Parcel 5 Carmel City Center/Carmel Development Transforner Padn t
CONSENT TO ENCROACH
This Consent to Encroach (the "Consent "), executed thiskv day of (914 5/1-
2014, by and between The City of Carmel Redevelopment Commission ( "CRC ") and Carmel Development
I, LLC ("COI"), Witnesses:
2014038157 ENCROACHME $35.00
08/28/2014 02:21:13P 12 PCS
Mary L. Clark
HAMILTON County Recorder IN
Recorded as Presented
IIIIIIII IIIIIIIII VIII IIIIIIIIIIVIIIIIIIIIIIIIIIIIIVIIIIIIIIIIIIIIII
"CRC Parcel");
"CDI Parcel ")
Recitals
WHEREAS, CRC owns that certain real estate depicted and /or described on Exhibit A (the
WHEREAS, CDI owns that certain real estate depicted and /or described on Exhibit B (the
WHEREAS, CRC intends to construct a concrete pad (the "Pad ") upon the CRC Parcel;
WHEREAS, CDI intends to construct and maintain, or have constructed and maintained, an
electrical transformer (the "Transformer ") on or about the Pad, which Transformer shall serve, and be for the
benefit of, the CDI Parcel (the "CDI Encroachment "); and
WHEREAS, CRC wishes to consent to the CDI Encroachment;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, the parties agree as follows:
1. Consent. CRC hereby consents to the CDI Encroachment for the purpose of constructing and /or
maintaining the Transformer on the Pad and for all reasonably related purposes, for the benefit of the CDI
Parcel. CRC hereby reserves all rights to use the Pad and the CRC Parcel in manner not inconsistent with
this Consent.
2. Indemnification. CDI shall indemnify, defend, and hold harmless CRC, its agents, employees,
contractors, attorneys, and licensees (the "CRC Parties ") from and against all claims, actions, losses,
damages, costs, expenses, and liabilities, including, without limitation, attorneys' fees and court costs (the
"Claims ") arising out of actual or alleged injury to, or death of, any person or loss of, or damage to, property
caused by, or resulting from the activities by COI or its agents, employees, contractors, tenants, attorneys,
and /or licensees (the `COI Parties ") in, on, or about the Pad and /or the CRC Parcel, except to the extent
caused by the negligence or intentional misconduct of CRC.
3. Compliance with Laws. CDI shall comply with all Laws in the use of the CRC Parcel and the
exercise of its rights under this Consent.
4. Binding Effect. The obligations imposed pursuantto this Consent shall run with the CRC Parcel and
the CDI Parcel. Accordingly, this Consent shall bind, and inure to the benefit of, CRC, its successors, and
.assigns, as the owner of the CRC Parcel, and CDI, its successors, and assigns, as the owner of the CDI
Parcel. No CRC Party other than CRC shall have any right to make a claim against CDI under this Consent,
and no CDI Party other than COI shall have any right to make a claim against CRC under this Consent.
Accordingly: (a) only CRC and CDI shall have a right to make a claim against the other under this Consent;
(b) all claims against: (i) CRC under this Consent shall be made exclusively by CDI; and (ii) CDI under this
Consent shall be made exclusively by CRC; and (c) no CRC Party or CDI Party shall be deemed to be a
third -party beneficiary of this Consent.
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5. Remedies. The parties shall have all rights at law or in equity to enforce the terms and conditions
of this Consent, including, without limitation specific performance and injunction. In the event that
enforcement of this Consent is sought through litigation, the prevailing party in such litigation shall be entitled,
in addition to such other relief as may be granted, to reasonable attorneys' fees and court costs incurred in
prosecuting the action and appeal thereof.
6. Authority. Each of the persons executing this Consent on behalf of CRC and CDI represents and
certifies that: (a) he or she is empowered and authorized by all necessary action of CRC and CDI,
respectively, to execute and deliver this Consent; (b) he or she has full capacity, power, and authority to enter
into and carry out this Consent; and (c) the execution, delivery, and performance of this Consent have been
authorized by, and this Consent is the legal, valid, and binding obligation of, CRC and CDI, respectively.
