800 E. 96th - Duke Realty Limited Partnership 200 300 105000
f 4) Filed for Record in
HAMILTON COUNTY INDIANA
WO, JENNIFER J HAYDEN
10 -08 -2003 At 01:32 pm.
ENCROACHMNT 26.00
CONSENT TO ENCROACH APPROVE® TO
FORM BY:
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Duke Really Limited Partnership, Suite 100, 600 East 96 Street, Indianapolis, Indiana 46240 "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 at 800 East. 96
Street, also known as Parkwood East, which is located within the corporate limits of the City of Carmel,
Indiana; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
System on the Real Estate, a copy of which is attached hereto and incorporated herein by this reference as
Exhibit A; 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 96 Street on Exhibit A; 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 "Encroachments upon the
Right of Way, which Encroachments are depicted on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
IN
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WHEREAS, the installation of the System as proposed by the Owner on Exhibit A 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 A.
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
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
F:\Real Estate\Indiana Offiice\Parkwood Crossing WWE easenents\City of Carmel Consent to Encroach for irrigation doe 2
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 owner's.association to which Owner may transfer its responsibility for the System.
8. Owner agrees that its usage of the System will be restricted to non -peak hours and that the
System may, at any time, be subject to other use restrictions by the City including, but not
limited to, the System being used only on designated days or from "dusk to dawn
9. 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.
10. 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.
Meal Estate\Indiana Office\Parkwood Crossing\PWE easements\City of Carmel Consent to Encroach for irrieation.doc 3
11. Owner agrees that the placement of the System in the Right of Way shall be 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.
12. 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.
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.
Meal Estate\Indiana Office Warkwood Crossing \P WE easements\City of Carrel Consent to Encroach for irrigation.doc 4
"OWNER" "CITY"
DUKE REALTY LIMITED PARTNERSHIP, CITY OF CARMEL, INDIANA
an Indiana limited partnership BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
By: Duke Realty Corporation,
its general partner James Brainard, Presiding Officer
Date:
c
By: !t_ 1 .7 Mary .n +rke, t ber
Jennifer Bu Date: 1 0 423 Senior /ce President
Indiana Office Group Lo i Watson, i e ifl
Date: ,11- (0 U,
Date: 57-
ATTEST:
0 e sffi M. Jo $ova,
ma Yi i rkTor
Diana Cordray I C,-. k- Treasurer
Date: Lo J(J d
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared JENNIFER K.
BURK, Senior Vice President of Duke Realty Corporation, the general partner of Duke Realty Limited
Partnership, by me known, and who acknowledged the execution of the foregoing "CONSENT TO
ENCROACH" as her voluntary act and deed.
Witness my hand and Notarial Seal this o day of,/ 2003. t .,y
,F F'
./J a U, AI 9 t'
NOTARY PUBLIC If
My Commission Expires: ...?./g. D9 /L/j./577MF L. elS
Printed Name
My County of Residence: !T7itIF
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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 me 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 "Consent To
Encroach" on behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this iV day of 200V L-
e. 6.),„()
NOTARY PLTLIC f t
My Commission Expires: /i/a 1 4,v ,d Cl�A 5
Printed Name
My County of Residence: //4ni /.(7o/t)
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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CONSENT TO ENCROACH EXHIBIT A Poqe 2 of PARKWOOD EAST Duke
SCALE Sale vanes 800 E. 96TH Street
lachanapa,a, ,a
LAND DESCRIPTION
