HomeMy WebLinkAboutConsent to Encroach
..
CONSENT TO ENCROACH APPROVEDASTOFORM~
THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between
4146 E. .96th St., LLC, 3950 S. Priority Way, Indianapolis, Marion County, Indiana, 46240 ("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 (the "Real Estate"), which is more
particularly described in Exhibit "A" attached hereto and incorporated herein by reference ("Real Estate"),
commonly known as Motorcycles of Indianapolis, 4146 East 96th Street, Indianapolis, IN 46240, which is
located within the corporate limits ofthe City of Carmel, Indiana ("Motorcycles of Indianapolis"); and
WHEREAS, the official deed for the Real Estate was recorded in the Office of the Hamilton
County Recorder on June 1,2001 as Instrument Number 20010-00032215; and
WHEREAS, Owner has previously constructed portions of an asphalt parking lot (the "Parking
Lot"), concrete curbs (the "Curbs"), parking lot lights (the "Lights") and an identification sign (the
"Sign") on the Real Estate (individually and collectively referred to hereinafter as the "Site
Improvements"); and
WHEREAS, Owner has given the City a sketch depicting the existing location of the Site
Improvements on the Real Estate, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit "B", (the "Sketch"); and
WHEREAS, the Site Improvements will be constructed on portions of the Real Estate designated
as dedicated public right of way (the "Right of Way"), identified as "New 75' Right of Way Dedication"
on the Sketch; and
(cb:rnsword:z:"h2recr<lhUr,formslmolon:yclcscOIlSCnLdoc::6113/03 I
1
WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvements encroach (individually and
collec!ively, the "Encroachments") upon the Right of Way, which Encroachments are crosshatched on the
Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the location of the Site Improvements as indicated by the Owner on the Sketch,
should not materially interfere with the City's use of the Right of Way.
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:
1. The foregoing preambles, recitations and definitions are made a part hereof as though such
were fully set forth herein.
2. The City consents to the Encroachments for only so long as:
(i) the Encroachments exist; and
(ii) Owner complies with the terms and provisions of this Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, reconfigure or
otherwise change any or all ofthe Encroachments and/or the Site Improvements from what
is depicted on the Sketch.
4. Owner agrees that City shall have the right to remove any portion ofthe Site Improvements
as City deems necessary, in City's sole discretion, to install, protect and/or repair any utility
lines, sewer lines or drainage ditches located in any or all of the Right of Way, or for any
other lawful purpose, and that, should the City take such action, the City shall incur no
[eb:""word:z:lshll,e4>dhn~forms\mOlo,cydCS<OllScnLdcc:6113/03 J
2
obligation to repair, replace or reimburse Owner for the cost of any damages thereby
caused to the Site Improvements or to Owner.
5. Owner agrees to indemnify and hold harmless City, its officers, officials, members,
employees, invitees, licensees and agents, from and against any and all losses, liabilities,
damages, claims, judgments, attorney fees and costs arising from any bodily injury and/or
death, and from any destruction and/or damage to any property or improvements, located
on the Real Estate, or otherwise, which results directly or indirectly from any action or
inaction of the Owner, its employees, officers, officials, invitees, licensees and/or agents,
regarding or related to the Site Improvements and/or the Encroachments in the Right of
Way.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City in
replacing or repairing any damage to the Right of Way and/or to any improvements located
therein caused by the installation, construction, maintenance and/or operation of the Site
Improvements, or due to Owner's other obligations, responsibilities, actions or inactions
as set forth herein. Owner further agrees that City may enforce Owner's obligations and
responsibilities as set forth herein through the exercise of any legal or equitable remedies,
including, but not limited to, the City curing any continuing breach of Owner's obligations
and responsibilities, at Owner's sole cost and expense.
7. Owner agrees to reimburse City for any costs incurred by City in removing all or any
portion of the Site Improvements in order for City to access the Right of Way and/or any
improvements located therein.
