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.~,)n the Board of Zoning Appeals
City of Carmel, Clay Township, Indiana
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Exhibits to Proposal
Resolve Pending Litigation
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Respectfully submitted by:
Judy Hester, Attorney for the Board
of Zoning Appeals, City of Carmel,
and Director of the Department of
Community Services
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SPRINT SPECTRUM L.P., )
)
Plaintiff, )
)
v. )
)
THE CITY OF CARMEL, INDIANA, )
THE BOARD OF ZONING APPEALS )
FOR THE CITY OF CARMEL AND )
CLA Y TOWNSHIP, and MICHAEL P. )
HOLLIBAUGH, in his capacity as )
Director of the Department of Community )
Services, Carmel, Indiana, )
)
Defendants, )
)
and )
)
RICHARD DEER, )
)
Intervenor-Defendant. )
Cause No. IP 02-1133 C TIK
CONSENT JUDGMENT
Plaintiff, Sprint Spectrum L.P., having.filed its Complaint for Injunctive, Declaratory,
Mandamus and Other Relief against Defendants The City of Carmel, Indiana, The Board of.
Zoning Appeals for the City of Carmel and Clay Township, and Michael P. Hollibaugh in his
Capacity as Director of the Department of Community Services, Carmel, Indiana, and
Intervenor Richard Deer having intervened herein, Plaintiff, Defendants and Intervenor, in
person and by counsel, hereby enter into this Consent Judgment on the following terms
without trial and adjudication of any issue of fact or law:
Upon stipulation and .consent of the parties, this Court finds:
595067JOOC
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1. Plaintiff, Sprint Spectrum L.P., a Delaware limited partnership ("Sprint"),
previously sought to place antennas, equipment, a shelter and related
improvements (collectively, the "Original Communications Facility") on
certain land owned by Dr. Edwin Zamber and located at 1388 Queens Way,
Carmel, Indiana (as more particularly described in the legal description of the
property attached hereto as Exhibit A) (the "Zamber Site"), and upon the
existing ham radio tower located thereon (the "Zamber Tower").
2. Defendant, City of Carmel (the "City"), is a municipal corporation located in
Hamilton County, Indiana.
3. Defendant, Board of Zoning Appeals for the City of Carmel and Clay
Township (the "BZA"), is a board of zoning appeals, organized and existing
under the laws of the State of Indiana.
4. Defendant, Michael P. Hollibaugh, was at all relevant times employed by the
City as Director of the Department of Community Services (the
"Department").
5. Intervenor-Defendant Richard Deer is an individual who resides in Hamilton
County, Indiana and who owns the property located at 1332 Queens Way,
Carmel, Indiana 46032 (the "Deer Property").
6. This Court has jurisdiction over the parties and the subject matter of the
Lawsuit (as hereinafter defined).
7. All necessary parties are before this Court and the parties to the Lawsuit have
authority to enter into this Consent Judgment.
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8. The City has adopted certain zoning regulations applicable to all land located
within the City and its jurisdiction, including the Zamber Site (the "Zoning
Ordinance").
9. The Department issued to Sprint an improvement location permit for the
Original Communications Facility, bearing identification number
2001.0627.B on June 15,2001 (the "Original Building Permit").
10. Upon receipt of the Original Building Permit, Sprint started construction of an
equipment shelter and a private access drive on the Zamber Site.
1 L On August 15, 2001, Richard Deer, an adjoining property owner of Dr.
Zamber, filed an appeal with the BZA contesting the issuance of the Original
Building Permit to Sprint on the grounds that zoning approval was required in
order to use the Zamber Tower for cell telephone use (the "Deer Appeal").
12. On August 24, 2001, Sprint received a letter from Defendant Michael P.
Hollibaugh which purported to revoke the Original Building Permit (the
"Revocation Letter").
13. The Revocation Letter states that the Defendant Hollibaugh's basis for
revoking the Original Building Permit is that the Zamber Site, prior to
issuance of the Original Building Permit, should have been legally subdivided
into two parcels, and that the alleged failure to obtain plat (i.e., subdivision)
approval rendered the Original Building Permit ineffective.
