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HomeMy WebLinkAboutEstates of Clay West Entry Wall - Clay West HOACONSENT TO ENCROACH APMOVED ,ll ® -- ---- APPTICWZO AS TO FORM BY THIS CONSENT T• ENCROACH (hereinafter the "Agreement ") is entered into by and between The Estates of Clay West Homeowners Association, C/O President Doug Cole, 13370 Sherbern Drive West, Carmel, Hamilton County, Indiana, 46032 ( "Owner'), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ( "City "), WITNESSETH: WHEREAS, Owner owns and is responsible for the operation and maintenance of certain Site Improvements (as defined herein) that are Iocated in and benefit as a whole The Estates of Clay West Subdivision ( "Subdivision ") which is located within the corporate limits of the City of Carmel, Indiana, and is more particularly described in Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS, the official plat of the Subdivision was recorded in Plat Cabinet 2, Slide Number 665, as Instrument Number 200100061588 in the Office of the Hamilton County Recorder on September 27, 2001 as The Estates of Clay West (the "Plat "); and WHEREAS, the Owner owns certain real estate within the Subdivision, identified as Block "G" Common Area and Block "H" Common Area on the Plat; and [Eh nnwimh-∎.hv. h p. tnPmovnn $41 uaudP, dt, ofJa. w u hna ae..k. 122,11)j 1 2010025920 ENCROACHME $26.00 06/11/2010 09:08:19A 8 PG5 Jennifer J Hayden HAMILTON County Recorder IN Recorded as Presented 11iiii 111111111111111111 $1111111111111111171111111111 1 0111111111111 WHEREAS, Block "G" Common Area and Block "H" Common Area are identified as Utility, Drainage and Landscape easements on the Plat (collectively, the "Easements "); and WHEREAS, Owner has constructed an entry wall, sign, lighting system, an irrigation system, ground lighting and associated appurtenances, (including but not limited to fixtures, buried electrical conduit and conductors associated with supplying electrical power, control panels), (collectively referred to hereinafter as the "Site Improvements ") within the Rights of Way, identified as West 1315' Street on the Plat, ("Rights of Way "), and the Easements; and WHEREAS, Owner has given the City a sketch ( "Sketch ") depicting the proposed location of the Site Improvements within the Rights of Way and the Easements, a copy of which is attached hereto and incorporated herein by this reference as Exhibit B; and WHEREAS, the Rights of Way and Easements are beneficial to the City and its residents; and WHEREAS, as indicated on the Sketch, the Site Improvements encroach (the "Encroachments ") upon the Rights of Way and Easements, which Encroachments are crosshatched on the Sketch; and WHEREAS, Owner and City acknowledge the location of the Encroachments; and WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not considered a Site Improvement as defined in this Agreement; and WHEREAS, the installation of the Site Improvements as proposed by the Owner on Exhibit B should not materially interfere with the City's use of the Rights of Way and 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. Eh: Wi,rccdUpodm`amuuv,m vouvaLbkeiai, of aayww NIA l it do 122/ I411 2 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 Encroachments from what is identified on Exhibit B. 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 Rights of Way and 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 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 death, and from any destruction and /or damage to any property or improvements, located on the Lots, or in the Rights of Way 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 Encroachments. 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 Rights of Way and Easements and /or any improvements located therein caused by the installation, construction, maintenance or operation of the Site Improvements. (Es m.wixdyl.Iluullimittl.rnl.an• w.nlnexhk.Im.. ufila. x...1! , ILAk 1,22/111f 3 7. Owner agrees that this Agreement and all the terns and conditions thereof will be binding on any entity to which Owner may transfer its responsibility for the Site Improvements. 8. Owner agrees that its use of the irrigation 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 irrigation system as is necessary to correct such problems, at Owner's sole cost and expense. 9. Owner agrees that the water flow from the irrigation system shall be directed away from all street travel lanes and that water from the irrigation 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. 10. Owner agrees that certified record drawings of the installed irrigation 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 irrigation system instruments and /or equipment. 11. 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. 12. The parties hereto agree that the tenns of this Agreement shall be binding upon and inure to the benefit of their respective heirs, administrators, successors and assigns. I Elf: of. w nnl y nrul'.Iptc{,m'.on.rnl. all uIu«IcIONnl., of clay we.■ nc.aw:P22/10) 4 13. 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. 14. This Agreement shall be effective as of the date on which the last party hereto executes same. "OWNER'' ESTATES OF CLAY WEST HOMEOWNERS ASSN. �Cb inward y'..hu.ilUpidofnmum, o, <nrnudni>rau■ nl Lb) wai boa ut &c 1.22r10] "CITY" CITY OF CARMEL, INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY ATTE dames Brainard, Presiding Of i ate: / 7 " / Mary urk Member Date: Lori Date: 0 latson mber Tana Cordray, IAMC, `irk- Treasurer Date: 3- I-7 -1CD 5 STATE OF INDIANA ) SS: COUNTY OF 1-\\O-11411 R.-W\ ) Before me, a Notary Public in and for said County and State, personally appeared DOUG COLE, President, ESTATES OF CLAY WEST HOMEOWNERS' ASSOCIATION, 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 My Commission Expires: I - `- L,1Di1 STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) 0 day of MC C h , 20 . NOTARY PUBLIC Printed Name My County of Residence: 1 kCS 1 00 Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD, MARY ANN BURKE and LORI WATSON, by me know and by me known to bete Members of the City of Carmel Board of Public Works and Safety, and DIPNT -7-461 C1erk- Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of Cannel, Indiana. Witness my hand and Notarial Seal this 11 day of a My Commission Expires: #/771/7 n �J , 201O. NOTARY PUBLIC C - Qnn ��J 5 Printed Name My County of Residence: -6k_n(4,(-6fyLD I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security Number in this document, unless required by law. This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032. e., „.,dn,.n ..rcla W,.,n..nr,. u22,1111 6 LEGAL DESCRIPTION Part of the east half of the northeast quarter of Section 28, Township 18 North, Range 3 East in Hamilton County, Indiana. The Estates of Clay West, recorded in Plat Cabinet 2, Slide Number 665, as Instrument Number 200100061588 in the Office of the Hamilton County Recorder on September 27, 2001. EXHIBIT "A"