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HomeMy WebLinkAbout2023-R-1 Resolution Approving the Execution of Encroachment Agreement for Warren Apartments & Appointing Signatory BEFORE THE SANITARY SEWER BOARD CITY OF JEFFERSONVILLE,INDIANA RESOLUTION 2023-R- / A RESOLUTION APPROVING THE EXECUTION OF ENCROACHMENT AGREEMENTFOR THE WARREN APARTMENTS AND APPOINTING SIGNATORY Comes now the Sanitary Sewer Board (the "Board") of the City of Jeffersonville, Indiana (the "City"), with respect to an Encroachment Agreement with the Warren Apartments. LLC, attached hereto as "Exhibit A" and incorporated by reference herein, and states as follows, to wit: WHEREAS, through negotiation, an Encroachment Agreement has been reached between the Board and the Warren Apartments, LLC; and, WHEREAS, it is in the best interest of the City to enter into the Encroachment Agreement in order to protect infrastructure owned by the Board, and to encourage growth and development on real estate owned by the Warren Apartments, LLC. Now, therefore, BE IT RESOLVED by the Sanitary Sewer Board of the City of Jeffersonville, Indiana that The Encroachment Agreement between the Board and the Warren Apartments, LLC is hereby approved and that Mayor Mike Moore should be, and hereby is, authorized to act as agent for the Board to execute the Encroachment Agreement with the Warren Apartments, LLC. ALL OF WHICH IS RESOLVED on the 4th day of May, 2 23. Mike Moore, resident ATTEST: 44tIEJ1a Barbara Hollis Sanitary Sewer Board Secretary Pertaining to Parcel 10-21-03-300-744.000-009 Alt Parcel No.21-063-130-1 4501 Town Center Blvd,Jeffersonville, IN 47130 EXHIBIT A Legal Description of the Property That part of Survey Number 33 of the Illinois Grant, City of Jeffersonville, Clark County, Indiana, including Lot 3 of Section 5 of Jeffersonville Marketplace as recorded in Plat hook 18, Page 19, being further described as follows [the following description is the result of work performed by Hart's Surveying & Engineering, LLC, under the supervision of Harold L. Hart (LS29800020) on January 10, 2023, Job Number 22-55-02]: Beginning at the most northeastern corner of Lot A of Jeffersonville Marketplace Section 1, as recorded in Plat Book 16, Page 39; Thence along the north line of said lot, North 89 degrees 45 minutes 48 seconds West, 564.49 feet to a steel pin and cap; Thence North 49 degrees 48 minutes 54 seconds East, 125.80 feet to a steel pin and cap on the southeastern bank of a tributary leading to Lick Run; Thence North 49 degrees 48 minutes 54 seconds East, 256.64 feet to a steel pin and cap on the southeastern bank of a tributary leading to Lick Run; Thence North 41 degrees 11 minutes 38 seconds East, 156.03 feet to a steel pin and cap on the southeastern bank of a tributary leading to Lick Run; Thence North 28 degrees 59 minutes 13 seconds East, 94.84 feet to a steel pin and cap on the southeastern bank of Lick Run; Thence North 00 degrees 53 minutes 32 seconds East, 179.39 feet to a a steel pin and cap on the southeastern bank of Lick Run; Thence North 54 degrees 55 minutes 56 seconds East, 97.33 feet to a steel pin and cap on the southern bank of Lick Run; Thence North 87 degrees 05 minutes 25 seconds East, 69.21 feet to a steel pin and cap on the southern bank of Lick Run; Thence South 03 degrees 36 minutes 21 seconds East, 111.67 feet to a steel pin and cap on the western bank of Lick Run; Thence South 46 degrees 17 minutes 18 seconds East, 77.56 feet to a steel pin and cap;Thence North 19 degrees 34 minutes 04 seconds East, 70.96 feet to a steel pin and cap; Thence South 03 degrees 53 minutes 32 seconds West, 167.96 feet to a steel pin and cap; Thence South 34 degrees 39 minutes 59 seconds East, 863.07 feet to a steel pin marking the east corner of Lot 1 of Section 5 of Jeffersonville Marketplace as recorded in Plat Book 15, Page 56; Thence along the northeastern line of said Lot, North 64 degrees 11 minutes 55 seconds West, 569.98 feet to a steel pin and cap marking the dividing line of Lot 3 of Section 5,Jeffersonville Marketplace, as recorded in Plat Book 18, Page 19, and a tract of land conveyed to the City of Jeffersonville by Instrument 200602827; Thence along said dividing line, South 55 degrees 48 minutes 28 seconds West, 51.07 feet to a steel pin and cap; Thence continuing along said dividing line, South 34 degrees 11 minutes 32 seconds East, 86.86 feet to a steel pin and cap marking the dividing line of Lot 1 and Lot 3 of Jeffersonville Marketplace Section 5, as recorded in Plat Book 15, Page 56 and Plat Book 18, Page 19; Thence along said dividing line, South 54 degrees 53 minutes 55 seconds West, 295.19 feet to a Mag Nail in a concrete sidewalk on the northern right-of-way line of Town Center Boulevard as recorded