14. On September 24, 2001, Sprint filed an appeal of. the revocation of the
Original Building Permit (the "Sprint Subdivision Appeal').
15. The BZA granted the Deer Appeal on June 24, 2002.
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16. The BZA denied the Sprint Subdivision Appeal on July 22, 2002.
17. On July 23, 2002, Sprint filed this lawsuit against the Defendants alleging,
inter alia, violations of the Federal Telecommunications Act of 1996,
violations of Sprint's constitutional rights under the United States Constitution
and the Indiana Constitution, and seeking certain equitable and declaratory
relief (the "Lawsuit"). The Defendants specifically deny any liability and
would be prepared to vigorously defend this action.
18. As a settlement of the Lawsuit, the parties have discussed the relocatioI?- of the
, Original Communications Facility, including the demolition and removal of
the Zamber Tower from the Zamber Site, and the construction of a new low-
profile monopole-style, antenna support structure (without guyed wires) (the
"Pole"), having a height of up to a maximum of one hundred twenty-seven
(127) feet above ground level (as measured from the top of the Pole), with
lightning protection rod(s) extending up to 8 feet above the top of the. Pole,
with a diameter at the base not to exceed four (4) feet, and a diameter at the
top not to' exceed two (2) feet, in a ,galvanized gray color, and all
telecommunications antennae attached to the Pole (not the lightning rods)
shall be restricted to no more than two (2) sets of "flush-mounted" antenna as
that term is more particularly defined and described in the Application for
Improvement Location Permit,inc1uding all attachments, attached hereto as
Exhibit B (the "Application"), to be utilized by not more than two (2)
communications companies for communications purposes, and which also
may be used .by Zamber for ham radio purposes, all in conformity with the
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Application (the "Replacement Tower"). The Replacement Tower and all
related antennas equipment, shelters and other improvements are collectively
referred to as the "Replacement Facility."
19. Prior to approval of the Consent Judgment by the BZA, the BZA provided
public notice of its intent to consider whether or not to enter into this Consent
Judgment in the same manner ~s all zoning matters considered by the BZA. A
hearing was held pursuant to said notice to consider whether or not the BZA
would enter into this Consent Judgment, at which time the public was allowed
to express its views on whether or not the BZA should enter into this Consent
Judgment. After notice, hearing and consideration of the testimony presented
at the hearing, the BZA has authorized its counsel to enter into this Consent
Judgment by resolution duly adopted at said meeting.
20. Dr. Zamber accepts and adopts the terms of this Consent Judgment in order to
assist in the resolution of this Lawsuit.
21. The parties now desire to settle this Lawsuit in accordance with the terms and
conditions of this Consent Judgment, in order to avoid further costs and
expenses, and to resolve this dispute without any admission of liability by any
party.
NOW, THEREFORE, this Consent Judgment being presented to the Court pursuant
to the stipulation of the parties, and the Court having determined that this proposed Consent
Judgment is reasonable and just, and being otherwise fully advised in the premises;
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IT IS HEREBY ORDERED that:
1.1 Permits. Licenses and Appraisals.
Contemporaneously with the entry of this Consent Judgment by the Court, the City shall
issue to Sprint an Improvement Location Permit ("ILP") authorizing the construction of the
Replacement Facility in accordance with the Application. Said ILP and this Consent
Judgment shall constitute all required permits, licenses and approvals by or from the City, the
BZA, the Department or any other person or entity under the jurisdiction of the City, the
BZA or the Department, for the Replacement Facility. Without limiting the generality of the
foregoing, no platting, subdivision, certificates, filings or other actions involving the City are
required in connection with, the Replacement Facility or any demolition of the Zamber
Tower.
