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HomeMy WebLinkAboutCity Center/Carmel Drive - Carmel Drive Partners LLCand WITNESSETH: APPROWED A1!O FOR BY: 2008013067 ENCROACHME $56.00 03/12/2008 11:13:41A 23 PGS Jennifer J Hayden HAMILTON County Recorder IN Recorded as Presented CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between Carmel Drive Partners, LLC, 401 Pennsylvania Parkway, Indianapolis, Indiana 46280 "Owner and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety "City WHEREAS, Owner owns in fee simple certain real estate "Real Estate which is located within the corporate limits of the City of Carmel, Indiana, which real estate is more particularly described in Exhibit "A," which is attached hereto and incorporated herein by reference; and WHEREAS, Owner wishes to construct an aerial walkway /pedestrian connector (the "Connector for the sole purpose of pedestrian access within the right -of -way of the roadway (the "Roadway with the common name of City Center Drive, to connect the office building on the Real Estate with a building on the real estate located immediately east of the City Center Drive right -of- way owned by Midwest Independent Transmission System Operator, Inc. (the "MISO real estate WHEREAS, Owner has given the City certain drawings depicting the proposed location, design and construction of the Connector, copies of which are attached hereto and incorporated herein by this reference as Exhibits "C" through "G," inclusive; and WHEREAS, a portion of the Connector will be constructed within the public right -of -way of the Roadway (the "Right -of- Way identified as Exhibit "B," which is attached hereto and incorporated herein by this reference; and WHEREAS, the Right -of -Way is beneficial to the City and its residents; and WHEREAS, as indicated on Exhibits "B" and "C a portion of the Connector will encroach (the "Encroachment upon the Right -of -Way, which Encroachment is crosshatched on Exhibit "B and; WHEREAS, the encroachment will consist of certain above and below grade improvements including foundations; and WHEREAS, Owner and City acknowledge the location of the Encroachment; and WHEREAS, the Owner and the City believe that the location of the Connector as indicated on Exhibits "B" and "C" will not materially interfere with the City's current 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 2. The City consents to the Encroachment for only as long as: (i) the Encroachment exists; 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 the physical characteristics of the Connector from what is approved by the City, the use of the Connector for the sole purpose of pedestrian access and /or the Encroachment from which is depicted on the attached Exhibits, unless proper, prior, written approval is obtained from the City, in its sole and exclusive discretion. Provided, however, that any modification, alteration, reconfiguration or any other change to the physical characteristics of the Connector required by any future law, regulation or order by a court of law, may be made upon not less than ten (10) days' written notice to the City but in compliance with all other terms and conditions of the Agreement otherwise applicable to the work. 4. Owner and the City, for itself and for any other entity under its control, obligation, or contract, acknowledge and agree that any and all installation, protection, maintenance, replacement and /or repair of any and all utility lines, sewer lines and/or drainage ditches or other property located in, on or under the Right -of -Way affected by the Connector or any other lawful activity within the Encroachment shall not be perfonned, except in the case of a bona fide emergency, with less than forty -eight (48) hours advance notice and written approval of the other party, which approval shall not be unreasonably withheld or delayed. The City shall coordinate its activities within the Right of Way under and adjacent to the Connector with the Owner when 3 reasonably necessary to prevent any damage to the Connector. The City agrees that in the event that it receives notice from any party that may own or operate utility lines, sewer lines, drainage ditches or other property legally installed in, on or under the Right -of -Way by easement, license or other agreement with the City or otherwise, (individually and collectively, a "Third Party concerning any work or activity within the Right -of -Way adjacent to or otherwise affecting the Connector, the City will promptly give notice to the Owner of such work or activity. 