4000 E. 96th - 4000 East LLC2008013066 ENCRORCHME $32.00
03/12/2008 11:13:41A 11 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
CONSENT TO ENCROACH APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (the "Agreement is entered into by and between
4000 East LLC, an Indiana limited liability company of Marion County, Indiana (the "Owner and the
City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety (the
"City
WITNESSETH:
WHEREAS, Owner owns in fee simple certain real estate (the "Real Estate which is more
particularly described in Exhibit "A which is attached hereto and incorporated herein by reference, and
the Real Estate has a common address of 4000 East 96 Street, which is located within the corporate
Limits of the City of Carmel, Indiana and upon which a car dealership operates (the "Smart Car Center
and
WHEREAS, the official deeds of the Real Estate was recorded in the office of the Office of the
Hamilton County Recorder on July 21, 1998, as Instrument #98- 39646, and,
WHEREAS, Owner wishes to install: (i) a parking area that will include ten (10) parking stalls,
some new concrete slab areas and curbing surrounding the parking area (the "Parking Area (ii) various
landscape plantings (the "Landscaping (iii) four (4) parking lot lights (the "Lights (iv) one (1)
ground sign (the "Ground Sign and, (v) various underground irrigation lines and underground electrical
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conduit (the "Underground Lines on the Real Estate; and all of which shall be collectively referred to as
the "Encroachments The right -of -way area upon which these Encroachments will be encroaching is
more particularly described in Exhibits "B -1 and B -2" which are attached hereto and incorporated herein
by reference (the "Right of Way Area
WHEREAS, Owner has given the City a sketch (the "Sketch depicting the proposed location of
the Encroachments within the Right of Way Area, a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "C and
WHEREAS, the Encroachments either already exist or will be installed upon on a portion of the
Right of Way Area designated as dedicated right of way east 96 Street, identified as "New 75 0' (half) R-
OW" on Exhibit C. and
WHEREAS, this Right of Way grant is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Encroachments encroach upon the Right of Way Area,
as said Encroachments are depicted on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the location of the Encroachments as indicated by the Owner on Exhibit C, should
not materially interfere with the City's use of the Right of Way Area.
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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 any or all of the Encroachments from what is depicted on Exhibit C,
4. Owner agrees that City shall have the right to remove any portion of the Encroachments as
City deems necessary, in City's sole discretion, to install protect and/or repair any utility
lines, sewer lines or drainage ditches located in any or all of the Right of Way Area, 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 Encroachments.
5. Owner agrees to indemnify and hold harmless City, its officers, officials, members,
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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 action or
inaction of the Owner, its employees, officers, officials, invitees, licensees and/or agents,
regarding or related to the Encroachments in the Right of Way Area.
6. 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 Area and any improvements located
therein caused by the installation, construction, maintenance and/or operation of the
Encroachments or due to Owner's other obligations, responsibilities, actions or inactions
as set forth herein,
7. 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 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 persons executing this Agreement represent and warrant that they are authorized to
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same.
"OWNER"
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 the last party hereto executes
4000 East LLC, an Indiana limited liability company
Paul A. Pettenaro, Managing Member
Date: t (2.717
Return To:
Sandra Johnson
City of Carmel
One Civic Square
Carmel IN 46032
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"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
James Brainard, Presiding Officer
Date: I S� 07
Burke Member
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i .1 Cordray, Tr Clerk- Treasurer
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Date:
STATE OF INDIANA
SS:
COUNTY OF i
Before me, a Notary Public in and for said County and State, personally appeared Paul A,
Pettenaro, Managing Member of 4000 East LLC, an Indiana limited liability company, 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 27 day of NDUeYI' eeic 20E,
My Commission Expires:
Ob /li
Rig 3,40i ,Toi4N55mN
Printed Name
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and State, personally appeared JAME „i„
BRAINARD and MARY ANN BURKE, by me d b e known o ke De,Menib o 'tlieCit,.
