11910 Esty Way - Townhomes at Hazel Dell HOA (2)1
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CONSENT TO ENCROACH
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2008041574 ENCROACHME $33.00
08/13/2008 10:20:31A 11 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
ReL,rded as Presented
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
The Townhomes at Hazel Dell Homeowner's Association, 11910 Esty Way, Carmel, Hamilton County,
Indiana 46033 "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 located within
what is commonly known as the Townhomes at Hazel Dell residential subdivision, which is located
within the corporate limits of the City; and
WHEREAS, City owns by right of way acquisition 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 adjacent to what is commonly known as The Townhomes at Hazel Dell residential
subdivision; and
WHEREAS, the official plat of the Subdivision was recorded in the Office of the Hamilton County
Recorder on February 6, 2003, in Plat Cabinet 3, Slide 137 as Instrument No. 200300012097 and as The
Townhomes at Hazel Dell; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate
and Right of Way; and
WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location
of the System on the Real Estate and on the Right of Way, copies of which are 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), said Right of Way being the location of the Roxanne Drive entrance to
the subdivision, identified as "Hazel Dell Parkway and on portions of the Real Estate designated as
Common Area and as Drainage, Utility Sewer Easements Access Easements, identified as "38'
Access Easement and DU 26' Access Easement and DU and as DU &SE &AE" on Exhibit
"C and
WHEREAS, the Right of Way and Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketches, the System will encroach (the "Encroachments upon
the Right of Way and Easements, which Encroachments are crosshatched on the Sketches; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; 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 and/or the 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:
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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 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 System and/or the Encroachments from what are depicted on Exhibit
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 and/or the
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 Real Estate, or otherwise, which results directly or indirectly from any act of the
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Owner, its employees, officers, officials, invitees, licensees and/or agents, regarding or
related to the System or the Encroachments in the Right of Way and/or the Easements.
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 Ways and/or the Easements
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
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 and the Easements
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 and/or the Easements, including, but not limited to, the
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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 obtain appropriate approvals and pay appropriate fees if the source of
water for the System is changed from the existing lakes to the public water system.
13. 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.
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.
(eb:msword z \shared\dh II\consenttoencroach \townhomesat azeldellnorthentrvirr doc:8 /4 /08j
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"OWNER"
THE TOWNHOMES AT HAZEL DELL
HOMEOWNERS ASSOCIATION
8 -1 9c
Patrick J. O'D'nnell, President
Date: e-
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"CITY"
ichael T. McBride P.E., City Engineer
Date: /g /OR
STATE OF INDIANA
SS:
COUNTY OF ,yc
Before me, a Notary Public in and for said County and State, personally appeared PATRICK'J.
O'DONNELL, President of The Townhomes at Hazel Dell Homeowners Association, by me known, and
who acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his/her voluntary act
and deed.
f
Witness my hand and Notarial Seal this day of
My Commission Expires:
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
20 F.
NOTARY UBLIC
�Jvdy L- „c
Printed Name JJ
My County of Residence: )∎L.
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.
My Commission Expires:
Witness my hand and Notarial Seal this Z day of
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,206(
NOTARY PUBLIC
Printed N
I 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
My County of Residence:
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 1 /2 of the Southeast VI of Section 33, Township
18 North, Range 4 East, in Clay Township, Hamilton County,
Indiana, more particularly described as follows:
A portion of the Drainage, Utility Sewer Easements
Access Easements in Common Area "A" located between
Building #10 and Building #11 and between the existing lake
and the west Right of Way line of Hazel Dell Parkway in the
Townhomes at Hazel Dell residential subdivision.
As recorded in the Office of the Hamilton County Recorder on:
February 6, 2003 in Plat Cabinet 3, Slide 137 as Instrument
#200300012987 as The Townhomes at Hazel Dell.
EXHIBIT "A"
LEGAL DESCRIPTION
Part of the East of the Southeast 1 /4 of Section 33, Township
18 North, Range 4 East, in Clay Township, Hamilton County,
Indiana, more particularly described as follows:
Portions of the dedicated west half right of way of Hazel Dell
Parkway, adjacent to the east boundary of The Townhomes at
Hazel residential subdivision at the Roxanne Drive entrance.
As recorded in the Office of the Hamilton County Recorder on:
February 6, 2003 in Plat Cabinet 3, Slide 137 as Instrument
#200300012987 as The Townhomes at Hazel Dell.
EXHIBIT "B"
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895,825 S.F.
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