A PART OF THE SOUTHWEST QUARTER OF SECTION 12, TOWNSHIP 17 NORTH, RANGE 3 EAST LOCATED
IN CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA INCLUDING ALL OF THE FOLLOWING LOTS IN
COLLEGE HILLS AS PER PLAT THEREOF RECORDED AS INSTRUMENT #25018 IN DEED RECORD 119,
PAGES 30 AN 31 BY THE RECORDER OF HAMILTON COUNTY, INDIANA: 27 THROUGH 35, 70 THROUGH
87 AND 123 THROUGH 130, INCLUDING A PORTION OF EACH OF THE FOLLOWING LOTS IN SAID COLLEGE
HILLS: 36, 69, 88 AND 122 AND A PORTION OF BOTH CARROLLTON AVENUE AND GUILFORD AVENUE
AS PLATTED IN SAID COLLEGE HILLS BEING BOUNDED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHWEST QUARTER OF SECTION 12, TOWNSHIP
17 NORTH, RANGE 3 EAST; THENCE SOUTH 89 DEGREES 13 MINUTES 14 SECONDS EAST (ASSUMED
BEARING) 82.50 FEET ALONG THE SOUTH LINE OF SAID SOUTHWEST QUARTER TO THE POINT OF
BEGINNING OF THE PERIMETER LAND DESCRIPTION OF COLLEGE HILLS AS PER PLAT THEREOF RECORDED
AS INSTRUMENT #25018 IN DEED RECORD 119, PAGES 30 AN 31 BY THE RECORDER OF HAMILTON
COUNTY, INDIANA; THENCE SOUTH 89 DEGREES 13 MINUTES 14 SECONDS EAST 1,118.45 FEET ALONG
THE SOUTH LINE OF SAID SOUTHWEST QUARTER TO THE SOUTHEASTERN CORNER OF SAID SUBDIVISION;
THENCE NORTH 00 DEGREES 12 MINUTES 36 SECONDS WEST 45.01 FEET ALONG THE EASTERN
BOUNDARY OF SAID SUBDIVISION TO THE SOUTHEASTERN CORNER OF LOT 130 IN SAID SUBDIVISION,
THE NORTHERN RIGHT -OF -WAY LINE OF 96TH STREET AND TO THE POINT OF BEGINNING OF THIS
DESCRIPTION; THENCE NORTH 89 DEGREES 13 MINUTES 14 SECONDS WEST 882.26 FEET ALONG THE
NORTHERN RIGHT -OF -WAY LINE OF 96TH STREET TO THE SOUTHWESTERN CORNER OF LOT 27 IN SAID
SUBDIVISION; THENCE NORTH 00 DEGREES 12 MINUTES 36 SECONDS WEST 190.00 FEET TO THE
NORTHWESTERN CORNER OF SAID LOT 27; THENCE NORTH 89 DEGREES 13 MINUTES 14 SECONDS WEST
12.50 FEET TO THE SOUTHWESTERN CORNER OF LOT 29 IN SAID SUBDIVISION; THENCE NORTH 00
DEGREES 12 MINUTES 36 SECONDS WEST 789.60 FEET TO THE SOUTHERN LIMITED ACCESS RIGHT -OF-
WAY AND ACCESS CONTROL LINE OF 1 -465 ON THE WESTERN BOUNDARY OF LOT 36 IN SAID
SUBDIVISION, THE FOLLOWING SEVEN (7) COURSES ARE ALONG SAID SOUTHERN LIMITED ACCESS RIGHT
OF -WAY AND ACCESS CONTROL LINE; 1) THENCE SOUTH 86 DEGREES 04 MINUTES 20 SECONDS EAST
199.17 FEET TO THE EASTERN BOUNDARY OF SAID LOT 36; 2) THENCE SOUTH 86 DEGREES 03 MINUTES
54 SECONDS EAST 50.13 FEET ACROSS CARROLLTON AVENUE TO A POINT ON THE WESTERN BOUNDARY
OF LOT 69 IN SAID SUBDIVISION; 3) THENCE SOUTH 81 DEGREES '45 MINUTES 17 SECONDS EAST
200.84 FEET TO A POINT ON THE EASTERN BOUNDARY OF SAID LOT 69 AND A POINT ON THE WESTERN
BOUNDARY OF LOT 88 IN SAID SUBDIVISION; 4) THENCE SOUTH 75 DEGREES 12 MINUTES 35
SECONDS EAST 205.66 FEET TO THE SOUTHEASTERN CORNER OF SAID LOT 88; 5) THENCE SOUTH 89
DEGREES 13 MINUTES 14 SECONDS EAST 50.01 FEET ACROSS GUILFORD AVENUE TO THE
NORTHWESTERN CORNER OF LOT 122 IN SAID SUBDIVISION; 6) THENCE SOUTH 89 DEGREES 13
MINUTES 14 SECONDS EAST 90.49 FEET ALONG THE NORTHERN BOUNDARY OF SAID LOT 122; 7)
THENCE SOUTH 70 DEGREES 14 MINUTES 46 SECONDS EAST 115.10 FEET TO A POINT ON THE EASTERN
BOUNDARY OF SAID LOT 122 AND THE EASTERN BOUNDARY OF SAID SUBDIVISION; THENCE SOUTH 00
DECREES 12 MINUTES 36 SECONDS EAST 461:98 FEET ALONG THE EASTERN BOUNDARY OF SAID
SUBDIVISION TO THE NORTHWESTERN CORNER OF THE 1.000 ACRE TRACT OF LAND DESCRIBED IN THE
GENERAL WARRANTY DEED RECORDED AS INSTRUMENT 200100057327 BY SAID
RECORDER, THE FOLLOWING FOUR (4) COURSES ARE ALONG THE BOUNDARY OF SAID 1.000 ACRE TRACT
OF LAND; 1) THENCE SOUTH 89 DEGREES 13 MINUTES 14 SECONDS EAST 100.00 FEET; 2) THENCE
SOUTH 00 DEGREES 12 MINUTES 36 SECONDS EAST 435.60 FEET TO THE SOUTH LINE OF SAID
SOUTHWEST QUARTER; 3) THENCE NORTH 89 DEGREES 13 MINUTES 14 SECONDS WEST 100.00 FEET
ALONG THE SOUTH LINE OF SAID SOUTHWEST QUARTER TO THE SOUTHEASTERN CORNER OF SAID
SUBDIVISION; 4) THENCE NORTH 00 DEGREES 12 MINUTES 36 SECONDS WEST 45.01 FEET ALONG THE
EASTERN BOUNDARY OF SAID SUBDIVISION TO THE POINT OF BEGINNING CONTAINING 20.050
ACRES, MORE OR LESS.
EXHIBIT A
PAGE 3 OF 3
PARKW00D EAST
LEGAL DESCRIPTION