7. Miscellaneous. All exhibits referenced in this Consent are attached hereto and incorporated herein
by this reference. The terms and conditions of this Consent shall be governed by, and construed in
accordance with, the laws of the State of Indiana. The parties hereby agree and consent to the exclusive
jurisdiction of the state courts located in Hamilton County, Indiana, and waive any defense of lack of personal
jurisdiction or improper venue or forum non conveniens to a claim brought in such court. The section
headings shall not be considered in any way to affect the interpretation of this Consent. This Consent is the
final expression of the complete agreement between CRC and CDI. No agreement by and between CRC and
CDI to modify or amend this Consent shall be binding and enforceable, unless all terms and conditions of the
modification or amendment are set forth in writing and signed by CRC and CDI. This Consent shall not be
construed to create a contractual relationship with, give rights or benefits to. or create a cause of action in
favor of, anyone other than the parties hereto.
[Signature page to follow.]
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IN WITNESS WHEREOF, CRC and COI have executed this Consent as of the date set forth
above.
STATE OF INDIANA
SS:
COUNTY OF L J) )
CRC:
T H E C I T Y O F C A R M E L
REDEV LO ENT • MISSION
BY ♦: j. �T
William Hammer, President
Before me, a Notary Public in and for the State of Indiana, personally appeared William
Hammer, the President of The City of Carmel Redevelopment Commission, who acknowledged the execution
of the foregoing Consent to Encroach for and on behalf of such entity.
Witness my hand and Notarial Seal this] ay of ktif
My commission expires:
117 -19
I am a resident of Utizmllvn County, 111L404
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Encroats \Consent to Encroach. wed
,2014.
Notary Public / /
Printed Name: f ,6hd e / Leto
CRC:
T H E C I T Y O F C A R M E L
RED LOP ENT SSION
Printed: 4J pv,ci C. 1Lt_,(?I74 •
Tile:
STATE OF INDIANA
1Y )SS:
COUNTY OF / an )
Before me, a Notary Public in and for the State of Indiana, personally appeared
y _Slid/re l ,the Via Pl'P$NPhI- of The Cityof Carmel Redevelopment Commission,
who acknowledged the execution of the foregoing Consent -! jy to Encroach for and on behalf of such entity.
Witness my hand and Notarial Seal this 2?tday of U9Uf i , 2014.
My commission expires: h17—(9
I am a resident of WdmiI[0/) County, Lndfin4
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Encroach\Consent to Encroach.wpa
Notary Public /
Printed Name: Ali e Le e
CDI:
CARMEL DEV
By:
- Anthony W -.:' . Member
STATE OF INDIANA
I )SS:
COUNTY OF 4Irll I Gq _ )
Before me, a Notary Public in and for the State of Indiana, personally appeared Anthony W.
Birkla, a Mem ber of Carmel Development I, LLC, who acknowledged the execution of the foregoing Consent
to Encroach for and on behalf of such entity.
Witness my hand and Notarial Seal ihis2Z day of 4_49 (4,54-
My commission expires:
F/7 -19
I am a resident of _ilittnith/) County, InfhpL.
By:
, 2014.
Notary Public
Printed Name:f /die L—Le[�
This instrument was prepared by Ryan R. Wilmering, Attorney -At -Law, W allack Somers & Haas, One Indiana
Square, Suite 2300, Indianapolis, Indiana, 46204. 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.
