96th/Keystone - Penske Chevrolet2015044426 ENCR $27.00
08/21/2015 02:37:27PM 9 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
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CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between D Young Chevrolet, LLC
dba Penske Chevrolet, 3210 East 96th Street, Indianapolis, Hamilton County, Indiana 46240, (individually and collectively, "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 which is located within the corporate limits of the City of Carmel,
Indiana and is more particularly described in Exhibit A (the "Real Estate"), attached hereto and incorporated herein by this reference;
and
WHEREAS, the current Owner wishes to install parking spaces on the Real Estate (the "Encroachment") which will encroach
into those segments of East 96th Street (the "Right 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 13 (the "Drawing"), in the manner and locations shown on the
Drawing; and
WHEREAS, City of Carmel Board of Public Works and Safety approved the Owner's request for a variance from Carmel
City Code Section 6-227(4) on twat S,to tS ; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not
indicated by Owner on Exhibit B.
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 Encroachment for only so long as
(i) the Encroachment exists; and
(ii) Owner complies with all of the terms and provisions of this Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, Landscape, reconfigure or otherwise change the
Encroachment from what is depicted on Exhibit 13 and to maintain the Encroachment in good condition and repair.
4. Owner agrees that City shall have the right to remove any portion of the Encroachment as City deems necessary, in
City's sole discretion 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 Encroachment, the Real Estate, or to Owner.
5. Owner agrees and acknowledges that the City's consent to encroach within the Right of Way, as provided in this
instrument, regards the City's Right of Way interests only, and does not constitute permission or authority for the Owner
to otherwise enter on, in, under, over, or upon the property interests of any other person without that person's consent
even if such property interests are also located within the Right of Way.
6. Owner agrees and acknowledges that the Encroachment, as provided in this instrument, does not violate any covenants
and restrictions applicable to the Encroachment.
7. Owner agrees that the Encroachment will not create standing water and/or other drainage problems that affect the City or
adjacent property owners and that, if such problems arise, the City, in its sole discretion, may itself remove or may notify
Owner who shall then immediately remove, all or any portion of the Encroachment as is necessary to correct such
problems, at Owner's sole cost and expense.
8. Owner agrees that the water flow from the Encroachment shall be directed away from all street travel lanes and that
water from the Encroachment 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.
9. Owner agrees to repair or replace, at Owner's sole cost and expense and to the City's reasonable satisfaction, any
utilities or improvements (whether located above, below or on the surface of the Right -of -Way) damaged as a result of
the installation, construction, maintenance or operation of the Encroachment.
10. Owner agrees to install identification tape or identification wire on the Encroachment that will allow the City to readily
determine the underground location of any Encroachment.
11. Owner agrees not to alter the ground surface elevation within the limits of the Right of Way at any time.
12. Owner agrees to reimburse City for any and all costs and expenses incurred by City to replace or repair any damage to
the Right of Way and any improvements located therein caused by the installation, construction, maintenance and/or
operation of the Encroachment.
13. 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.
14. Owner agrees to indemnify and hold harmless City, its officers, officials, members, employees, invitees, licensees and
agents, (i) from and against any and all losses, liabilities, damages, claims, judgments, attorney fees and costs arising
from any bodily injury, death or property damage occurring during the initial installation and during any subsequent use,
maintenance or repair of the Encroachment and (ii) for any failure of proper disclosure pursuant to Paragraph 18 hereof.
15. 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.
16. 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.
17. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
18. The Owner agrees to provide full disclosure of this Agreement to all persons, entities and others who acquire by or
through Owner any interest in the Real Estate on and after the effective date of this Agreement.
"OWNER"
ALLEN DRESSELHOUSE, Authorizer! Representative
D You g Ch olet db enske Chevrolet
Signature
Date:
1/ IJ
STATE OC ND{APPA
/1(.�r1 �ISS:
COUNTY OF �,(Vonc
Before me, a Notary Public in and for said County and State, personally appeared ALLEN DRESSELHOUSE, an authorized
representative for D Young Chevrolet dba Penske Chevrolet, 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 I day of •t:N 1(9 . 20 is
My Commission Expires:
16, aoaa
NOTAR
Y PUBLIC
Printed Name
My County of Residence
LYDIA E. TUCK
NOTARY PUBLIC, STATE OF MI
CO'W*YOFOAKLAND
ACTCOUNTY IN OF
FIRES Jan 18, 2022
at( lr nd
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WOKS AND SAFETY
BY
J /arms Brainarrdd,, Presiding Officer
Burke, Mpapber
Mary An
Date:
Lori Watson
Date:
ber
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Sandra M Johnson
Deputy Clerk For
Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD, MARY ANN
BURKE and ORI WATSON, by me known, and by me known to be the Members of the City of Carmel Board of Public Works and
ra. (MDRAY x�
Safety, and (MDR ler =Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing
"Consent To Encroach" on behalf of the City of Carmel, Indiana.