5. Owner agrees that the installation, use, operation, replacement, repair, maintenance and any City approved future modifications to the Connector will not: (i Limit Horizontal or Vertical Sight Distance within the right -of -way for the design speed at the time of the execution of this Agreement or, if the Connector is modified in the future, the design speed at the time of the modification. (ii) No portion of the Connector, with the exception of the supporting columns, shall be below an elevation of 857.05 based upon a vertical datum benchmark of 867.46 per Hamilton County Surveyor's Office NAVD 29 Benchmark HAM G -55 nor provide less than 16.79 -feet of clearance from the top of the roadway to the bottommost portion of the structure within an area of 91' -2" centered on the centerline of the roadway at the time of execution of this Agreement by 25' -0," in accordance with Exhibit "C." 4 (iii) Limit the ability of the City to expand the existing Roadway within the one hundred forty (140) foot proposed right -of -way established in the City of Carmel 20 -Year Thoroughfare Plan current as of the date of the execution of this Agreement. To the extent such expansion may affect the use of the Connector, the parties agree to negotiate any necessary modification of this Agreement in good faith. (iv) Limit the City's or Third Party's ability to properly and reasonably install or maintain property or other infrastructure within the Encroachment, subject to the provisions of paragraph 4 above. (v) Create or result in a hazard to public health or safety. (vi) Create standing water and /or other drainage problems that affect the City or adjacent property owners. If any of the above circumstances are found by the City to exist, it shall notify Owner who shall then promptly act to repair all or any portion of the Connector as is necessary to remedy such circumstances, to City's reasonable satisfaction, and at Owner's sole cost, expense, and risk. 6. Owner agrees to indemnify and hold harmless the 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 in whole or in part from any bodily injury and /or death and /or from any destruction and /or damage to any property or improvements located within the Right -of -Way 5 which results directly or indirectly from any act, inaction or omission of the Owner, its employees, officers, contractors, licensees, tenants and /or agents and assigns "Owner's Related Parties regarding or related to the existence, use, operation and maintenance, upkeep, replacement, removal and /or and repair of the Connector and /or from any act of any person or persons legally using the Connector, to the extent that any such losses, liabilities, damages, claims, judgments, attorney fees and costs were caused by the act, inaction, or omission of the Owner and /or the Owner's Related Parties. Owner agrees to provide proof of insurance on the Connector in the amounts of $1,000,000.00 per occurrence and $5,000,000.00 maximum per event, effective from the date of this Agreement and thereafter for as long as the Encroachment and /or the Connector exist. 