Ryan R. Wilmering
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SCHEDULE 3
Legal Description - Garage Site
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the Second Principal
Meridian, Clay Township, Harnilton County, Indiana, more particularly described as follows:
Commencing at the Northeast Comer of the Northeast Quarter of said Section 36, Township 18 North,
Range 3 East, thence South 89 degrees 12 minutes 13 seconds West (assumed bearing) 773.40 feet
along the North Line of said Northeast Quarter to the northwestem corner of a 1.800 -acre tract of land
.granted to the City of Carmel Redevelopment Commission (' Monon tract') (recorded as Instrument
Number 9909923664 in the Ofiice'of the Recorder of Hamilton County, Indiana); thence South 00 degrees
51 minutes 54 seconds East 816.80 feet along the western fine of said Monon tract to the point of
beginning of a 3.098 -acre tract known as Parcel "C "; thence continue South 00 degrees 51 minutes 54
seconds East 7338 feet along said westem line; thence North 90 degrees 00 minutes 00 seconds West
23.19 feet to the POINT OF BEGINNING of this description; thence South 00 degrees 00 minutes 00
seconds East 298.11 feet to the southem line of the 0.348 -acre tract of land granted to the City of Carmel,
Indiana ('City tract') (recorded as Instrument Number 2007055503 In said Recorder's Office); thence
South 89 degrees 12 minutes 13 seconds West 188.97 feet along the southern line of said City tract;
thence North 00 degrees 00 minutes OD seconds West 33.97 feet thence South 90 degrees 00 minutes
00 seconds East 1.13 feet thence North 00 degrees 00 minutes 00 seconds West 104.67 feet; thence
North 90 degrees 00 minutes 00 seconds West 1.13 feet thence North 00 degrees 00 minutes 00
seconds West 20:10 feet; thence North 90 degrees 00 minutes 00 seconds West 0.75 feet; thence North
00 degrees 00 minutes 00 seconds West 38.00 feet thence South 90 degrees 00 minutes 00 seconds
East 0.75 feet; thence North 00 degrees 00 minutes 00 seconds West 104.00 feet; thence South 90
degrees 00 minutes 00 seconds East 188.96 feet to the POINT OF BEGINNING, containing 1.297 acres
(56,487.7 square feet), more or less -
EXCEPT: Back of House Facilities, Additional Rehearsal, Civic Rehearsat, Civic Classrooms &
Civic Education Spaces
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being further
defined from elevation 833.50 feet (first floor) to 849.50 (bottom of second floor slab)
(NGVD 1929) more particularly described as follows:
Commencing at the Northeast Corner of the Northeast Quarter of said Section 36.
Township 18 North, Range 3 East; thence South 89 degrees 12 minutes 13 seconds
West (assumed bearing) 773.40 feet along the North Line of said Northeast Quarter to
the northwestern comer of a 1.800 -acre tract of land granted to the City of Carmel
Redevelopment Commission ( "Monon tract") (recorded as Instrument Number
9909923664 in the Office of the Recorder of Hamilton County, Indiana); thence South 00
degrees 51 minutes 5-4 seconds East 816.80 feet along the western line of said Monon
tract to the point of beginning of a 3.098 -acre tract known as Parcel "C'; thence continue
South 00 degrees 51 minutes 54 seconds East 74.22 feet along said western line; thence
North 90 degrees 00 minutes 00 seconds West 24.81 feet to the demising walls of the
first floor lease area known as Back of House Facilities, Additional Rehearsal, Civic
Rehearsal, Civic Classrooms & Civic Education Spaces and the POINT OF BEGINNING
of this description (all of the remaining courses are along the demising walls of said lease
area); thence South 00 degrees 00 minutes 00 seconds East 45.48 feet; thence South 90
degrees 00 minutes 00 seconds West 5.11 feet; thence South 00 degrees 00 minutes 00
seconds East 36.71 feet; thence South 90 degrees 00 minutes 00 seconds West 48.27
feet; thence North 00 degrees 00 minutes 00 seconds West 36.71 feet; thence South 90
degrees 00 minutes 00 seconds West 8.80 feet; thence South 00 degrees 00 minutes 00
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seconds East 27.91 feet thence South 90 degrees 00 minutes 00 seconds West 62.00
feet thence South 00 degrees 00 minutes 00 seconds East 15.18 feet; thence South 90
degrees 00 minutes 00 seconds West 26.31 feet; thence North 00 degrees 0D minutes 00
seconds West 80.20 feet; thence North 90 degrees 00 minutes 00 seconds East 15.66
feet thence North 00 degrees 00 minutes 00 seconds West 8.38 feet; thence North 90
degrees 00 minutes 00 seconds East 134.84 feet to the POINT OF BEGINNING,
containing 11,350 square feet, more or less.
EXCEPT: Costume Shop (North)
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being further
defined from elevation 833:50 feet (first floor) to- 849.50. (bottom of second floor slab)
(NGVD 1929) more particularly described as follows:
Commenting at the Northeast Comer of the Northeast Quarter of said Section 36,
Township 18 North, Range 3 East thence South 89 degrees 12 minutes 13 seconds
West (assumed bearing) 773.40 feet along the North Line of said Northeast Quarter to
the northwestern corner of a 1.800 -acre tract of land granted to the City of Cannel
Redevelopment Commission ( "Monon tract") (recorded as Instrument Number
9909923664 in the Office of the Recorder of Hamilton County, Indiana); thence South 00
degrees 51 minutes 54 seconds East 816.80 feet along the western line of said Monon
tract to the point of beginning of a 3.098 -acre tract known as Parcel "C"; thence continue
South 00 degrees 51 minutes 54 seconds East 85.67 feet along said westem line; thence
North 90 degrees Do minutes 00 seconds West 184.08 feet to the demising walls of the
first floor lease area known as the Costume Shop (North) and the POINT OF
BEGINNING of this description (all of the remaining courses are along the demising walls
of said lease area); thence South 00 degrees 00 minutes DO seconds East 26.98 feet;
thence South 90 degrees 00 minutes 00 seconds West 22.25 feet; thence North 00
degrees 00 minutes 00 seconds West 0.24 feet thence South 90 degrees 00 minutes 00
seconds - West 4.78 feet thence North 00 degrees 00 minutes 0D seconds West 26.74
feet thence North 90 degrees 00 minutes 00 seconds East 27.03 feet to the POINT OF
BEGINNING, containing 728 square feet, more or less.
