14055 Jamison Ln - Buckhorn HOACONSENT TO ENCROACH
2008007099 ENCROACHME $28.00
02/13/2008 12:00:31P 9 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
the Buckhorn Homeowners Association, 14055 Jamison Lane, Carmel, Hamilton County, Indiana 46032
"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 commonly
known as the Buckhorn residential subdivision, which is located within the corporate limits of the City;
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 aforesaid Real Estate; and
WHEREAS, the official plat of the Subdivision containing the Real Estate was recorded in the
Office of the Hamilton County Recorder on October 13, 1994, in Plat Cabinet 1, Slide 476 as Instrument
#9443383 as Buckhorn; and
WHEREAS, Owner wishes to construct an irrigation system (the "System and
WHEREAS, Owner has given the City a sketch (the "Sketch depicting the proposed location of
the System, copies of which are attached hereto and incorporated herein by this reference as Exhibit "C
and
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WHEREAS, the System will be constructed on a portion of the Real Estate that is designated as
Public Right of Way (the "Right of Way identified as West 136 Street and Stone Drive on the
Sketches; 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 Sketches; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or
future improvements not indicated by Owner on the Sketches; and
WHEREAS, the installation of the System as proposed by the Owner on the Sketches 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
otherwise change the System and/or the Encroachment from what are depicted on the
Sketches.
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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
System 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 Encroachments 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.
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
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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
Easements and/or 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.
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 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.
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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.
"OWNER"
BUCKHOIWHOMEOWNERS ASSOCIATION
Dino Merlina, President
Date: i d —i3 7
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"CITY"
it T. McBr'de, City Engineer
Date: /O /g az7
STATE OF INDIANA
I� SS:
COUNTY OF Ma/71(1
My Commission Expires:
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County `andwState, personally appeared DINO
MERLINA, President of the Buckhorn Homeowners Association:by the known, and who acknowledged
the execution of the foregoing "CONSENT TO ENCROACH" as his or her voluntary act and deed.
Witness my hand and Notarial Seal this /,5 day of Ociv,- 20 0}
0/T4Y
NOTARY PUBLIC
t Qt c{
P'PAA l J 20 (2 Printed Name
My County of Residence:
O c,,) Q,
Before me, a Notary Public in and for said County and State, personally appeared"MIC1 EL T.
MC BRIDE, by me known, and by me known to be the City Engineer of the ;Cityi Cam who
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the „City of.Carmel,
Indiana.
Witness my hand and Notarial Seal this Y day of -�i e.✓ 200
My Commission Expires:
Indiana 46032.
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Printed Name
6
(signature)
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security Number in
this docuyent, unlesired b law.
BUCKHORN SUBDIVISION
The Northwest Quarter of the Southeast Quarter of Section 22, Township 18 North, Range 3
East and also a part of the East Half of the Southwest Quarter of the Southeast Quarter of
Section 22, Township 18 North, Range 3 East of the Second Principal Meridian, Clay Township,
Hamilton County, Indiana, more particularly described as follows:
Beginning at the Northwest corner of the Southeast Quarter of said Section 22; thence North
89 °20'11" East along the North line of said Southeast Quarter 1318.02 feet to the Northeast
corner of the Northwest Quarter of said Southeast Quarter; thence South 00 °05'05" West
along the East line of the West Half of said Southeast Quarter1988.42 feet; thence South
89 °20'09" West 278.15 feet; thence South 00 °05'05" West parallel to the east line of said
West Half 652.53 feet to a point on the South line of said Southeast Quarter; thence South
89 °20'08" West along the South line of the Southeast Quarter 378.55 feet to the Southwest
corner of the East Half of the Southwest Quarter of said Southeast Quarter; thence North
00 °02'05" East along the West line of the East Half of the Southwest Quarter of said
Southeast Quarter 1319.47 feet to the Northwest corner of said East Half; thence South
89 °20'09" West along the South line of the Northwest Quarter of said Southeast Quarter
657.86 feet to the Southwest corner of the Northwest Quarter of said Southeast Quarter;
thence North 00 °00'55' West along the West line of said Southeast Quarter1319.48 feet to
the Point of Beginning, containing 55.628 acres more or less, subject to all rights -of -way,
restrictions, and easements of record.
EXHIBIT "A"
LEGAL DESCRIPTION
The Northeast Quarter of the Southeast Quarter of Section 22,
Township 18 North, Range 3 East and also a part of the East
Half of the Southwest Quarter of the Southeast Quarter of
Section 22, Township 18 North, Range 3 East, in Clay
Township, Hamilton County, Indiana, more particularly
described as follows:
Portions of the dedicated north half right of way of West 136
Street and adjacent to the south boundary of the Buckhorn
Subdivision and from the west boundary to the east boundary.
As recorded in the Office of the Hamilton County Recorder on:
October 13, 1994 in Plat Cabinet 1, Slide 476 as Instrument
#9443383 as Buckhorn.
EXHIBIT "B"
,Sep 19, 07 08:39a Germaine
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