1
Witness my hand and Notarial Seal this day of
My Commission Expires:
I/1/M 1
NOTARY PUBLIC
C Ann. biNVLS
Printed Name
My County of Residence: 1-4/L (1 / I i0r)
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032.. - -
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. Douglas C. Haney, Esquire
EXHIBIT A
LEGAL DESCRIPTION (PER TITLE COMMITMENT}
PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 7, TOWNSHIP 17 NORTH,
RANGE 4 EAST IN HAMILTON COUNTY, INDIANA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING 237.00 FEET SOUTH 89 DEGREES 57 MINUTES 00 SECONDS EAST (ASSUMED
BEARING) OF THE SOUTHWEST CORNER OF THE EAST HALF OF THE SOUTHEAST QUARTER OF
SECTION 7, TOWNSHIP 17 NORTH, RANGE 4 EAST AND ON THE SOUTH LINE THEREOF; THENCE
CONTINUING SOUTH 89 DEGREES 57 MINUTES 00 SECONDS EAST ON AND ALONG AFORESAID
SOUTH LINE 200.00 FEET; THENCE NORTH 00 DEGREES 03 MINUTES 00 SECONDS EAST 240.00
FEET; THENCE NORTH 89 DEGREES 57 MINUTES 00 SECONDS WEST PARALLEL WITH THE SOUTH
LINE OF SAID EAST HALF 263.38 FEET TO THE EAST RIGHT-OF-WAY LINE OF STATE ROAD #431;
THENCE SOUTH 00 DEGREES 02 MINUTES 30 SECONDS EAST ON AND ALONG SAID RIGHT-OF-
WAY LINE 152.95 FEET; THENCE SOUTH 53 DEGREES 08 MINUTES 00 SECONDS EAST ON AND
ALONG SAID RIGHT-OF-WAY LINE 78.86 FEET; THENCE SOUTH 00 DEGREES 03 MINUTES 00
SECONDS WEST40.00 FEET TO THE PLACE OF BEGINNING.
LEGAL DESCRIPTION (AS SURVEYED)
PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 7, TOWNSHIP 17 NORTH,
RANGE 4 EAST IN HAMILTON COUNTY, INDIANA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTH RIGHT-OF-WAY LINE OF 96-TH STREET (WIDTH VARIES)
AND EAST RIGHT -OF -WAV LINE OF KEYSTONE PKWY, ALSO BEING INDIANA STATE ROAD #431,
SAID POINT BEING DISTANT SOUTH 89 DEGREES 57 MINUTES 00 SECONDS EAST (ASSUMED
BEARING), 237.00 FEET AND NORTH 00 DEGREES 03 MINUTES 00 SECONDS EAST, 40.00 FEET
FROM THE SOUTHWEST CORNER OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION
7, TOWNSHIP 17 NORTH, RANGE 4 EAST; THENCE SOUTH 89 DEGREES 57 MINUTES 00 SECONDS
EAST ON AND ALONG SAID NORTH RIGHT-OF-WAY LINE OF 96-TH STREET AND PARALLEL WITH
THE SOUTH LINE OF SAID EAST HALF, 200.00 FEET; THENCE NORTH 00 DEGREES 03 MINUTES 00
SECONDS EAST 200.00 FEET; THENCE NORTH 89 DEGREES 57 MINUTES 00 SECONDS WEST
PARALLEL WITH THE SOUTH LINE OF SAID EAST HALF, 263.38 FEET TO THE EAST RIGHT-OF-WAY
LINE OF STATE ROAD #431; THENCE SOUTH 00 DEGREES 02 MINUTES 30 SECONDS EAST ON AND
ALONG SAID RIGHT-OF-WAY LINE, 152.74 FEET (REFERENCED AS 152.95 FEET IN A DOCUMENT
RECORDED AS INSTRUMENT NO. 20060044142 IN THE OFFICE OF THE RECORDED OF HAMILTON
COUNTY, INDIANA); THENCE SOUTH 53 DEGREES 08 MINUTES 00 SECONDS EAST ON AND
ALONG SAID RIGHT-OF-WAY LINE 78.86 FEET TO THE PLACE OF BEGINNING.