EXCEPT: Costume Shop (North)
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being further
defined from elevation 833.50 feet (first floor) to 849.50 (bottom of second floor slab)
(NGVD 1929) more particularly described as follows:
Commencing at the Northeast Comer of the Northeast Quarter of said Section 36,
Township 18 North, Range 3 East; thence South 89 degrees 12 minutes 13 seconds
West (assumed bearing) 773.40 feet along the North Line of said Northeast Quarter to
the northwestern comer of a 1.800 -acre tract of and granted to the City of Carmel
Redevelopment Commission ('Monon tract") (recorded as Instrument Number
9909923664 in the Office of the Recorder of Hamilton County, Indiana); thence South 00
degrees 51 minutes 54 seconds East 816.80 feet along the westem line of said Monon
tract to the point of beginning of a 3.098 -acre tract known as Parcel "C "; thence continue
South 00 degrees 51 minutes 54 seconds East 122.43 feet along said western line;
thence.North 90 degrees 00 minutes 00 seconds West 184.64 feet to the demising walls
of the first floor lease area known as the Costume Shop (South) and the POINT OF
BEGINNING of this description (all of the remaining courses are along the demising wafts
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of said lease area), thence South 00 degrees 00 minutes 00 seconds East 25.04 feet;
thence South 90 degrees 00 minutes 00 seconds West 10.58 feet; thence South 00
degrees 00 minutes 00 seconds East 022 feet; thence South 90 degrees 00 minutes 00
seconds West 16.45 feet, thence North 00 degrees 00 minutes 00 seconds West 25.26
feet thence North 90 degrees 00 minutes 00 seconds East 27.03 feet to the POINT OF
BEGINNING, containing 680 square feet, more or less
EXCEPT; Tunnel
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the
Second Principal Meridian, Clay Township, Hamilton County, Indiana, being a strip of and
eleven (11) feet wide and lying 5.5 feet on each side of the following described
centerlines, more particularly described as follows:
Commencing at the Northeast Corner of the. Northeast Quarter of said Section 36,
Township 18 North, Range 3 East; thence South 89 degrees 12 minutes 13 seconds
West (assumed bearing) 773.40 feet along the North Line of said Northeast Quarter to
the northwestern corner of a 1.800 -acre tract of [and granted to the City of Carmel
Redevelopment Commission (' Monon tract') (recorded as Instrument Number
9909923664 in the Office of the Recorder of Hamilton County, Indiana); thence South 00
degrees 51 minutes 54 seconds East B16.80 feet along the westem line of said Monon
tract to the point of beginning of a 3.098 -acre tract known as Parcel "C "; thence South 89
degrees 59 minutes 31 seconds West 102.02 feet along the northern boundary of said
Parcel "C" to the POINT OF BEGINNING of this centerline description, said point being
further defined from elevation 816.67 feet (NGVD 1929) to elevation 827.00 feet (all
elevation references within this description are noted in feet and decimal parts thereof and
are referenced to NGVD 1929); thence South 00 degrees 00 minutes 00 seconds West
42.22 feet to a point being further defined from elevation 817.27 to elevation 827.60 and
hereinafter referred to as Point °A ": thence continue South 00 degrees 00 minutes 00
seconds West 62.97 feet to a point being further defined from elevation 818.17 to
elevation 828.50; thence North 90 degrees 00 minutes 00 seconds West 75.78 feet to a
point being further defined from elevation 819,17 to elevation 829.50; thence South 00
degrees 00 minutes 00 seconds West 55.75 feet to a point being further defined from
elevation 819.02 to elevation 829.35 and hereinafter referred to as Point "B`; thence
continue South 00 degrees 00 minutes 00 seconds West 127.05 feet to a point being
further defined from elevation 818.67 to elevation 829.00; thence North 90 degrees 00
minutes 00 seconds West 44.45 feet to a point being further defined from elevation
819.67 to elevation 830.00 and being the terminus of this centerline description.