in Plat Book 15, Page 56; Thence along said right-of-way for the next five (5) calls: 1) 156.57 feet along a curve to the left having a radius of 75.00 feet and a chord which bears South 55 degrees 37 minutes 30 seconds West, 129.65 feet to a X-cut in a concrete sidewalk; 2) 43.61 feet along a curve to the right having a radius of 60.00 feet and a chord which bears South 16 degrees 38 minutes 26 seconds West, 42.65 feet to a steel pin and cap; 3) 204.44 feet along a curve to the left having a radius of 405.00 feet and a chord which bears South 23 degrees 00 minutes 02 seconds West, 202.27 feet to a steel pin and cap; 4) South 08 degrees 29 minutes 04 seconds West, 378.20 feet to a steel pin and cap; 5) 129.33 feet along a curve to the left having a radius of 330.00 feet and a chord which bears South 02 degrees 44 minutes 33 seconds East, 128.50 feet to a steel pin and cap; Thence South 54 degrees 21 minutes 02 seconds West, 129.06 feet to a steel pin and cap; Thence North 81 degrees 30 minutes 56 seconds West, 188.39 feet to a steel pin and cap;Thence South 54 degrees 48 minutes 57 seconds West, 99.58 feet to a steel pin and cap on the eastern line of Lot A of Jeffersonville Marketplace Section 1 as recorded in Plat Book 16, Page 39; Thence along the perimeter of said Lot A for the next four(4) calls: 1) North 08 degrees 29 minutes 04 seconds East, 986.06 feet to a steel pin and cap; 2) North 60 degrees 39 minutes 14 seconds East, 292.38 feet to a steel pin and cap; 3) South 89 degrees 45 minutes 48 seconds East, 222.10 feet to a steel pin and cap; 4) North 56 degrees 47 minutes 26 seconds East, 181.44 feet to the Point of Beginning. The above-described tract contains 17.702 acres which is subject to all rights-of-ways and easements, whether of record or not. Pertaining to Parcel 10-21-03-300-744.000-009 Alt Parcel No.21-063-130-1 4501 Town Center Blvd,Jeffersonville, IN 47130 EXHIBIT B Easement Area [attached hereto.] 1 �• J f klit RI / i r. © I , a > N.4 t.jaillw I 4,1 gj) it 0 , 1 ' CO -41111 CLI i Ii/ wzi..42fr c'-'" rif',17 0 k:u. a U __I a 0 z..., liztiir*eatin''sib" I 'I EASEMENT AREA If J ill, 4, 4 O / 1 SEE ENCROACHMENT \i• III /� cv •• quimmme i r' I DETAIL THIS SHEET `4,4,74 m W iiii— is5" OVERALL SITE LAYOUT at �_ !, i° , • NOT TO SCALE �, a ;' aPPPg J 4111, u .....,- N-:,• . 4 110"si ri III h in J ifi . .., __Ell( , .- eti , \\ \ — , =' —'.: ' �,I� .- EASEMENT AREA WITH NORTH OP . ENCROACHMENTS AS / ''� SHOWN THIS EXHIBIT (- , --.. .ail K______ \ cs- EASEMENT ENCROACHMENT AREA SCALE: 1"=80' Pertaining to Parcel 10-21-03-300-744.000-009 Alt Parcel No.21-063-130-1 4501 Town Center Blvd,Jeffersonville, IN 47130 EXHIBIT C Development Plan [attached hereto.] 0136802.0758700 4862-1915-0428v4 I. p t..Y 1 n.v._W._l l•l,i•OI0 _ _ ��. 1.�a w ,• _ /x_� �-- i^ ra rrra mr weN u✓ ...awe u..MV HIONAIYIMY4 uwa,.•�.a e..e•e. �� V ,1 lr]s}Md.tl� ....•n.lar..w o.M.m.o..- •Y.x•u l.. O..i. .. .... Y ..O.l_' i••ivos r•ry..luo m 310NA9AUK w��Y1�1S O1mIW1 ,ao- vHD�AA WWI � �.un t."o a'o...+.m.`,"� nsn al.. r. _ e ei u awn PI "rarPrt Air"' IVInill . •SiK\ a•• ••••••••au UM 01••••••adria•••••••• •uroli•le Tardily"la al•11•01.Ins _.. 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Pertaining to Parcel 10-21-03-300-744.000-009 Alt Parcel No.21-063-130-1 4501 Town Center Blvd,Jeffersonville, IN 47130 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT (this "Agreement") is hereby entered into this day of May, 2023 (the "Effective Date"), by and between the CITY OF JEFFERSONVILLE, WASTEWATER DEPARTMENT, with a mailing address at 423 Lewman Way,Jeffersonville, Indiana 47130(the "City"), and THE WARREN APARTMENTS LLC, an Indiana limited liability company, with a mailing address at 509 Spring Street, Jeffersonville, Indiana 47130 (the "Encroaching Party"). As used herein, City and the Encroaching Party shall also include their respective agents, contractors, employees, and representatives. City and the Encroaching Party are sometimes each referred to as a "Party" and jointly as the "Parties." RECITALS A. The Encroaching Party is the owner of that certain real property located in Jeffersonville, Clark County, Indiana, more particularly described on Exhibit A, attached hereto and made a part hereof(the "Property"). B. The City is the holder of certain easement rights as described in that certain Easement dated July 20, 1973 (the "Easement"), and recorded in Book 5, Page 6862 in the office of the Recorder of Clark County, Indiana, and located in the area depicted on Exhibit B, attached hereto and made a part hereof(the "Easement Area"). C. The Encroaching Party desires to construct multifamily apartments on the Property, and the development plans attached hereto as Exhibit C and made a part hereof (the "Development