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645 W Carmel Drive - Arapco2015052834 ENCR $31.00 10/08/2015 01:58:13PM 11 PG5 Jennifer Hayden Hamilton County Recorder IN Recorded as Presented 1IIIII1111111II1111111111111111111111111111111111111111111111111111111 CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Atapco Carmel, Inc., 630 W Carmel Drive, Suite 135, Carmel, Hamilton County, Indiana 46032 (Parcel 1), ("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 identified as "Parcel I" in Exhibit A (the "Real Estate"), attached hereto and incorporated herein by this reference; and WHEREAS, the current Owner wishes to install a geothermal utility loop (the "Improvement") on the Real Estate and on the real estate identified as "Parcel 2" and "Parcel 3" in Exhibit A as defined below. A portion of the Improvement (the "Encroachment") will encroach into those segments of W Carmel Drive (the "Right of Way") and on portions of the Real Estate designated as Sewer and Utility Easement and Drainage and Utility Easement, identified as "10' Sewer & Utility Easement" and "20' Drainage & Utility Easement", (the "Easement"), 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"), in the manner and locations shown on the Drawing; and WHEREAS, as indicated in Exhibit B the Improvement will run onto upon parcels owned by Lakeside Centre One LLC, 1 South Street, Suite 2800, Baltimore, Maryland 21202 (Parcel 2), and Lakeside Apartments of Carmel, LLC, 805 City Center Drive, Suite 120, Carmel, Hamilton County, Indiana 46032 (Parcel 3), both particularly described in Exhibit A although the Improvement will solely benefit the Owner. WHEREAS, the Easement is beneficial to the City and its residents; 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 OLk obey 1-, lo1S ; and WHEREAS, Owner and City acknowledge the location of the Encroachment and WI-IEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not indicated by Owner on Exhibit B. CAusers\dhnas ATAPCO.0001AppData\Luca]\Microcoll1W indotva11Ne1CnchelConlent.Outlook\ MBKNRG4S1Geolhermal Easement -City or Carmel Consent v2 (9-21- 15 redline).doer641.2aNPM\CanneI\F sements\6eotluirmal la&',neart City -of -Gannet Consent v2 (9 21-15 redlioeHoox WHEREAS, the location of the Encroachment as indicated by the Owner on Exhibit B should not materially interfere with the City's use of the Easement and 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: 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 B 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 and the Easement, as provided in this instrument, regards the City's Right of Way and Easement 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 or Easement. 6. Owner has entered into and recorded a geothermal system easement agreement (the "Geothermal Easement") with the Owners of Parcels 2 and 3 which was recorded on Of/36/2a/ S'as instrument #AO/S65/ac4 the Hamilton County Recorder's Office. 7. Owner agrees and acknowledges that the Encroachment, as provided in this instrument, does not violate any covenants and restrictions applicable to the Encroachment. 8. 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. 9. 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. CAUsersVdl rzasATAP00000AAppDataAI_ocalAN4icrosollAWindosrcVINelCacheNConlen(.Outlook\MRKNRGdSAGeothermal Easement -City of Carmel Consent v2 (9-21- 15 redline) .doe.¢C:`.L cgaNPM`,CannePFasementsVGeothermal-Fa anent Cit _ , 10. 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 or Easement) damaged as a result of the installation, construction, maintenance or operation of the Encroachment. 11. Owner agrees to install identification tape or identification wire on the Encroachment in the Easement that will allow the City to readily determine the underground location of any Encroachment. 12. Owner agrees not to alter the ground surface elevation within the limits of the Right of Way or Easement at any time. 13. 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 the Easement and any improvements located therein caused by the installation, construction, maintenance and/or operation of the Encroachment. 