of Carmel Board of Public Works and Safety, and d 13�L t trElt. PE—u r orT}&Cirr.,
OF CARMEL, who aclnowledged the execution of the foregoing "CONSENT4TQ °BN tQA ",6n,
behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this6 day of
My Commission Expires:
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My County of Residence: He YYi 1 LJrii'1
Printed Name
NOTARY PUBLIC 1
C- O nrt i,
My County of Residence
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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After recording return to-Dettglas-Gaattey, Cartel @ity Attorney, City Hall, One Civic Square, Carmel
In. 46032
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each and every Social
Security number from this document, unless it is required by law. Douglas C Haney
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LEGAL DESCRIPTION:
PART OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF SECTION 6,
TOWNSHIP 17 NORTH, RANGE 4 EAST IN CLAY TOWNSHIP, HAMILTON
COUNTY, INDIANA, DESCRIBED AS FOLLOWS:
BEGINNING ON THE SOUTH LINE OF THE SOUTHWEST QUARTER OF SECTION
3, TOWNSHIP 17 NORTH, RANGE 4 EAST 1010.00 FEET NORTH 90 DEGREES
00 MINUTES 00 SECONDS EAST (ASSUMED BEARING) FROM THE SOUTHWEST
CORNER OF SAID SOUTHWEST QUARTER; THENCE NORTH 90 DEGREES CO
MINUTES 00 SECONDS EAST ON SAID LINE 190.00 FEET TO THE
WESTERLY RIGHT OF -WAY LINE OF LAKESHORE DRIVE EXTENDED SOUTHERLY
70 SAID SOUTH LINE; THENCE NORTH 00 DEGREES 00 MINUTES 00
SECONDS ON SAID RIGHT -OF -WAY LINE 150.00 FEET TO THE POINT OF
CURVATURE OF A CURVE TO THE RIGHT HAVING A RADIUS OF 380.00
FEET; THENCE NORTHEASTERLY ON SAID RIGHT -OF -WAY LINE ON SAID
CURVE, AN ARC DISTANCE OF 170.35 FEET TO THE POINT OF TANGENCY
OF SAID CURVE; THENCE NORTH 25 DEGREES 45 MINUTES 35 SECONDS
EAST ON SAID RIGHT -OF -WAY LINE TANGENT WITH SAID CURVE 100.00
FEET TO THE POINT OF CURVATURE OF A CURVE TO THE LEFT HAVING A
RADIUS OF 320.00 FEET; THENCE NORTHEASTERLY ON SAID RIGHT -OF -WAY
LINE ON SAID CURVE, AN ARC DISTANCE OF 129.58 FEET TO A POINT
LINE; NORTH 00 DEGREES 00 THENCE SOUTH 90 DEGREES 00 MINUTES U 0 00 SECONDS OF SOUTH
PARALLEL WITH SAID SOUTH LINE 302.70 FEET TO A POINT ON A LINE
WHICH BEARS NORTH 00 DEGREES 00 MINUTES 00 SECONDS FROM THE
PLACE OF BEGINNING; THENCE SOUTH 00 DEGREES 00 MINUTES 00
SECONDS ON SAID LINE 530.00 FEET TO THE PLACE OF BEGINNING:
DESCRIPTION OF RIGHT -OF -WAY
An additional Twenty (20) feet of right -of -way along the north side of 96 Street lying in
part of the South Half of the Southwest Quarter of Section 6, Township 17 North, Range
4 East in Clay Township, Hamilton County, Indiana, said additional right -of -way
described as follows:
Commencing at a point on the south line of the above captioned Southwest Quarter
Section, being 1010.00 feet North 90 degrees no minutes no seconds East (assumed
bearing) from the southwest corner of said Southwest Quarter, said point being the
southwest corner of the parcel from which the described right -of -way area lies within;
thence North no degrees no minutes no seconds East, along the west line of the parcel
55.00 feet to a point on the north line of the existing fifty -five (55) foot one -half right -of-
way line and the POINT OF EEGAVNING of the additional twenty (20) foot right -of-
way; thence continuing along with the west line of the parcel, North no degrees no
minutes no seconds Bast, 20.00 feet; thence North 90 degrees no minutes no seconds
East, 190.00 feet to a point on the east line of the parcel; thence along with said east line,
South no degrees no minutes no seconds West, 20.00 feet to a point on the north line of
the aforementioned fifty -five (55) foot existing right -of-way line; thence along with said
north right -of -way line, South 90 degrees no minutes no seconds West, 190.00 feet to the
point of beghming.
The above described right-of-way description was written without the benefit of a
boundary survey_ The description is based upon information taken from record
documents.
Client: Miranda Construction
Dated: November 2, 2007
Pile No.: 107264
(1010.00' REC)
N 90 °00'00 "E T N 90 °00'00 "E
PROJPGT'.QIFORMA71aN
SW CDR., SW -4A.
SEC. 6, 717N, R 4E
C and G Real Estate Inc.
DES
20' A
EXHIBIT
DESCRIPTION EXHIBIT
THE DESCRIFIION AND EXHIBIT WAS WRIITEN AND DRAWN
WITHOUT THE BENEFIT OF A BOUNDARY SURVEY. THE
DESCRIPTION FOR THE "TWENTY (20) ItEI OR ADDRIONAL
RIGHT —Or —WAY WAS WRFfltN FROM RECORD DOCUMENTS_
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FMB NO. 107264
DATED 11/2)2007
DRAWNBY A.S
CHECKED
4000 East 96th Street
5 90°00'00" W 160 OD'
C/L 90 STREET
(110" R.O.W.)
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ENGINEERING S
po" P.O. Dax234 Moarasvnle, IN. 4815
Ph: 317 -631 -7918
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Uncireaelitznent
Smart Car 4000 East 96th Street, Indianapolis, Indiana
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AND POLE LIGHTS IN R.0
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NEW GROUND SIGN
IN R.O.W. BY OWNER
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LAKE SHORE DRIVE
60.0' RIGHT -OF -WAY