1.2 Construction.
If Sprint constructs the Replacement Tower, any construction, maintenance, repair and
replacement by Sprint of the Replacement Facility shall be done at Sprint's expense and
shall be constructed in accordance with and shall conform, in all material respects, to the
Application and to the terms and conditions of this Consent Judgment. The Replacement
Tower shall have the dimensions described above in paragraph 18 and as more particularly .
described in the Application, and shall not contain more than two (2) sets of flush mounted
antennae and one (1) ham radio antenna. Upon installation of the Replacement Tower (or as
soon thereafter as weather reasonably permits), Sprint shall cause to be planted six (6)
Norway Spruces (minimum height 10 feet above ground level, minimum trunk diameter of 2 \
'l'2" caliper planted) and three (3) Sugar Maples in accordance with the Application. Sprint
shall be solely responsible for maintaining such landscaping in a first class" condition at
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Sprint's expense, which means Sprint shall maintain the trees Sprint plants on" the
Replacement Facility and if any of those trees dies or is destroyed by a person or party not
executing this agreement, Sprint shall replace all such trees at Sprint's own expense with
trees of the same size and specifications described above. Sprint shall remove the Zamber
Tower from the Zamber Site within thirty (30) days after the issuance of the Certificate of
Occupancy. All physical components of the Zamber Tower, including, but not limited to, the
tower itself, the guyed wires and anchors, the partially constructed accessory building
(equipment shelter), and the access drive shall be removed from the Zamber Site within 30
days of the issuance of the Certificate of Occupancy, and no physical evidence of the original
Zamber Tower or the Original Communications Facility, exclusive of utility boxes, shall
remain at or above grade on the Zamber Site thirty (30) days after the issuance of the
Certificate of Occupancy for the Replacement Facility, subject only to delays caused by
weather or force majeure events.
The parties acknowledge and agree that it is not reasonably possible to obtain absolute
precision in the construction process and that minor non-conformities from the Application
caused solely by settlement, shifting, earth movement or customary construction tolerances
shall not be considered to be a change to, or a non-conformity with, the Application or this
Consent Judgment. . The Defendants and Intervenor-Defendant shall not require the making
of any. improvements not referenced in this Consent Judgment or not shown on the
Application.
1.3 Non-Material Chane:es.
Sprint may make alterations, additions or improvements to the Replacement Facility, from
time to time, without the need for any amendment to this Consent Judgment or any approval
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of the parties so long as such change consists of (i) the addition or removal of ham radio
antennae and equipment, provided that such antennae are either flush-mounted to the
Replacement Tower or "whip"-style antennae or (ii) any other change that is not a "Material
Change" (as defined in Section 3.0 of the Zoning Ordinance or as hereinafter defined) and is
either (a) permitted under the Zoning Ordinance, other relevant code of the City or other
applicable State or Federal law; or (b) is duly approved by the BZA or its respective
successor or (c) is permitted under this Consent Judgment. The City shall promptly act
upon any required applications for permits, licenses or other requests for any and all such
permitted changes. For the purpose of this Consent Judgment, a "Material Change" shall
consist of any alteration, addition or improvement that would (a) increase the height of the
Replacement Tower (as measured to the top of the Pole) beyond 127 feet above ground level;
(b) change the color of the Replacement Tower or any related antennae to a color other than
gray; (c) move the location of Replacement Tower more than 10 feet in any direction from
that shown on the Plans; (d) increase the overall diameter of the Replacement Tower
(meaning the diameter with the flush mounted antennas attached) by more than twelve (12)
inches; or (e) result in the utilization of the Replacement Facility by more than two
commercial communications providers or by any ham radio operator other than the then-
current owner of the Zamber Site. Sprint is not allowed to make any Material Change to the
Replacement Facility without the approval or consent of the BZA.
1.4 Agreements of Dr. Zamber.
Contemporaneously with the parties' execution and delivery of this Consent Judgment, and
as a condition precedent to the effectiveness of this Consent Judgment, Dr. Zamber shall
execute a document titled "Memorandum of Consent Judgment" in the form attached hereto
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as Exhibit C (the "Memorandum"), for the purpose of confirming his agreement to allow
certain restrictions to be imposed against the Zamber Site that will limit and restrict the
development anduse of the Zamber Site such that the Zamber Site and the Zamber Tower
shall be used consistent with the terms stated in this Consent Judgment, and that no use or
development shall be permitted on the Zamber Site that would otherwise constitute a
Material Change as the term is described above and in Section 3 of the Zoning Ordinance
("Restrictions"). Dr. Zamber agrees that the Restrictions shall run with the land and be
binding on Dr. Zamber and the respective heirs, successors and assigns of Dr. Zamber and
each other person acquiring an interest in the Zamber Site. Upon execution of the
Memorandum, the Memorandum shall be recorded in the Hamilton County Recorder's
Office.
1.5 No Interference.
The City retains the right to inspect the construction of the Replacement Facility, as part of
the City's customary construction inspection process for improvement location permits
issued by the City, to confirm whether said construction conforms with the Application. Any
discontinuance of use of the Replacement Facility for either ham radio or commercial
communications purposes shall not affect the other permitted use of the Replacement
Facility. The Defendants and Intervenor-Defendant shall take no action in the future to
interfere with any construction, maintenance, repair,. replacement or operation of the
Replacement Facility or with any demolition of the Zamber Tower.
Section 2. Releases
2.1 Release bv Sprint.
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Sprint, for itself and its successors and assigns, hereby releases and forever discharges the
Defendants, and the Intervenor-Defendant and all of their employees, officials, independent
contractors, commissions, boards, councils, consultants, agents and attorneys of and from any
and all claims, demands, actions, causes of action, suits, debts, judgments, executions,
damages, liabilities and rights of whatever nature in law, equity or otherwise, which now
exist or which may subsequently accrue by reason of the denial of the Sprint Subdivision
Appeal or the grant of the Deer Appeal and the Defendants' consideration of the request to
co-locate or locate a cell tower on the Zamber Site, and any acts, events or facts existing on
the date of this Consent Judgment relating to those actions, whether known or unknown on
that date. This Release shall not bar claims brought to enforce or interpret the provisions of
this Consent Judgment.
2.2 Release bv Defendants and Intervenor-Defendant.
The Defendants and the Intervenor-Defendant, for themselves and their successors and
assigns, hereby release and forever discharge Sprint, its employees, officials, independent
contractors, directors, officers, shareholders, partners, members, affiliates, consultants, agents
and attorneys of and from any and all claims, demands, actions, causes of action, suits, debts,
judgments, executions, damages, liabilities and rights of whatever nature in law, equity or
otherwise, which now exist or which may subsequently accrue by reason of the denial of the
Sprint Subdivision Appeal or the grant of the Deer Appeal and the Defendants' consideration
of the request to co-locate or locate a cell tower on the Zamber Site, and any acts, events or
facts existing on the date of this Consent Judgment relating to those actions, whether known
or unknown on that date. This Release shall not bar claims brought to enforce or interpret the
provisions of this Consent Judgment.
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hearing and deliberation, , and is legally binding upon and enforceable against the Defendant
BZA , in accordance with its terms.
3.4 The terms of this Consent Judgment may be amended, changed or modified only by
written agreement executed by the parties hereto and approved and ordered by the Court.
3.5 Except as provided by this Consent Judgment, all claims asserted in this Lawsuit are
merged into this Consent Judgment and forever barred.
3.6 Except as may otherwise be expressly provided by Section 2.3 above, each party shall
bear its own attorneys' fees and other costs incurred in connection with this Lawsuit.
3.7 This Court retains jurisdiction to enforce and assure compliance with the terms of this
Consent Judgment.
[SIGNATURES FOLLOW ON NEXT PAGE]
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SPRINT SPECTRUM L.P.
By:
Name:
Title:
BOARD OF ZONING APPEALS FOR THE
CITY OF CARMEL AND CLAY TOWNSHIP
By:
Name:
Title:
RICHARD S. NIKCHEVICH
Counsel for Plaintiff
RICHARD DEER
Dr. Edwin Zamber enters into this Consent
Judgment for purposes of Section 1.4 above.