14. 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. 15. 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, (ii) 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 by the owners of Parcels 2 and 3, (iii) from any and all claims related to the Encroachment or the Geothermal Easement from any third party, including, but not limited to, the owners of Parcels 2 and 3 and (iv) for any failure of proper disclosure pursuant to Paragraph 19 hereof. 16. 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. 17. 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. 18. This Agreement shall be effective as of the date on which it is last executed by a party hereto. 19. 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. C:AUsers\dlazas. ATAPC0.000AAonDataALocal AAl icrosonAW indowsVINetCachcAContent.Out1nok\M 13 K NRG4S\icotherma1 Easement -City of Carmel Consent v2 (9-21- 15 redline).doesC Al etolUPPIACannelAEa-cm:His1Geothermal CMsem<nt-City ofCamxl Coment'2 {_ _ "OWNER" KEVIN F. MCANDREWS, President ATAPCO CARMEL, INC. A Maryland coco /�7 .oration i a Sig atur- Date: n7 - (s --- STATE- STATE OF MARYLAND OWN---Y-OF BALTIMORE ) SS: Before me, a Notary Public in and for said County and State, personally appeared KEVIN F. MCANDREWS, President of Atapco Carmel. Inc., a Maryland corporation, 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 thi day of SC -P _ - 20 LC IC My Commission Expires: A OL -13.4-- a- ma l rr Cer LkL \ k ; anis Printed Name ron's"-af, My County oesidence: e_bit,„wR Cr C:WsersVdlaras.ATAPC0000AAimD taA LocalAMicrosoftAWindoesVINetCacheVContent.Outluok\M13KNRG,ISVGeothermal Easement -City of Carmel Consent v2 (9-21- 15 redline).docxG Iyt,aIWPMACuntx.NF a- ��...e.,.- Qeojhennal Easement City of-Uarme1 Consent v2 (9 21 15 redlinc).doe "CITY" CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY `& p i. James Brainardresiding Officer Date: Mary A Date: Burke M b Lori Watson Date ATTEST JULeeiA 17 Diana Cordray, IAMC, CVrrk-Treasurer Date: / 0 "7 —4.g STATE OF INDIANA ) SS: COUNTY OF HAMILTON Sandra M Johnso'n Deputy Clerk For Before me, a Notary Public in and for said County and State. personally appeared JA-MES—BRA4N-ARD7 MARY ANN BURKE and LORI WATSON, by me known, and by me known to be the Members of the City of Carmel Board of Public Works and Sand�amJohnsen Die ft/ Safety, and DIANA L. CORDRAY, Clerk -Treasurer of THE CFI'Y OF CARMEL, who acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of Cannel, Indiana. WO fp Witness my hand and Notarial Seal this h day of /OfJPr . 20 75. Cimimt) gfact„....„ NOTARY PUBLIC My Commission Expires: C bowv, s Printed Name/ _ My County of Residence: m l / ibr' 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 C:\Users\dlazas.ATAPCO.000\App Data\LocalUiicrosoli\Windoas\INoCache\Content Outlook\MIiK N12GJs\Geothermal Casement -City of Carmel Consent v2 (9-21- 15 redline) docxG\beta!klPM C-,FmeNGasenl. nts'GeotItemt r�.ent-CitvofGarmel-Cauent-r2 (9 21-1; redline):does EXHIBIT A PARCEL 1 BLOCK 8 IN THE CARMEL SCIENCE & TECHNOLOGY PARK SUBDIVISON, RECORDED IN THE OFFICE OF THE HAMILTON COUNTY RECORDER ON NOVEMBER 20, 1986 IN PLAT BOOK 13, PAGE 76-77, AS INSTRUMENT #1986026561 PARCEL 2 LOT IA LOCATED IN THE CARMEL SCIENCE & TECHNOLOGY PARK SUBDIVISON, SECOND REPLAT OF SECONDARY PLAT, BLOCK 13, RECORDED IN THE OFFICE OF THE HAMILTON COUNTY RECORDER ON JANUARY 14, 2015 IN PLAT CABINET 5, SLIDE 301, INSTRUMENT NUMBER 2015001850 PARCEL 3 LOT 2A LOCATED IN THE CARMEL SCIENCE & TECHNOLOGY PARK SUBDIVISON, SECOND REPLAT OF SECONDARY PLAT, BLOCK 13, RECORDED IN THE OFFICE OF THE HAMILTON COUNTY RECORDER ON JANUARY 14, 2015 IN PLAT CABINET 5, SLIDE 301, INSTRUMENT NUMBER 2015001850 C:AUsers Vdl azas.ATAPC0.000AAnPD statlcalAMicrosoliAWindotccAINeiCacheAContent.Outlook\MliKNRC ISVGcothermal Casemcnt-City of Carmel Consent v2 (9-21- 15 redline).docxG:`VLeval`IPMACarnwIA[asemants,Geethermal Parem.e4 City Of Carmel Cons -ern v2 (9 21 15 redline). do ca ier m.eside Center One LLC'. . Inst Na. 200600050916 if r aF 