HomeMy WebLinkAboutConsent to Encroach & Grant of ROW
NELSON & FRANKENBERGER
JAMBS J. NELSON
CHARLES D. FRANkENBERGER
JAMES E. SHlNA VER
LAWRENCE J. KEMPER
JOHN B. piA',.
A PROFESSIONAL CORPORATION
AlTORNEYS AT lAW
3105 EAST 98TH STREE:T, SUITE 170
INDIANAPOLIS, INDIANA 46280
PHONE: 317-844-0106
FACSIMILE: 317-846-8782
www.nf-Iaw.<;om
:FREDRIC LAWRENCE
DA VlD J. LIClUWBERGER
JESS(CA S. OWENS
Of COlm:icl
JANE B. MERRILL
Via hand delivery to:
November 15. 2007
Dick Hill
City of Clll1I1el
One Civic Square
Cannel, IN 46032
RE: 4000 East LLC and C Smart/Smart Center Indianapolis
Consent to Encroach and ROW Grant
BPW Submittal to be Placed on 12/5J07 BPW Agenda
Dear Dick:
Enclosed please find the following in regard to the above matter;
1. An original and9ne (1) copy of a Grant of ROW;
2. An original and one (1) copy ofa Consent to Encroach; and.
3. A copy of the tax card for the subject property.
Per our prior communications, please place this matter on the December 511l BPW
Agenda for consideration. My UJ1derstanding is that you will be sure that Doug Haney
and Gary Duncan review the documents to confirm that all is acceptable, Thank you for
your assistance in this matter and please contact me iNith any questions.
Very truly yours,
NELSON & FRANKENBEGER
I
Cc:Doug Haney via email
Sandy Johnson via email
Libby Pickett via email
Gary Duncan via email
Paul Pettenaro via email
Marc Tworek via email
tl:~a: RaIIE:lIiaICMII~~rwiJ1 Uniqllu..uloCEmwalI~ tnUlJ7.m&;;
CONSENT TO ENCROACH
TIllS CONSENT TO ENCROACH (the "Agreement') is entered into by and between
4000 East LLC, an Indiana limited liability company of Mati on County, Indiana (the "Owner"), and tbe
City of Cannel, Hamilton County, Indiana, by and through its Board of Public Works and Safety (the
"City").
WIlNESSETH::
'WHE'REAS, Owner Owns in fee simple certain real estate (the '.Real Estate"), which is mOre
particularly described in Exhibits "A" attached hereto and incorporated herein by reference and the Real
Estate has a conirhon address of 4000 East 96th Stree4 which is located within the corporate limits of the
City of Carmel, fudiana and upon which a car dealership operates (the "Smart Car Center"); and
WHEREAS, the official deeds of the Real Estate was recorded in the office of the Office of the
Hamilton County Recorder on July 21, 1998, as Instrument #98-39646, and.
WHEREAS, Owner wishes to install a parking area (the "Parking Area"). landscaping (the
"Landscaping"), parking lot lights (the '"Lights") and a ground sign (the "Ground Sign'") on the Real
Estate; and all ofwbich shall be collectively referred to as the "Encroachments".
rob=..'01d:I.~,.....,.'=ninS & =1 <<ml< _\wolldwld",~ to l'."~\ ltomdi<kbi.lllOI~OZ.doo:!tl!1011
WHEREAS, Owner has given the City a ~ketch (the "Sketch") depicting the proposed location of
the Encroachments on the Real Estate, a copy of which is attached hereto and incorporated herein by this
reference asExhibit "B"; and
WHEREAS, the Encroachments either already exist or v.ri1I be installed upon on a portion of the
Real Estate designated as Dedicated Right of Way East 96th Street (the ~'1tight of Way''), identified as
((New 75.0' (half) R-O-W" on Exhibit B; and
WH'BREAS, the Right of Way is beneficial to the City and its residents; and
'WHEREAS, as indicated on the Sketch, the Encroacrunelits encroach upon the Right of Way, as
said Encroachments are depicted on the Sketch; and
WHEREAS, OWner and City acknowledge the location oftbe Encroadnnents; and
WHEREAS,. the location of the Encroachments as indicated by the Owner On Exhibit B, 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
herem 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 ale made a part hereof as though such
l.b=>"\>ltl:ll.'Ibco~~..to; mil ""'"" """.,.'......ld-oiIl_...,_, LO =r<wh!rom o1loithilll ~1602.d""'12Lj^,7J
were fully set forth herem.
