401 W. Carmel Drive - D&J LeasingleIrmswordm 8/061
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CONSENT TO ENCROACH
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200600028736
Filed for Record in
HAMILTON COUNTYr INDIANA
JENNIFER J HAYDEN
05 -22 -2006 At 03.57 PM.
ENCROACHMNT 31.00
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and
D J Leasing Company, LLC, 410 West Carmel Drive, Hamilton County, Indiana 46032 "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 Exhibit A attached hereto and incorporated herein by reference "Real Estate
commonly known as Top Value Fabrics, 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 July 24, 2001 as Instrument Number 200100045472; and
WHERAS, City owns certain right of way, which is more particularly described in Exhibit B
attached hereto and incorporated herein by reference "Right of Way and
WHEREAS, the official deed for a portion of the Right of Way was recorded in the Office of the
Hamilton County Recorder on July 20, 2004 as Instrument Number 200400050562; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate
and on the Right of Way; and
WHEREAS, Owner has given the City a sketches "Sketches depicting the proposed location of
the System on the Right of Way, copies of which is attached hereto and incorporated herein by this
reference as Exhibit C; 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 Carmel Drive" on Exhibit C; and
WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachment upon the
Right of Way, which Encroachment is crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
WHEREAS, the installation of the System as proposed by the Owner on Exhibit C should not
materially interfere with the City's use of the 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:
1. The foregoing preambles, recitations and definitions are made a part hereof as though such
were fully set forth herein.
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2. The City consents to the Encroachment for only so long as:
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(i) the Encroachment exists; 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 Encroachment from what are depicted on Exhibit
C.
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,
sewer lines or drainage ditches located in any or all of the Right of Way, 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 Right of Way, or otherwise, which results directly or indirectly from any act of the
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Owner, its employees, officers, officials, invitees, licensees and/or agents, regarding or
related to the System or the Encroachment in the Right of Way.
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 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.
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.
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10. Owner agrees that the placement of the System in the Right of Way 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, 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.
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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"
D J LEASING COMPANY, LLC
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"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS DEPARTMENT
OF ENGINEERING
Itez,
Richard D. Hazel, ylember Michael T. McBride P.E., City Engineer
Date: 1 Date: q? /2172
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared RICHARD D.,.
HANZEL, Member of D J LEASING COMPANY, LLC, by me known, and who acknowledged the k.
execution of the foregoing "CONSENT TO ENCROACH" as his/her voluntary act and deed.
Witness my hand and Notarial Seal this ag day of A-p14 I 2006.
My Commission Expires:
�..l IR, 9,013
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Printed Name
Before me, a Notary Public in and for said County and State, personally appeared MICHAEL T.
MCBRIDE, by me known, and by me known to be the City Engineer of THE CITY OF CARMEL, who
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of Carmel,
Indiana.
Witness my hand and Notarial Seal this 3 d y of
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NOTARY PUBLIC
My County of Residence:
,2006i
s on
NOTAR PU /t C
My Commission Expires:
■j �y Sie r
7 2 4 Printed Name'
My County of Residence:
instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
LEGAL DESCRIPTION
(D J LEASING CO., LLC AKA TOP VALUE FABRICS)
A part of the East Half of Section 36, Township 18 North, Range 3 East in
Clay Township, Hamilton County, Indiana, more particularly described as
follows:
Beginning at the Northeast corner of the Northeast Quarter of Section 36,
Township 18 North, Range 3 East; thence South 00 degrees 00 minutes 00
seconds (assumed bearing) on and along the East line of said Northeast
Quarter 1188.00 feet; thence South 89 degrees 27 minutes 30 seconds West
2451.54 feet; thence South 00 degrees 02 minutes 00 seconds West 1965.56
feet to the South Line of Carmel Drive; thence South 85 degrees 00 minutes
00 seconds East on and along said South line 765.98 feet to the True
Beginning POINT OF BEGINNING; continuing thence South 85 degrees 00
minute 00 seconds East on and along the South line of said Carmel Drive
right of way 174.50 feet; thence South 00 degrees 24 minutes 46 seconds
West 422.97 to the Westerly right of way line of the former L. N. (Ndonon
Division) Railroad; thence South 48 degrees 57 minutes 30 seconds West on
and along said right of way line 226.89 feet to a point that is 587.14 feet
South 00 degrees 02 minutes 00 seconds West of the true beginning point;
thence North 00 degrees 02 minutes 00 seconds East 587.14 feet to the True
BEGINNING POINT, containing 2.00 acres, more or less.
