96th - Wood Auto Park LLC (J 200200071426
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
09 -30 -2002 11:42 am.
ENCROACHMNT 21.00
APPROVED, AS TO
CONSENT TO ENCROACH FORM
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Wood Auto Park, LLC, 3003 East 98 Street, Suite 201, Indianapolis, Marion County, Indiana 46280
"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 in The East 96 Street
Auto Park 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 #200100000285, Plat
Cabinet 2, Slide No. 538 in the Office of the Hamilton County Recorder on January 2, 2001, as the 96
Street Auto Park Subdivision; and
WHEREAS, Owner wishes to construct a parking lot (the "Parking Lot on the Real Estate and
has constructed a private access street (the "Access Street on the real estate; and
WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
Parking Lot on the Real Estate and the existing location of the Access Street on the real estate, a copy of
which is attached hereto and incorporated herein by this reference as Exhibit A; and
WHEREAS, the Parking Lot will be constructed, and the Access Street is constructed, on a portion
of the Real Estate designated as Utility Easements and Ingress/Egress Easement Utility Easement
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(collectively, the "Easements identified, respectively, as "25' U.E., 15' U.E., 10' U.E. 5' U.E. and
Ingress/Egress Easement. U.E." on Exhibit A; and
WHEREAS, the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Parking Lot will encroach and the Access Street does
encroach (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 installation of the Parking Lot and the Access Street as indicated by the Owner on
Exhibit A 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 hereofas 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, the Parking Lot and /or the Access Street
from what is depicted on Exhibit A.
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4. Owner agrees that City shall have the right to remove any portion of the Parking Lot and /or the
Access Street 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 so long as such portion of the Access Easement is not within
a publicly dedicated right of way, 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 Parking Lot and /or the Access Street
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 Parking Lot, the Access Street and /or the Encroachments in the
Easements.
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 Easements and /or any improvements
located therein caused by the installation, construction, maintenance and /or operation of the
Parking Lot and /or the Access Street or due to Owner's other obligations, responsibilities,
actions or inactions as set forth herein.
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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 Parking Lot and /or the
Access Street.
8. Owner agrees that the placement of the Parking Lot and the Access Street in the Easements
shall be at Owner's 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
Parking Lot and /or the Access Street, 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 Parking Lot and /or the Access
Street, except for such portions of the Access Easements which are part of a publicly
dedicated right of way.
9. 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.
10. 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.
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.
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12. This Agreement shall be effective as of the date on which the last party hereto executes same.
13. Upon public dedication of any portion of the Access Easement as a public right of way, this
Agreement therefore shall cease to apply to such dedicated portion only.
"OWNER" "CITY"
WOOD AUTO PARK, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
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Larry Held, Mjhager James Brainard, Presiding Officer
SSN: 35 2-0 2-i 6 6 Date: 7 3/
Date: Vo Z.
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Mary Burke, Member
Date: -.3 J- a
Member
Date:
ATI' 'ST:
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Date:
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STATE OF INDIANA
SS:
COUNTY OF /tta. v' i/11.
Before me, a Notary Public in and for said County and State, personally appeared LARRY HEM,
Manager for Wood Auto Park, LLC., by me known, and who acknowledged the execution of the
foregoing "CONSENT TO ENCROACH" as his /her voluntary act and deed.
Witness my hand and Notarial Seal this q of 9 y 200x.
NOTARY PUBLIC
My Commission Expires:
`411 •yColievioe yr->2a
Printed Name i;
.,.dam T£:u... -�;•1
NOTARY PUBLIC STATE OF INDIANA
MARION COUNTY
MY c�?r aSsioN EXP. JUNE 5,_2008 My County of Residence: CUYL.
„i.
STATE OF INDIANA
SS: ;°v 4,
COUNTY OF HAM LTON
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD and MARY ANN BURKE, by me kno�w �4nd b me known w.be. the Members of the City
of Carmel Board of Public Works and Safety, and IANA L.ORDRAY, Cler :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 3i sr day of 200 L
NOTARY PUBLIC
My Commission Expires:
441A) 0) /_S
4 24..ej., 1 7, o? Printed Name
My County of Residence: fi 211.70N''
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
Return Original To:
Carrie A. Gallagher
Clerk- Treasurer's Office
CITY OF CARMEL
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Carmel, IN 46032
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EXISTING ACCESS STREET (PRIVATE) is 1 i
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EAST 96TH STREET AUTO PARK I
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