2, The City COD.sents to the Encroachments for only SO long as:
(i) the Encroachm~nts exist; and
(ii) Owner complies "With the tenus and provisions of this Agreement.
3. Owner COvenants and agrees not to extend, increase, modify, alter. reconfigure or
otherwise change any or all of the Encroachments from what is depicted on Exhibit B.
4. Owner agrees that City shall have the right to remove any portion of the Encroachme.nts 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 lav.r.fuI pmpose, and that, 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. Encroachments.
5. OWner agrees to indemnity and hold hannless City, its officers, officials, m.embers,
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
r"':""word~:Ib=:I:y......., & rool_ "'""Cl'O\-.wI.n.>l-......~"' ""oaochfr= oil,.. O;U lO!~2.~=13LlI07)
inaction of the Owner, its employees, officers, offidals, invitees, licensees and/or agents,
regarding OJ: related to the Encroachments in the Right of Way.
6. Owner agrees to reimburse City for any and aU costs and expenses incurred by City
to replace or repair any damage to the Right of Way and any improvem.ents located therein
caused by the installation, constmction~ maintenance and/OJ operation of the
Encroachments or due to Owner's other obligations, responsibilities, actions or inactions
as set forth herein.
7, O\Vner agrees to recotd 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.
8. The parties agree that the terms of this Agreement shall be binding upon and inure to the
benefit of their respective heirs, administrators, successors and assigns.
9. The persons executing this Agreement represent and warrant that tbey are authorized to
enter into and execute this Agreement for and on behalf of the party which they represent.
10. This Agreement shall be effective as of the date on which the last party hereto executes same.
ioti:_I\I:~:\~"Il &....1 Ql,lo_""""~w;lI<Ino"""ns=" ",",,,,,,011 iromodicl<lWIIOI6<l:l.'''''4'5If17l
"OWNER"
"CITY>
4000 East tLC) an Indiana limited liability company
CITY OF CARMEL, INDIANA
BY A~TI THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
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Paul A. Pettenaro, Manag1ng em . er
Date:---11-! Lr;/ ~7
James Brainard, Presiding Officer
Date:
Mary Ann Burke, Member
Date:
Member
Date:
AITEST:
Diana Cordray, IA.M'C, Clerk-Treasurer
Date:
(,b ,,,,,wO'<I,,;."~, 1M OOIcingt.I>dmlu;,.....Ir<II>o.'l ~-S'-l''''.l'y int.m<t RI....!k2GIro",,,, 10 "",=,h ~ ai,. I.-ll I O'~"L4.d IIWD?]
STATE OF INDIANA )
) SS:
COUNTY OF f.-161m ILTm )
Before me, a Notary Public in and for said County and Statel personally appeared Paul. A.
Pettenaro, Managing Member of4000 East LLC, an fudiana limited liability company, byme knownl and
who acknowledged the execution of the foregoing l'CONSENT TO ENCROACH" as his or her voluntary
act and deed.
Witness my hand and Notarial Seal this ~ay of -blOVe-mBele' . zoDl.
NOT2k~)
Ob III IOq
JUDY (.IOl-ll\fsrcrJ
Printed Name
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My Commission Expires:
My COW1ty of Residence: +-IClYn I Lwn
STATE OF INDIANA )
) SS~
COU1\TT'Y OF .HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared JA.1\1ES
BRAINARD and:MARY ANN BURKE, byme known, and by me known to be the Members of the City
of Carmel Board of Public Works and Safety, and DIAi"JA 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 Cannel, Indiana.
