HomeMy WebLinkAbout96th/Gray - Carmax •?t,, ?C?: 6 171 �7
HAM {i!. COUNTY. T Nf I ANA
.TENNT.FFR .7 HOYDEN
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F_NCROACHMNT iipiso To of
4110 CONSENT TO ENCROACH
(C
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Carmax Auto Superstores, 4900 Cox Road, Glen Allen, Henrico County, Virginia 23060 "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 "Real Estate which is more
particularly described in Exhibits A attached hereto and incorporated herein by reference "Real Estate
commonly known as the Carmax Auto Superstore, which is located within the corporate limits of the City
of Carmel, Indiana; and
WHEREAS, the official deed for the Real Estate was recorded in the Office of the Hamilton
County Recorder on November 11, 2002 as Instrument Number 200288967; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
WHEREAS, Owner has given the City a sketches "Sketches depicting the proposed location of
the System on the Real Estate, copies of which is attached hereto and incorporated herein by this reference
as Exhibit B; and
WHEREAS, the System will be constructed on a portion of the Real Estate designated as Public
Right of Way (the Right of Way), identified as 96` Street and Gray Road on Exhibit B, and as Non
Access Easement, Landscape Maintenance Easement Drainage Utility Easement and Ingress /Egress
Utility Easement (collectively, the "Easements identified, respectively as "2' Non Access Easement,
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15' Landscape Maintenance Easement Drainage Utility Easement and 25' Ingress /Egress Utility
Easement" on Exhibit B;
WHEREAS, the Right of Way and the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachments upon the
Right of Way and Easements, which Encroachments are crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the installation of the System as proposed by the Owner on Exhibit B should not
materially interfere with the City's use of the Right of Way or the Easements.
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 the System and/or the Encroachments from what are depicted on Exhibit
B.
4. Owner agrees that City shall have the right to remove any portion of the System as City
deems necessary, in City's sole discretion, to install, protect and/or repair any utility lines,
[eb:msword:z:\shared\dhill forms \carmax.doc 6 /6/03] 2
sewer lines or drainage ditches located in any or all of the Right of Way and/or the
Easements, 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 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 act of the
Owner, its employees, officers, officials, invitees, licensees and/or agents, regarding or
related to the System or the Encroachments in the Right of Way and /or the Easements.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
to replace or repair any damage to any or all of the Right of Way and/or the Easements
and/or any improvements located therein caused by the installation, construction,
maintenance or operation of the System.
7. Owner agrees that this Agreement and all the terms and conditions thereof will be binding
on any entity to which Owner may transfer its responsibility for the System.
8. Owner agrees that its use of the System 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 remove or may notify Owner who shall then
immediately remove, all or any portion of the System as is necessary to correct such
problems, at Owner's sole cost and expense.
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9. Owner agrees that the water flow from the System shall be directed away from all street
travel lanes and that water from the System shall not be permitted to spray onto, traverse or
otherwise come into contact with any travel lanes or paved areas of any street or street
intersection.
10. Owner agrees that the placement of the System in the Right of Way and/or the Easements
shall be at Owner's cost, expense and risk and that, if City, in its sole discretion, performs
any work in the Right of Way and/or the Easements, including, but not limited to, the
maintenance of grassy areas /landscaping or the snow plowing of streets or sidewalks, that
causes damage to the System, 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 System.
11. Owner agrees that certified record drawings of the installed System shall be provided to the
City immediately upon completion of the construction of same, which drawings shall show
by dimensional location, among other things, the location of all sprinkler heads, piping,
controllers, valves, meter pits, and similar System instruments and/or equipment.
13. 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 cost and
expense.
14. The parties hereto agree that the terms of this Agreement shall be binding upon and inure
to the benefit of their respective heirs, administrators, successors and assigns.
[eb:msword:z:\shared\dhill forms \carmaz.doc:6 /6/03] 4
15. 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.
16. This Agreement shall be effective as of the date on which the last party hereto executes same.
"OWNER" "CITY"
CARMAX AUTO SUPERSTORES CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
K. Dou_(.s Moyers, Vice President James Bra' rd, Presidin Officer
SSN: 254 (S- 7' -1( Date: Ali
Date: WV—,t:3
Mary A Burke,lember
Date:
Lori Wa son, Member" v;
Date: a 7. CO
ATTEST:
A .1.-4_ ry n AMY 1rw:.^.*-i-iu.. r
D i t m
iana Cordray, IAMC, Ctil °'urer`
Date: �Z Q fi
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STATE OF VIRGINIA
SS:
COUNTY OF ken r i ca
Before me, a Notary Public in and for said County and State, personally appeared K. DOUGLASS
MOYERS, Vice President of CARMAX AUTO SUPERSTORES, 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 Notarial Seal this day of --e_ 20 3
NOTARY PUBLIC''
My Commission Expires:
L- 1t v u 4
c b rn c) I Printed Name h '*it
s •o•..