ALSO, BEGINNING at said Point "A "; thence North 90 degrees 00 minutes 00 seconds
West 6.50 feet to a point being further defined from elevation 817.27 to elevation 827.60
and being the terminus of this centerline description.
ALSO, BEGINNING at said Point "B"; thence North 90 degrees 00 minutes 00 seconds
West 15.28 feet to a point being further defined from elevation 819.02 to elevation 829.35
and being the terminus of this centerline description.
The sidelines of the three centerline descriptions are to be lengthened or shortened to
meet at all angle points and property lines.
Containing 4,545.4 square feet (0.104 acres) and 46,969 cubic feet, more or less.
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Explanation: The Garage Site includes the first floor of the Garage. It also includes, on floors 2 and
above, the area above what is the office/lobby/rehearsal/classroom space on the first floor of the Office
Building Site. It does not include the "Tunnel" There Is not a "top' to the Garage Site. The Garage Site
"notches into" the Office Building Site-
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LAND DESCRIPTION
Third Avenue Slte
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East of the Second
Principal Meridian, Clay Township, Hamilton County, Indiana, more particularly described as
follows:
Commenting at the Northeast Corner of the Northeast Quarter of said Section 36, Township 18
North, Range 3 East; thence South 89 degrees 12 minutes 13 seconds West (assumed bearing)
773.40 feet along the North Line of said Northeast Quarter to the northwestern comer of a 1.800 -
acre tract of land granted to the City of Carmel Redevelopment Commission (' Monon tract)
(recorded as instrument Number 9909923664 in the Office of the Recorder of Hamilton County,
Indiana); thence South 00 degrees 51 minutes 54 seconds East 816.80 feet along the western line
of said Monon tract to the northeastern corner of the 3.098-acre tract of and granted to the
Carmel City Center Community Development Corporation rGrantor-) (recorded as Instrument
Number 2010005056 in said Recorder's Office) (the following six (6) courses are along the
boundary of said Grantor); (one) thence continue South 00 degrees 51 minutes 54 seconds East
371.14 feet along said western line to the southwestern comer of said Monon tract and along the
eastern line of said Grantor to the southeastern comer thereof; (two) thence South 89 degrees 12
minutes 13 seconds West 280.88 feet along the southern line of said Grantor to the POINT OF
BEGINNING of this description; (three) thence continue South 89 degrees 12 minutes 13 seconds
West 100.05 feet along the southern line of said Grantor to the southwestern comer thereof, being
the eastern right-of-way line of Third Avenue SW; (four) thence North 00 degrees 51 minutes 54
seconds West 10.24 feet (1021 feet— Deed) to the southern tip of the 2.023 -acre tract of land
granted to the City of Carmel, Indiana ('Third Avenue tract ") (recorded as instrument Number
9909923663 'in said Recorder's Office) (the following two (2) courses are along the eastern
boundary of said Third Avenue tract); (five) thence North 10 degrees 58 minutes 46 seconds East
112.16 feet (112.19 feet — Deed); (six) thence North 00 degrees 21 minutes 43 seconds West
26.58 feet to the point of beginning of the 0.151 -acre Access Easement ("Access Easement ") as
granted in the Access and Easement Agreement recorded as Instrument Number 2011002297 in
said Recorder's Office (the following three (3) courses are along the boundary of said Access
Easement); (one) thence North 90 degrees 00 minutes 00 seconds East 69.01 feet; (two) thence
South 00 degrees 00 minutes 00 seconds West 120.67 feet; (three) thence North 90 degrees 00
minutes 00 seconds East 10.00 feet to the western line of the 0.051 -acre Utility Easement
("Easement') as granted In the Utility Easement Agreernent recorded as Instrument Number
2011002299 in said Recorders Office; thence South 00 degrees DO minutes 00 seconds East
24.87 feet along said western line to the POINT OF BEGINNING, containing 11,703.0 square feet
(0269 acres), more or less.