(cb:mswcrd:z:lahared'dhimrormllmo<orcycIcsCCNcnLcIoc:611310J I
3
8. Owner agrees that Owner will not transfer its obligations and responsibilities under this
Agreement without the prior express written consent of City, which consent will not be
unreasonably withheld, and that, in the event of such transfer, Owner agrees that this
Agreement and all the terms and conditions thereof shall be binding on any entity to which
Owner may transfer its obligations and responsibilities hereunder.
9. Owner agrees that the placement of the Site Improvements in the Right of Way shall be at
Owner's sole cost, expense and risk, and that, if City, in its sole discretion, performs any
work in the Easement including, but not limited to, the maintenance of grassy
areasnandscaping or the snow plowing of streets or sidewalks, that causes damage to the
Site Improvements, or any part thereof, any and all repairs to same shall be the sole
responsibility of the Owner and that, under no circumstances, shall the City be responsible
for any costs of relocation and/or repair of the Site Improvements.
10. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and
to provide to City with a recorded copy of same within ten (10) business days from the
effective date of this Agreement. In the event this Agreement is not timely recorded by
Owner, Owner agrees and consents to City recording same, at Owner's sole expense.
11. The parties agree that the terms of this Agreement shall be binding upon and inure to the
benefit oftheir respective heirs, administrators, successors and assigns.
12. The persons executing this Agreement represent and warrant that they are authorized to
enter into and execute this Agreement for and on behalf of the party which they represent.
13. This Agreement shall be effective as of the date on which the last party hereto executes
same.
[cb:....word:z:Iohamfdhilt.Corms\m>IOrCyclcsconsml.doc:6113IOl J
4
. ;
"OWNER"
4146 E. 96TH ST. LLC
~l ~, P.~tl:iitl,,"t#~/9,<1 /'-111 p.l1LP
SSN:~
Date:
(cb"fSword:z:"harccf dhil~fonns\molorcycIcsCOllSCllLcIoc:611 )/0) J
t/J.e'
r~~
5
"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
James Brainard, Presiding Officer
Date:
Mary Ann Burke, Member
Date:
Lori Watson, Member
Date:
ATTEST:
Diana Cordray, IAMC, Clerk-Treasurer
Date:
.; .i
STATE OF INDIANA
COUNTY OF
)
) SS:
)
,# "" /1M
j41,A ;f~ p~fore me, a Notary Public in and for said County and State, personally appeared Ru~~tL
D Ei~, PRESIDENT of 4146 E. 96TH ST. LLC, by me known, and who acknowledged the execution of
the foregoing "CONSENT TO ENCROACH" as his or her voluntary act and deed.
. Witness my hand and Notarial Seal this ,g~fl-.day of . \i J n. ,20.clZ>
NOTAR~P~i:rC J!, "'98
My Commission Expires:
ICRJSTiN BRAce
HOI'ARYPUBUCSTATEOFINDIANA
MARION cntrmY
MYCDdMlSSJa-l EXP. JUNlII.2003
r{rl <.\1 "'" '"hragS
Printed Name
My County of Residence: (tl tiJ-1 () 1\
STATE OF INDIANA )
) SS:
COUNTY OF .HAMIL TON )
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and LORI WATSON, by me mown, and by me mown to be the
Members of the City of Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk-
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "CONSENT
TO ENCROACH" on behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this _ day of
,20_.
NOTARY PUBLIC
My Commission Expires:
Printed Name
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
rcb'msword,,,"""red'''''UrJonnsln1ototqdcscons.doc:81IJIOJ)
6
~~....
. j
\~fe
;
~l
~ ~~ ~
~' ~
'F~~~gon~2~i~~:~~Mii.".':'" .
HAl'It l. TON coUtlfV 1'.i.~!'IDI,~
~RV L CLARK '. ';" 1('" ~';"~='., :
06-o1-20010~:~O p." .':
CORP '" DEED; , 16. ~O.
~OKPO~~T~ W~~P~NTY OF-ED
;-
THIS INDENTURE WITNESSETH, That DELLEN OLDSM06ILE, INC.,' by'
.. .~
merger, now RUSS DELLEN, INC., ("Grantor") an Indiana cori;9:;a.~'+9.n:iA~'
.. . '. ~ ."':':. ': :~'.,~: .:..