Plans") depict a paved parking lot encroaching into the area subject to the Easement (the "Encroaching Facility"). D. The City agrees to grant the Encroaching Party the right to construct, keep and maintain the Encroaching Facility subject to the conditions contained in this Agreement. AGREEMENT NOW THEREFORE, for consideration of Ten and 00/100 Dollars ($10.00), in consideration of the foregoing recitals, which are incorporated herein by this reference,the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree as follows: Pertaining to Parcel 10-21-03-300-744.000-009 Alt Parcel No.21-063-130-1 4501 Town Center Blvd,Jeffersonville, IN 47130 1. Conditional Approval of Encroachment. Subject to the terms, provisions, and conditions of this Agreement, City hereby permits and allows the Encroaching Party to construct the Encroaching Facility on the Property as substantially depicted in the Development Plans for vehicular use and parking. 2. Representations. The Encroaching Party shall, at its own cost and expense,comply with all applicable laws, including but not limited to existing zoning ordinances, governmental rules and regulations enacted or promulgated by any governmental authority and shall promptly comply with any and all orders and requirements imposed by such governmental authorities for the correction, prevention, and abatement of any violations thereof in or upon or connected with said Encroaching Facility. 3. Maintenance and Costs. In the event that the City disturbs the Encroaching Facility or any other improvements that the Encroaching Party may cause to be constructed within the Easement Area in the City's process of maintaining, relocating, or replacing the City's facilities located within the Easement Area, the Encroaching Party, at its sole cost and expense, shall bear all costs of keeping, rebuilding, maintaining, and repairing any such improvements and/or the Encroaching Facility, except to the extent such maintenance or repair is necessitated by the gross negligence or willful misconduct of the City, in which event the Encroaching Party may recover the cost for the same from the City as permitted by law. Notwithstanding anything to the contrary herein, the City is not responsible for any costs or expenses arising from or relating to the Encroaching Facility. 4. Damage to City Facilities. In the event that any facilities owned by the City within the Easement Area are damaged by the Encroaching Party due to construction in and around the Easement Area, the Encroaching Party, at its sole expense, shall be responsible for the cost of repairing the City's facilities,as well as for any incidental costs incurred by the City related thereto. 5. City Reservation of Rights. The City reserves the right to relocate the Easement at the City's sole cost and expense. Prior to any such relocation, the City shall provide notice to the Encroaching Party and the City, after consultation with the Encroaching Party, shall schedule such removal to avoid or minimize any damages to the Encroaching Party's improvements. 6. Notices. All notices to either Party hereto shall be in writing and served personally on or sent by U. S. postal or commercial delivery service to, the addresses hereinabove given and as the same may be amended by delivery of written notice to the other Party of a new notice address. 7. Risk and Liability; Indemnification. The Encroaching Party assumes all risks and liability resulting or arising from or relating to the encroachment of the Encroaching Facility into the Easement Area. Except as caused by the gross negligence or willful misconduct of the City, the Encroaching Party shall defend, indemnify and hold harmless from and against any and all claims, demands, causes of action, loss, damage, liabilities, costs and expenses (including reasonable attorneys' fees and court costs)of any and every kind or character,known or unknown, fixed or contingent,for personal injury(including death),property damage or other harm for which recovery of damages is sought or suffered by any person or persons, including claims based on strict liability, arising out of or in connection with the Encroaching Party's actions or omissions or the actions or omissions of its officers, agents, associates, employees, contractors or subcontractors, guests, or invitees. 