7. Owner agrees to repair or replace, at Owner's sole cost and expense, and to the City's reasonable satisfaction, any utilities, property or other improvements (whether located above, below or on the surface of the Right -of -Way) damaged as a result of the installation, construction, maintenance, repair, replacement, removal and /or operation of the Connector. Owner agrees to reimburse the City for any and all costs and expenses reasonably incurred by the City to replace or repair any damage to any or all of the Right -of -Way, and /or any City utilities, property or other improvements located therein, caused in whole or in part by the installation, construction, maintenance, repair, replacement, removal or operation of the Connector by the Owner and /or the Owner's Related Parties. Notwithstanding the Owner's obligations under this paragraph, Owner's liability shall be limited to the extent of the damages, losses, costs and expenses caused by the Owner and /or the Owner's Related Parties. 6 8. Owner agrees to record a Memorandum of this Agreement in the Office of the Hamilton County Recorder and to provide City with a recorded copy of same within ten (10) business days from the effective date of this Agreement. In the event the Memorandum of this Agreement is not timely recorded by Owner, Owner agrees and consents to City recording same at Owner's sole expense. 9. The parties agree that the teens of this Agreement shall be binding upon and inure to the benefit of their respective successors and assigns. 10. 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. 11. This Agreement shall be effective as of the date on which the last party hereto executes same. 12. This Agreement shall continue in full force and effect until such time as the Owner removes the Connector. Upon Owner's decision to remove the Connector, Owner agrees to completely remove all portions of the Connector, including all above and below grade improvements associated with the portion of the Connector that is within the Right -of -Way, to backfill all excavations in their entirety with material and methods reasonably approved by the City and to restore the Right -of -Way within the Encroachment to the reasonable satisfaction of the City at the Owner's sole cost, expense and risk. 7 13. Owner agrees to hold the City harmless for any and all loss of use of the Connector due to any legal act of the City or other legal use of the Right -of -Way. 14. Owner agrees to provide, install and maintain any traffic safety devices or measures related to the Connector itself as are reasonably necessary to provide protection to the motoring public and pedestrians, using accepted traffic safety devices or measures approved by the City. In the event that modifications to these existing traffic safety measures become necessary in order to comply with accepted future practices or standards, the Owner agrees to modify, update and /or replace the existing traffic safety signs, markings, and devices to comply with such practices or standards within a reasonable time frame, at Owner's sole cost, expense, and risk. City and Owner acknowledge and agree that the Connector has been designed to accommodate a future Roadway widening project within the proposed one hundred forty (140) foot right -of -way, as shown on Exhibit "C In the event it is necessary for the City to replace such traffic safety signs, markings, and devices, the City shall have the right to do so and to recover its costs and expenses from the Owner. 15. No signage shall be installed, displayed or erected on, in, upon, from or within the Connector within the Encroachment unless the same is previously approved in writing by the City in its sole discretion. 16. Owner agrees to allow the City to install, operate and maintain traffic control devices on the Connector within the Encroachment, without charge, if the City deems it reasonably necessary to do so for public safety, as further consideration for the City's execution of this Agreement. Owner agrees to allow the City reasonable access to the 8 interior of the Connector as necessary, and upon not less than twenty -four (24) hours prior notice to the Owner, for the operation and maintenance of such traffic control devices. Any access to the Connector by the City shall be subject to the reasonable security requirements and conditions established by Owner or its tenant. Under no circumstance will the City's reasonable access to the Connector in the interest of public safety be denied. 