HomeMy WebLinkAboutConsent to Encroach Agreement
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FILE COpy
BOSE
McI\INNEY
& EVANS tLP
Paul G. Rcis
ATTORNEYS AT LAW
Iv1crjdi~n Corporate Plaza Two
30) Pennsylvania P;Jrkway, Suite 300
Indianapolis, IN 46280
Direct Dial (J 17) 684-5369
Oirccl Frtx (317) 223-0369
E-Mail: f.Reis@boselaw.colll
January 30,2008
VIA HAND DELI VERY
Libby 1. Pickett
Cannel Engineering Department
City of Cannel
One Civic Square, I sl Floor
Carmel, Indiana 46032
Re: Consent to Encroach Agreement with Midwest Youth Tennis Foundation, Inc.
Our File No. 5458.0012
Dear Libby:
1 am enclosing herewith the original of the above-referenced agreement fClT review,
approval and execution by the Board of Public Works.
Thank you very much for your cooperation and assistance in this matter.
Best regards,
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PGR/tbb
Enclosure
I 091809 ~ I
FilE COpy
Indianapolis
Carmel
Chesterton
West Laf;Jyette
Raleigh, I~C
Washington. DC
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CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and
between Midwest Youth Tennis Foundation, Inc., 1310 East 96th Street, Suite ]00, Hamilton
County, Indianapolis, Indiana 46240 ("Owner"), and the City of Carmel, Indiana, by and through
its Board of Public Works and Safety, One Civic Square, Hamilton County, Cannel, Indiana
46032 ("City"),
WITNESSETH:
WHEREAS, Owner owns in fee simple certain real estate (the "Real Estate") located
within the corporate limits of the City, which Real Estate is more particularly described 111
Exhibit "A", attached hereto and incorporated herein by this reference; and
WHEREAS, Owner wishes to install a 6 toot monument ground slgn (the
"Improvement") within the right of way reserved for a 961h Street connection under Interstate
Highway 465 (the "Right of Way"), as is further identified as the "Dedication of Right-of.Way
Hamilton County Board of Commissioners Ins1. No. 95-53232" on Exhibit "B", attached hereto
and incorporated herein by this reference; and
WHEREAS, Owner has given the City a site plan (the "Site Plan") depicting the proposed
location of the Improvement, on Exhibit "B"; and
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WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Site Plan, the Improvement will encroach into the Right
of Way (the "Encroachment Area"), which Encroachment Area is crosshatched on the Site Plan;
and
WHEREAS, Owner and City acknowledge the location of the Improvement and the
Encroachment Area; and
WHEREAS, Owner acknowledges that this Agreement does not imply nor constitute the
approval of any existing or future improvements not indicated by Owner on Exhibit "B"; and
WHEREAS, the location of the Improvement, 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 herein and other good and valuable consideration, the sufficiency and receipt of which
are herehy acknowledged, the parties mutually promise, agree and covenant as follows:
] . The foregoing preambles, recitations and definitions are made a part hereof as
though they were fully set forth herein.
2. The City consents to the Encroachment for only so long as:
(i) the Encroachment exists; and
(ii) Owner complies \vith all of the terms and conditions of this Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, reconfigure or
otherwise change the Encroachment Area and/or the location of the Improvement from
what is depicted on Exhibit "B".
4. Owner agrees that the City shall, and any other party owning property within the
Right of Way ("Third Party") shall, upon thirty (30) days prior written notice to
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Owner, have the right to remove any portion of the Improvement as City or Third
Party deems reasonably necessary, in City's or Third Party's sole discretion, to
install, protect and/or repair any utility lines, sewer lines or drainage ditches
located in anyor all of the Right of Way, or for any other lawful purpose, and that,
should the City or Third Party take such action, the City or Third Party shall incur
no obligation to repair, replace or reimburse Owner for the cost of any damages
thereby caused to the Improvement or to Owner.
5. Owner agrees that its use of the Improvement will not create standing water
and/or other drainage problems that affect the City or adjacent property owners
and that, if such problems arise, City, in its sole discretion, may itself act to repair,
or may notify Owner who shall then immediately act to repair, all or any portion
ofthe Improvement as is necessary to remedy such problems, at Owner's sole cost
and expense.
6. Owner agrees to indemnify and hold harmless City, its officers, officials,
members, employees, invitees, licensees and agents, fTom and against any and all
losses, liabilities, damages, claims, judgments, attomey fees and costs arising
from any bodily injury and/or death, and fi'om any destruction or damage to any
property or improvements located within the Right of Way, or otherwise, which
result from any act of the Owner, its employees, officers, officials, licensees
and/or agents in the Right of Way and/or as a result of the Improvement.
7. Subject to the City's or a Third Party's right to reimbursement set forth in
paragraph 8 below, Owner agrees to repair or replace, at Owner's sole cost and
expense and to City's reasonable satisfaction, any utilities or improvements
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(\vhether located above, below or on the surface of the Right of Way) damaged as
a result of the instal1ation, construction, maintenance, removal, repair and/or
operation of the Improvement.
8. Owner agrees to reimburse City or Third Party for any and all costs and expenses
incurred by City or Third Party for any and all costs and expenses reasonably
incurred by or on behalf of City or a Third Party to replace, repair or cure al1Y
damage to any or all of the Right of Way and/or to any improvements located
therein caused in whole or in part by the installation, construction, maintenance,
removal, repair and/or operation afthe Improvement.
9. Owner agrees to record this Agreement in the OHlce of the Recorder of Hamilton
County 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.
