5837 Dawnwood Dr - Brighton Woods LLCAPPROVED Gl
CONSENT TO ENCROACH
2010058744 ENCROACHME $27.00
11/08/2010 11:25:33A 9 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
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APPR(i��
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Brighton Woods LLC., C/O President Tom Ertl, 5837 Dawnwood Drive, Carmel, IN, 46033 ("Owner
and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety
WITNESSETH:
WHEREAS, portions of the Brighton Woods Subdivision (Subdivision), located within the
corporate limits of the City of Carmel, Indiana, have been designated as public Right -of -Way by plat and
identified as "Dawnwood Drive" (the "Right of Way is more particularly described in Exhibit A,
attached hereto and incorporated herein by reference; and
WHEREAS, the official plat of the Subdivision was recorded in Plat Cabinet 2, Slide Number 286,
as Instrument Number 9940773 in the Office of the Hamilton County Recorder on July 9, 1999 as
Brighton Woods, Section 1; and
WHEREAS, Owner has installed landscaping within an existing island/ median at the
neighborhood entrance in the Right -of -Way; and
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WHEREAS, Owner wishes to install within an existing island/ median at the neighborhood
entrance: ground lighting, buried electrical conduit and conductors associated with supplying electrical
power for the ground lighting, and an irrigation system in the Right -of -Way (collectively and together
with the existing landscaping, is referred to hereinafter as the "Site Improvements on the Real Estate;
and
WHEREAS, Owner has given the City a sketch ("Sketch depicting the location of the Site
Improvements in the Right -of -Way, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit B; and
WHEREAS, the Right of Way is 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, 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
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:
l 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:
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(i) the Encroachments exist: and
(ii) Owner complies with the teens 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 infrastructure, 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, judgiuents, 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 in
the Right -of -Way, 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 Site Improvements 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
Site Improvements.
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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 Site Improvements.
8. Owner agrees that its use of an 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 an irrigation system shall be directed away from all
street travel lanes and that water from an 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 certified record drawings of an installed irrigation system shall be
provided to the City inunediately 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.
11. 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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12. 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.
13. 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.
14. This Agreement shall be effective as of the date on which the last party hereto executes
same.
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"OWNER"
BRIGHTON WOODS HOA. LLC.
57e(
Tom Ertl, President
Date: l!
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ATTEST:
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CITY
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
James Brainard, Presiding Officer
Date:
Mary An
Date:
Lori Wat
Date:
Tana Cordray, I
Date:
ti C Clerk- Treasurer
/S
ndro M. Johnsork
eputy Clerk for
STATE OF INDIANA
11 SS:
COUNTY OF t1o,,.: I
Before me, a Notary Public in and for said County and State, personally appeared TOM ERTL,
President, Brighton Woods HOA, 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.S4- day of
My Commission Expires:
M cn ecl 10
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
My Commission Expires:
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Inr
NOTARY PUBLIC
Printed Name
7
9
OFFICIAL SEAL
DAVID W. BALSBAUGH
NOTARY PUBLIC INDIANA
HAMILTON COUNTY
My Comm. Expires March 10, 2017
.4„1.„
Printed Name
My County of Residence: N'ar.i 1-0 r,
Before me, a Notary Public in and for said County and State, personally appeared JAMES
eltftliitbkft-13, MARY ANN BURKE and LORI WATSON, by me know a d b e •wn to be the
Members of the City of Cannel Board of Public Works and Safety, and r n 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.
NOTARY PUBLIC
Q /1i i
My County of Residence:
v.
Witness my hand and Notarial Seal this 1$ day of 20 )0.
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4J-K(/6-)
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. This instrument was prepared by Douglas C. Haney,
Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032.
LEGAL DESCRIPTION
Located in the Southeast Quarter of Section 33 and part of the
Southwest Quarter of Section 34, all in Township 18 North,
Range 4 East in Clay Township, Hamilton County, Indiana
All of the platted/ dedicated Right of Way of Dawnwood Drive,
included in the Brighton Woods Section 1 subdivision,
Recorded in the Office of the Hamilton County Recorder on
July 9, 1999 in Plat Cabinet 2, Slide 286 as Instrument
#9940773.
EXHIBIT "A"
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