17. Owner shall be responsible for all maintenance to and upkeep of the Connector within the limits of the Encroachment. Owner agrees to maintain the Connector in good condition and repair. The City reserves the right, with five (5) days' advance notice to Owner, to enter upon the Real Estate to inspect and, in the exercise of reasonable caution in the event of an emergency, to order the use of the Connector to cease until all of the City's public health and safety concerns regarding same are satisfied. Notwithstanding the above, in a bona fide emergency, and upon such notice to the Owner as is reasonable under the circumstances, the City reserves the right to immediately enter the Real Estate to repair the Connector, with the reasonable costs of such repair to be paid by Owner. City acknowledges that the Connector is a critical part of the overall operations of Midwest Independent Transmission System Operator, Inc. Should the City need to temporarily suspend the use of the Connector in connection with the repair or other improvement of the Roadway, the City will give the Owner reasonable notice of such repair or improvement in the case of a bona fide emergency, or otherwise not less than seventy -two (72) hours prior written notice of such suspension and the City will use all reasonable efforts to minimize the length of any such suspension. Any access to 9 the Connector by the City shall be subject to the reasonable security requirements and conditions established by Owner or its tenant. Under no circumstance will the City's reasonable access to the Connector in the interest of public safety be denied. 18. Owner agrees that no material or equipment utilized in the maintenance and upkeep of the Connector shall be staged or stored in the Right -of -Way without prior written approval of the City. 19. If, in the reasonable judgment of the City Engineer, regulatory design or safety standards change and such changes are applicable to the Connector, the parties agree to negotiate in good faith how to address those changes and what, if any modifications, need to be made to the Connector. 20. To the extent that the nature of the use of the Right -of -Way may change, the Parties hereto agree to negotiate in good faith any modifications to the Connector as are consistent with such new use or uses. 21. All notices or communications shall be in writing and be delivered personally or sent via certified or registered mail, return receipt requested, to the other party as follows: To OWNER: Carmel Drive Partners, LLC Attn: Vernon Back, General Counsel 401 Pennsylvania Parkway Indianapolis, IN 46280 WITH A COPY To: Greg Gurnik Lauth Property Group 401 Pennsylvania Parkway Indianapolis, IN 46280 10 WITH A COPY To: 11 J. Taggart Birge Lauth Property Group 401 Pennsylvania Parkway Indianapolis, IN 46280 Tammy K. Haney Bose McKinney Evans LLP 301 Pennsylvania Parkway, Ste. 300 Indianapolis, IN 46280 Midwest Independent Transmission System Operator, Inc. Attn: General Counsel 701 City Center Drive Carmel, IN 46032 Joseph M. Scimia Baker Daniels, LLP 600 E. 96` Street Suite 600 Indianapolis, IN 46240 To CrrY: City of Carmel Department of Engineering Attn: Michael McBride, City Engineer One Civic Square Carmel, IN 46032 Douglas Haney City Attorney City of Carmel One Civic Square Carmel, IN 46032 Either party may change the address to which notice is to be given, provided that notice of this change is given by personal delivery or by registered or certified mail to the other party in the manner provided for by this paragraph. In the event that the City gives notice to the Owner as provided for in this Agreement, the City shall grant Midwest Independent Transmission System Operator, Inc. the right to cure any deficiency, breach or default in any term or condition herein or to otherwise respond to the subject matter of the notice within the applicable time period specified herein. 