LAND DESCRIPTION
Moron Site
A part of the Northeast Quarter of Section 36, Tovmship 18 North, Range 3 East of the Second
Principal Meridian, Clay Township, Hamilton County, Indiana, more parttculerty described as follows:.
Commencing at the Northeast Comer of the Northeast Quarter ofsaid Section 36, Township 18 North,
Range 3 Feet; thence South 89 degrees 12 minutes 13 seconds West (assumed bearing) 773.40 feet
along the North Line of said Northeast Quarterto the northwestern corner of a 1.800-acre tract °fiend
granted to the City of Carmel Redevelopment Commission (' Monon tract) (recorded as Instrument
Number 9909923664 In the Office of the Recorder of Hamilton County, Indiana); thence South 00
degrees 51 minutes 64 seconds East 816.80 feet along the western line of said Monon tract to the
pofrit of beginning of a 3.098 -acre tract of land granted to Carmel City Center Community
Development Corporation .('Parcel 7C1') (recorded as Instrument. Number 2010005056, in said
Recorder's Office); thence continue South 00 degrees 51 minutes 54 seconds East 73.38 feet along
said western line and the eastem boundary of saki Parcel 7C to the POINT OF BEGINNING of this
description, said point also being the southeastern comer of the 0.372-acre tract of land granted to
Wells Fargo Bank, N. A., as Trustee ( -Parcel 7 -C -2') (recorded as Instrument Number 2010005062
in said Recorder's Office); thence continue South 00 degrees 51 minutes 54 seconds East297.76 feet •
along the eastern line of said Parcel 7C and the western line of said Monon tract to the common
corner thereof; thence South 89 degrees 12 minutes 13 seconds West27.68 feet along the southern
line Weald Parcel 7C to the southeastern comer of Parcel 7C-3 (Parking Garage) as described In said
Instrument Number 2010005082; thence North 00 degrees 00 minutes 00 seconds West 298.11 feet
along the eastem line of said Parcel 7C-3 to the northeastern corner thereof and the southern line of
said Parcel 7-C-2; thence North 90 degrees 00 minutes -00 seconds East 23.19 feet along said
southern line to the POINT OF BEGINNING, containing 0.174 acres (7,577.8 square feet), more or
less.
/4,
Cross - Reference
2014038156 DECL $29.00
08/28/2014 02:21:13P 9 P65
Mary L. Clark
HAMILTON County Recorder IN
Recorded as Presented
MMONMUMMUINNOMENI
The Access and Use Declaration referenced in this First Amendment to Access and Use Declaration is
recorded as Instrument Number 2 Cfi tIL>X12. in the Office of the Hamilton County Recorder.
FIRST AMENDMENT
TO
ACCESS AND USE DECLARATION
This First Amendment to Access and Use Declaration (the "Amendment "), executed this t.-v
day of August, 2014, by and between The City of Carmel Redevelopment Commission ( "CRC ") and Carmel
Development I, LLC ( "CDI") Witnesses:
Recitals
WHEREAS, CRC, as the Garage Owner, executed that certain Access and Use Declaration
dated February 5, 2013 (the "Declaration ");
WHEREAS, CRC remains the Garage Owner;
WHEREAS, CRC and CDI executed that certain Project Agreement dated May, 2012, as
amended by that certain: (a) First Amendment to Project Agreement dated August 21, 2012; (b) Second
Amendment to Project Agreement dated as of September 28, 2012; (c) Third Amendment to Project
Agreement dated as of November 15, 2012; and (d) Fourth Amendment to Project Agreement dated as of
December 17, 2012 (in the aggregate, the "Project Agreement ");
WHEREAS, pursuant to the Project Agreement, CDI acquired the Monon Site;
WHEREAS, pursuant to the Project Agreement, CDI is constructing, as the Monon Site
Building, a five -story building that attaches to, and is supported by and supports, the Garage;
WHEREAS, CDI is the Monon Site Building Owner;
WHEREAS, pursuant to Section 7 of the Declaration, CRC has the power to amend the
Declaration without the consent of any Beneficiary or Party in Interest, so long as such amendment does not
materially increase the obligations or duties, or decrease the rights and powers, of any Space Interest Holder
under any term or condition of the Declaration without the consent of such Space Interest Holder;
W HER EAS, this Amendment will not materially increase the obligations or duties, or decrease
the rights and powers, of any Space Interest Holder under any term or condition of the Declaration; and
WHEREAS, CRC desires to execute this Amendment;
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged hereby, the Declaration is amended as follows:
1. Temporary Easement.
(a) Easement, There is declared, created, made, and reserved a temporary
construction easement for the benefit of CDI, as the Monon Site Building Owner, in, on,
under, over, above, across, and through the Garage for the purposes of: (i) constructing, on
the second floor of the Garage, the access corridor as shown generally on the drawings
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attached as Exhibit A (the "Access Corridor'); (ii) installing fire exit doors on the ground floor,
the second floor, and the fourth floor of the Garage, as shown generally on Exhibit A (the
"Fire Exits "); and (iii) striping or otherwise marking the areas on the second and fourth floors
of the Garage to prohibit parking in front of the fire exit doors, as shown generally on the
drawings attached as Exhibit A (the "Striping "); and for no other purposes whatsoever. The
foregoing: (i) easement is the "Construction Easement "; and (ii) Access Corridor, Fire Exits,
and Striping, collectively, are the "Fire Exit Facilities ".
(b) Construction. The terms and conditions of the Project Agreement with respect to
construction (including, without limitation, maintaining required insurance coverages) shall
apply with respect to the construction of the Fire Exit Facilities.
(c) Indemnity. CDI shall indemnify, defend, and hold harmless CRC from and against
any and all damages, injuries, losses, claims, demands, suits, and liabilities that CRC may
sustain by reason of the exercise by CDI or its employees, agents, or contractors of the rights
granted in connection with the Construction Easement.
(d) The Construction Easement shall terminate on the date that is ten days after CD' has
completed construction of the Fire Exit Facilities; provided that, in all events the Construction
Easement shall terminate on November 30, 2014. Upon such termination: (i) the
Construction Easement shall have no further force or effect; and (ii) each of CRC and CDI
shall execute a recordable memorandum of such termination in form and substance
reasonably acceptable to both parties.
2. Permanent Easements
(a) Ingress. There are declared, created, made, and reserved for the benefit of: (i) the
Monon Site Building Owner; (ii) the Tenants of the Monon Site Building; and (iii) the Public
Beneficiaries visiting the businesses and /or residences located in the Monon Site Building;
permanent, non - exclusive easements appurtenant to the Monon Site Building for:
(i) pedestrian ingress into the Access Corridor from the Monon Site Building through the Fire
Exit on the north end of the second floor; (ii) pedestrian access through the Access Corridor
to the Fire Exits located therein; and (iii) pedestrian ingress into the Garage through the Fire
Exits. Once in the Garage, access through the Garage and the Common Pedestrian Areas
is covered by the Pedestrian Access Easement. The easements granted pursuant to this
Subsection are the "Fire Exit Easements ".
(b) Maintenance. There is declared, created, made, and reserved a perpetual, exclusive
easement for the Monon Site Building Owner to perform the maintenance, repairs, and /or
replacements of the Fire Exit Facilities required or permitted by the terms and conditions of
this Amendment to be performed by the Monon Site Building Owner. The Easement granted
pursuant to this Section is the MSBO Maintenance Easement.
(c) Easements. The defined term "Easement ", as set forth in Section 1 of the
Declaration, hereby is amended in its entirety to read as follows:
"Easements shall mean the Vehicular Access Easements, the Pedestrian
Access Easements, the Parking Easements, the Maintenance Easements,
the Construction Easement, the Fire Exit Easements, and the MSBO
Maintenance Easement ",
3. Maintenance. Notwithstanding the maintenance obligations of CRC set forth in Section 5 of the
Declaration, the Monon Site Building Owner, at its cost and expense, shall keep and maintain (and shall
provide all maintenance, repairs, and replacements necessary to keep and maintain) the Fire Exit Facilities
Z :Doc mans Sboup, Jennylnity of CanneaParcel 7fAccess and Use
Declaration \First Amendment.v2.wpd
in: (a) good and safe order, condition, and repair; (b) a clean and sightly condition; and (c) compliance with
all Laws. In connection with satisfying the obligations set forth in this Section, the Monon Site Budding Owner
shall: (a) conform to the Maintenance Standard; and (b) implement a regularly scheduled program of
retouching and /or redoing the Striping. CRC shall have no obligations in connection with the maintenance,
repair, and /or replacement of the Fire Exit Facilities; provided that, if the Monon Site Building Owner fails to
comply with its obligations under this Section, then CRC: (a) may discharge such obligations for and on behalf
of the Monon Site Building Owner; and (b) shall be entitled to recover from the Monon Sae Building Owner
all costs and expenses incurred by CRC in connection with discharging such obligations. Any amounts due
from the Monon Site Building Owner to CRC pursuant to this Section shall constitute a Contribution Payment
and, accordingly, with respect to such Contribution Payment, CRC shall have the rights set forth in Section
6 of the Declaration.
