96th/College - Duke Weeks Realty 200400027802
Filed for Record in
HAMILTON COUNTY INDIANA
JENNIFER J HAYDEN
04 -28 -2004 At 12:27 pm.
ENCROACHMNT 26.00
AO
CONSENT TO ENCROACH
APPROVED AS TO FORM H
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Duke -Weeks Realty Limited Partnership, an Indiana limited partnership, 600 East 96 Street, Suite 100,
Indianapolis, Hamilton County, Indiana 46240 "Owner and the City of Carmel, Hamilton County,
Indiana, by and through its Board of Public Works and Safety "City
WITNES SETH
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 Building #6 in Parkwood Crossing. 600 East 96 Street, Indianapolis,
Indiana, which is located within the corporate limits of the City of Carmel, Indiana; and
WHEREAS, the official deed of the Real Estate was recorded in the Office of the Hamilton
County Recorder on February 1, 2001 as Parcel #16- 13- 11- 04 -17- 001.000 and as Instrument
#200100004760; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location
of the System on the Real Estate, copies of which is attached hereto and incorporated herein by this
reference as Exhibit `B" and Exhibit "C and
WHEREAS, the System will be constructed on a portion of the Lot designated as Public Right of
"Right 96th cc cc
Way (the Right of Way"), identified as 96 Street and as College Avenue on Exhibits "B" C
WHEREAS, the Right of Way is beneficial to the City and its residents; and
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WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachments upon the
Right of Way, which Encroachments are crosshatched on the Sketches; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or
future improvements not indicated by Owner on Exhibit "C 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.
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 the System and /or the Encroachments 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,
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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
System 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 Real Estate, or otherwise, which results directly or indirectly from any act of the
Owner, its employees, officers, officials, invitees, licensees and /or agents, regarding or
related to the System or the Encroachments 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.
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1
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.
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 and/or the Easements, 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" "CITY"
DUKE -WEEKS REALTY CITY OF CARMEL, INDIANA
LIMIT P TNERRHIP BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
t
G I
BI P Carmosino, P.E., Devel ent Services James Brainar resi. i g 0 fic r
�e U fa B ate: AU j Date: I
Mary An urke, Me ber
Date: --4
Lori atson, Me •i" r
Date:
ATT r ST:
k L i., fiZi_dA
Diana Cordray, I y'', §ifidi
Date: Depilty Clerk ffo
RETURN ORIGINAL TO:
SANDRA JOHNSON
CITY OF CARMEL
ONE CIVIC SQUARE
CARMEL IN 46032
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STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared BLAIR D.
CARMOSINO, P.E., Developmental Services for Duke Construction, by me known, and who
acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his voluntary act and
deed.
Witness my hand and Notarial Seal this J? da of _Th 20 0
NOTARY P LIC a
My Commission Expires: CA)0,4_ Cf 1/I�t
Printed e
My County of Residence: (/fd/ti f,Z-v
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, mown toLke, the
Members of the City of Carmel Board of Public Works and Safety, and )1A C'lerk-
Treasurer 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 1 'day of i t* r 200
l
4i/14.2 t oc:cta t
NOTARY PUBLIC
My Commission Expires:
/l y /0P Printed Name
My County of Residence: Qiyrj�e..
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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EXHIBIT A
A LAND BOUNDARY DESCRIPTION OF
BUILDING 6
PARKWOOD CROSSING
HAMILTON COUNTY, INDIANA
AUGUST 1, 2000
A part of the Southeast Quarter of Section 11, Township 17 North, Range 3 East, Hamilton
County, Indiana, described as follows: Commencing at the southeast corner of said quarter section, said
corner being North 90 degrees 00 minutes 00 seconds East 2,694.08 feet, measured along the,south line of
said quarter section from the southwest corner of said quarter section; thence North 00 degrees 40 minutes
57 seconds East 1,019.68 feet along the east line of said quarter section; thence North 89 degrees 16
minutes 35 seconds West 43.00 feet to the west right -of -way line of College Avenue and the POINT OF
BEGINNING of this description; thence South 00 degrees 40 minutes 57 seconds West 663.06 feet along
said west right -of -way line to a northeast corner of Common Use Parcel C, Parkwood Crossing; thence
along the north, northeast and northwest lines of said Common Use Parcel C the following six (6) courses:
(1) South 89 degrees 54 minutes 23 seconds West 118.41 feet; (2) Westerly, and Northwesterly 154.48 feet
along an arc to the right and having a radius of 135.00 feet and subtended by a long chord having a bearing
of North 57 degrees 18 minutes 44 seconds West and a length of 146.19 feet; (3) Northwesterly, and
Westerly 190.82 feet along an arc to the left and having a radius of 167.00 feet and subtended by a long
chord having a bearing of North 57 degrees 15 minutes 55 seconds West and a length of 180.61 feet; (4)
North 90 degrees 00 minutes 00 seconds West 47.57 feet; (5) Westerly, and Southwesterly 153.15 feet
along an arc to the left and having a radius of 195.00 feet and subtended by a long chord having a bearing
of South 67 degrees 30 minutes 00 seconds West and a length of 149.25 feet; (6) South 45 degrees 00
minutes 00 seconds West 101.79 feet; thence along a northeast line and along the east line of said Common
Use Parcel C the following five (5) courses: (1) North 27 degrees 01 minute 54 seconds West 149.61 feet;
(2) Northwesterly, and Northerly 82.56 feet along an arc to the right and having a radius of 175.00 feet and
subtended by a long chord having a bearing of North 13 degrees 30 minutes 57 seconds West and a length
of 81.80 feet; (3) North 00 degrees 00 minutes 00 seconds East 64.04 feet; (4) Northerly 50.23 feei along
an arc to the right and having a radius of 175.00 feet and subtended by a long chord having a bearing of
North 08 degrees 13 minutes 20 seconds East and a length of 50.05 feet; (5) North 16 degrees 26 minutes
40 seconds East 79.33 feet to a northeast corner of said Common Use Parcel C, said point being a southeast
corner of the parcel of land known as Building 5; thence along the east line said Building 5 parcel the
following three (3) courses: (1) North 16 degrees 26 minutes 40 seconds East 4.17 feet; (2) Northerly 64.58
feet along an arc to the left and having a radius of 225.00 feet and subtended by a long chord having a
bearing of North 08 degrees 13 minutes 20 seconds East and a length of 64.36 feet; (3) North 00 degrees 00
minutes 00 seconds East 147.31 feet to the south right -of -way line of Interstate 465; thence along said
south right -of -way line the following two (2) courses: (1) South 90 degrees 00 minutes 00 seconds East
564.41 feet; (2) South 89 degrees 16 minutes 35 seconds East 141.42 feet to the POINT OF BEGINNING
and containing 9.410 acres, more or less. The bearings in this description are based upon the south line of
the Southeast Quarter of said Section 11 having a bearing of North 90 degrees 00 minutes 00 seconds East.
EXHIBIT A
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