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Home My WebLink About11910 Esty Way - Townhomes at Hazel Dell HOA (2)1 [eb.msword z shared\ dhill\ consenttoencroach\ toHnhomesa thazeldellnorthentrywr.doc:8 /4/081 CONSENT TO ENCROACH 1 2008041574 ENCROACHME $33.00 08/13/2008 10:20:31A 11 PGS Jennifer J Hayden HAMILTON County Recorder IN ReL,rded as Presented APPROVED AS TO FORM BY THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between The Townhomes at Hazel Dell Homeowner's Association, 11910 Esty Way, Carmel, Hamilton County, Indiana 46033 "Owner and the City of Carmel "City Hamilton County, Indiana. WITNESSETH: WHEREAS, Owner owns certain Real Estate "Real Estate which is more particularly described in Exhibit "A attached hereto and incorporated herein by reference, said Real Estate being located within what is commonly known as the Townhomes at Hazel Dell residential subdivision, which is located within the corporate limits of the City; and WHEREAS, City owns by right of way acquisition certain Right of Way "Right of Way which is more particularly described in Exhibit "B attached hereto and incorporated herein by reference, said Right of Way being adjacent to what is commonly known as The Townhomes at Hazel Dell residential subdivision; and WHEREAS, the official plat of the Subdivision was recorded in the Office of the Hamilton County Recorder on February 6, 2003, in Plat Cabinet 3, Slide 137 as Instrument No. 200300012097 and as The Townhomes at Hazel Dell; and WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate and Right of Way; and WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location of the System on the Real Estate and on the Right of Way, copies of which are attached hereto and incorporated herein by this reference as Exhibit "C and WHEREAS, the System will be constructed on portions of the Real Estate designated as Public Right of Way (the Right of Way), said Right of Way being the location of the Roxanne Drive entrance to the subdivision, identified as "Hazel Dell Parkway and on portions of the Real Estate designated as Common Area and as Drainage, Utility Sewer Easements Access Easements, identified as "38' Access Easement and DU 26' Access Easement and DU and as DU &SE &AE" on Exhibit "C and WHEREAS, the Right of Way and Easements are beneficial to the City and its residents; and WHEREAS, as indicated on the Sketches, the System will encroach (the "Encroachments upon the Right of Way and Easements, which Encroachments are crosshatched on the Sketches; and WHEREAS, Owner and City acknowledge the location of the Encroachments; and WHEREAS, Owner acknowledges that this Agreement does not imply any approval or existing or future improvements not indicated by Owner on Exhibit "C and WHEREAS, the installation of the System as proposed by the Owner on Exhibit "C" should not materially interfere with the City's use of the Right of Way and/or 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: leb:msword:z:\ shared\ dhill\ consenttoencroach\t ownhomesathazeldellnorthentnirr .doc 8/4/08] 2 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 the System and/or the Encroachments from what are depicted on Exhibit 4. Owner agrees that City shall have the right to remove any portion of the System 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 Right of Way and/or 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 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 Real Estate, or otherwise, which results directly or indirectly from any act of the 1eb:rnsword z \shared\dtull\ consentt oencroach\ townhomesathazeldellnorthentrirr .doc:8 /4/081 3 Owner, its employees, officers, officials, invitees, licensees and/or agents, regarding or related to the System or the Encroachments in the Right of Way and/or 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 Right of Ways and/or the Easements and/or any improvements located therein caused by the installation, construction, maintenance or operation of the System. 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 System. 8. Owner agrees that its use of the 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 System as is necessary to correct such problems, at Owner's sole cost and expense. 9. Owner agrees that the water flow from the System shall be directed away from all street travel lanes and that water from the 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 the placement of the System in the Right of Way and the Easements shall be at Owner's cost, expense and risk and that, if City, in its sole discretion, performs any work in the Right of Way and/or the Easements, including, but not limited to, the [eb:msword:z.\ shared dhillk nnsenttoencroach \townhomesathazeldellnorthentrvirr doc 8/4/081 4 maintenance of grassy areas /landscaping or the snow plowing of streets or sidewalks, that causes damage to the System, 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 System. 11. Owner agrees that certified record drawings of the installed 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 System instruments and/or equipment. 12. Owner agrees to obtain appropriate approvals and pay appropriate fees if the source of water for the System is changed from the existing lakes to the public water system. 13. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and to provide 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. 14. 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. 15. 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. 16. This Agreement shall be effective as of the date on which the last party hereto executes same. (eb:msword z \shared\dh II\consenttoencroach \townhomesat azeldellnorthentrvirr doc:8 /4 /08j 5 "OWNER" THE TOWNHOMES AT HAZEL DELL HOMEOWNERS ASSOCIATION 8 -1 9c Patrick J. O'D'nnell, President Date: e- IebImsword:z \shared\Etull\ consentt oencroach\ townhomesat hazeldellnorthentrylrr .doc:8l4(08] 6 "CITY" ichael T. McBride P.E., City Engineer Date: /g /OR STATE OF INDIANA SS: COUNTY OF ,yc Before me, a Notary Public in and for said County and State, personally appeared PATRICK'J. O'DONNELL, President of The Townhomes at Hazel Dell Homeowners Association, by me known, and who acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his/her voluntary act and deed. f Witness my hand and Notarial Seal this day of My Commission Expires: STATE OF INDIANA SS: COUNTY OF HAMILTON 20 F. NOTARY UBLIC �Jvdy L- „c Printed Name JJ My County of Residence: )∎L. Before me, a Notary Public in and for said County and State, personally appeared MICHAEL T. MCBRIDE, by me known, and by me known to be City Engineer of the CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To Encroach” on behalf of the City of Carmel, Indiana. My Commission Expires: Witness my hand and Notarial Seal this Z day of deb:mss ord:z:\ shared\ dhill\consenttoencroach \toHnhomesathazeldellnorthentry rr.doc:8 /4/081 ,206( NOTARY PUBLIC Printed N I affirm, under the penalties for perjury, that I have taken reasonable care to redact each and every Social Security Number from this document, unless it is required by law. Douglas C. Haney My County of Residence: This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032. 7 LEGAL DESCRIPTION Part of the East 1 /2 of the Southeast VI of Section 33, Township 18 North, Range 4 East, in Clay Township, Hamilton County, Indiana, more particularly described as follows: A portion of the Drainage, Utility Sewer Easements Access Easements in Common Area "A" located between Building #10 and Building #11 and between the existing lake and the west Right of Way line of Hazel Dell Parkway in the Townhomes at Hazel Dell residential subdivision. As recorded in the Office of the Hamilton County Recorder on: February 6, 2003 in Plat Cabinet 3, Slide 137 as Instrument #200300012987 as The Townhomes at Hazel Dell. EXHIBIT "A" LEGAL DESCRIPTION Part of the East of the Southeast 1 /4 of Section 33, Township 18 North, Range 4 East, in Clay Township, Hamilton County, Indiana, more particularly described as follows: Portions of the dedicated west half right of way of Hazel Dell Parkway, adjacent to the east boundary of The Townhomes at Hazel residential subdivision at the Roxanne Drive entrance. As recorded in the Office of the Hamilton County Recorder on: February 6, 2003 in Plat Cabinet 3, Slide 137 as Instrument #200300012987 as The Townhomes at Hazel Dell. EXHIBIT "B" o M g S m 2 X W 1- a w 2 x 0 Q 0 GC 0 a W 1- z W W N ed 1 )MMON AREA "A" 895,825 S.F. DUISEUE tMABONAL NOT PART -Is') i Qo 0 h