Dr. Edwin Zamber, as owner of the Zamber Site
ENTERED THIS
DAY OF
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CITY OF CARMEL
By:
Name:
Title:
MICHAEL P. HOLLIBAUGH, is his
capacity as Director of the Department of
Community Services, Carmel, Indiana
JUDY G. HESTER
Counsel for Defendants
CATHY ELLIOTT
Counsel for Intervenor-Defendant
,2003:
HONORABLE JOHN D. TINDER
United States District Court Judge
595067_2
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EXHIBIT A
Legal Description
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A PART OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 17 NORTH OF
RANGE 3 EAST IN HAMILTON COUNTY, INDIANA, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SAID QUARTER SECTION WHICH
BEARS NORTH 00 DEGREES 09 MINUTES 55 SECTIONS EAST (ASSUMED BEARING)
470.00 FEET FROM THE SOUTHWEST CORNER OF SAID QUARTER SECTION,
THENCE NORTH 00 DEGREES 90 MINUTES 35 SECONDS EAST UPON AND ALONG
SAID WEST LINE 509.93 FEET TO A POINT WHICH BEARS SOUTH 00 DEGREES 09
MINUTES 55 SECONDS WEST 1605 FEET FROM THE NORTHWEST QUARTER OF
SAID QUARTER SECTION, THENCE SOUTH 89 DEGREES 50 MINUTES 05 SECONDS
EAST 520.38 FEET, THENCE SOUTH 00 DEGREES 09 MINUTES 55 SECONDS WEST
509:93 FEET, THENCE NORTH 89 DEGREES 50 MINUTES 05 SECONDS WEST 520.38
FEET TO THE PLACE OF BEGINNING, CONTAINING 6.09 ACRES, MORE OR LESS
(5.57 ACRES NET OF RIGHT OF WAY)
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This application form is used for all residential and
commercial projects.
Improvement Location Permit
This p~rrnit is valid only if constrilction is started within 180 days of the date of issuance for residential construction; and for commercial projects,
within one (1) year of the date of issuance of the State Commercial Design Release. All construction must be completed (c/o issued) within 2 years of
the issuance date.
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Township
Hold#:
(.;)
Permit No.
Date
NAME PHONE FAX
BUILDER Fred Low, Specialty Systems, LLC 317/216-7541 317/216-7546
J;~~T any other duly licE[~ed contractor authorized tq~~rfo~ service in
6017 West 71st Street, Indpls., IN 46278 figespftXtJo e selected
TENANT NAME Sprint Spectrum L.P., d/b/a Sprint PCS
(If aoolicable)
NAME PHONE FAX
OWNER Dr. Edwin C. Zamber 317/848-9739 N/A
STREET CITY STATE ZIP
1388 Queens Way, Cannel, IN 46032
LOT SUBDIVISION SECTION
LOCATION See attached site plans.
ADDRESS OF CONSTRUCTION
1388 Queens Way, Carmel, IN
A. TYPE OF CONSTRUCTION Do plans include a porch?
1. 0 Single Family 0 YesD No
2. 0 Two Family
3. 0 Multi-Family Type of Foundation
, 4. 0 Commercial/Industrial 0 Crawlspace
5. or OTHER 0 Basement
(Specify) Rep1acarEnt Faci1i~ Slab
B. SEWER:
1. 0 Public (Name of system none )
2. 0 Private (County permit # )
C. WATER:
1. 0 Public (Name of system none )
2. 0 Private (County permit # )
D. ZONING: S-1
E. ESTIMATED COST OF CONSTRUCTION
(Excluding Land Value)
F. TYPE OF IMPROVEMENT
I. 0 New Structure
2. 0 Addition: Porch_Room_
3. 0 Remodel 0 Commercial Tenant Space
4. 0 Foundation Only
5. 0 Demolition
6. 0 Accessory Building
7. 0 Garage Detached _ Attached
G. Lot Split
H. Flood Zones
1. Sump Pump
1. Manufactured Trusses
K. Plumbing Contractor
IRC Plumbing Code: 0
Indiana Plumbing Code: 0
YES NO X
YES-NO X
YES NO~
YES NO-L
Plumber's
License #:
I, the undersigned, agree that any construction, reconstruction, enlargement, relocation, or alteration of a structure, o~ any change in the use of land or structures
requested by this application will comply with, and conform to, all applicable laws of the State of Indiana, and the "Zoning Ordinance of Carmel Indiana -1993"
(Z-289) and amendments, adopted under authority of I.e. 36-7 et seq, General Assembly of the State of Indiana, and all Acts amendatory thereto. I further
certify that only kitchen, bath, and floor drains are connected to the sanitary sewer. I further certify that the construction wiD not be used or occupied until
a Certificate of Occupancy has been issued by the Department of Community Services, Carmel, Indiana.
Signature of Owner or Authorized Agent
(Print)
(Phone Number)
E-Mail:
Plan Commission/BZA/ Docket#'s; TAC Date(s)
** as cE.scri.l::a:l :in tre Cc:xB:nt Ju:Jgrmt of even
date lErewith aImg Sprint Sp:ctrun L.P. ,
tre City, et al.
INSPECTIONS NEEDED:
FootinglUnderSlab Rough-In Meter Base
Site
C/O
Sq.Ft.
Final
Filing Fees:
Inspection Fees:
Cert.ofOccupancy:
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Exhibit C
MEMORANDUM OF CONSENT JUDGMENT
This Memorandum of Consent Judgment (this "Memorandum") is made as of the -
day of , 2003, made by Dr. Edwin Zamber ("Zamber")f the sole
owner in fee simple title to certain real estate located at 1388 Queens Way, Carmel,
Indiana, in Hamilton County, legally described on Exhibit A incorporated herein by
reference (the "Zamber Site").
RECITALS:
The following facts are true:
A. On or about December 12, 2000, Zamber entered into a certain Lease (as
supplemented and amended, the "Lease") with Sprint Spectrum L.P. ("Sprint") whereby
Sprint is. contractually allowed to place antennas, equipment, a shelter and related
improvements (collectively, the "Original Communications Facility") on the Zamber Site
and upon the existing ham radio tower located thereon (the "Zamber Tower"). The term
of the Lease commenced on May 14, 2001 and expires on May 14, 2006, which term is
subject to possible extension by Sprint unde(four successive renewal options of five
years each. The Lease gives Sprint unlimited access to theZamber Site 24 hours a c
day and 7 days a week.
B. Contemporaneously with the execution of this Memorandum, Sprint, the
City of Carmel, Indiana (the "City"), the Board of Zoning Appeals forthe City of Carmel
and Clay Township (the "BZA"), Michael P. Hollibaugh in'his Capacity as Director of the
Department of Community Services, Carmel, Indiana ("Director"), and Richard Deer
("Deer") are entering into a certain Consent Judgment in the lawsuit filed in the United
States District Court for the- Southern District of Indiana (the "Court"), captioned Sprint
Spectrum L.P. v. The City of Carmel, Indiana, The Board of Zoning Appeals for the City
of Carmel and Clay Township, Michael P. Hollibaugh in his Capacity as Director.of the
Depaltment of. Community Services, Carmel, Indiana, and (Intervenor) Richard Deer,
Case No. IP 02-1133C T/K (the "Lawsuit") for the purpose of resolving the Lawsuit (the
Consent Judgment").
C. Zamber desires to execute this Memorandum to acknowledge that certain
terms and conditions of the Consent Judgment shall act as restrictions concerning the
Zamber Site and shall run with the Zamber Site, as more particularly described below.
