Merchants Pointe - Merchants' Pointe Associates LLC D
200300038226
Filed for Record in
1 U� HAMILTON COUNTY INDIANA
JENNIFER J HAYDbl
04-22 -2003 At 02:01 ppm.
ENCROACHMNT 24.00
APPROVED, AS TO
FO
CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Merchants' Pointe Associates, LLC, 8555 North River Road, Suite 375, Indianapolis, Marion County,
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 (the "Real Estate which is more
particularly described as Lot #6 which is included in Exhibit "A attached hereto and incorporated herein
by reference "Real Estate in the Merchants' Pointe Commercial Subdivision, which is located within
the corporate limits of the City of Carmel, Indiana "Subdivision and
WHEREAS, the official plat of the Subdivision was recorded as Instrument #200100037335, Plat
Cabinet 2, Slide 606 in the office of the Office of the Hamilton County Recorder on June 21, 2001, as
Merchants' Pointe Subdivision; and
WHEREAS, Owner wishes to construct asphalt pavement (the "Pavement concrete curbs (the
"Curbs light fixture bases (the "Bases sidewalks (the "Walks and a ground sign (the "Sign on the
Real Estate (individually and collectively referred to hereinafter as the "Site Improvements and
WHEREAS, Owner has given the City a sketch depicting the proposed location of the Site
Improvements on the Real Estate, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit `B (the "Sketch and
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WHEREAS, the Site Improvements will be constructed on portions of the Real Estate designated
as Drainage, Utility and Sewer Easements (the "Easements identified as "10' D. U.E., 15' D.U.
S.E, 20' D. U.E. and Variable Width D.U. S.E." on the Sketch; and
WHEREAS, the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvements encroach (individually and
collectively, the "Encroachments upon the Easements, which Encroachments are crosshatched on the
Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the location of the Site Improvements as indicated by the Owner on the Sketch,
should not materially interfere with the City's use of the Easements.
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 any or all of the Encroachments and /or the Site Improvements from what
is depicted on the Sketch.
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4. Owner agrees that City shall have the right to remove any portion of the Site Improvements
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 Easements, 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.
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 action or
inaction of the Owner, its employees, officers, officials, invitees, licensees and /or agents,
regarding or related to the Site Improvements and /or the Encroachments in the Easements.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City in
replacing or repairing any damage to the Easements and/or to any improvements located
therein caused by the installation, construction, maintenance and /or operation of the Site
Improvements, or due to Owner's other obligations, responsibilities, actions or inactions
as set forth herein. Owner further agrees that City may enforce Owner's obligations and
responsibilities as set forth herein through the exercise of any legal or equitable remedies,
including, but not limited to, the City curing any continuing breach of Owner's obligations
and responsibilities, at Owner's sole cost and expense.
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7. Owner agrees to reimburse City for any costs incurred by City in removing all or any
portion of the Site Improvements in order for City to access the Easements and/or any
improvements located therein.
8. Owner agrees that Owner will not transfer its obligations and responsibilities under this
Agreement without the prior express written consent of City, which consent will not be
unreasonably withheld, and that, in the event of such transfer, Owner agrees that this
Agreement and all the terms and conditions thereof shall be binding on any entity to which
Owner may transfer its obligations and responsibilities hereunder.
9. Owner agrees that the placement of the Site Improvements in the Easements shall be at
Owner's sole cost, expense and risk, and that, if City, in its sole discretion, performs any
work in 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
Site Improvements, 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 Site Improvements.
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 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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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.
13. This Agreement shall be effective as of the date on which the last party hereto executes
same.
"OWNER" "CITY"
MERCHANTS' POINTE ASSOCIATES, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
Air
Ri and E. Hennessey, Manager es Brainard, Presiding Officer
SSN: c'% Jti ate: -c:),)
Date: 3t to ti-4) )7116...7 Mary Anurke, Member t_
Date
Lori Watson .i e r r
Date` j A
F Bil
e So s014
AT ST: �g. n 4 r f S u: ty C 16Pr
RETURN TO: Diana Cordra A` N1erk-,;i cer
Sandra M. Johnson Date:; V,
City of Carmel �4 Iwo-) 1
1 Civic Square
Carmel Indiana 46032
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STATE OF INDIANA
SS:
COUNTY OF %ra4.4=wc-
Before me, a Notary Public in and for said County and State, personally appeared RICHARD E.
HENNESSEY, MANAGER OF MERCHANTS' POINTE ASSOCIATES, LLC, by me known, and who
acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his or her voluntary "act
and deed.
Witness my hand and Notarial Seal this /02 day of GCZ.c
NOTARY PUBLIC
My Commission Expires: 1
ie7 A
J 0 7 O'7 Printed Name i
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, an e". �pp:tqq b t e
City Safety, A RbR
Members of the Cit of Carmel Board of Public Works and Safet and DNA L. CO C ;er
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 2 day of 20 -3.
