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CONSENT TO ENCROACH
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2009035435 ENCROACHME $30.00
06/12/2009 08:29:06A 10 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
APPROV_D AS TO FORM B
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Buckingham Arden, LLC, 941 North Meridian Street, Indianapolis, Marion County, Indiana 46204
"Owner and the City of Carmel "City Hamilton County, Indiana.
WITNESSETH:
WHEREAS, Owner owns in fee simple certain Real Estate ("Real Estate which is more
particularly described in Exhibit "A attached hereto and incorporated herein by reference ("Real
Estate commonly known as the Arden Townhomes Subdivision which is located within the corporate
limits of the City of Carmel, Indiana; and
WHEREAS, City owns by plat dedication 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 located within the aforementioned Real Estate; and
WHEREAS, the official plat of the Subdivision was recorded in the Office of the Hamilton County
Recorder on January 5, 2007, in Plat Cabinet 4, Slide 231 as Instrument No. 2007001171 as Arden
Townhomes Subdivision; and
WHEREAS, Owner has constructed an irrigation system (the "System on the Real Estate; and
WHEREAS, Owner has given the City a sketch (the "Sketch depicting the location of the System
on the Real Estate, a copy of which is 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), identified as 136 Street (Smokey Row Road) on Exhibit "C and
WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachment upon the
Right of Way, which Encroachment is crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; 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.
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 Encroachment for only so long as:
(i) the Encroachment exists; 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
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otherwise change the System and /or the Encroachment from what is depicted on Exhibit
`C'
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, 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
Owner, its employees, officers, officials, invitees, licensees and /or agents, regarding or
related to the System or the Encroachment in the Right of Way.
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 any improvements
located therein caused by the installation, construction, maintenance or operation of the
System.
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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 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, including, but not limited to, the 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.
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"OWNER"
BUCKINGHAM ARDEN, LLC
C
at a_
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 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.
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.
ne A. Hendricks i n, Director of Development
Date: (,D 7
"CITY"
CITY OF CARMEL, INDIANA
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Michael T. McBride P.E., City Engineer
Date: /16 joq
STATE OF INDIANA
SS:
COUNTY OF Mart'ew\
Before me, a Notary Public in and for said County and State, personally appeared JANE A.
HENDRICKSON, Director of Development of Buckingham Arden, LLC, 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 l .4 *k day of
A 4 'T.7 s
a NOTARY NOTARY UBL C
SEAL
t�dcafi' P ►4v,
PUBLIC
I�t '?.O 20t4 4 4 Printed Name
My County of Residence: iWt(1h
STATE OF INDIANA A.r
SS:
COUNTY OF HAMILTON
My Commission Expires:
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Witness my hand and Notarial Seal this 0 day of I \0.0
My Commission Expires:
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NOTARY PUBLIC
Printed Name
My County of Residence:
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uckmghamardenta"nhomesrrr doe b/11/091
20019.
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.
20
1011"
1 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, Esquire, City Attorney, One Civic Square, Carmel, Indiana
46032.
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032.
Apart of the Southwest Quarter of Section 19, Township 18 North, Range 4 East, of the
Second Principal Meridian, in Clay Township, Hamilton County, Indiana, more particularly
described as follows:
Commencing at the southwest corner of said quarter section; thence North 90 degrees 00
minutes 00 seconds East (assumed bearing) along the south Tine of said quarter section
,1036.30 feet to a point in the center of Cool Creek and the POINT•OF. BEGINNING of this
descxiption;.therrwNorth 90 Degrees 00 minutes 00 seconds East along- said:south line
365:00 feet•to the east line of a tract of and described in DB 263, PG 240 in the Office of the
Recorder of iaid Hamilton County; thence North 00 degrees 01 minutes 47 seconds East
along said Iine feet to northeast comer of said tract of land; thence South 90
degrees 00 minutes.00 seconds West along the north line of said tract of land 206:05 fleet: to
the southeastemfine of the Indiana. Union Traction Company. ("IUT') Fight-of-way (said foie
being 33 feet by.parallet lines from the centerline of said right -of -way); thence South 66
degrees 24 minutes Seconds West along said southeastern line 201.00 feet to the
southwest corner of the west abutment of the IUT bridge over Cod Creek; thence South 13
degrees 46 minutes 22-seconds West 511.50 feet to a point in.the center of Cool Creek;
thence meandering said center of .Cool Creek the following seven courses:
1) South 22 degrees 00 minutes.00 seconds East 140 00.feet;
2) South 09 degrees minute seconds. East 100.00 feet;
3) South 26 degrees 00 minutes 00 seconds East 300.00 feet;
4) South 03 degrees 00 minutes 00 seconds East-60.00 feet;
5) South 30 degrees .00 minutes 00 seconds West 65.00 feet;
6) South 19 degrees.00 minutes.00 seconds West 100.00 feet;
7) South 07 degrees 00 minutes 14 .seconds East =70.94
to the point of beginning, containing 12.721 acres, more or less.
EXHIBIT "A"
LEGAL. DESCRIPTION
Part of the Southwest Quarter of Section 19, Township 18
North, Range 4 East, in Clay Township, Hamilton County,
Indiana, more particularly described as follows:
Portions of the dedicated north half right of way of 136 Street
(aka Smokey Row Road) adjacent to the south boundary of the
Arden Townhomes residential subdivision.
As recorded in the Office of the Hamilton County Recorder on:
January 5, 2007 in Plat Cabinet 4, Slide 231 as Instrument
#2007001171 as the Arden Townhomes.
EXHIBIT "B"
905
904
903
902
1
1104
1103
1102
1101
N
901
4f,
505
50 j1
502
0
0
N
0
(0
((0
(0
(0
501
605
604
603
602
601
N
O O
N N
706
705
704
703
702
701
EAST 136T
L (SMOKEY R
N
N
N
0
O
1301
1302
1303
1305
1306
1401
1402
1403
1404
a:
1•iii is
170
1702 4
t i
i
;I.
405
1405
1406
1703
1704
401
1 �u�
403
404
301
302
303
304
305
201
202
3 I;;
104
105
EXHIBIT "C,"
ARDEN TOWNHOMIES IRRIGATION SYSTEM
ADEN TOWNHBM
ES
(a`do2! MO8 A3)IOWS)13381s la9£
e -p
REVISIONS.
DATE: 10/4/06
SOB 100406
DRAIMI BY B
CHECKED BY jy
SCALE
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