22. The illegality, invalidity or unenforceability under law of any covenant, restriction or condition or other provision of this Agreement shall not impair or affect in any manner the validity, enforceability or effect of the remaining provisions of this Agreement. 23. This Agreement shall, in all respects, be governed, construed, applied and enforced in accordance with the laws of the State of Indiana. 24. This Agreement may not be modified or amended, except pursuant to a written agreement in recordable form executed by the then owner of the Real Estate and the City. 25. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior agreements (whether written or oral), representations and understandings of the parties relating to the subject matter of this Agreement. No representations have been made to induce the other party to enter into this Agreement except as expressly set forth herein. THE REST OF THIS PAGE IS INTENTIONALLY BLANK SIGNATURES FOLLOW ON NEXT PAGE 12 "Owner" CARMEL DRIVE PARTNE S, LLC B I Ci1igEL S LC S Title: McIti e z Date: Ta R,tel r y 5 ctv e 10044965 12 -12 -2007 13 "City" CITY OF CARMEL, INDIANA BY AND THROUGH ITS BOARD OF PUB IC WORKS AND SAFETY ames Brainar Presiding Officer Date: 6 M:ryA Date: Lori Watson, Date: A I I'LST: Burke, Membe tuber I (a dra M. Johnso eputy Clerk for Tana Cordra AMC, Clerk Treasurer Date: /46 R 2-4 curc\ -10 ckn sor- STATE OF INDIANA COUNTY OF HAMILTON Before me, a Notary Public in and for said County and State, personally appeared IM 'Cha L( S I t ���l y v of Carmel Drive Partners, 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 1Z day of J 200, v v dtk My Commission Expires: SS: 14 My County of Residence: STATE OF INDIANA SS: COUNTY OF HAMILTON .Y, r Before me, a Notary Public in and for said County and State, personally,appeareAJAME BRAINARD, MARY ANN BURKE and LORI WATSON, by me known, a by a me„,kri'oaf6^be t Members of the City of Carmel Board of Public Works and Safety, and DIANA D Q Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foreg irigr; CD4S,,NT i):) ENCROACH" on behalf of the City of Carmel, Indiana." t O Witness my hand and Notarial Seal this 14 day of My Commission Expires: 4 /x //0 9 15 Printed Name My County of Residence: Mt 1 Paul G. Reis This instrument was prepared by: Paul G. Reis, Esq., Bose McKinney Evans LLP, 301 Pennsylvania Parkway, Suite 300, Indianapolis, Indiana 46280. I 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. EXHIBIT A Legal Description of Real Estate Lot 2, Block 7 in Carmel Science and Technology Park as per plat thereof recorded September 28, 2007, as Instrument Number 2007055556, PC 4, Slides 370 -371, in the Office of the Recorder of Hamilton County, Indiana REVISED 10/31/06 REVISED 11/02/06 REVISED 08/21/07 TLK An Consent -to- Encroach exhibit, 25.00 feet in width, for walkway bridge purposes, over a part of Block 7 in the Carmel Science and Technology Park as per plat thereof, recorded in Plat Book 13, pages 65 through 71, in the Office of the Recorder of Hamilton County, Indiana, laying 12.50 feet on each side of the following described centerline: Commencing at the intersection of the Northwestern line of City Center Drive and the southwestern line of Block 7 as shown on the plat of Lot One of said Block 7, recorded as Instrument 200000014110 in the Office of said Recorder, said point being on a curve concave northeasterly and lying South 36 degrees 45 minutes 21 seconds West 665.00 feet from the radius point of said curve; thence northwesterly along the southwestern line of said Block 7 on a curve to the right having a central angle of 10 °27'57" and a radius of 665.00 feet, an arc distance of 121.47 feet (said arc having a chord which bears North 48 °00'38" West 121.30 feet); thence continuing on said southwester line, North 42 °46'40" West 7.57 feet; thence North 47 °13'20" East 10.00 feet to the intersection of the proposed rights -of -way lines of City Center Drive and Carmel Drive; thence northeasterly along the proposed right -of -way line of City Center Drive (70 -foot half right -of -way), on a curve to the left having a central angle of 25 °05'50" and a radius of 630.00 feet, an arc distance of 275.96 feet (said arc being subtended by a chord which bears North 34 °22'51" East 273.76 feet to the Point of Beginning of the herein described centerline; thence on a non tangent line, South 67 °50'19 East 140.00 feet to the easterly right -of -way line of City Center Drive (70 -foot half right -of -way), and there terminating; containing 3499 square feet, more or Tess. EXHIBIT B LAND DESCRIPTION CONSENT -TO- ENCROACH OVER CITY CENTER DRIVE COR. EXISTI R/W P.0 B N26'01'58 "E 48.23' tti N21'01'35 "E J 48.37' S68' 10.00 S21'01' 48.. 4' CURVE DATA L1 2316'25" R 630.00' L 25.00' CH 24.99' COR N 22'25'46 "E CURVE DATA 0 23'21'41" R 630.00' L 256.87' CH 255.10' CBR N 3514'55 "E 9.00' SCALE 1 50' JIND DEVELOPMENT SERVICES Designers Engineers 501 S. 9th Street, Suite 100, Noblesville, IN, 46060 Phone: 317.770.1801 Fax: 317.770.1821 Toll Free: 1.800.801.8555 EXHIBIT B PROPOSED 70' HALF R/W 64 3 �n 6 S26 0 1 58 "W N63'58'02 "W CURVE DATA 10.00' A 01'51'37" R 770.00' L 25.00' CH 25.00' CBR S 22'25'40 "W CURVE DATA A 10'27'57" R 665.00' L 121.47' CH 121.30' CBR N 48'00'38" W 4 cP ,p m PT. OF COMMENCMENT INTERSECTION NW. R/W LN. CITY CTR. DR. S.W. LN. BLOCK 7 PER INST. 200000014110 EXISTING 70' HALF R/W INST. TO BE RECORDED AT A LATER W DATE. C.L. PROPOSED AERIAL EASEMENT 8'25 "E CONSENT -TO- ENCROACH EXHIBIT PROPOSED AERIAL WALKWAY EXISTING BUILDING MIDWEST ISO CONSENT -TO- ENCROACH EXHIBIT CARMEL, INDIANA CLIENT NO. 2006 -0102 DATE 6/14/07 REFERENCE SHEET 1 OF 2 O I EXHIBIT C 0 4 6 O O 4 4 4 0 4 O 4 4 Q 4 4 4 O 4 Q 4 4 4 4 0 O 4 4 D 2' -0 4 4 0- G 0- 0 0- D Q 4 0- Q 4 Ow- 6 O 4 O, m 4 O 4 0- X110 3" CLR. 0 EXHIBIT D FULLY ..1.0 LOBS.. ROOFINS 1412 SEE SRECMnL CRNi f STEEL M.1S 5EE 513SC1LRAL [RIYOYI.. KSKT L16111 HOPE YE ELECTRKAL MAW. COBBNEXS MUM VS ELEVATION OF BRICK PIER IA EXHIBIT E (THIN RIGHT -OF -WAY ON EACH SIDE OF ROAD EXHIBIT E 3/4 FLEET 004601(2 FEF60446 ROC 3' 141610 110410110/1 -1f1 TA STRUCT L RODE DEEKIII5 SFE DRANN STEEL BEANS RG SEE 51RRAL DRAINN2S 4' COVED RUMER BASE SLAB I 2' Ul4RE/E 1UFFI16 M6N40 N0462flN r RISC CONCRETE SLAB SEE 500300 88A411485 A5NORD SEALER SEE 14/7 S FETAL BOOR MOANS 1 SEE TRIE: R CR FLOOR MOAN V 6'-51/2' INAL CUCI SEE FELNANICAL DRA141FGS L60/ FIXTURE SEE ELECTRICAL DRAWN&5 10NTINJOU SUTTER ELEVATION OF FIER EXHIBIT F /2 \I MEDIA 3-5/0 1E1AL STIES a 24 W 1/2' 6440 AIV BATT IlalATION PROVIDE DEEP 4E6 RUIER Al /0P FOR SLIP GONEGTION, (PAINTED) 18118ISIED ALLMINM &RAVEL STOP TOP OF STEEL 6, VARIES 24 TREATED HOOD BLCCKIN6 BOTTOM OF 5/5EI VARIES ROLLED 115,339 STEEL CHANEL SEE STRUCTURAL DRAN11 5 x 10' STEEL PLATE 1NLDED TO BOTTOM OF STEEL BEAN SEE STRUCTURAL DRANN65 4 1/2' 211144015T040018 NT 5051E8 11KIAAIED BLA55 I' 1119*81ED BLA55 b 1/0' HI6N ALUMINA, STOREFRONT BASE 01 MAWFAGII.RER SEALANT 1 BALKER ROD INSIDE 1 D/T90E VARIES 8A1ER51OP 0ONTINKA0 DECK GL05LRE SEE STRUCTURAL DRANK VARIES STIFF FLAW 02' 10P 08 STEEL 0011041 OF STEEL 49 STEEL BEAN SEE STRUCTURAL DR.INS5 T5 6'a6 ?I/4' ORIGINS SEE STRUCTURAL DRAINN65 812x65 STEEL COLL. SEE STRUCTURAL DRANNS5 FINISH GRADE VT RATE EEE STRUCTURAL DRAF1465 101CRETE PIER SEE STRUCTURAL DRAY11.5 FI14194 SRAM 4 VARIES TOP OF FOOTI B VARIES CONCRETE FC* 0Ai /041 5E0 51iIICILRAI DRANN65 STEEL TRU55 SEE STRUCTURAL DRAWINGS ALUMINUM STOREFRONT SYSTEM SEALANT AND BACKER ROD INSIDE AND OUTSIDE STEEL COLUMN SEE STRUCTURAL DRAWINGS 4" UTILITY SIZE FACE BRICK (4 "X12" NOMINAL) CONTINUOUS W/ BACKER ROD 5/8" DENS -GLAS SHEATHING 3/4" WIDE VERTICAL CAULK JOINT 3 -18 GA. METAL STUDS @l6" 0 G. (TYP.) 3 -18 GA. METAL STUDS (HORIZONTAL 4' -0" 0.C.) ATTACHED TO COLUMNS B VERTICAL STUDS SEALANT AND BACKER ROD INSIDE AND OUTSIDE ALUMINUM STOREFRONT SYSTEM STEEL TRUSS SEE STRUCTURAL DRAWINGS PI A 10 3/4" 4 1/2' 11/2" 1" 6P. tramprommorwar A, N. a -TAI 0 0HT= OF =WA, 0 EXHIBIT G 2' -8 1/4" CK F 1 �s 3" ROOF DRAIN THROUGH BRICK PIER N/ "COW'S TONGUE" DISCHARGE a EACH S OL 0 TH