8. Default; Termination. It is understood and agreed that, in case of default by the Encroaching Party,or their agents,in any of the terms and conditions herein stated and such default continues for a period of ninety (90)days after City notifies the Encroaching Party of such default in writing, City may, at its election, forthwith terminate this Agreement. Upon any termination of this Agreement, the Encroaching Party's rights hereunder shall cease and come to an end, the Parties shall be relieved of their future obligations to one another under this Agreement,except for those provisions which expressly survive the expiration or termination,and the Parties will execute a Termination of this Agreement in recordable form. 9. Governing Law; Waiver of Jury Trial. The laws of the State of Indiana shall govern the interpretation and enforcement of this Agreement(without regard to conflicts of laws or choice of law principals). THE PARTIES HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR COUNTERCLAIM RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT. 10. Binding on Successors.This Agreement shall run with the land and be binding upon and inure to the benefit of the respective heirs, personal representatives, successors, transferees, and assigns of the Parties hereto. 11. Amendments and Modifications. This Agreement may be amended, modified, or terminated only by a written document executed in recordable form by both Parties recorded in the office designated as the repository for official records for purposes of providing constructive notice to third parties of matters affecting real property. 12. No Dedication. This Agreement is not intended, and shall not be construed to create, a gift or dedicate any portion of any of the real estate described herein to the general public or grant to the general public any rights whatsoever. 13. No Waiver. No waiver of term of this Agreement or any default of any obligation by any Party hereto shall be implied from any omission by the other Party to take any action with respect to such term or default or by any prior waiver of any other term or default. 14. Entire Agreement. This Agreement constitutes the entire agreement between the Parties,and supersedes all prior discussions,undertakings or agreements with respect to the subject matter of this Agreement. 15. Severability. If any term, covenant or restriction established by this Agreement shall be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term,covenant or restriction shall be valid and enforceable to the fullest extent permitted by law. 16. Due Execution. Each of the undersigned executing this Agreement, certifies, represents, and warrants to the other Party hereto that he/she is duly authorized by all action 3 necessary on the part of the Party on whose behalf each is executing this Agreement to execute and deliver this document and that this document constitutes a legal, valid and binding obligation of such Party in accordance with its terms. 17. Counterparts. This Agreement may be executed in separate counterparts, each of which shall constitute an original although not fully executed, but all of which, when taken together, shall constitute but one agreement. [Signature Pages Follow] 4 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date set forth above. CITY: CITY OF JEFFERSONVILLE By: Name: Title: STATE OF ) COUNTY OF ) Before me, a Notary Public in and for said County and state, personally appeared , as of the City of Jeffersonville, who acknowledged the execution of the foregoing instrument for and on behalf of such city. This is an acknowledgement clause; no oath or affirmation was administered. WITNESS, my hand and Notarial Seal this day of , 2023. Notary Public Print Name: Notary ID: My Commission Expires: THE ENCROACHING PARTY: THE WARREN APARTMENTS LLC, an Indiana limited liability company By: The Warren Apartments MM LLC, an Indiana limited liability company, its Manager By: Name: A. Brandon Denton Title: Manager STATE OF ) ) COUNTY OF ) Before me, a Notary Public in and for said County and state, personally appeared A. Brandon Denton, as Manager of The Warren Apartments MM LLC, an Indiana limited liability company, Manager of The Warren Apartments LLC, an Indiana limited liability company, who acknowledged the execution of the foregoing instrument for and on behalf of such limited liability company. WITNESS, my hand and Notarial Seal this day of ,2023. Notary Public Print Name: Notary ID: My Commission Expires: THE ENCROACHING PARTY: THE WARREN APARTMENTS LLC, an Indiana limited liability company By: The Warren Apartments MM LLC, an Indiana limited liability company, its Manager By: Name: A. Brandon Denton Title: Manager STATE OF ) COUNTY OF ) Before me, a Notary Public in and for said County and state, personally appeared A. Brandon Denton, as Manager of The Warren Apartments MM LLC, an Indiana limited liability company. Manager of The Warren Apartments LLC, an Indiana limited liability company, who acknowledged the execution of the foregoing instrument for and on behalf of such limited liability company. WITNESS, my hand and Notarial Seal this day of , 2023. Notary Public Print Name: Notary ID: My Commission Expires: