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HomeMy WebLinkAboutConsent to Encroach - RECORDED 10-03-11APPROVED 6 CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (the "Agreement is entered into by and between JEC Partnership, L.P.. an Indiana limited partnership (the "Owner and the City of Carmel, Hamilton County, Indiana (the "City by and through its Board of Public Works and Safety (the "BPW WITNESSETH: WHEREAS, Owner owns in fee simple certain real estate that is located within the corporate limits of the City and that is more particularly described in what is attached hereto and incorporated herein by this reference as Exhibit "A" (the "Real Estate"), WHEREAS, the Owner wishes to install a six (6) foot all berm (the "Berm and landscaping, (the "Landscaping pursuant to the Bridges PUD Ordinance number Z -550 -11 (the "PUD Ordinance which will be landscaped per the terms of the PUD Ordinance and which will encroach (1) into those segments of Spring Mill Road and 111 Street (collectively the "Rights -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 1 and (ii) in the manner illustrated on the sketch attached hereto and incorporated herein by reference as Exhibit "C" (the "Drawing 2 WHEREAS. the encroachments (i) of the Berm into the Rights -of -Way as illustrated in Drawing 1 and Drawing 2 and (ii) of the Landscaping into the Rights of Way, as described in the immediately preceding clause, shall hereafter collectively be referred to as the "Encroachments WHEREAS, on the date of the execution of this Agreement, the BPW approved the Owner's request for variance from Carmel City Code Section 6 -227 (4) allowing the Encroachments and the consequent change in grade to the Rights -of -Way (collectively the "Variances and this corresponding Agreement; and, 1 COPY 2011048940 ENCRORCHME $26.00 10/03/2011 02:30:12P 8 PGS Mary L. Clark HAMILTON County Recorder IN Recorded as Presented 11 11 IIIIII II Iil II IIIIIIIIIIIII 1 11 WHEREAS. Owner acknowledges that this Agreement doesnot imply any approval in the Rights- of-Way of existing or future improvements other than (i) as set forth below and as indicated on Drawing 1 and Drawing 2 and (ii) the Landscaping. NOW, THEREFORE, for and in consideration Vf 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 defioidonxare made a part hereof uothough such were fully set forth herein, 2. At the conclusion of the public hearing of the BPW occurring on the date of the execution of this Agreement, the BPW approved the Variances and the corresponding Application for Consent to Encroach Agreement. 2. The City by and through the BPW hereby consents to the Encroachments for only so long as: (i) the Encroachmcnts exist; and (ii) Owner complies with all ofthe terms and provisions of this Agreement. 3. The slope and the width of the Encroachments may vary, provided that the Berm may encroach into the Rights-of-Way by up to but never by more than twenty (20) feet and, in al] other respects, the Owner covenants and agrees not to extend, increase, modify, uher, landscape, reconfigure or otherwise change the Encroachments and to maintain the Berm and Landscaping in good condition and repair. 4. Owner agrees to indemnify and hold harmless the City and the BPW and their officers, officials, members, employees, invitees, licensees and ugen(x from and against any and all losses, liabilities, damages, claims, judgments, attorney fees and costs for bodily injury, death, or property damage that results directly or indirectly from any act of Owner, its 2 employees. contractors and /or agents solely with respect to the installation, construction and /or maintenance of the Encroachments in the Right -of -Way. 5. Owner agrees to reimburse City for any and all costs and expenses incurred by the City to replace or repair any damage to the Rights -of -Way of and any improvements located therein, caused by the installation, construction and/or maintenance of the Berm and the Landscaping. 6. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and to provide to City a recorded copy of same within ten (10) business days of 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 parties 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. 10. This Agreement shall be effective as of the date on which it is last executed by a party hereto. "OWNER" "CITY" .IEC Partnership, L.P., an Indiana lirrted partnership By r 1[ 14 u (1 n N. Pittman, general partner Date d' CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC AORKS AND SAFETY WO `7r^ Jf2 James Brainard, Presiding Officer Date ry A Burke, Date STATE OF INDIANA COUNTY 0 M ommission Expires: y SS: STATE OF INDIANA SS: COUNTY OF HAMILTON 4 Lori Date Witness my hand and Notarial Seeaal sg fL./ day o 1,011 ,11 i AK. R i ti l �0 t 27 "a N :.z.,(- :',9 J V S i y NOTARY SEAL .kited Name i ce' 'r %�tA County of Residence: -9,/,`-'41C, sTP ii +cg's, y ty Di. a Cordray, IA ,t�lerk- Treasure ate c; Before me, a Notary Public in and for said County and State, personally appeared John N. Pittman, the general partner of JEC Partnership, L.P., an Indiana limited liability partnership, and acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his voluntary act and deed. Before me, a Notary Public in and for said County and State, personally appeared JAMES. Ribk-FS-Me), MARY ANN BURKE and LORI WATSON, the Members of the City of Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk Treasurer of THE CITY OF CARMEL, and acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of Carmel, Indiana. Witness my hand and Notarial Seal this4 `day of •51' hf' 201/. My Commission Expires: 1 1 /kb? Return to: Charles D. Frankenberger, Nelson Frankenberger, 3105 E. 98 Street, Suite 170, Indianapolis, IN 46280. This instrument was prepared by Charles D. Frankenberger, Nelson Frankenberger, 3105 E. 98 Street, Suite 170, Indianapolis, IN 46280. NOTARY PUBLIC e Dovi'.5 Printed Name My County of Residence: /4-4 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. 11 \flea, \Zoning& Reid Elm MatinAkvihmen SprinwilriBerrn Dor,ACTE Dlic`Connt in Encroach dor- 5 Exhibit "A" Legal Description A part of the Northwest Quarter of Section 2, Township 17 North, Range 3 East located in Clay Township, Hamilton County, Indiana being bounded as follows: Commencing at the Northwest Corner of the Northwest Quarter of Section 2, Township 17 North, Range 3 East; thence North 89 degrees 17 minutes 34 seconds East (assumed bearing) 117.22 feet along the North Line of said Northwest Quarter to the Southwest Corner of the Southwest Quarter of Section 35, Township 18 North., Range 3 East, to the point of beginning of the 70.174 acre tract of land described in the Quitclaim Deeds recorded as the following Instrument Numbers; 9127260 to 9127264, 9217780 to 9217784, 9413236 to 9413240 and 9555180 to 9555184 by the Recorder of Hamilton County, Indiana and to the point of beginning of the 1.690 acre tract of land (called Parcel 2) described in the Quit Claim Deed recorded as Instrument #200500026462 by said Recorder: thence South 13 degrees 00 minutes 48 seconds West 261.71 feet (measured 261.67 feet by deed) along the tenth course of the land description of said 1.690 acre tract of land (the North 13 degrees 01 minute 47 seconds East 261.67 foot long course) to its origin and to the Point Of Beginning of this description; thence South 13 degrees 00 minutes 48 seconds West 261.11 feet along the first course of the land description of said 70.174 acre tract of land (the South 12 degrees 59 minutes 10 seconds West 522.967 foot long course) to the West Line of said Northwest Quarter; thence South 00 degrees 03 minutes 30 seconds West 2,128.98 feet along the West Line of said Northwest Quarter to its Southwest Corner; thence North 88 degrees 57 minutes 32 seconds East 1,335.02 feet along the South Line of said Northwest Quarter to the Southeast Corner of the East Half of said Northwest Quarter; thence North 00 degrees 11 minutes 50 seconds East 995.35 feet along the East Line of the West Half of said Northwest Quarter to the origin of the fifth course of the land description of said 70.174 acre tract of land (the South 88 degrees 30 minutes 17 seconds West 89.31 foot long course), the following two (2) courses are along the boundary of said 70.174 acre tract of land; 1) thence South 88 degrees 32 minutes 44 seconds West 89.3 l feet; 2) thence North 00 degrees 11 minutes 31 seconds West 749.72 feet to a point called ''324" in the land description of the 0.881 acre tract of land (called Parcel 2B) in the Quit Claim Deed recorded as Instrument 4200500026462 by said Recorder, the following five (5) courses are along the boundary of said 0.881 acre tract of land; 1) thence South 89 degrees 48 minutes 29 seconds West 120.01 feet; 2) thence South 00 degrees 11 minutes 31 seconds East 10.00 feet; 3) thence South 89 degrees 48 minutes 29 seconds West 145.00 feet; 4) thence South 00 degrees 11 minutes 31 seconds East 10.00 feet; 5) thence South 89 degrees 48 minutes 29 seconds West 174.99 feet to the Eastern boundary of the 2.319 acre tract of land (called point "319" in the Parcel 2A land description) described in the Quit Claim Deed recorded as Instrument 4200500026462 by said Recorder, the following three (3) courses are along the boundary of said 2.319 acre tract of land; 1) thence South 00 degrees 11 minutes 31 seconds East 22.28 feet; 2) thence South 89 degrees 48 minutes 26 seconds West 130.00 feet; 3) thence North 00 degrees 11 minutes 34 seconds West 777.00 feet to the terrninus of the third course (the South 89 degrees 48 minutes 36 seconds West 130.01 foot long course) (called point "310" in the Parcel 2 and Parcel 2A land descriptions) of said 1.690 acre tract of land, the following seven (7) courses are along the boundary of said 1.690 acre tract of land; 1) thence North 40 degrees 49 minutes 35 seconds West 119.71 feet; 2) thence South 88 degrees 32 minutes 44 seconds West 200.00 feet; 3) thence South 01 degree 27 minutes 16 seconds East 10.00 feet; 4) thence South 83 degrees 34 minutes 39 seconds West 115.43 feet; 5) thence South 68 degrees 30 minutes 03 seconds West 163.77 feet; 6) thence South 14 degrees 17 minutes 21 seconds West 131.35 feet; 7) thence North 76 degrees 57 minutes 39 seconds West 36.50 feet (measured, 36.78 feet deeded) to the Point Of Beginning, containing 63.661 acres, more or less.