CONVEYS and WARRANTS to 4146 E. 96'h St., L.t.C., an Indianali~~re.d'
liability company, for the
of Ten Dollars (SlO.OO) andotp.~~
. ",
sum
valuable
consideration,
the
receipt
of
which
is ,her,e~:(:,:'
'0... . .." ......
acknowledged, the following described real estate in HamJ,lton
County, Indiana:
.... .~ '! :
. .'." '..
" .
See Exhibit A attached hereto and made a part
hereot...:'fjr~~fl: ~;
Send tax statements to: 3950 Priority I'lay, Indianapbi.i$~ :~:I,~'':''
.'.f' .
46240.
." <~'';::t...~....".
.1. ~ "0 ", . .,'
. . . .' .
,. .:;.~:'::~ ,':~;:/:~;:'
Grantor c.ertifies under oath that no Indiana Gross Income:>,rax':::
~.:: ::r:~~';.:~ :~/;~~..'=:)~ ....
is due or payable at this time with respect to the transfer.ma9~.:by::"
:~. '~~.. :. ';.:. i.~;,f:~~: ;
this deed.
: ;.:....;:. :,':. ;'. .
.':'- .... ',~', ~ .~..'
subject to current taxes not delinquent, and all easemen~s/'"
agreements and, re~ trictions of record. :~:~':::'~~~}':I;',::L;..."
The indivrduals executing this instrument on behalf of,G'rant~r:;~::'
represent and ~arrant their full corporate authority to
DULY ENTER!!D fOR TAXATION
Subject to finalacceptancu for transfer
-Ldayof 0Un.p.l;' ,20 oJ
J(.- /!.~ ~ AudnOf ~HJmIIlon Ccunly
Parcel #. :1t.- 1,/-oK~o-oo - tJ22..1/3
,..', ,'~"".. ~,..:.~:::'.'" :.
" . .
EXHIBIT "A"
PAGE 1 OF 2
.' . .
. '::".:)::..::;~~:I.,r:,.~'~' .
':~t~I~I~t..
~~ ~,~'1'~ .:~;::..~~.:.~;t,~:~'r~~"
','. . ~..
...:
'':.. ~,~
:.! "1
,. I"~
"'
,;-.
. ..'
>::~
:~!
....
.' :....!:.;
.'
'.
, '
1:
:;'E:l'i
~.' ..~:
. "
;'. -..~
.~, , '\
t.. J;: . :~.
'. ..
':'L ~ ..i,:
"
I .
'. :::;1
~f;]
t ,.,_,~
" .f
'J,
.~ '. '"
,I t;.. j.;
" ...~.;1
: .':', .~:.~: .~t
:~~. :1
;' .~: t~
'.'; ::;' If
,'j .:\~
~.:' ~?i'~;~
"\'.~;~ ~fl
. ...~:~ j;
'..'. I .:.\ ~~~~
; '.,:,
.' ".~
:'~\
/.'~~
.;.=::.t~~. }~
..'
.' .i;:..'.
.: .'1'
~:..;.::o:.~;l ,~
" '::,:t~:
. ~.. t,'
'.~ >: .::'{ .r.
:;,;~j;
'-j '..c
, ..
, '
Ex~nBIT iJA
.:.;..\ ~:~.:,.~::<>~~:.~..' ".
.......
_ . :. ~ ~: ,:';-::. .
Ret3ined Parcel
',\.'1,"'1
~ ...
'.1..;.....
PARCEL II - "NEW DESCruPTIO~~' ::>1.}~!'<): .:~':.
A pal1 orche South Half ~rthe Southwest QU3l"'.c:r of' Section 8, Tow:shi(: 17 Nol"'.h, Rallge 4 East orille' Second Pril:ei(:al
Meridian ill Clay TOWIlShip of HamiltcQ COUo'll)', Illdilll13, bcing more par.:cwuly c!escn"bed IS Collows: ., ......'
