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10485 Pennsylvania-Burford Properties
2005013033519 f Filed for Record in D HAMILTON COUNTY? INDIANA JENNIFER J HAYDEN O 12 -23- 2005 At 02 ?7 pm. ENCROACHMNT 27.00 CONSENT TO ENCROACH APPROVED AS TO FORM RY THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and b ween Burford Properties, LLC., 10485 and 10435 Pennsylvania Street, 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 located within the corporate limits of the City of Carmel, Indiana, 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 12 -inch high density polyethylene storm sewer pipe (the "Pipe within the Right of Way of Pennsylvania Street (referred to hereinafter as the "Improvement and WHEREAS, Owner has given the City a sketch (the "Sketch depicting the proposed location of the Improvement, copies of which are attached hereto and incorporated herein by this reference as Exhibit B; and WHEREAS, the Improvement will be constructed within public Right of Way (the "Right of Way identified as "Pennsylvania Street" on Exhibit B; and eb.mswords:0pickett \forms \consents to encroach \burford properties consent:10 /I I /05] 1 WHEREAS, the Right of Way is beneficial to the City and its residents; and WHEREAS, as indicated on the Sketch, the Improvement 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, Owner acknowledges that this Agreement does not imply any approval of 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 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 the terms and provisions of this Agreement. 3. Owner covenants and agrees not to extend, increase, modify, alter, reconfigure or otherwise change the Improvement and/or the Encroachment from what is depicted on Exhibit B. [eb \Iprckett\ forms \consents to encroach \burford properties consent 10/11/05] 2 4. Owner agrees that City or other party owning property within the Right of Way "Other Party shall have the right to remove any portion of the Improvement as City or Other Party deems necessary, in City's or Other 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 Other Party take such action, the City or Other 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 results directly or indirectly from any act of the Owner, its employees, officers, officials, invitees, licensees and agents in the Right of Way. 7. Owner agrees to repair or replace, at Owner's sole cost and expense and to City's reasonable satisfaction, any utilities or improvements (whether located above, below or on [eb:msword:s: \Ipickett forms \consents to encroach \burford properties consent: 10/11/05] 3 the surface of the Right of Way) damaged as a result of the installation, construction, maintenance or operation of the Improvement. 8. Owner agrees to reimburse City or Other Party for any and all costs and expenses incurred by City or Other Party 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 Improvement. 9. Owner agrees to install identification tape or identification wire above the Improvement that will allow future determination of the underground location of the Improvement. Owner agrees to indemnify and hold City harmless for and from any liability, damages, claims, actions, courses of action, injuries, including death, costs, expenses and/ or professional fees arising out of, from or as a result of the marking and/ or identification of the underground location of the Improvement. 10. 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. 11. 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. 12. 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. [eb:naword:s \1pickett \forms \consents to encroach\burford properties consent. 10/11/05] 4 OCT -06 -2005 THU 02:47 PM CITY OF CARMEL FAX NO, 317 571 2439 P. 06 13. This Agreement shall be effective as of the date on which it is last executed by a party hereto. 14. Owner agrees that the City or other Utilities cannot be responsible for any damages to the Pipe. 15. Owner agrees to maintain the Improvement such that the Improvement will not cause or 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 maintain or may notify Owner who shall then immediately act to maintain all or any portion of the Improvement as is necessary to remedy such problems, at Owner's sole cost and expense. 16. Owner agrees to relocate the Improvement within a reasonable time frame, at the Owner's sole cost and expense, if required to do so by the City. "OWNER" "CITY" BURFORD PROPERTIES, LLC. CITY OF CARMEL, INDIANA BY AND THROUGH ITS BOARD OF By: DeLynn Burford!Man iv BY Member S A F E SAFETY 4W0 1 i i /;111 4 2/, Dr. Lynaurford es Brainard, Presiding Officer SSN: ate: Date: i 11S 0 6 M. An e= rke, Member Date: to 9�.