Witness my hand and Notarial Seal this ~ day of
,20_,
My Commission Expires:
NOTARY PUBLIC
Printed Name
My County of Residence;
This instnuuent was prepared by Douglas C. ganey, Esquire, City AttOllley, One Civic Square, Cannel,
Indiana 46032.
i.b"""'w".....~ ^"~ 1~IodniJllo.....,IJ<>;lll1 ~'Mgs\""""'1uy inlm1<[ C1<t'oua."..".. " CIll<lWC~6llr"Ii'k hilllC'5Ii:l.doo:ll/lSJ01J
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LEGAL DESCRIPTION:
PART OF TH( SOUTH HALF OF' THE SOUTHWEST QUARTER OF SE:CTION 6.
TOWNSHIP 17 NORTH, RANGE 4 EAST IN CLAY TOWNSHjP, HAMILTON
COUNTY, INDIANA, DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF THE: SOUTHWEST QUARTER OF SEC'rION
8, roWNSHIP 17 NORTH, RANGE 4 EAST 1010.00 FEEl NORTH 90 DEGREES
00 MINifiES 00 SE:CONDS EAST (ASSUMED BEARING) FROM THE SOUTHWEST
CORNER OF SAID SOUTHWEST QUARTER; THENCE NORTH 90 OEGREES 00
MINUTES 00 SECONDS EAST ON SAID LINt' 190.00 [:'EET TO THE
WESTERLY RIGHT-Of-WAY LINE OF" LAKESHORE DRIvE EXTENDED SOUTHERLY
TO. SAID SOUTH LINE; THENCE NORTH 00 DEGREES 00 MINUTES 00
SECONDS ON SAJO RIGHT-OF-WAY lIN~ 150.00 FEET TO THE POINT OF
CURVATURE OF A CURVE TO THE RIGHT HAVING A RADIUS OF' 380.00
F'tET; THENCE NORiHEASTERL Y ON SAID RIGHT -OF ~WAY LINE ON SAID
CURVE, AN ARC DJSTANCE OF i 70.85 FEET TO THE POINT OF TANGENCY
OF SAID CURVE; THENCE NORTH 25 DECREES 45 MINUTES 3S SECONDS
EAST ON SAID RIGHT-OF-WAY LINE: TANGENT WITH SAID CURVE 100.00
FEET TO THE POINt OF CURVATURE OF A CURVE TO THE LEn HAVING A
RADIUS OF 320.00 FEET; THENCE NORTHEASTERLY ON SAID RIGHT-OF-WAY
liNE ON SAID CURVE, AN ARC DISTANCE OF 129.58 FEET TO A POINT
S30cOO FEET NOR1H 00 DEGREES 00 MINUTES 00 SECONDS OF SAID SOUTH
LINE; THENCe: SOUTH 90 DEGREES 00 MINUTES 00 SECONDS WEST
PARALLEL WrTH SAID SOIJTH LINE 030270 FEET TO A POINT ON A LINE:
WHICH /SEARS NORm 00 DEGREES 00 MINUTES 00 SECONDS FRoM THE:
PLACE OF BEGlNN1NG; THENCE SOUTH 00 DEGREES OOMINUTE$ 00
Se:CONDS ON SAJD LINE 530.00 F~ET TO TH~ PLACE OF BEGINNiNG.
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Smart Car ~ 4000 East 96th Street) Indianapolis. Indiana
Scale: 1"= 30.0'
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NEW POl..E UCIif'
IN R.O.W.
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LAKE SHORE DRIVE
60.0' RIGHT~OF-WAY
Proj ec.t:
Parcel:
WARRANTY DEED
THIS INDENTURE WITNESSETH THAT 4000 East LtC) an Indiana limited liability company (the
"Grantbr") , convey and warrant to the City of Cannel, lndiana ( the "Grantee"), for the SUm of Ten Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
following described teal estate in Hamilton County, State of tndiana:
See attached Exhibit A, which is attached hereto and incorporated herein
subject to any and all easements, agreements, restrictions and other matters of record,
It is Ullderstood between the parties hereto, and their successors in title, and made a covenant herein which shall
tun with the 1a11d, that all real estate herein described (excepting any parcels or portions thereof that are
specifically and expressly designated as easements or temporary- rights of way) are conveyed in fee simple and
not nierely for right of way purposes, and that no reversionary rights whatsoever are intended to remain in the
Grantor.
