1312 Hazel Dell Parkway - FS LodgeCONSENT TO ENCROACH
2015015270 ENCR $25.00
04/02/2015 08:38:44AM 8 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 HI II IIIII HI11111111111111111 11111 11111 11111 11111111
THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and between
F.S. Lodge LLC, an Indiana limited partnership (the "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 that is located within the corporate
limits of the City and that is more particularly described in what is attached hereto and incorporated
herein by this reference as Exhibit "A" (the "Real Estate "); and
WHEREAS, the Owner wishes to install shrubs, trees and other landscaping (collectively the
"Encroachments ") which will encroach into (i) that certain Landscape and Drainage Easement — Parcel
6D described in Instrument No. 9809822046 as recorded in the Office of the Recorder of Hamilton
County, Indiana (the "Easement "); and (ii) those segments of Hazel Dell Parkway (the "Right -of- Way "),
which are contiguous to the Real Estate, which Easement and Right of Way are identified on the drawing
attached hereto and incorporated herein by reference as Exhibit `B" (the "Drawing "), in the manner
illustrated on the Drawing;
WHEREAS, City of Carmel Board of Public Works and Safety approved the Owner's request for
a variance from Carmel City Code Section 6- 227(4) on September 4, 2013; 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 indicated by Owner on Exhibit B; and
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:
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CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and between
F.S. Lodge LLC, an Indiana limited partnership (the "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 that is located within the corporate
limits of the City and that is more particularly described in what is attached hereto and incorporated
herein by this reference as Exhibit "A" (the "Real Estate "); and
WHEREAS, the Owner wishes to install shrubs, trees and other landscaping (collectively the
"Encroachments ") which will encroach into (i) that certain Landscape and Drainage Easement — Parcel
6D described in Instrument No. 9809822046 as recorded in the Office of the Recorder of Hamilton
County, Indiana (the "Easement "); and (ii) those segments of Hazel Dell Parkway (the "Right -of- Way "),
which are contiguous to the Real Estate, which Easement and Right of Way are identified on the drawing
attached hereto and incorporated herein by reference as Exhibit "B" (the "Drawing "), in the manner
illustrated on the Drawing;
WHEREAS, City of Carmel Board of Public Works and Safety approved the Owner's request for
a variance from Carmel City Code Section 6- 227(4) on September 4, 2013; 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 indicated by Owner on Exhibit B; and
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:
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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 Encroachment for only so long as
(i) the Encroachments exist; and
(ii) Owner complies with all of the terms and provisions of this Agreement.
3. Owner covenants and agrees not to extend, increase, modify, alter, landscape, reconfigure or
otherwise change the Encroachments from what is depicted on Exhibit B, and to maintain the
Encroachments in good condition and repair.
4. Owner agrees that City shall have the right to remove any portion of the Encroachments as
City deems necessary, in City's sole discretion, 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 Encroachments, the Real Estate or to the Owner.
5. Owner agrees and acknowledges that the City's consent to encroach within the Easement and
the Right of Way, as provided in this instrument, regards the City's right of way interests
only, and does not constitute permission or authority for the Owner to otherwise enter on, in,
under, over, or upon the property interests of any other person without that person's consent
even if such property interests are also located within the Easement or Right of Way.
6. Owner agrees and acknowledges that the Encroachments, as provided in this instrument, does
not violate any covenants and restrictions applicable to the Encroachments.
7. Owner agrees to indemnify and hold harmless the City and the BPW and their officers,
officials, members, employees, invitees, licensees and agents, (i) from and against any and all
losses, liabilities, damages, claims, judgments, attorney fees and costs for bodily injury,
death, or property damage occurring during the initial installation and during the subsequent
irrigation, fertilizing and trimming of the Encroachments in the Easement and Right -of -Way
by the Owner and its employees, contractors and agents; (ii) from and against any and all
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losses, liabilities, damages, claims, judgments, attorneys fees and costs for bodily injury,
death or property damage occurring as a result of the existence of the Encraochments; and /or
for any failure of proper disclosure pursuant to Paragraph 13 hereof.
8. Owner agrees to reimburse City for any and all costs and expenses incurred by City to replace
or repair any damage to the Easement or Right of Way and any improvements located therein
caused by the installation, construction, maintenance and /or operation of the Encroachments.
9. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and to
provide to City a recorded copy of same within ten (10) business days of 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 expense.
10. The parties 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 parties 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.
12. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
13. The Owner agrees to provide full disclosure of this Agreement to all persons, entities and
others who acquire by or through Owner any interest in the Real Estate on and after the
effective date of this Agreement.
14. Owner agrees not to alter the ground surface elevation within the limits of the Easement or
Right of Way at any time.
15. Owner agrees to remedy any drainage problems or issues, saturated soil or standing water on the
Easement, Right of Way and/or adjacent properties determined by the City to be resulting from
the Encroachments.
