bl'l u��e -nergy Indiana. I.I.C. as Indiana limited liability cornpany, who acknowledged lite execution ol'the foregoing "CONSEN f TO ENCROACH - on bei)al rof said company. Witness my hand and Notarial Scat this 1.iJ-day of .[[.6aMAK� , 20ZZ My Commission Expires: NOTAhY Pt II31,1{ 111TbY/Uj9,4 �yNN AVIAJk I f �' �0I f 10z Printed Namc -_ My County of Residence: If""".Amanda Lynn Bnnhvr k00 y Puto)c Seal Slate of IndWna My Commien Cb�m Ftplr, 11120'024 DocuSign Envelope ID: 19225BE0-4115-4986-BFAE-58D4BOD556B7 "CITY" CITY Oh' CARMEL. INDIANA, BY AND THROI IUH ITS BOARD OF PUBLIC WORKS AND SAFFTY By. NOT PRESENT James Brainard. Presiding Officer Date: DocuSigned by- 1lft ''AA Tflurke, Member {)stile: 3/2/2022 Docusioned by: --- .-F1WN7s$2440I4ember Date: 3/2/2022 STATE OF IN131ANA i SS: COUNTY OF I IAMILTON Docuslyned by: [�-S � ueloAfr ang+ Clerk g' Detc: 3j2/2022 Before me, a Notary Public in and far said County and State, personally appeared JAMES BRAINARD, MARY ANN BURKE and LORI WATSON, by me known, and by me known to be the Members of the City oi' Cartnel hoard of Public Works and Safety, and Sue Wolfgang. Clerk of THE CITY OF CARMEL. who acknowledged the execution of the foregoing "CONSE;NT" i'O ENCROACH" on behalf of the City of Carmel, Indiana. olt Witness my hand and Notarial Seal this 2nday of March_._ 20 _ 2 E4, HOLLY J. HARMEYER y Notary Public, State of rndiane"_ Hamilton County*�yCommissionNumberNP0737982My Cvnunission I;xpires: A 1l3LIC` °°v Commission ExptresDecember 15, 2029 12/15/2029 Holly J. Harmeyer _._-_ _ - — Printed Name Hamilton My County of Residence: I his instrument was prepared by Sergey Grechukhin, I'ssquire, 1'ransuctions Chief, One Civic Square. Carmel. Indiana 46032. 1 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. Sergcy Grechukhin, Esquire In • ' .. i`1 _, i' � i ► ! err'.' .- t _ ► -. �� fir, ► :� ..► t ?=e ly • 1 � ;f � 11; li i;` i ♦ ` , i 1 ! to