4. Insurance. The Monon Site Building Owner shall maintain adequate and customary public liability
insurance with respect to the Fire Exit Facilities, the policy of which shall name CRC as an additional insured.
5. Miscellaneous. All capitalized words used but not defined herein shall have the meanings ascribed
to such words in the Declaration. In the event of any conflict between the Declaration and this Amendment,
the terms and conditions of this Amendment shall control. Except as expressly provided in this Amendment,
all of the terms and conditions of the Declaration shall remain in full force and effect. The undersigned person
executing this Amendment on behalf of CRC or CD I certifies that: (a) he or she is an authorized representative
of CRC or CDI, respectively; (b) he or she has been fully authorized and empowered to execute and deliver
this Amendment; and (c) CDI has full capacity to assume and agree to perform all of the obligations to be
performed by the terms of this Amendment. This Amendment may be signed in one or more counterparts,
each of which shall constitute but one and the same instrument.
Z: Documems\Shoup, Jenny■Cdy of Cam,eR Parcel 7\Access and Use
oeclarationiFirst Amendments? xyd
forth above.
IN WITNESS WHEREOF, CRC and CDI have executed this Amendment as of the date set
STATE OF INDIANA
COUNTY OF ikaillih
) S5:
THE CITY OF
CARMEL
RE[;)EV Li s MENT CO ISSION
By: ut��A�i
William Hammer, Presid n
vv�
Before me, a Notary Public in and for the State of Indiana, personally appeared William
Hammer, the President of The City of Carmel Redevelopment Comm fission, who acknowledged the execution
of the foregoing First Amendment to Access and Use Declaration for and on behalf of such entity.
Witness my hand and Notarial Seal this 'day of August, 2014.
By:
Notary Public
Printed Name:
My commission expires: I-17-11
I am a resident of _)J /A County, IUD' I
/dit .
Z:\Oocumentslshoup, Jenny \city of Carmel 'arcel 7 ccass and Use
Declaration VFirs! Amendment v2.wpd
STATE OF INDIANA
COUNTY OF _}/Aftl I tor)
SS:
THE
REDE
By:
Printed:
C I T Y
OF
CARMEL
NT ISSION
Title: �• f
��yy
Before me, a Notary Public tin and for the State of Indiana, personally appeared
Dail 130 er5 ,the Vi rref /kQl' of The City of Carmel Redevelopment Commission, who
acknowledged the execution of the foregoing First Amendment to Access and Use Declaration for and on
behalf of such entity.
Witness my hand and Notarial Seal this27day of August, 2014
My commission expires: 1 -17 19
I am a resident of II q hl
County, ThAiQg_.
Z1DQcurrents\Shoup, Jenny \Ciy of Camel\Parcel 7\Access and Use
DecleratorAFirst Amendment v2.wpd
By:
Notary Public
Printed Name: )(be/ Leie
CARMEL DEVEI_QPNTE-NT
By:
Anthony W. Birkla
STATE OF INDIANA
) SS:
COUNTY OF _AVOW)
Before me, a Notary Public in and for the State of Indiana, personally appeared
Anthony W . Birkla, Member of Carmel Development I, LLC, who acknowledged the execution of the foregoing
First Amendment to Access and Use Declaration for and on behalf of such entity.
Witness my hand and Notarial Seal this2nday of August, 2014.
Notary Public
Printed Name:M/6hdeI Lee
My commission expires: .'f'
I am a resident of _Hdn lhl nh County 1h[i
Return after recording to CRC at 30 West Main Street, Suite 220, Carmel, Indiana 46032.
This instrument was prepared by Jennifer R. Shoup, Attorney -At -Law, Wallack Somers 8 Haas, One Indiana
Square, Suite 2300, Indianapolis, Indiana, 46204. 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.
Jennifer R. Shoup
Z:t Documents \Shoup, Jenny \City of Carmel \Parcel 7 \Access and Use
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