1310 E. 96th - Midwest Youth Tennis FoundationCONSENT TO ENCROACH
APPROVED AS TO FORM BV
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and
between Midwest Youth Tennis Foundation, Inc., 1310 East 96 Street, Suite 100, Hamilton
County, Indianapolis, Indiana 46240 "Owner and the City of Carmel, Indiana, by and through
its Board of Public Works and Safety, One Civic Square, Hamilton County, Carmel, Indiana
46032 "City
WITNES SETH:
WHEREAS, Owner owns in fee simple certain real estate (the "Real Estate located
within the corporate limits of the City, which Real Estate is more particularly described in
Exhibit "A attached hereto and incorporated herein by this reference; and
WHEREAS, Owner wishes to install a 6 foot monument ground sign (the
"Improvement within the right of way reserved for a 96 Street connection under Interstate
Highway 465 (the "Right of Way as is further identified as the "Dedication of Right -of -Way
Hamilton County Board of Commissioners Inst. No. 95- 53232" in Exhibit "B attached hereto
and incorporated herein by this reference;_and
WHEREAS, Owner has given the City a site plan (the "Site Plan depicting the proposed
location of the Improvement, a copy of which is attached hereto as Exhibit "B and
1056133.2
2008013069 ENCROACHME $25.00
03/12/2008 11:13:41A 8 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Site Plan, the Improvement will encroach into the Right
of Way (the "Encroachment Area which Encroachment Area is crosshatched on the Site Plan;
and
WHEREAS, Owner and City acknowledge the location of the Improvement and the
Encroachment Area; and
WHEREAS, Owner acknowledges that this Agreement does not imply nor constitute the
approval of any existing or future improvements not indicated by Owner on Exhibit "B and
WHEREAS, the location of the Improvement, as indicated by the Owner on Exhibit "B"
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 they 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 conditions of this Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, reconfigure or
otherwise change the Encroachment Area and /or the location of the Improvement from
what is depicted on Exhibit "B
4. Owner agrees that the City shall, and any other party owning property within the
Right of Way "Third Party shall, upon thirty (30) days prior written notice to
2
Owner, have the right to remove any portion of the Improvement as City or Third
Party deems reasonably necessary, in City's or Third Party'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 or Third Party take such action, the City or Third Party shall incur
no obligation to repair, replace or reimburse Owner for the cost of any damages
thereby caused to the Improvement or to Owner.
5. Owner agrees that its use of the Improvement 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 act to repair,
or may notify Owner who shall then immediately act to repair, all or any portion
of the Improvement as is necessary to remedy such problems, at Owner's sole cost
and expense.
6. 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 or damage to any
property or improvements located within the Right of Way, or otherwise, which
result from any act of the Owner, its employees, officers, officials, licensees
and /or agents in the Right of Way and /or as a result of the Improvement.
7. Subject to the City's or a Third Party's right to reimbursement set forth in
paragraph 8 below, Owner agrees to repair or replace, at Owner's sole cost and
expense and to City's reasonable satisfaction, any utilities or improvements
3
(whether located above, below or on the surface of the Right of Way) damaged as
a result of the installation, construction, maintenance, removal, repair and /or
operation of the Improvement.
8. Owner agrees to reimburse City or Third Party for any and all costs and expenses
incurred by City or Third Party for any and all costs and expenses reasonably
incurred by or on behalf of City or a Third Party to replace, repair or cure any
damage to any or all of the Right of Way and /or to any improvements located
therein caused in whole or in part by the installation, construction, maintenance,
removal, repair and /or operation of the Improvement.
9. Owner agrees to record this Agreement in the Office of the Recorder of Hamilton
County 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.
10. The parties hereto agree that the terms of this Agreement shall be binding upon
and inure to the benefit of their respective successors and assigns.
11. 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.
12. This Agreement shall be effective as of the date on which the last party hereto
executes same.
4
13. Owner agrees to relocate the Improvement within a reasonable time frame, at the
Owner's sole cost and expense, if requested to do so by the City pursuant to the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement this lv day of
February, 2008.
"OWNER"
MIDWEST YOUTH TENNIS
FOUNDATION, INC.
"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD
OF��P Jot UBL WORKS AND SAFETY
By: M/S,(Zk— SAU' L S 0 cam pk ma.. —James Brainard, Presiding Officer
Date: (I 7-9 (08 Date:
RJw n b
3 cLr. c3 J cnscY,
Ci4( o4 CaImL\
C met 1 4t,a3X_.
5
Mary
Date:
ATTEST:
Lori Watson, M
Date:
ana Cordray, IA
ate:
Burke, Irg V
tia
Cle Treasurer
0
M. Johnson,
lerk for
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and State, personally appeared Mark Saunders,
Executive Director of Midwest- Youth Tennis Foundation, Inc., by me known, and who acknowledged the
execution of:th foregoingp "CONSENT TO ENCROACH" as his /her voluntary act and deed.
llr rl �,hand
itnes and Notarial Seal this 22 of J a
L_ I
l 0 N6TAR PUBLIC
14
My Commission''Expires: June 30, 2015
.S
My: Count of Residence: Hamilton
STATE OF INDIANA
COUNTY OF HAMILTON
SS:
2008.