My County of Residence: 4& r
STATE OF INDIANA
L A/Lulu] SS:
COUNTY OF 1-I IL—T$N
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and LORI WATSON, by me known,deanogn to beJhb
Members of the City of Carmel Board of Public Works and Safety, and D A CORDRA61erk-
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To
Encroach" on behalf of the City of Carmel, Indiana.
hr
Witness my hand and Notarial Seal this I day of /u 20 0
/0/
S
US..6 0
`Tlo r Y PUBLIC
My Commission Expires: e
0 '•a fo of \r•1*S ame
4 00
County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
(eb:nax ord:c:\docune- I \Iframe \locals— I temp k notes.datakarmax.doc:6 /10/03] 6
LAND DESCRIPTION
OVERALL PERIMETER
Part of the South half of the Southeast Quarter of Section 8, Township 17 North, Range
04 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana,
being more particularly described as follows:
Beginning at the Southeast corner of Section 8, Township 17 North, Range 04 East;
thence North 90 degrees 00 minutes 00 seconds West along the South line of said half
quarter section, a distance of 714.53 feet a point; thence North 00 degrees 13 minute
20 seconds East parallel to the West line of said half quarter section, a distance of
1317.85 feet to a point in the North line of said half quarter section; thence South 89
degrees 40 minutes 20 seconds East along the North line of said half quarter section, a
distance of 713.49 feet to a point in the East line of said quarter section being the
Northeast corner of the South half of said Southeast quarter; thence South 00 degrees
09 minutes 04 seconds West along the East line of said half quarter section, a distance
of 1313.75 feet to the point of beginning. Containing 21.585 acres, more or less, subject
to rights -of -way, easements and restrictions.
EXCEPT that part appropriated by the Board of Commissioners of Hamilton County
pursuant to proceedings under Cause No. 29DO1- 9604 -MI -00 169 as set out in a
transcript recorded August 26, 1996 as Instrument No. 9609635823 in the Office of the
Recorder of Hamilton County, Indiana. Containing 1.055, acres, more or Tess.
Leaving a net acreage after said exception of 20.530 acres, more or Tess.
LAND DESCRIPTION
LOT 1
Part of the South half of the Southeast Quarter of Section 8, Township 17 North, Range
04 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana,
being more particularly described as follows:
Commencing at the Southeast corner of Section 8, Township 17 North, Range 04 East;
thence North 90 degrees 00 minutes 00 seconds West (North 89 degrees 47 minutes
47 seconds West measured) along the South line of said half quarter section, a
distance of 357.27 feet to the POINT OF BEGINNING of the herein described real
estate; thence continuing North 90 degrees 00 minutes 00 seconds West (North 89
degrees 47 minutes 47 seconds West measured) 357.27 feet to a point; thence North
00 degrees 13 minute 20 seconds East (North 00 degrees 20 minutes 56 seconds East
measured), parallel with the West line of said half quarter section, a distance of
1317.85 feet (1317,26 feet measured) to a point in the North line of said half quarter
section; thence South 89 degrees 40 minutes 20 seconds East (South 89 degrees 33
minutes 44 seconds East measured), along the North line of said half quarter section,
EXHIBIT "A"
PAGE 1 OF 3
a distance of 713.49 feet (714.64 feet measured) to a point in the East Tine of said
quarter section, being the Northeast corner of the South half of said Southeast quarter;
thence South 00 degrees 09 minutes 04 seconds West (South 00 degrees 21 minutes
14 seconds West measured) along the East line of said half quarter section, a
distance of 898.66 feet; thence South 90 degrees 00 minutes 00 seconds West 347.34
feet; thence South 00 degrees 00 minutes 00 seconds East 354.41 feet to a point in the
North line of right -of -way appropriated by the Board of Commissioners of Hamilton
County pursuant to proceedings under Cause No. 29D01- 9604 -MI -00 169, as set out in
a transcript recorded August 26, 1996 as Instrument No. 9609635823 in the Office of
the Recorder of Hamilton County, Indiana; thence on said right -of -way line, North 89
degrees 49 minutes 30 seconds West (North 89 degrees 47 minutes 47 seconds West
12.12 feet; thence South 00 degrees 21 minutes 05 seconds West 60.00 feet to the
point of beginning. Containing 18.271 acres, more or Tess, subject to rights -of -way,
easements and restrictions.