the undersigned persons executing this deed represent and certify on behalf of the Grantor that he/she is a duly
elected officer of the Grantor and has been fully empowered and authorized by proper resolutiotl, or by the byw
laws of the Grantor, to exec-ute and deliver this deed; that the Grantor is an Indiana limited liability company in
good standing in the State of Indiana; that the Grantor has full corporate capacity to convey the real estate
described; and that all necessary cOI.]Jorate action for the making of this conveyance has been duly taken.
IN WITNESS VlHEREOF, Grantor has caused this Warranty Deed to be executed this i5T4 day of
NoVem.BeR .2007.
GRANTOR: 4000 East LLC. an Indiana limited liability company
BY: i::: ~J-~I'~
Printed: 'Paul A. Pe tenaro
Title: Managing Member
NOTARY CERTIFICA nON
STATE OF INDIANA )
) S$:
COUNTY OF HcimlLTtvI )
Before me the u:ndersigned~ aNotary Public in and for said County and State, personally appeared
Paul A. Pettenaro, Managing Member of 4000 East LLC, an Indiana limited liability company, who
acknowledged the execution of the foregoing Warranty Deed for and on behalf of such Grantor, and who,
having been duly sworn, stated that the representations therein contained are true.
County of Residence:
-HamlLTOh
Not",~ur,~.,tU{6A)
JUDY <TDJ-J NSTr.;tJ
Notary Printed Name
this'instrument Was prepared by Douglas C. Haney, Carmel City Attorney, City Hall, One Civic Square,
Cannel, Indiana 46032
Send tax bills to: One CiVic Square, Carmel~ IN 46032
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After recording} ret1ll1l deed to: Douglas C. Haney, Cannel City Attomey~ City Hal1~ One Civic Square, Cannel,
Indiana 46032
!affirm, under the p~nalties for per-iuxy, that I have taken reasonable care to redact each and every Social
SecuritynUItlber from this document, lUlless it is required by law. Douglas C. Haney
831464vl
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DESCRIPtION OF RIGHT -OF-WAY
An additional Twenty (20) feet of right~of~way along the north side of 96th Street lying in
part of the South HaIf of the Southwest Qrumer of Section 6, Township 17 North, Range
4" East in Clay Township, Hamilton COlUIty, Indiana, said additional right-of-way
described as follows:
Commencing at a point on the south line of the above captioned Southwest Quarter
Section, being 1010.00 feet North 90 degrees no minutes no seconds East (asswned
bearing) from the southwest come:r of said Southwest Quarter, said point being the
sOuthwest comer of the parcel from which the described right-of-way area lies 'Within;
thence North no degrees no minutes no seconds East, along the west line of the parcel
55.00 feet to a point on the north line of the existing fifty-five (55) footone-halfright-of-
way line and the POINT OF BEGINNING of the additional twenty (20) foot rigbt-of-
way; thence continuing along with the west line of the parcel. North no degrees no
minutes no seconds East, 20.00 feet; thence North 90 degrees no minutes no seconds
East, 190.00 feet to a point on the east line of the parcel; thence along with said east line,
South no degrees no minutes no seconds West, 20.00 feet to a point on the north line of
the aforementioned fifty.:;.five (55) foot existing right-of-way line; thence along with said
north right-of-way line, South 90 degrees no minutes no seconds West, 190.00 feet to the
point of beginning.
The above described right-'of-way description was 'Written without the benefit of a
boundary survey. The description is based upon information taken from record
documents.
Client: Miranda Construction
Dated; November 2, 2007
File No.; 107264
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DESCRIPTION EXHIBIT
THE: DESCRIPTION AND EXHIBIT WAS wRITTEN AND DRAWN
WITHOUT lHE BENEAT OF A BOUNDARY suRvEY. lHE
DESCRIP110N FOR lIiE lWENlY (20) FEET OF ADDITIONAl..
