Cherry Creek Estates - PPV 200600048756
Filed for Record in
HAMILTON COUNTY? INDIANA
JENNIFER J HAYDEN 02 -13 -2006 At 02:39 pm,
EIS =ROACH17NT 29,00
I
CONSENT TO ENCROACH
APPROVED AS TO FORM B
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and 1t'ween
PPV, LLC, 9757 Westpoint Drive, Suite 600, Indianapolis, Hamilton County, Indiana 46256 "Owner
and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety
("City"),
WITNESSETH:
WHEREAS, City owns by plat dedication certain real estate "Real Estate which is more
particularly described in Exhibit A attached hereto and incorporated herein by reference "Real Estate
commonly known as the Cherry Creek Estates residential subdivision, which is located within the
corporate limits of the City of Carmel, Indiana; and
WHEREAS, the official plats of the Subdivisions were recorded in the Office of the Hamilton
County Recorder on February 18, 2005, in Plat Cabinet 3, Slide 581 as Instrument No. 200500009934 as
Cherry Creek Estates, Section 6A Subdivision and on June 15, 2006, in Plat Cabinet 4, Slide 81 as
Instrument No. 200600034032 as Cherry Creek Estates, Section 6B Subdivision; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
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WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location
of the System on the Real Estate, copies of which are attached hereto and incorporated herein by this
reference as Exhibit B; and
WHEREAS, the System will be constructed on portions of the Real Estate designated as Public
Right of Way (the Right of Way), identified as Cherry Tree Road and Klingensmith Boulevard on Exhibit
B and as Non Access Easements, Drainage Utility Sewer Easements and Variable Landscape
Maintenance Access Easements (the "Easements identified as "5' N.A.E., 20'Drainage Utility and
Sewer Easement and Var. L.M.A.E. D. &U.E." on Exhibit B; 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 B; and
WHEREAS, the installation of the System as proposed by the Owner on Exhibit B should not
materially interfere with the City's use of the Right of Way and/or the Easements.
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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 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
B.
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,
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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 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 Way and 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.
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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/or 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
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.
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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.
"OWNER" "CITY"
PPV, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS DEPARTMENT
OF ENGINEERING
aul F. Rioux, President o PPV, LLC ichael T. McBride P.E., City Engineer
Date: 8/ ///40‘ Date: f {()la /8 2CeX-,
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STATE OF INDIANA
SS:
COUNTY OF 14,4i 1 1;TPNII
Before me, a Notary Public in and for said County and State, personally appeared PAUL F.
RIOUX, President of PPV, LLC, 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 11 'day of ,k -“Sr 2006.
�c ERIC W SIMONS NOTARY PUBLIC
My o,., l into -Ex Public State of Indiana
Hamilton County
My Commission Exp. Mar. 21, 2008 Printed Name
My County of Residence:
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
p! 'Y d tl..
Before me, a Notary Public in and for said County and State, personally appeai NII LCT."
MCBRIDE, by me known, and by me known to be City Engineer of the CITY OFfAR1V34 ho
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of `ttre Crtyof nel,
Indiana.Me
Witness my hand and Notarial Seal this J.S day of 2001.
NOT •/'YP ':LIC
My Commission Expires:
94■1,. z �UQ' L. s/ /e
Printed Name
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security Number in
this do men re law.
(signature)
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LEGAL DESCRIPTION
Part of the Northeast Quarter of Section 22, Township 18
North, Range 4 East, in Clay Township, Hamilton County,
Indiana, more particularly described as follows:
Portions of the dedicated east half right of way of Cherry Tree
Road, adjacent to the west boundary of the Cherry Creek
Estates, Sections 6A 6B Subdivisions and a portion of the
dedicated right of way of Klingensmith Boulevard, from
Cherry Tree Road east to the west lot line of Lot #320 in said
Cherry Creek Estates, Section 6A Subdivision.
As recorded in the Office of the Hamilton County Recorder on:
February 18, 2005 in Plat Cabinet 3, Slide 581 as Instrument
#200500009934 as Cherry Creek Estates, Section 6A and on
June 15, 2006 in Plat Cabinet 4, Slide 81 as Instrument
#200600034032 as Cherry Creek Estates, Section 6B.
EXHIBIT "A"
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SECTION 6A
SECTION 6B I
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��EXHIBIT B
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