10. The parties hereto agree that the terms of this Agreement shall be binding upon
and inure to the benefit of their respective successors and assigns.
11. The persons executing this Agreement represent and warrant that they are
authorized to enter mto and execute this Agreement for and on bchalf of the party
which they represent.
12. This Agreement shall be effective as of the date on which the last party hereto
executes same.
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13. Owner agrees to relocate the Improvement within a reasonable time frame, at the
Owner's sole cost and expense, if requested to do so by the City pursuant to the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement this _ day of
February, 2008.
"0 WNER"
MIDWEST YOUTH TENNIS
FOUNDATION, TNC.
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B\!: MAR Ie- SAUt-lcerts ~'if;.u.rn~ Dl'2E:CID'LJames Bramard, Presiding Officer
J >
Date: I 11-9 ( 08 Date:
"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD
OF PUBLIC WORKS AND SAFETY
Mary Ann Burke, Member
Date:
Lori Watson, Member
Date:
ATTEST:
Diana Cordray, lAMe, Clerk-Treasurer
Date:
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STATE OFINDlANA )
) SS:
COUNTY OF HJ.\.MIL TON )
Before me, a Notary Public in and for said County and State, personally appeared Mark Saunders,
Executive Director of Midwest Youth Tennis Foundation, Inc., by me known, and who acknowledged the
execution of the foregoing "CONSENT TO ENCROACH" as his/her voluntary act and deed.
Witness my hand and Notanal Seal this ~tttay of j~
,2008.
t6~~5-
Paul G. Reis
-
My Commission Expires: June 30. 2015
My County of Residence: Hamilton
STATE OF INDIANA )
) ss:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD,
MARY ANN BURKE and LORl WATSON, by me known, and by me known to be the Members of the City of
Cmmel Board of Public Works and Safety, and DIANA 1. 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
,2008.
NOTARY PUBLIC
Printed Name
My Commission Expires:
My County of Residence:
This instrument was prepared by Paul G. Reis, Esq., Bose McKilU1ey & Evans LLP, 301 Pennsylvania
Parkway, Suite 301, Indianapolis, Indiana 46280.
I affirm under the penalties for peljury that I have taken reasonable care to redact each Social Security
Number in this clocument, unless required by law. Paul G. Reis
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EXHlBIT A
l'art of the Soutbwest Quarter of Section 12, Township 17 Norm, R.<lnSC J East, Hamilton
County, Indiana, being more particularly d~scribed as follows:
Commencing at the southwest comer of the Southwest Quarter of Section 12, Township] 7
North, Range 3 East, HamiltOo Counly, Indiana; thence South 89 degrees 13 minutes 20 seconds
East (assurn~d bearing)onthe soulb line of said Southwest QiJarter a distance of J 300,95 feet to
the southwest comer of the real estate described in Instrument No. 94-49929 In the Office of the
Recorder of Hamilton County, lndiana; thence North 00 degrees 12 minutes 36 seconds West on
the west li(lc of said real estate 60.01 feet to the southwest comer of the real estate described i.u
Instrurmmt No. 95-22172; thence the following seven callsaJoog the perimeter of said real estate:
I.) South &9 degrees 13 minutes 20 seconds East parallel with the south line of said Southwest
Quarter a distance of 905.02 feet; 2.) North 79 degrees 47 minute. 51se~nds Ea..t a distmcc of
34.56 feet to the Point of Deginriing of the herein described real estate; 3.) North 00 degrees 46
minutes 40 seconds East a distance of'39.20 feet to a tangent CliNe baviog a radius of 98.50 f~et,
the radius point of which bears South 89 degrees 13 minutes 20 seconds East; 4.) northerly on
said ctlD'e an arc disTance of 39.98 feet to a point ofrever>e curvature of a curve with radius of
230.00 feet, the radius point Qf which bears Nortb 65 degrees 58 minutes 06 seconds West; 5.)
northerly on said curve an arc distance of J 93.95 feet to a point of reverse curvature of a curve
with a rooius of 58 .50 fuet, the raditlS point of which bears North 65 degrees 43 minutes OJ
seconds East; 6.) northerly on said curve an arc distance of if6.54 feet to a tangent line; 7.) North
21 degrees J 7 minutes 39 Se<<)nds East a distance of 115.15 feet to the south right-of-way line of
Interstate Highway 465, per LS.H.C. plans for project 1-465-4( 128) 127; thence the following two
calls on said south right-of-way line: 1.) South 55 degrees 42 minutes 51 seoonds East 230.93
f-eet; 2.) South 69 degrees 12 minutes 35 seconds East 101.99 feet to the northwest comer of the
real estate described ill Instrument No. 95-53232; thence the following five calls nlong the
perim~ter of said real estate: 1.) South 22 degrees 36 minutes 3! seconds West 90.72 feet; 2.)
Souili 37 degrees 54 minutes 37 seconds West 79.78 feet; 3.) South 48 degrees 42 minutes 46
seconds WestSO.s6 feet; 4.) SOllth 66 degrees 34 minutes 37 se<:onds West g 1.03 feet; 5.) South
79 degrees 47 minutes 52 see<>uds West 118.76 feet to the point of beginning, containing 1.920
acres, more or less.
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EXHIBIT B
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DEDICATION OF RIGHT -or-w
. HAMIL TON COUNTY
BOA.RD OF COMWSSION[R~
Ins/. No. 95-5J23'
r- South Line,
SW/4 See
96TH STRE[T
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THIS DRAWING IS NOT INTENDED TO' BE: REPR(SENTf[