�5f Lori atson, embe Date: /D 4$ [ch:m \tortsc\ cGn,cnts to cncrouMDurford properties eousent:10/G /051 5 ATT T: Sandra M. Johnsona Depu Clerk for Diana Cordray,IAM Clerk- Treasurer Date: a/ gldS--- Return to: Sandra Johnson Office Clerk Treasurer s City of Car One Civic Square Carmel, IN 46032 [eb:mswords:Upicketdfornts \consents to encroach \burford properties consent.10 /11/05] 6 OCT -06 -2005 THU 02:47 PM CITY OF CARMEL FAX NO. 317 571 2439 P. 08 STATE OF INDIANA SS: COUNTY OF Before me, a Notary Public in and for said County and State, personally appeared Dr. Lynn-7 :t. Burford, Managing Member of Burford Properties, LLC., by me known, and who acknowledged' G E execution of the foregoing "CONSENT TO ENCROACH" as his/her voluntary act and deed; Witness my hand and Notarial Seal this /G day of 0CL�i1, 20 .3• y-- Lcizi (e, ,..:4 4 z 7 0 j e 11 64 k -7 Y NOTARY UBLIC My Commission Expires: oT Put�li SANDRA A. RICE, Noti3 ry' My Commission Expires Jan.'(�2,- -2613 Cei��ty of Rec.; r xr•r. e fkArca J�P,i Printed Name My County of Residence: STATE OF INDIANA SS: COUNTY OF .HAMILTON Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD, MARY ANN BURKE and LORI WATSON, by me known, and by nie known to be the Members of the City of Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk- Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing -Carrsent To Encroach" on behalf of the City of Carmel, Indiana. e. day .Witness my hand and Notarial Seal this da of ©c. 2QoS p 11101ANA ,r, .rY J: NOTARY PUBLIC My Commission Expires: i. C. Anr, .�J�lis `09 /°,,c Printed Name My County of Residence: 8mi 1 J U l This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Cannel, Indiana 46032. [obi ,,,wrd,eNpiclanUbrr.\wruenu ro encroLchkbuetnrd prgtcriior wnecnt: IO /d /D5[ 7 OCT -08 -2005 THU 02 :47 PM CITY OF CARMEL FAX NO. 317 571 2439 P. 09 ti E T"A: and escri t..2_19.1211r. rvs A part of the Northeast Quarter of Section 11, Township 17 North, Range 3 East, Hamilton County, Indiana, it being also a part of Penn -View Heights 1st Section (the plat of which is recorded. in Deed. Record 139, pages 355 -356, in the Office of the Recorder of said county), described as follows: Commencing at the northwest corner of said quarter section; thence North 89 degrees 06 minutes 26 seconds East (assumed bearing) along the north line of said quarter section 35.01 feet to the east line (prolonged) of Pennsylvania Street; thence South 0 degrees 10 minutes 59 seconds West along said east line 645.01 feet to the point of beginning of this description, which point is the northwest corner of Lot 7 in said subdivision: FROM SAID BEGINNING POINT North 89 degrees 06 minutes 26 seconds East along the north line of said lot 120.00 feet to the northeast corner of said lot; thence South 0 degrees 10 minutes 59 seconds West along the east line of said lot and along the east line of Lot 8 a distance of 200.00 feet to the southeast comer of said Lot 8; thence North 89 degrees 06 minutes 26 seconds East along the north line of Lot 18 a distance of 18.00 feet; thence South 0 degrees 10 minutes 59 seconds West 150.00 feet to the south line of the north half of Lot 17; thence South 89 degrees 06 minutes 26 seconds West along said south line 18.00 feet to the east line of Lot 10; thence South 0 degrees 10 minutes 59 seconds West along said east line 50.00 feet to the northeast corner of Lot 11; thence South 4 degrees 03 minutes 19 seconds East along the east line of said Lot 11. a distance of 7510 feet; thence South 89 degrees 06 minutes 26 seconds West 125.55 feet to the east line of said Pennsylvania Street; thence North 0 degrees 10 minutes 59 seconds East along said east line 475.00 feet to the point of beginning; containing 59,898 square feet, more or less, Subject to zoning, restrictions, encumbrances, rights of way, easements, and regulated drains, if any. EXHIBIT El .00T -06 -2005 THU 02:48 PM CITY OF CARMEL FAX NO. 317 571 2439 P. 10 U F•- D OFF ICE C LEX PENNSYLVANIA STREET RIGHT-TO-ENCROACH EDIT x I i t I 4 0 5 0 t I i f a J J 1 v I 1 I 1 T i .iE r 0 i L i MI w 0 0 3, o Ps TYP. L n CO o y PROPOSED 12" STORM SEWER N Lu EDGE OF ROADWAY 3 3 p- TYP.. EX, R/W i J 1 1 VI GRAPHIC SCALE 7? h Ins Yn ,�1 Pi 112T) r. CONNECTION Isla 'GO IL POINT l 103RD STREET EXHIBIT "B" NELSON FRANKENBERGER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW JAMES J. NELSON 3105 EAST 98TH STREET CHARLES D. FRANKENBERGER SUITE 170 JAMES E. SHINAVER INDIANAPOLIS, INDIANA 46280 LARRY J. KEMPER 317 -844 -0106 JOHN B. FLATT FAX: 317- 846 -8782 OF COUNSEL JANE B. MERRILL www.nf law.com October 10, 2005 VIA HAND DELIVERY Gary Duncan City of Carmel, Department of Engineering RE: Burford Office Park -Board of Public Works Meeting Scheduled for October 19, 2005; Executed Original Consent to Encroach Gary- Enclosed please find the original Consent to Encroach that has been signed and notarized by my client. Please be sure this is sent to the Clerk Treasurer's office for the October 19, 2005 10:00 am Board of Public Works meeting. I will be out of the office on October 19 however, Jessica Hartman will be attending this hearing for Dr. Burford. If you need any further information to place this matter on October 19 agenda, please contact me immediately. Very truly yours, NELSON FRANKENBERGER _OP James E. Shinaver JES/bd I cc: Dr. Lynn Burford (lynnburford @hotmail.c 3 Shawn Curran (scurran @curran- architecture.com) Jessica Hartman (Jessica @pcsengineers.com) 067 8 9 107 H:Uanet \Burford \Duncan 100305.doc <i 0) M ocr cr t nr2 =i