RIGHT-OF-WAY WfJ.S WRITlEN FROM RECORD DOCUMENTs.
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4000 East 96th Street
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190.00 ~ flIor 1/2. RIlW U~E
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9 SO.OO'OO" W - 100.00'
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(110' R.O.W.)
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SlUIlt UIIE Of ll!E EXIST.
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11/Zf2007
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The inf~rmatl6n a....aililble thraugl'1 this prognm is Current as of '1/31/2007.
This program ~lIows you to View <Ind printc.ertllll1 pl.Jbli~ recoms. Each mpnrt reflects intormlltion CIS or a specific dilwj so the informati~
dlffetentreports may root match. All lroform<ltion has been derived from public records that are constantly I,Inc!ef'IJoing chang!! and i!; not warranted for I
acturaq. It may not reflect the currant intomiirtion pertaitlil'J~ ID the property of intereat.
Parcel Nt); 16-14.08-Q0-00-022.004
Property.Address: Deeded Owner; 4000 East llC
4000 96th St I:: OWner Addressl
INDI"'~APOUS, t.N 4~:uJO 3900 96th St E
lNDIAtlAPOUS , IN 462.40
LeI/ill DBSuJpt;lon: 11/03/88 FR 4000 Ii 95TH ST "'ROJECf 6823551 7{ilj9B F~ BECK 9S39646
I r~'"OI"'''''' 00/17/0<
siOh Name:
Dliillded Aa-es: 2.7:-
Po~tical TownshIp: CliY
Lot NlImber(s):
Most Rei;ent Remrded Date: 2/10j2004
(RerordooDOltemillht be dl,le to il varilrty Qfchang~.such !l$ ~l1nelQlliO/1I rlght-of.way, split, or deed.)
il]i:; applicatlon is del/eloped and maint:lined by the InflJnniltlon SYStem Servlcelt bepilrtment If you hil\l1:lllny qu~~ons or comments, Clea:>e contad1
@ 2005 Hamiloon Co.
Wl!j!:!~:iUg9l?~tj9r1:;_.9r~l!!':~ I ~~Q.fJJ.~ r Eril(a,,9!.P.QH~)' I SHJl.!!@g I I~c.a.U:!~lr? r .!:tOMf
@ 2.0m5, HemTlton County, Indiana - al/ light.. resErved.
http://~.co,hamilton.in.us!app/reports/rptparcelinfo. asp?sparcelno- 1614080000022004... 9/5/2007
Page 1 of2
Boone, Rachel M.
From: Jim Shinaver [JimS@NF-LAW.COM]
Sent: tuesday, November 27, 2007 3:43 PM
To: Boone, RachelM.
Cc: Conn, Angelina V; Hollibaugh, Mike P
Subject: RE: Smart Car Sign
Attachments: FORM - ROW Warranty Deed 01 0407.DOC; FORM -Consent to Encroach from Dick Hill
101602.doc
Rachel - Thanks so much for your message below and the Staff's accommodation on this issue. I attached the
documents (without exhibits) that will be presented to the Board of Public Works on 12/5. The Consent to
Encroach does provide that the owner would be responsible, at their own cost, to remove and reconstruct the
ground sign if it must be removed by the City. There is no need for you to apologize on this matter. When you
sent me the email yesterday and when I called you back, I was not in a very good mood due to another project in
Noblesville. I was a bit grumpy and it is me who owes you the apology. Sorry I was a "grump". Again, thanks for
your consideration on this. jim
Jim Shinaver
Nelson & Frankenberger
3105 E. 98th Street, Suite 170
Indianapolis, In. 46280
317-844-0106
jims@nf-Iaw.com
This E-mail message and its attaclunents (if any) are intended solely for the use of the addressee hereof.
In addition, this message and the attac1unents (if any) may contain infonnation that is confidential,
privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this
niessage, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or
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please promptly notify the sender by reply E-mail and inunediately delete this message from your
system.