NOTARY PUBLIC
My Commission Expires:
4NN 04✓/s
14 ///47 Printed Name
My County of Residence: 1/i4Mm. To/0
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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EXHIBIT "A"
1, the undersigned, a registered land surveyor in the State of Indiana, hereby certify that the w ;thin plat represents a survey and subdivision prepared
under my direction of the' following described real estate located in the North Half of Section 6, Township 17 North, Range 4 East in Clay Township,
Hamilton County, Indiana:
Commencing at the Northwest corner of Section 6, Township 17 North. Range .4 East; thence South 89 degrees 53 minutes 03 seconds East (assumed
bearing) on the North line of said Section 6. (being a straight 'line between said Northwest corner and the Southeast corner of Section 31. Township 18
North, Range 4 East as said corners were monumented with Harrison Markers on September 23. 1999) a distance of 2265.00 feet to the Northeast
corner of WOODLAND GOLF CLUB SUBDIVISION, a subdivision in Harnil County. Indiana, the plot of which is recorded on pages 545 and 546 of Deed
Peco d 135 in the Offie.e, of the Recorder of Hamilton Couilly, Indict c. said comer being tho PLACE OF DEGINN:NG of iho within described real estate;
thence continuing South 89 degrees 53 minutes 03 seconds East on said North line of Suction 6, a distance of 581.41 feet to a point that is 750.00
feet West of tho centerline of Indiana Stale Road 1431, (designated as line E" on I.S.H.C. plans for Project Number S- 165(13). dated 1909 and revised
August 3, 1961); thence South 00 degrees 04 minutes 33 seconds West. passing though a I.S.H.C. Right of Way Marker. a distance of 18.01 feet to the
Southerly right —of —way line of 116th Street at point that is 20.00 feet South 00 degrees 04 minutes 33 West of survey line "S -6 —E" on said I.S.H.C.
pions; (the following three courses are on said Southerly right —of —way line) 1.) thence South 75 degrees 53 minutes 16 seconds East 103.08 feet to a
point ihat is 45.00 feet South of said survey line "S -6 —E 2.) thence South 89 degrees 06 minutes 20 seconds East 350.04 feet to a point that is
50.00 feet South of said survey line; 3.) thence South 87 degrees 03 minutes 42 seconds East 100.13 feet to a point that Is 55.00 feet South of said
survey line, said point being on the Westerly limited access right —of —way line of said Indiana State Road #431. per the aforesaid I.S.H.C. plans; thence
South 48 degrees 51 minutes 27 seconds East on said right —of —way line 126.28 feet to a point that is 105.00 foot West of line "E" on said plans:
thence South 02 degrees 52 minutes 32 seconds East on said right —of —way lino 200.25 foot; thence South 00 degrees 42 minutes 11 seconds West on
said right —of —way line 347.17 foot; thence North 79 degrees 19 minutes 04 seconds West 1002.87 feet; thence North 33 degrees 33 minutes 52 seconds
West 446.74 feet to the Southeast corner of Lot Number 33 in the aforesaid WOODLAND GOLF CLUB SUBDIVISION; thence North 00 degrees 06 minutes 57
seconds East on the East lino of said subdivision 127.00 feet to the place of beginning, containing 14.378 acres, more or less.
Subject to part of a sixty foot wide easement granted to The Ohio Fuel Gas Company. per o document recorded on page 102 of Miscellaneous Record
31 and the assignments thereof to Indiana Gas Transmission Corporation as recorded on page 277 of Miscellaneous Record and further subsequently
assigned to Indiana Gas Company. Inc. as recorded on page 624 of Easement Rocord "4 all in the Office of the Recorder of Hamilton County, Indiana.
(NOTE: a portion of this easement was released by Indiana Gas Company, Inc. (dba: Vectren Energy Delivery of Indiana. Inc.), per a document recorded
as Instrument Number 200100028156 in the Office of the Recorder of Hamilton County, Indiana.)
Subject io a Gas Line Easement granted to Indiana Gas Company, Inc. (dba: Veciren Energy Delivery of Indiana, Inc.) per a document recorded as
Instrument Number 200100028155 in the Office of the Recorder of Hamilton County, Indiana.
Subject to all other legal casements and rights —of —way.
This subdivision consists of seven lots, numbered one through seven, and an area designated as Block A, together with streets, all as shown on the
within. plat. The size of the lots, Block A, and the width of the street right —of —way is shown, in figures denoting feet and decimal parts thereof.
Witness my 'nature this 2}i day of ,a U 1 t• 2001.
A
it
Allan Weihe, Reg. LS Indiana No. 10398
Th; instrument prepored by: Weihe Engineers. Inc. This instrument prepared for. Merchants Pointe Associates. LLC
Jon H. Weihe, President 8555 North River Rood Suite 375
10505 College Avenue Indionopolis, IN 46280 Indionopols, IN 46240
(317) 346 -6611 (317) 844 5313
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NOTE: APPROVAL OF ENCROACHMENTS IN THE 60 -FOOT INDIANA GAS COMPANY k., t� I
EASEMENT ARE NOT PART OF THIS CONSENT TO ENCROACH AGREEMENT. 1p2.30' `A P
A= LIGHT FIXTURE WfTH BASE
B= EXISTING GROUND SIGN 4filentallemproppl
ALL OTHER- PAVEMENT, CURB AND SIDEWALK ENCROACHMENTS
MERCHANTS' POINTE LOT 6 ENCROACHMENT EXHIBIT
PREPARED BY:
EXHIBIT "B f h EIRE ENGINEERS, INC.
ENCROACHMENTS $xs el. '°6°5(3 7) 84 -Mu D 8oO) 4 e° L11.AN H. VErEt. P.E.. LS.
Iri::' t' 1 TAX (317) 843-0646 PRESIDENT
CIVIL ENCENETS2S LAND SURVEYORS LAND PLANNERS LANDSCAPE •RCNRT,CTS