Commencing at the Southwesl comer oCthe Southwesl Quar.er or Section 8, Towcship 17 North, R3nge 4 E~t oCthe
Second Principal Meridian in Clay TOWllS!1ip or Hamillon COUDt)',l:Idi.aI1a; thellee North 90 c1egrees 00 millutC$ 00
seconds Easl (Assumed Be.uiog) along ce south line thereoC 1260.00 Ceet 10 a point being 011 the Eut Une oCLa3ccsbore
Drive ElSt c.-aendecl; theDee North 00 degrees 00 minutes 00 seconds Eas: aloal nid exteucled rig!1I:oC-way Imc 55.00 feet
10 .., ireD pill on the North right-oC-way liI1e of Easl 961k Street; thence Nor'.h 90 c!earees 00 l:Iinutes 00 seconds ~ast
parallel with the south line ofsaid qU3r.er section 596.15 (eet to a PK Nail at t!le POINT OF BEOINNINO ofth.e
following described real enate;
, .
,'.
(~ ;1
. . ,:..,J
-.
". ....
.. .
. ~~.: :i
:( ";
. ~'. .i
"
".-
thellce North 00 degrees 10 mmules 50 seconds East 487.20 (eel to a PK Nail; tI1eace North SO degrees 00 minutes 00 .; l
secoeds East parallel with said south lille 184.30 (eet co 111 iron pill co ce West rialll-or-way oCSauer'Orivc'Easc IS.
recorded ill Miscellaneous Record 1S9, pages 33-3' ill the Office oCthe Recorder of'Ha:niltcu Cowuy, Ii:i~i.:u: Chellce < .~
South 00 degrees 10 minutes 48 secoods Ease aloag saic! ri;ht-of-way 487.20 (eet to aa iroo pin 00. the Nci1liri8ht.:or~way ,
o{said EASl961b Srreel; thence South 90 degrees 00 minutes 00 seconds Wcst aloni said rig31.o{.way.l87.36 Ceello the
Point of BegiMing. ','
Conlaining 2.08 Acres. more or less.
." ":"::"..' I
.... ,"
'.. . . '.
,: ':.::.:;:'~~ .':~:::~{ t.
....>..:;....-j"...:..; ....
. ~ ~,.. .,....'~. .' .
. ~"..~~..~;~;.~.:... :
......'.:../..:.;y.::. ,
.: .:: . '. .: '~'."'~ '.~;" .
'. 'J'
,'.. ..
EXHIBIT "A",
PAGE 2 OF 2
'.'::'~:!~ ,(:?,;(.:.;;!
.t
. :'~
10':,:'
'.., :~
.:~
..~~. .~~
" .'
';:"~
.'. .:
.... .-
.' ,:;
I '.):
t. ;,.-..::
.. ;.~
.~I.;. .1J
:.. . ~'."
.......~ :;!.
...,'.:.. .;~:~ .~~
:" 'Ii I)
::../ ~;;
.i(.\~ :~t
. .Al': r:
-'7~
.. . .:-).~~ ~~
.1; :~:. ~;~f
~. ".. .~.,.
;;<;:~ ~
."
.:..;:.,'.~
'..~1
..:~.....::... ~;-~
:::~~,I
.D
East
).
~
:!:
2i
-
~wrsr__
r ENCROACHMENT ZONE ~ EXISTING SIGN .+ GRASS
I f/ NEW 75'
f RIGHT-OF-WAY
~. - DEDICATION )t
..... - JJ
~ "'- EXISTlNe 50' ROW LINE EXIST 9' SIDEWALK /'
0 0
c:i ~
h Street 10
17N, R4E~ - - - - ..c-:: SECTION LINE
96t
SOUTH LINE SEC B. T
~
-
03
=i
\G
RIGHT-Of-WAY ENCROACHMENT EXHIBIT 'B'
~ PARKING, LIGHTS IE SIGN ENCROACHME:NT
ROW ENCROACHMENT PLAN
An Add/lion"" ..modlJlJlg lor:
Motorcycles of Indpls
4146 East 96th Street
. Carmel, Indiana
Q)
>
. ....
~
Q
~
<l.>
~
~
CQ
g
z
l\A,le ~_~~
EXB
CV'
1