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CONSENT TO ENCROACH
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2008060159 ENCROACHME $33.00
12/10/2008 02:10:34P 11 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
ppp3OVD AS TO FORK! BY .7ic
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Ashbury Park Homeowners Association, C/O President Jack J. Kibort, 770 Edison Way, 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 in fee simple certain real estate "Real Estate in the Ashbury Park
Subdivision which is located within the corporate limits of the City of Carmel, Indiana, and which Real
Estate is more particularly described in Exhibit A, attached hereto and incorporated herein by this
reference; and
WHEREAS, the official plats of the Subdivision were recorded in Plat Cabinet 2, Slide Number
396, as Instrument Number 200000006022 in the Office of the Hamilton County Recorder on February 1,
2000 as Ashbury Park, Section 1, and in Plat Cabinet 3, Slide Number 115, as Instrument Number
200200099718 on December 20, 2002 as Ashbury Park, Section 2; and
WHEREAS, Owner has constructed an irrigation system and associated appurtenances, control
system for the irrigation system, landscaping, earthen berms and mounding, a stone wall, wall lighting
system and associated appurtenances, (including but not limited to fixtures, conduit, conductors, control
panels), a decorative fence, ground lighting and buried electrical conduit and conductors associated with
supplying electrical power for the lighting system, decorative street signage, (collectively referred to
hereinafter as the "Site Improvements on the Real Estate and within the Right of Way (as defined
herein); and
WHEREAS, Owner has given the City a sketch "Sketch depicting the location of the Site
Improvements on the Real Estate and within the Right of Way, copies of which are attached hereto and
incorporated herein by this reference as Exhibit B 1 -3; and
WHEREAS, the Site Improvements are located within public rights of way (collectively the "Right
of Way identified as West 136 Street on Exhibit B 1 -3, Ashbury Drive on Exhibit B 1 Schaefer Drive
on Exhibit B 2 and 3, and, and a portion of the Real Estate identified as Common Area "A" and "B" on
Exhibit B 1, Common Area "D" on Exhibit B 2, and Common Area "E" on Exhibit B 3, and Irregular
Drainage Utility Easements (collectively, the "Easements identified, respectively as "C.A. `A', C.A.
`B', C.A. `D', C.A. `E and "Irreg. U. D.E." and "Irreg. D. U.E." on Exhibit B 1 -3
WHEREAS, the Right 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 Right 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 1 -3
should not materially interfere with the City's use of the Right of Way or the Easements.
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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.
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 in this Agreement.
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 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
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Owner, its employees, officers, officials, invitees, licensees and/or agents, regarding or
related to the Site Improvements 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 Way and/or the Easements
and/or any improvements located therein caused by the installation, construction,
maintenance or operation of the Site Improvements.
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 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 the placement of the Site Improvements in the Right of Way and/or 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 maintenance of grassy areas /landscaping or the snow plowing of streets or
sidewalks, that causes damage to the Site Improvements, or any part thereof, any and all
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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
Site Improvements.
11. 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.
12. 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.
13. 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.
14. 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.
15. This Agreement shall be effective as of the date on which the last party hereto executes
same.
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"OWNER"
ASHBURY PARK HOMEOWNERS
ASSOCIATION
Ja k Kibbrt, HOA President
Date: 0C4$n✓ T Zoo8
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iana Cordray, IAMC, I
Date: /o /15 /d
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"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
Lori Watson
Date:
STATE OF INDIANA
SS:
COUNTY OF 1 lA. (4nr
Before me, a Notary Public in and for said County and State, personally appeared JACK J.
KIBORT, President of ASHBURY PARK 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 '1 day of CXkba'•- 204.
My Commission Expires:
MA ?,I,Z
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, by me known, and by me known to be the
Members of the City of Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To
Encroach" on behalf of the City of Carmel, Indiana.
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Witness my hand and Notarial Seal this day of
My Commission Expires:
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NOTARY PUB
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Printed Name
My County of Residence: 1
NOTARY PUBLIC
a a in Dail
i' Printed Name
My County of Residence:
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I affirm, under the penalties for perjury, that I ha\e 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.
LEGAL DESCRIPTION
Part of the Northeast Quarter of Section 27, Township 18
North, Range 3 East, Clay Township, in Hamilton County,
Indiana
All of the Common Area of the Ashbury Park Subdivision
identified as Common Areas A, B, D and E on the plat of
Section One of the Ashbury Park Subdivision recorded in the
Office of the Hamilton County Recorder in Plat Cabinet 2,
Slide Number 396 as Instrument Number 200000006022 on
February 1, 2000 and on the plat of Section Two of the
Ashbury Park Subdivision recorded in the Office of the
Hamilton County Recorder in Plat Cabinet 3, Slide Number
115, as Instrument Number 200200099718 on December 20,
2002.
EXHIBIT "A"
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