1// Owner, Mapco Carmel, Inc. Inst. No'9909920689 Or eI D,Ne Smr oe LLC m (commercial) OCa Mapco ca,mei. Ine. AdjOin 598 W Carmele0rive LLC \ (commercial) ( 445..5455445.4455544,5.44 EEEZZEEETEZ 4.1 °"" rzlPa m.mea w.w wu uiursa Gnu. by -EauDate E.sap —aae�,.,n nmK, rw ATAPCO PROPERTIES. INC.LCNE SOUIN STREET. SITE M QCl pE4 SiRUCNRR'OINf 65E4 CARMEL CORPORATE CENTER 655 W CARMEL DRIVE CARMEL, INDIANA 46032 ISSUANCE INDEX PROJECT PHASE DESIGN REVISION SCHEDULE DESCRIPTPH DATE Off Ce.e.11 CalgENTS A MEP REn• eq sr, NurriAl 2012 005. OVERALL SITE PLAN C200 10' SEWER & U11UTY EASEMENT - I • 80' EX. R/W - 20' DRAINAGE & UTILITY EASEMENT CARMEL DRIVE E%6TNG FlRER OPTC EXISTING WATER UNE EXISTING GAS UNE- 35'INV EX.STGRM SEWER INN � RX0.5 PROPOSED GEOTHERMAL (2) C PIPES IN (1) 18' CONDUIT 10- EX. SANITARY INV: 821.41 CROSS SECTION UNDER CARMEL DRIVE GEOTHERMAL FOR CARMEL CORPORATE CAMPUS 0u0• STRICNREPOINT 0 ATAPCO LAKESIDE CORPORATE CAMPUS Carmel, INDIANA ISSUANCE INDEX witnois PROJECT ASE: REVISION SCHED LE OESCRI4110 CATE Proj Xumbet 2012 0(.0 antt JULUOOO uIU(t( o0o ,0 m l OD0,' CITY 0 ' ARMEL September 25, 2015 Board of Public Works and Safety One Civic Square Carmel, Indiana 46032 JAMES BRAINARD, MAYOR RE: REQUEST FOR VARIANCE (GEOTHERMAL LOOP IN EASEMENT AND RIGHT OF WAY) — 645 WEST CARMEL DRIVE, CARMEL INDIANA 46032 Dear Board Members: Mr. Kevin F. McAndrews, on behalf of Atapco Carmel, Inc., owner of the property with the common address of 645 West Carmel Drive, has requested a variance from Section 6-227(a)(4) of the City of Carmel Code for the installation of a geothermal loop in the Right of Way and a portion of the lot designated as an easement. It is not expected that the installation of the geothermal loop at the proposed location will result in a Detriment (as defined in City Code) to the subject property or the adjacent properties (provided the petitioner adheres to the conditions recommended below). The Department recommends that the Board approve the variance conditioned upon the following (as discussed with the petitioners): 1. Petitioner enters into a Consent -to -Encroach Agreement with the City and records the Agreement. 2. Petitioner (and successors and assigns) agrees to remedy any drainage issues that, in the opinion of the City, represent a Detriment as defined in City Code. 3. Existing grade and elevations must not be altered or modified within the drainage easements or Right of Way. 4. Petitioner acknowledges that the City shall incur no obligation to repair, replace, relocate, or reimburse petitioner for any damage to the geothermal loop. Sincerely, Jeremy Kashman, P.E. City Engineer S:\BP W 15\645 W CARMELDRIVEREQU ESTFORVARIANCEGEOTHERMALLOOP.DOC DEPARTMENT OF ENGINEERING ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 E.lx 317.571.2439 EVIAIi. engineering©carmel.in.gnv R & UTILITY EASEMENT 80' EX. R/W 20' DRAINAGE & UTILITY EASEMENT CARMEL DRIVE E%ISIINC GAS LINE 38' EX. STORM SEWER INN 830.52 w — 1 Pd Vai Am wa PROPOSED GEOTHERMAL (2) 8' PIPES IN (1) 18' CONDUIT 10- EX. SANITARY INY 821.41 CROSS SECTION UNDER CARMEL DRIVE GEOTHERMAL FOR CARMEL CORPORATE CAMPUS om 120 STPIICTUREPOIM ® ATAPCO LAKESIDE CORPORATE CAMPUS Carmel, INDIANA CEP TIFIE et PROJECT PHASE REVISION SCHEDULE NO DESCRIPTION DATE P,AId..me•, X112005o September 25, 2015 Board of Public Works and Safety One Civic Square Carmel, Indiana 46032 JuEU 0 0 0 UIJULL 000 000 0DEC =gm CITY 0 ARMEL JAMES 13RAINARD, MAYOR RE: CONSENT TO ENCROACH — 645 W CARMEL DRIVE — GEOTHERMAL LOOP IN RIGHT OF WAY AND EASEMENT Dear Board Members: A Consent to Encroach document signed by Kevin F. McAndrews, on behalf of property owner Atapco Carmel, Inc., for the property at 645 W Carmel Drive, is submitted to the Board for signatures. A variance for the encroachment is also submitted to the Board of Public Works for approval during the October 7, 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\645 WCARMELDRENCROACHMENT.DOC DEPARTMENT OF ENGINEERING ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAX 317571.2439 EMAII. cngi nccringecnnnel.in goy