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"OWNER"
F.S. Lodge LLC,
an Indiana limited liability company
By: Thomas M. . r� ' evocable
Dated April'' : ole member
By:
Thomas M. Crowley, Trustee
Date: 1) 5M
STATE OF INDIANA )
SS:
COUNTY OF \C“1") V /)
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
ames Brainard, Presiding Officer
ate / •
SITt
ary
Date
0
i
Lori Watson, lembe
Date i ' 15—
ATTEST:
YY�
D na Cordray, IAMC, Clerk -Tr: as i rer
Date / /5
Before me, a Notary Public in and for said County and State, personally appeared Thomas M.
Crowley, Trustee of the Thomas M. Crowley Revocable Trust Dated April 21, 1998, the member of F.S.
LLC, an Indiana limited liability company, and acknowledged the execution of the foregoing "CONSENT
TO ENCROACH" for and on behalf of said entity.
Witness my hand and Notarial Seal this �a day of March, 2015.
My Commission Expires:
BRENDA S BRYANT
Notary Public - Seal
State of Indiana
Hendricks County
My Commission Expires Jan 21, 2023
Rims d:
OTARY PUBLIC
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6u\ar\--\-.
rinted Name
My County of Residence �`\�\(' t)
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STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and LORI WATSON, the Members of the City of Carmel Board of
Public Works and Safety, and DIANA L. CORDRAY, Clerk- Treasurer of THE CITY OF CARMEL, and
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of Carmel,
Indiana.
Witness my hand and Notarial Seal this SST day of
O.
My Commission Expires:
, 2015.
NOTARY PUBLIC
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%71 /a /i7 Printed Name
My County of Residence: 14arnt ) +or
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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. Do-u -tt 5 -n
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EXHIBIT A
Legal Description
Part of the Northeast Quarter of Section Four (4), Township Seventeen (17) North,
Range Four (4) East, in Hamilton County, State, of Indiana, more particularly
described as follows:
COMMENCING at the Northeast corner of said Northeast Quarter; thence North 89
degrees 44 minutes 27 seconds West (assumed basis of bearings) along the north
line of said Northeast Quarter 211.20 feet; thence South 00 degrees 18 minutes 04
seconds East parallel to the east line of said Northeast Quarter 834.75 feet to the
POINT OF BEGINNING; thence continuing parallel to said east line South 00 degrees
18 minutes 04 seconds East 201.00 feet to the northeast corner of the 15 -acre tract
of land described in Instrument Number 9251463 on file in the Office of the Hamilton
County Recorder; thence North 89 degrees 49 minutes 24 seconds West along the
north line of said 15 -acre tract 716.36 feet to the west right -of -way line of Hazel Dell
Parkway being the southeast corner of "Parcel No. 6A" as described in Instrument
Number 9809822046 on file in the Office of said Recorder; thence North 04 degrees
55 minutes 36 seconds West along the east line of Parcel No. 6A 91.02 feet to the
southwest corner of the 28.04 -acre tract of land described in Instrument Number
200500065849 on file in the Office of said Recorder, the following nine (9) courses
being along the south line of said 28.04 -acre tract; 1) thence North 55 degrees 56
minutes 51 seconds East 46.27 feet; 2) thence North 34 degrees 50 minutes 28
seconds East 111.14 feet; 3) thence North 15 degrees 24 minutes 01 seconds East
43.69 feet; 4) thence North 33 degrees 41 minutes 52 seconds East 63.18 feet; 5)
thence North 87 degrees 04 minutes 32 seconds East 75.30 feet; 6) thence North 71
degrees 41 minutes 28 seconds East 303.75 feet; 7) thence South 81 degrees 53
minutes 23 seconds East 101.42 feet; 8) thence South 41 degrees 54 minutes 37
seconds East 40.18 feet; 9) thence South 12 degrees 09 minutes 10 seconds West
27.65 feet to a northwest corner of the 11.76 -acre tract of land described in
Instrument Number 2009057326 on file in the Office of said Recorder, the following
two (2) courses being along the boundary of said 11.76 -acre tract; 1) thence
continuing South 12 degrees 09 minutes 10 seconds West 97.42 feet; 2) South 71
degrees 40 minutes 11 seconds East 116.03 feet to the POINT OF BEGINNING.
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EXHIBIT "B"
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RIGHT OF WAY / LANDSCAPE AND DRAINAGE
EAS WENT ENCROACHMENT
EXISTING TREE
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CITY 0 ' ARMEL
March 24, 2015
JAMES BRAINARD, MAYOR
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: CONSENT TO ENCROACH — F.S. LODGE LLC, 1312 HAZEL DELL PARKWAY — LANDSCAPE IN RIGHT OF
WAY
Dear Board Members:
A Consent to Encroach document, signed by Thomas M. Crowley on behalf of F.S. Lodge LLC, is
submitted to the Board for signatures. Board approval for the encroachment was granted by the Board
of Public Works during the September 4, 2013 BPW meeting.
The Department of Engineering has reviewed and approved the encroachment document. Upon
approval and signature by the Board members the document will be recorded with the Hamilton County
Recorder's Office.
Sincerely,
Jeremy Kashman, P.E.
City Engineer
ATTACHMENT: CONSENT TO ENCROACH DOCUMENT
S:\ BPW15\ 1312HAZELDELLPARKWAYENCROACHMENT .DOC
DEPARTMENT OF ENGINEERING
ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439
EMAIL engineering@carmel.in.gov