From: Boone, Rachel M. [mailto:rboone@carmel.in.gov]
Sent: Tuesday, November 27,20072:21 PM
To: Jim Shinaver
Cc: Conn, Angelina V; Hollibaugh, Mike P
Subject: Smart Car Sign
Jim,
I talked over the issue with Angie and Mike and they are ok with not having a variance so long as the petitioner
will relocate/remove the sign at their own expense if there were ever need to do any improvements along 96th St.
If I am reading the dedication letter correctly, I believe this was included. Please let me know. Again, I apologize
for any misunderstandings or inconveniences.
Thanks,
Rachel
11/28/2007
Project:
Parcel:
WARRANTY DEED
THIS INDENTURE WITNESSETH THAT 4000 East LLC, an Indiana limited liability company (the
"Gnilitor"), convey and warrant to the City of Cannel, Indiana ( the "Grantee"), for the sum of Ten Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
following described real estate in Hamilton County, State of Indiana:
See attached Exhibit A, Which is attached hereto and incorporated herein
subject to any and all e-asements, agreements, restrictions and other matters of record.
It is understood between the parties hereto, and their successors in title, and made a covenant herein which shall
nm with the land, that all real estate herein described (excepting any parcels or portions thereof that are
specifically and expressly designated as easements or temporary rights of way) are conveyed in fee simple and
not merely for right of way purposes, and that no reversionary rights whatsoever are intended to remain in the
Grantor.
The undersigrred persons executing this deed represent and certify on behalf of the Grantor that he/she is a duly
elected officer of the Grantor and has been fully empowered and authorized by proper resolution, or by the by-
laws ofthe Grantor, to execute and deliver this deed; that the Grantor is an Indiana limited liability company in
good standing in the State of Indiana; that the Grantor has full corporate capacity to convey the real estate
described; and that all necessary corporate action for the making of this conveyance has been duly taken.
IN WITNESS WHEREOF, Grantor has caused this Warranty Deed to be executed this ~ day of
,2007.
GRANTOR: 4000 East LLC, an Indiana limited liability company
BY:
Printed: Paul A. Pettenaro
Ti tie: Managing Member
NOTARY CERTIFICATION
STATE OF INDIANA )
) SS:
COUNTY OF )
Before me the undersigned, a Notary Public in and for said County and State, personally appeared
Paul A. Pettenaro, Managing Member of 4000 East LLC, an Indiana limited liability company, who
ackhow ledged the execution of the foregoing Warranty Deed for and on behalf of such Grantor, and who,
having been duly sworn, stated that the representations therein contained are true.
WITNESS my hand and Notarial Seal this
day of
,2007.
My Commission Expires:
County of Residence:
Notary Signature
Notary Printed Name
This instrument was prepared by Douglas C. Haney, Cannel City Attorney, City Hall, One Civic Square,
Cannel, Indiana 46032
Send tax bills to: One Civic Square, Cannel, IN 46032
831464vl
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After recording, return deed to: Douglas C. Haney, Carmel City Attorney, City Hall, One Civic Square, Camlel,
Indiana 46032
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each and every Social
SecUlity number from this document, unless it is required by law. Douglas C. Haney
8314G4vl
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CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (the "Agreement") is entered into by and between
4000 East LLC, an Indiana limited liability company of Marion County, Indiana (the "Owner"), and the
City ofCaTInel, Hamilton County, lndiana, by and through its Board of Public Works and Safety (the
"City"),
WITNESSETH:
WHEREAS, Owner owns in fee simple certain real estate (the "Real Estate"), which is more
particularly desclibed in Exhibit "A", which is attached hereto and incorporated herein by reference, and
the Real Estate has a common address of 4000 East 96th Street, which is located within the corporate
limits of the City of Carmel, Indiana and upon which a car dealership operates (the "Smart Car Center");
and
WHEREAS, the official deeds of the Real Estate was recorded in the office of the Office of the
Hamilton County Recorder on July 21, 1998, as Instrument #98-39646, and,
WHEREAS, Owner wishes to install: (i) a parking area that will include ten (10) parking stalls,
saine new con'crete slab areas and curbing surrounding the parking area (the "Parking Area"); (ii) various
landscape plantings (the "Landscaping"); (iii) four (4) parking lot lights (the "Lights"); (iv) one (1)
ground sign (the "Ground Sign"); and, (v) various underground irrigation lines and underground electrical
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conduit (the "Underground Lines") on the Real Estate; and all of which shall be collectively referred to as
the "Encroachments", The right-ai-way area upon which these Encroachments will be encroaching is
more particularly described in Exhibits "B-1 and B-2" which are attached hereto and incorporated herein
by reference (the "Right of Way Area").
