Estates of Clay West Entry Wall - Clay West HOACONSENT TO ENCROACH
APMOVED ,ll
® -- ---- APPTICWZO AS TO FORM BY
THIS CONSENT T• ENCROACH (hereinafter the "Agreement ") is entered into by and between
The Estates of Clay West Homeowners Association, C/O President Doug Cole, 13370 Sherbern Drive
West, 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 and is responsible for the operation and maintenance of certain Site
Improvements (as defined herein) that are Iocated in and benefit as a whole The Estates of Clay West
Subdivision ( "Subdivision ") which is located within the corporate limits of the City of Carmel, Indiana,
and is more particularly described in Exhibit A, attached hereto and incorporated herein by this reference;
and
WHEREAS, the official plat of the Subdivision was recorded in Plat Cabinet 2, Slide Number
665, as Instrument Number 200100061588 in the Office of the Hamilton County Recorder on September
27, 2001 as The Estates of Clay West (the "Plat "); and
WHEREAS, the Owner owns certain real estate within the Subdivision, identified as Block "G"
Common Area and Block "H" Common Area on the Plat; and
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2010025920 ENCROACHME $26.00
06/11/2010 09:08:19A 8 PG5
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
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WHEREAS, Block "G" Common Area and Block "H" Common Area are identified as Utility,
Drainage and Landscape easements on the Plat (collectively, the "Easements "); and
WHEREAS, Owner has constructed an entry wall, sign, lighting system, an irrigation system,
ground lighting and associated appurtenances, (including but not limited to fixtures, buried electrical
conduit and conductors associated with supplying electrical power, control panels), (collectively referred
to hereinafter as the "Site Improvements ") within the Rights of Way, identified as West 1315' Street on the
Plat, ("Rights of Way "), and the Easements; and
WHEREAS, Owner has given the City a sketch ( "Sketch ") depicting the proposed location of the
Site Improvements within the Rights of Way and the Easements, a copy of which is attached hereto and
incorporated herein by this reference as Exhibit B; and
WHEREAS, the Rights 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 Rights 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
should not materially interfere with the City's use of the Rights of Way and Easements.
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.
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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 on Exhibit B.
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 Rights of
Way and 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 Lots, or in the Rights 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 Encroachments.
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 Rights of Way and Easements 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 terns 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 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.
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.
12. The parties hereto agree that the tenns of this Agreement shall be binding upon and inure
to the benefit of their respective heirs, administrators, successors and assigns.
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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.
"OWNER''
ESTATES OF CLAY WEST HOMEOWNERS ASSN.
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"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
ATTE
dames Brainard, Presiding Of i
ate: / 7 " /
Mary urk Member
Date:
Lori
Date:
0
latson
mber
Tana Cordray, IAMC, `irk- Treasurer
Date: 3- I-7 -1CD
5
STATE OF INDIANA )
SS:
COUNTY OF 1-\\O-11411 R.-W\ )
Before me, a Notary Public in and for said County and State, personally appeared DOUG COLE,
President, ESTATES OF CLAY WEST 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
My Commission Expires:
I - `- L,1Di1
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
0 day of MC C h , 20 .
NOTARY PUBLIC
Printed Name
My County of Residence: 1 kCS 1 00
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and LORI WATSON, by me know and by me known to bete
Members of the City of Carmel Board of Public Works and Safety, and DIPNT -7-461 C1erk-
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To
Encroach" on behalf of the City of Cannel, Indiana.
Witness my hand and Notarial Seal this 11 day of a
My Commission Expires:
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, 201O.
NOTARY PUBLIC
C - Qnn ��J 5
Printed Name
My County of Residence:
-6k_n(4,(-6fyLD
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.
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LEGAL DESCRIPTION
Part of the east half of the northeast quarter of Section 28,
Township 18 North, Range 3 East in Hamilton County,
Indiana.
The Estates of Clay West, recorded in Plat Cabinet 2, Slide
Number 665, as Instrument Number 200100061588 in the
Office of the Hamilton County Recorder on September 27,
2001.
EXHIBIT "A"