NOW, THEREFORE, -in consideration of the foregoing and the mutual
covenants contained in the Consent Judgment, the Lease and this Memorandum;
Zamber agrees as follows:
,
1. Consent Judgment Restrictions: Zamber hereby acknowledges, and
hereby gives record notice to all future purchasers, mortgagees and other successors
,595162_2.DOC
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and assigns, that during the period described in Section 3 below, the Consent Judgment
imposes the following restrictions on the existing Zamber Tower and on any tower that
may be erected on the Zamber Site in the future:
(a) Sprint may relocate the Original Communications Facility, including the
demolition and removal of the Zamber Tower from the Zamber Site, and the
construction of anew low-profile monopole-style, antenna support structure without
guyed wires (the "Pole"), having a height of up toa maximum of one hundred twenty-
seven (127) feet above ground level (as measure to the top of the Pole), plus a lightning
rod up" to eight (8) feet above the top of the Pole, with" a diameter at the base not to
exceed four (4) feet, and a diameter at the top not to exceed two (2) feet, in a
galvanized gray color, -and all telecommunications antennae attached to the Pole (not
the lightning rods) shall be restricted to no more than two (2) sets of "f1ush:'mounted"
antenna attached to the Pole, as identified and shown in the Application attached to the _
Consent Judgment, to be utiliZed by not more than two (2) communications companies
for communications purposes, and which also may be used by Zamber for ham radio
purposes, all in conformity with the Plans (as defined in the Consent Judgment) (the
"Replacement Tower" -- the Replacement Tower and all related antennae, equipment,
shelters and other improvements are collectively referred to as the "Replacement
Facility").
(b) No "Material Change" (as hereinafter defined) may be made to the
Replacement Tower, without the consent or approval of the BZA. For the purpose of
the Consent Judgment and this Memorandum, a "Material Change" is defined as and"
shall consist of any alteration, addition or improvement to the Replacement Facility that"
would (a) increase the height of the Replacement Tower "(as measured to the top of the
Pole) beyond -127 feet above ground level; (b) change the color of the Replacement
Tower or any related antennae to a color other than gray; (c) move the location of
Replacement Tower more than 10 feet in any direction from that shown on the Plans;
(d) increase the overall diameter of the Replacement Tower (meaning the diameter with
the flush mounted antennas attached) by more than twelve (12) inches; or (e) result in
the utilization of the' Replacement Facility by more than two commercial
communications providers or by any ham radio operator other than the then-current
owner of the Zamber Site.
2. Memorandum to Run With the Land:Zamber agrees that the-terms and
conditions set forth in this Memorandum shall run with the land and be binding on and
inure to the benefit of Zamber and all parties having or acquiring any right, title or
interest in the Zamber Site, or any part thereof encumbered by the Lease, and their
respective heirs, successors and assigns. This Memorandum may not be amended or
released without the consent or approval of the BZA, except as provided in Section 3
below. . "
3. Effective Date: The terms and conditions contained herein shall be
effective upon the adoption and entry of the Consent Judgment by the Court. This
Memorandum shall ,be of no further force and effect," and Zamber may record a release
595162]DOC
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hereof, if and when any and all communications towers have been permanently
removed from the Zamber Site.
4. RecordinQ: Zamber hereby authorizes any party to the Consent Judgment
to record this Memorandum in the office of the Recorder of Hamilton County, Indiana
upon the adoption and approval of the Consent Judgment by the Court. This instrument
is merely a memorandum designed to give record notice of the Lease and the Consent
Juqgment and this instrument does not modify, waive or otherwise alter any of the terms
and conditions of the Lease or the Consent Judgment.
5. Enforcement: This Memorandum and the stated restrictions may be
enforced by any party to the Consent Judgment, anyone of whom shall be entitled to
injunctive relief against any violation or attempted violation of any such restriction.
of
IN WITNESS WHEREOF, Zamber has executed this instrument this
,2002.
By:
Dr. Edwin Zamber, Owner
. STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
The undersigned, ,a Notary Public in and for said. County and State,
acknowledged the execution of the 'foregoing Commitments by Dr. Edwin Zamber, an
adult resident of Indiana.
WITNESSETH this
day of
,2002.
Notary Public
Printed Signature
My Commission Expires:
County of Residence:
This Instrument was prepared by Cathy Elliott, Attorney at La~w, Bose McKinney &
Evans LLP, 2700 First, Indiana Plaza, 135 North Pennsylvania Street, Indianapolis,
Indiana,46204. '
595162_2.00C
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