EXCEPT that part of the above described real estate appropriated by the Board of
Commissioners of Hamilton County pursuant to proceedings under Cause No. 29D01-
9604-MI-00 169 as set out in a transcript recorded August 26, 1996 as Instrument No.
9609635823 in the Office of the Recorder of Hamilton County, Indiana. Containing
0.412 acres, more or Tess, subject to rights -of -way, easements and restrictions.
Leaving a net acreage after said exception of 17.859 acres, more or Tess.
EXHIBIT "A"
PAGE2OF3
LAND DESCRIPTION
LOT 2
Part of the South half of the Southeast Quarter of Section 8, Township 17 North, Range
04 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana,
being more particularly described as follows:
Beginning at the Southeast corner of Section 8, Township 17 North, Range 04 East;
thence North 90 degrees 00 minutes 00 seconds West (North 89 degrees 47 minutes
47 seconds West measured) along the South line of said half quarter section, a
distance of 357.27 feet; thence North 00 degrees 21 minutes 05 seconds West 60.00
feet to a point in the North line of right -of -way appropriated by the Board of
Commissioners of Hamilton County pursuant to proceedings under Cause No. 29D01-
9604 -MI -00 169, as set out in a transcript recorded August 26, 1996 as Instrument No.
9609635823 in the Office of the Recorder of Hamilton County, Indiana; thence on said
right -of -way line, South 89 degrees 49 minutes 30 seconds East (South 89 degrees 47
minutes 47 seconds East measured) a distance of 12.12 feet; thence North 00
degrees 00 minutes 00 seconds West 354.41 feet; thence North 90 degrees 00 minutes
00 seconds East 347.34 feet to a point in the East line of said half quarter section;
thence on the East line thereof, South 00 degrees 09 minutes 40 seconds West (South
00 degrees 21 minutes 14 seconds West measured) 415.68 feet to the Point of
Beginning: Containing 3.314 acres, more or less, subject to rights -of -way, easements
and restrictions.
EXCEPT that part of the above described real estate appropriated by the Board of
Commissioners of Hamilton County pursuant to proceedings under Cause No. 29D01-
9604-MI-00 169 as set out in a transcript recorded August 26, 1996 as Instrument No.
9609635823 in the Office of the Recorder of Hamilton County, Indiana. Containing
0.643 acres, more or less, subject to rights -of -way, easements and restrictions.
Leaving a net acreage after said exception of 2.671 acres, more or Tess.
EXHIBIT "A"
PAGE 3 OF 3
Mid•States I,
En6lnEfRm6
350 E New York St, Suite 300
Indianapolis. IN 46204 -2134
(317) 534 -5434 Phone
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111-1390
CARMAX EXH
CARMAX ENCROACHMENT EXHIBIT PAGE 1 OF 7
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6/9/2003 PAGE 2 OF 7
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6/9/2003 PAGE 5 OF 7
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111 -1390 CARMAX_EXH_5.DGN
CARMAX ENCROACHMENT EXHIBIT
6/9/2003 PAGE 6 OF 7
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6/9/2003 CARMAX ENCROACHMENT EXHIBIT PAGE 7 OF 7
1� 350 E. New York St., Suite 300
U Indianapolis, IN 46204
(317) 634 -6434 Phone
EnG4nEE31nG (317) 634 -3576 FAX
www.mid- stateseng.com
June 2, 2003
Board of Public Works
c/o Kate Weese
Carmel City Engineer
Carmel City Hall, First Floor
1 Civic Square
Carmel, Indiana 46032
Re: Request for Encroachment
Project Number 111-1390
Ladies and Gentlemen of the Board,
On behalf of our client, we would like to request the Board of Works approval for an
encroachment in the public Right of Way to allow for the placement of a portion of an
irrigation system for the CarMax Auto Superstore facility at the northwest intersection of
96` Street and Gray Road. Granting this encroachment will allow CarMax to maintain
the grass and plantings as shown on the approved landscaping plan. Site beautification is
an important element to any commercial business and allowing this encroachment will
benefit both the site and the community which surrounds it.
Please refer to the attached reduced drawings for the locations of the proposed irrigation
lines and sprinkler heads.
We appreciate the opportunity to present this encroachment request and look forward to
beginning construction on this project.
Sincerely,
Mid States Engineering, LLC
Bill Butz
Project Engineer
Aviation Engineering Landscape Architecture Site Engineering Surveying Transportation Engineering