1555 Quail Glen Ct - Fairgreen Trace HOATHIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
the Fairgreen Trace Homeowners Association, 1555 Quail Glen Court, 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 Fairgreen Trace residential 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 aforesaid Real Estate; and
WHEREAS, the official plats of the Subdivision containing the Real Estate were recorded in the
Office of the Hamilton County Recorder on February 11, 2000, in Plat Cabinet 2, Slide 401, Instrument
#200000006675 as Fairgreen Trace, and on October 19, 2001, in Plat Cabinet 2, Slide 675, Instrument
#200100067204 as Fairgreen Trace, Phase 2; 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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2007050094— ENCROACHME $38 00 T,
08/31/2007 0 2:07:52p 13 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
CONSENT TO ENCROACH APPROVED AS TO FORM BY
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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 116 Street and Fairgreen 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.
13. 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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14. 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.
15. 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.
16. This Agreement shall be effective as of the date on which the last party hereto executes same.
"OWNER"
FAIRGREEN TRACE
HOME RS AS ATION
Charles W. Hamm, 'resident
Fairgreen Trace Homeowners Association
Date:
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"CITY"
Michael T. cBride, City Engineer
Date: 22/07
STATE OF INDIANA
SS:
COUNTY OF 2ki'-7
Before me, a Notary Public in and for said County and State, personally appeared CHARLES W.
HAMM, President of the Fairgreen Trace Homeowners Association, by me known, and who
acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his vQl nta
deed.
Witness my hand and Notarial Seal this day of
N• rARY LUBLIC
My Commission Expires:
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
,I(A L 67 h /-eiv
Printed Name
My County of Residence: l
Before me, a Notary Public in and for said County and State, personally appeared MICHAEL T.
MC BRIDE, by me known, and by me known to be the City Engineer of the City of Carmel, who
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the of CCarmel,
Indiana.
Witness my hand and Notarial Seal this 2. day of
My Commission Expires:
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1 Lf cly L. J- •li /e_t-
9r_<,-,,,
Printed Name
My County of Residence: c' )J--1/"-.1
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
6
(signature)
1 affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security Number in
this docu u less re 'redl 1 v.
FAIRGREEN TRACE
Part of the Southeast Quarter of Section 36, Township 18 North, Range 3 East of the Second Principal
Meridian in Hamilton County, Indiana described as follows:
Commencing at the Southeast Comer of said Quarter Section; thence on an assumed bearing of North
89 degrees 19 minutes 05 seconds West along the south line of said Quarter Section 820.00 feet to
the Point of Beginning; thence continuing North 89 degrees 19 minutes 05 seconds West along said
South line 519.25 feet; thence North 00 degrees 00 minutes 00 seconds East parallel with the East
line of said Quarter Section 1251.25 feet; thence South 89 degrees 19 minutes 05 seconds East 139.25
feet; thence South 00 degrees 00 minutes 00 seconds West parallel with the East line of said Quarter
Section 132.00 feet; thence South 89 degrees 41 minutes 42 seconds East 379.98 feet; thence South
00 degrees 00 minutes 00 seconds West parallel with the East line of said Quarter Section 1121.75 feet
to the Point of Beginning. Containing 13.77 acres, more or less.
FAIRGREEN TRACE, PHASE 2
A part of the Southeast Quarter of Section 36, Township 18 North, Range 3 East in Hann ton County,
Indiana, described as follows:
Commencing at the southeast corner of said Quarter Section; thence North 89 degrees 19 minutes 05
seconds West (assumed bearing) along the south line of said Quarter Section, 385.00 feet to the Point
of Beginning thence continuing along said south line North 89 degrees 19 minutes 05 seconds West
80.04 feet to the west line of the abandoned Traction Company line and being a point on a. curve to
the left having a radius of 2824.79 feet, the radius point of which bears North 87 degrees 37 minutes
01 seconds West, the following two courses being along said abandoned Traction Company Line; (1)
thence northerly along said curve an arc length of 77.23 feet to a point which bears South 89 degrees
11 minutes 00 seconds East from said radius point; (2) thence North 00 degrees 49 minutes 00
seconds East 222.72 feet to the north line of the real estate described in deed to Roger E. Anita L
Nix per Instrument #9427864 as recorded in the Office of the Recorder of said County, thence North
89 degreesl9 minutes 56 seconds West along said north line, 117.23 feet to the northwest comer of
said real estate; thence South 00 degrees 35 minutes 28 seconds West along the west line thereof,
299.91 feet to the south line of said Quarter Section; thence North 89 degrees 19 minutes 05 seconds
West along. said south line, 239.97 feet to the east line of the real estate described in deed to Trinity
Homes per Instrument #9955418 as recorded in the Office of the Recorder of said County, thence
North 00 degrees 00 minutes 00 seconds East parallel with the east line of said Southeast Quarter,
1121.75 feet; thence South 89 degrees 41 minutes 42 seconds East, 45203 feet to the east line of
the former Traction Company Line, also being the west line of the real estate described. in deed to the
Firestone Tire Rubber Company per Instrument #882443 as recorded in the Office of the Recorder of
said County thence South 00 degrees 49 minutes 00 seconds West along the east line of said former
Traction Company Line, 1047.62 feet to a point on a curve having a radius of 2904.79 feet, the radius
point of which bears North 89 degrees 11 minutes 00 seconds West, thence southerly along said curve
an arc length of 77.05 feet to the south line of said Quarter Section and the Point of Beginning,
containing 10.65 acres, more or less.
EXHIBIT "A"
LEGAL DESCRIPTION
Part of the Southeast Quarter of Section 36, 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 116
Street, adjacent to the south boundary of the Fairgreen Trace
and Fairgreen Trace Phase 2 Subdivision and a portion of the
dedicated right of way of Fairgreen Drive at the 116 Street
Entry to the Fairgreen Trace Subdivision.
As recorded in the Office of the Hamilton County Recorder on:
February 11, 2000 in Plat Cabinet 2, Slide 401 as Instrument
#200000006675 as Fairgreen Trace and on October 19, 2001 in
Plat Cabinet 2, Slide 675 as Instrument #200100067204 as
Fairgreen Trace, Phase 2.
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COMMON AREA
DU&SE
EASEMENT CONSENT TO ENCROACH AGREEMENT
APPROVED BY THE BOARD OF PUBLIC WORKS
SAFETY ON AUGUST 16, 2000
116th STREET
EXHIBIT "C2"
/1/41/4 RIGHT OF WAY ENCROACHMENT
8/15/2007
EASEMENT CONSENT TO ENCROACH AGREEMENT
APPROVED BY THE BOARD OF PUBLIC WORKS
SAFETY ON AUGUST 16, 2000
EXHI L= IT "C3"
//////7 RIGHT OF WAY ENCROACHMENT
8/15/2007
EASEMENT CONSENT TO ENCROACH AGREEMENT
APPROVED BY THE BOARD OF PUBLIC WORKS
SAFETY ON AUGUST 16, 2000
EXHIBIT "C4"
RIGHT OF WAY ENCROACHMENT
8/15/2007
EASEMENT CONSENT TO ENCROACH AGREEMENT
APPROVED BY THE BOARD OF PUBLIC WORKS
SAFETY ON AUGUST 16, 2000
tAl CD R.O.W. LINE Y d p
ASF PIO
EXHIBIT "C5"
///////7 RIGHT OF WAY ENCROACH ENT
8/15/2007