CONTAINING 51,154 SQUARE FEET OR 1.174 ACRES OF LAND AND BEING SUBJECT TO ALL
RESTRICTIONS OF THE RECORD.
July 28, 2015
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CITY 0 AIRMEL
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
.JAMES BRAINARD, FAVOR
RE: CONSENT TO ENCROACH — PENSKE CHEVROLET — PARKING SPACES IN RIGHT OF WAY
Dear Board Members:
A Consent to Encroach document, signed by Allen Dresselhouse on behalf of Penske Chevrolet, is
submitted to the Board for signatures. Board approval for a variance for the encroachment is granted
by the Board of Public Works during the August 5, 2015 BPW meeting.
The Department of Engineering has reviewed and approved the encroachment document. Upon
approval and signature by the Board members the document will be recorded with the Hamilton County
Recorder's Office.
Sincerely,
Jeremy Kashman, P.E.
City Engineer
ATTACHMENT: CONSENT TO ENCROACH DOCUMENT
S:\BP W15\PENSKECHEVROLETENCROACHMENTDOCU MENT.DOC
DEPARTMENT OF ENGINEERING
ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAX 317571 2439
EMAIL cnginccringac.cinncl.in.gnc
EXHIBIT B
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CITY OF -CARMEL
jANIFS 13RAINARD, MAYOR
August 21, 2015
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: Request, for Variance (Parking Spaces in Right of Way)— Penske Chevrolet
Dear Board Members:
Mr. Allen Dresselhouse, on behalf of Penske Chevrolet, has requested a variance from Section 6-
227(a)(4) of the City of Carmel Code for parking spaces within the Right of Way for 96th Street.
The parking spaces will be installed at the location generally indicated on the attached exhibit. It
is not expected Mat the improvements will result in a Detriment (as defined in City Code) to the subject
property of the adjacent properties or a hazard to the motoring public. The Department recommends that
the Board approve the variance conditioned upon the following:
I. Petitioner enters into a Consent -to -Encroach Agreement with the City and records the
Agreement.
2. Petitioner acknowledges that a road construction project is planned that will affect these
private improvements within the Right of Way.
3. Petitioner acknowledges that the granting of this variance docs not create any rights to the real
property located within the Right of Way of the planned construction project. Any
improvement costs incurred by the petitioner will not be recompensed by the City, if, within its
sole discretion, the City determines that the improvements within the variance need to be
removed.
Sincerely,
Jeremy Kashman, P.E.
City Engineer
OFFICE OF THE CITY ATTORNEY
DOUGLAS C. HAANEY. ESC.
5:AContrac tUl'ro f Svc & Gnod. SvcsVEngi't crin2A2015\R uquesi Oj
for Variance-.11cit Dr}y'c,e h use floc
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CiI-I1AI1.
Nh CIVIC SQUARE. CARMEL. t °Iobj4 (rlONE 317-571-2472 FAX 317-571-2,184
t:>IAR
dhaney@carmel.in.gov
Johnson, Sandy M
From: Litchford, Julia D
Sent: Thursday, August 13, 2015 12:20 PM
To: Oberlander, Jon A
Cc: Johnson, Sandy M
Subject: FW: Penske Encroachment
Hi Jon,
Do we have a revised variance letter for Penske Chevrolet following the changes discussed at the last BPW Meeting?
Thanks,
Julia Litchford
Staff Engineer
City of Carmel Engineering Department
317-571-2309
ilitchford@carmel.in.gov
From: Johnson, Sandy M
Sent: Thursday, August 13, 2015 11:17 AM
To: Litchford, Julia D
Subject: Penske Encroachment
Do we have the amendment for this document yet? I need to record the encroachment.
Sandy Johnson
Clerk Treasurer's Office - Asset Manager
One Civic Square
Carmel, In 46032
317 5712628