Paul G. Reis
Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD
tom
MARY ANN BURKE and LORI WATSON, by me known, and by me known to be the Members:'44lie =FCi
Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk- Treasurer Y 'I
CARMEL, who acknowledged the execution of the foregoing "Consent To Encroach” on.,b$half•of the. d_
Carmel, Indiana. \-1
Witness my hand and Notarial Seal this tP day of 2008. 1 A
NOTARY PUBLIC
C L(\ l L
Printed Name
My Commission Expires: 4/44' c i
My County of Residence: "6
This instrument was prepared by Paul G. Reis, Esq., Bose McKinney Evans LLP, 301 Pennsylvania
Parkway, Suite 301, Indianapolis, Indiana 46280.
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. Paul G. Reis
1056133.2
6
EXHIBIT A
Part of the Southwest Quarter of Section 12, Township 17 North, Rang 3 East, Hamilton
County, Indiana, being more particularly described as follows:
Commencing at the southwest comer of the Southwest Quarter of Section 12, Township 17
North, Range 3 East, Hamilton County, Indiana; thence South 89 degrees 13 minutes 20 seconds
East (assumed bearing) on the south line of said Southwest Quarter a distance of 1300.95 feet to
the southwest comer of the real estate described in Instrument No. 94 -49929 in the Office of the
Recorder of Hamilton County, Indiana; thence North 00 degrees 12 minutes 36 seconds West on
the west 1 ine of said real estate 60.01 feet to the southwest corner of the real estate described in
Instrument No. 95- 22172; thence the following seven calls along the perimeter of said real estate:
1.) South 89 degrees 13 minutes 20 seconds East parallel with the south line of said Southwest
Quarter a distance of 905.02 feet; 2.) North 79 degrees 47 minutes 52 seconds East a distance of
34.56 feet to the Point of Beginning of the herein described real estate; 3.) North 00 degrees 46
minutes 40 seconds East a distance of'39.20 feet to a tangent curve having a radius of 98.50 feet,
the radius point of which bears South 89 degrees 13 minutes 20 seconds East; 4.) northerly on
said curve an arc distance of 39.98 feet to a point of reverse curvature of a curve with radius of
230.00 feet, the radius point of which bears North 65 degrees 58 minutes 06 seconds West; 5.)
northerly on said curve an arc distance of 193.95 feet to a point of reverse curvature of a curve
with a radius of 58.50 feet, the radius point of which bears North 65 degrees 43 minutes 01
seconds East; 6.) northerly on said curve an arc distance of 46.54 feet to a tangent line; 7.) North
21 degrees 17 minutes 39 seconds East a distance of 115.75 feet to the south right -of -way line of
Interstate Highway 465, per I.S.H.C. plans for project 1- 465- 4(128)127; thence the following two
calls on said south right -of -way line: 1.) South 55 degrees 42 minutes 51 seconds East 230.93
feet; 2.) South 69 degrees 12 minutes 35 seconds East 101.99 feet to the northwest corner of the
real estate described in Instrument No. 95- 53232; thence the following five calls along the
perimeter of said real estate: 1.) South 22 degrees 36 minutes 31 seconds West 90.72 feet; 2.)
South 37 degrees 54 minutes 37 seconds West 79.78 feet; 3.) South 48 degrees 42 minutes 46
seconds West 80.56 feet; 4.) South 66 degrees 34 minutes 37 seconds West 81.03 feet; 5.) South
79 degrees 47 minutes 52 seconds West 118.76 feet to the point of beginning, containing 1.920
acres, more or less.
N794 7'52 "E
28.43'
;79'47'52"W 118
s \W01 oo998S.dwg
dge o sp o
South Line,
Scale 1' 25'
25
EXHIBIT B
MIDWEST YOUTH TENNIS FOUNDATION
os
Ire
18.'14'39"E
Coniferous tree
Wafer I•.leters `s5 "tre
NGt A u o
Proposed
1 Sig n e dAl d
22.17'
Sign
02
N89'13 20 w 1�+��r..
26.21'
3.8. Water Line Easement
SW /4 Sec. 12— 17N —RJE
—Gross Break
96TH STREET
Ed of As halt
DEDICATION OF RIGHT -OF -WAY
HAMILTON COUNTY
BOARD OF COMMISSIONERS
Ins(. No. 95 -5J2J2
N89'1
DEDICATION OF RIGHT –OF –W
60 HAMILTON COUNTY
BOARD OF COMMISSIONERS
Inst. No. 95 -53231
THIS DRAWING IS NOT INTENDED TO '8E REPRESENTE(