A Partnership Quitclaim Deed as recorded in the Office of the Hamilton
County Recorder on July 24, 2001 as Instrument #2001-00045472.
EXHIBIT "A"
A part of the East Half of Section 36, Township 18 North, Range 3 East in Clay Township, Hamilton County,
Indiana, more particularly described as follows:
Beginning at the Northeast corner of the Northeast Quarter of Section 36, Township 18 North, Range 3 East;
thence South 00 degrees 00 minutes 00 seconds (assumed bearing) on and along the East line of said
Northeast Quarter 1188.00 feet; thence South 89 degrees 27 minutes 30 seconds West 2451.54 feet; thence
South 00 degrees 02 minutes 00 seconds West 1965.56 feet to the South Line of Carmel Drive; thence South 85
degrees 00 minutes 00 seconds East on and along said South line 765.98 feet to the Northwest corner of a
parcel conveyed to D J Leasing Co., LLC as described in Instrument No. 2001 -00045472 of the records on
file in the Office of the Hamilton County Recorder and the POINT OF BEGINNING of this description;
thence continuing South 85 degrees 00 minute 00 seconds East along the South line of said Cannel Drive and
along the North line of said parcel, a distance of 174.50 feet to the Northeast corner of said parcel; thence
North 00 degrees 24 minutes 46 seconds East 40.00 feet to the centerline of Carmel Drive; thence North 85
degrees 00 minutes 00 seconds West 174.50 feet along the centerline of Carmel Drive; thence South 00 degrees
02 minutes 00 seconds West 40.00 feet to the Point of Beginning, containing 0. 16 acres, more or less.
Also:
LEGAL DESCRIPTION
(A PORTION OF WEST CARMEL DRIVE RIGHT OF WAY)
Beginning a the Northeast corner of the Northeast Quarter of Section 36, Township 18 North, Range 3 East;
thence South 00 degrees 00 minutes 00 seconds (assumed bearing) on and along the East line of said
Northeast Quarter 1188.00 feet; thence South 89degrees 27 minutes 30 seconds West 2461.54 feet; thence
South 00 degrees 02 minutes 00 seconds West 1965.56 feet to the South line of Carmel Drive; thence South 85
degrees 00 minutes 00 seconds East along the South line of Carmel Drive 765.98 feet to the Northwest corner
of a parcel conveyed to D J Leasing Co., LLC as described in Instrument No. 2001 -00045472 of the records
on file in the Office of the Hamilton County Recorder; thence continuing South 85 degrees 00 minutes 00
seconds East along the South line of said Carmel Drive and along the North line of said parcel 114.50 feet to
the PLACE OF BEGINNING of this description; thence continuing South 85 degrees 00 minutes 00 seconds
East along the South line of said Carmel Drive and along the North line of said parcel 60.00 feet to the
Northeast corner of said parcel; thence South 00 degrees 24 minutes 46 seconds West along the East line of
said parcel 10.03 feet; thence North 85 degrees 00 minutes 00 seconds West, parallel to the aforesaid South
line of Carmel Drive a distance of 60.80 feet; thence North 05 degrees 00 minutes 00 seconds East a distance
of 10.00 feet to the PLACE OF BEGINNING, containing 0.014 acres, more or less.
A Limited Warranty Deed as recorded in the Office of the Hamilton County Recorder on July 20, 2004 as
Instrument #2004-00050562.
EXHIBIT "B"
�of \I
TOP VALUE FABRICS
401 WEST CARMEL DRIVE
EXHIBIT "C"
V ///4 RIGHT OF WAY ENCROACHMENT