WHEREAS, Owner has given the City a sketch (the "Sketch") depicting the proposed location of
the Elicroachments within the Right of Way Area, a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "C"; and
WHEREAS, the Encroachments either already exist or will be installed upon on a portion of the
Right of Way Area designated as dedicated right of way east 96th Street, identified as "New 75.0' (half) R-
0- W" on Exhibit C; and
WHEREAS, this Right of Way grant is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Encroachments encroach upon the Right of Way Area,
as said Encroachments are depicted on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the location of the Encroachments as indicated by the Owner on Exhibit C, should
not materially interfere with the City's use of the Right of Way Area.
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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 patt hereof as though such
were fully set forth herein.
2. The City consents to the Encroachments for only so long as:
(1) the Encroachments exist; and
(ii) Owner complies with the tem1S and provisions oftrus Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, reconfigure or
otherwise change any or all of the Encroachments from what is depicted on Exhibit C.
4. Owner agrees that City shall have the right to remove any portion of the Encroachments 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 Area, or for
any other lawful purpose, and that, 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 Encroachments.
5. Owner agrees to indemnify and hold harmless City, its officers, officials, members,
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employees, invitees, licensees and agents, from and against any and all losses, liabilities,
damages, claims, judgments, attomey 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 Encroachments in the Right of Way Area.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
to replace or repair any damage to the Right of Way Area and any improvements located
therein caused by the installation, construction, maintenance and/or operation of the
Encroachments ot due to Owner's other obligations, responsibilities, actions or inactions
as set forth herein.
7. Owner agrees to record this Agreement in the Office ofthe 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 consei1ts to City recording same, at Owner's sole expense.
8. The parties agree that the tenns of this Agreement shall be binding upon and inure to the
benefit of their respective heirs, administrators, successors and assigns.
9. The persons executing this Agreement represent and warrant that they are authorized to
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enter into and execute this Agreement for and on behalf of the party which they represent.
10. This Agreement shall be effective as of the date on which the last party hereto executes
same.
"OWNER"
"CITY"
4000 East LLC, an Indiana limited liability company
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
Paul A. Pettenaro, Managing Member
James Brainard, Presiding Officer
Date:
Date:
Mary Ann Burke, Member
Date:
Member
Date:
ATTEST:
Diana Cordray, lAMe, Clerk-Treasurer
Date:
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ST ATE OF INDIANA )
) SS:
COUNTY OF )
Before me, a Notary Public in and for said County and Stale, personally appeared Paul A.
PetteItarO, Managing Member of 4000 East LLC, an Indiana limited liability company, 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 _ day of
,20_"
NOTARY PUBLIC
My Commission Expires:
Printed Name
My County of Residence:
STA TE OF INDIANA )
) SS:
COUNTYOFHAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD and MARY ANN BURKE, by me known, and by me known to be the Members of the City
ofCam1el Board MPublic Works and Safety, and DIANA L. CORDRAY, Clerk-Treasurer of THE CITY
OF CARMEL, who acknowledged the execution of the foregoi11g "CONSENT TO ENCROACH" 011
hehal f of the City of Cannel, Indiana.
Witness my hand and Notarial Seal this _ day of
,20_.
NOTARY PUBLIC
My Commission Expires:
Printed Name
My County of Residence:
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This instnlment was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
After recording retu111 to Douglas C. Haney, Camlel City Attorney, City Hall, One Civic Square, Carmel
In. 46032
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each and every Social
Security number from this document, unless it is required by law. Douglas C. Haney
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