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11910 Esty Way - Townhomes at Hazel Dell HOA i APPI1OVZo AS TO FORM BY 1 CONSENT TO ENCROACH 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 extension to an existing irrigation system (the "System on the Right of Way; and 2009039936 ENCROACHME $37.00 07/01/2009 10:06:08A 13 PGS Jennifer J Hayden HAMILTON County Recorder IN Recorded as Presented I cb:mscord: z:\shared\dhil llconscnttocncroach \tomnhomcsathazcldd l phasc2 i rr. doc:6/ 19/091 1 WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location of the System 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 approximately 300 feet north and 300 feet south of the existing Phase 1 location of the Roxanne Drive entrance to the subdivision, identified as "Hazel Dell Parkway" on Exhibit "C and WHEREAS, the Right of Way is 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, 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. 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. lcb:msscord:r\ shared \dhill \conscnttoencroach \townhomcsa rhazcldcllphasc?irr.doc:b/ 19/091 2 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, 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 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 lcb: ntscord: z:k harcdldhilll conscnttoencroachltomnhomcsathazcIddlphasdirr .doc:6 /19/09] 3 to replace or repair any damage to any or all of the Right of Ways 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 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, 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, lcb: mss+ ord: z1sharcd\ dhill\ conscntlocncroach\t osxnhomcsa thazcldcllphasc2irr.doc:b /19/09 4. 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. l cb mscord:z:\ shared \dhil l\ consenttocncroach \to,Nnhomesathazcldcl l phase? i rr. doc :6/ 19 /09I 5 "OWNER" "CITY" THE TOWNHOMES AT HAZEL DELL HOMEOWNERS ASSOCIATION Patrick J. O'Dgkl President Michael T. McBride P.E. City Engineer Date: 6O l C' Y Date: 1 20©41 lcb .mscord:z:\sharcdldhill\conscnt oancroach \townhomcsathazcldcllphasc2irr doc:6 /19 /091 6 STATE OF INDIANA �1^ SS: COUNTY OF f�W'>7►1f0n 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. Witness my hand and Notarial Seal this day of� t 2009. NOTARY PUBLIC My Commission Expires: IoM s< Seal ,at State of Ind ono. Morton Camay k Printed Name My Commission ExpiresJawory 5, 2017^ '';','S1 c My County of Residence: STATE OF INDIANA e <1, C.72 of SS: COUNTY OF HAMILTON r Before me, a Notary Public in and for said County and State, personally appeared MICHAEr'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. hh��N'� �l tl�z Witness my hand and Notarial Seal this �.J✓ day of l� 2009 N t' r .ii. 1 (`_3 NOTARY PUBLIC My Commission Expires: tisoM Scott Notary Public t Seal Printed Name Stote of Mono, Morton County My Commission Expires January 5.2017 My County of Residence: 1 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 This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032. Ieb:rnss, ord.' sharcd,dhill■conscnttoencroach to, nhomesalhazeldellphasa tri doc.'6/ I 9/091 7 THE T WNH® ES AT HAZEL DELL LEGAL DESCRIPTION A part of the East Haif and a port of the West Half of the Southeast Quarter of Section 33, Township 18 North, Range 4 East, Hamilton County, Indiana, more particularly described as follows: COMMENCING at the Southeast Corner of the Southeast Quarter of said Section 33, Township 18 North, Range 4 East; thence North 89 degrees 33 minutes 35 seconds West along the South Line of said Southeast Quarter Section a distance of 1322.98 feet to the Southwest Corner of the East Half of soid Southeast Quarter Section; thence North 00 degrees 07 minutes 45 seconds East along the West Line of the East Half of said Southeast Quarter Section o distonce of 268.00 feet to the BEGINNING POINT; thence continuing North 00 degrees 07 minutes 45 seconds East along said West Line a distance of 2174.70 feet to the Northeast Corner of Lake Forest Section 7, o subdivision in Hamilton County, Indiono, the plat of which is recorded as instrument number 9239580 in Plot Cobinet 1 Poge 266 in the office of the recorder of Hamilton County, Indiana; thence North 89 degrees 41 minutes 57 seconds West along the North Line of said Lake Forest Section 7 a distance of 1326.87 feet to the West Line of said Southeast Quarter Section; thence North 00 degrees 02 minutes 16 seconds East along soid West line o distance of 199.67 feet to the Northwest Corner of said Southeast Quarter Section; thence South 89 degrees 41 minutes 51 seconds East along the North Line of said Southeast Quarter Section o distance of 1327.18 feet to the Northwest Corner of the East Half of the said Southeast Quarter Section; thence continuing South 89 degrees 41 minutes 51 seconds East along the North Line of the said Southeast Quarter Section a distance of 732.17 feet to the Northwest corner of a Tract of Land to the City of Carmel and recorded as Instrument Number 9709731112 in the Office of the Recorder of HornHton County, Indiana; thence South 00 degrees 11 minutes 12 seconds West along the West Line of said Tract of Land a distance of 138.31 feet to the Northwesterly right —of —way line of Hazel Dell Parkway (the next two (2) described courses being along the Northwesterly and Westerly right —of —way line); (1) thence South 25 degrees 08 minutes 32 seconds West o distance of 1044.61 feet to o tangent curve to the left hoving a radius of 1994.86 feet, the radius point of which bears South 64 degrees 51 minutes 28 seconds East; (2) thence Southwesterly, Southerly and Southeasterly along said curve an orc distance of 1319.17 feet to point which bears South 77 degrees 15 minutes 13 seconds West from said radius point (said point also being on the North line of a Tract of Lcld to Randolph D. Michaelene Martin, recorded as Instrument Number 8819464 in said Recorder's Office); thence North 39 degrees 33 minutes 35 seconds West along said North Line a distance of 153.41 feet to the Point of Beginning, containing 23.939 acres, more or less. EXHIBIT "A" LEGAL DESCRIPTION Part of the East V2 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 azel residential subdivision and from approximately 150' to 450' south of the Roxanne Drive entrance and from approximately 150' to 450' north of 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" 1 e- RAJ c ©F 1/4 u- S C_.,ai _E u 3C71 t it- i oc►) e.11FoM S Es:"( .L� A1{ cf A■QPlM DO-R _,___r ---T P v v -7 g —ao- l ss'' :4;err A A MMIlrallrAli Ll ii■ -c- --o o ,ill A /NZat__. 47 011. PfsrLIC. �J A-. M ATCJ Ll Sow k-1 SL{STei\A EXHIBIT "Ci" V/ R I W ENCROACHMENT PHASE 2 SOUTH 1 TovJ O s-kvnrES- aV t-4nv 'ei_t__ Sc../.L.. 1 30' r4 E. VI A`"( C 6-44 0%. 0,3., ,,,v, ptrfr. 44 ,.tv, A 7e, JL. .;_t c—_______o a W1 s1/4-L- EXHIBIT "C2" e2 I W ENCROACHMENT HASE 2 NORTH THE TOWN HOMES OF M AZELDELL SCC1Le 1" 30' I Lp KL L. 1, ,S °T I. e o WATER SUPPLY FROM LAKE .2Y C..® u 1 1 I �lYPico I COMMON AREA W 1 BUILDING #12 hem, 1 BUILDING #11 I i I DU&SE&AE i i i nrEt i i I 3 i M11 I Al 1 26' ACCESS EASEMENT AND DU&SE ESN WAY (Private Drive) I }�-I RI f HAZEL DELI PARK ROXANNE I WESTERLY RNW L I .4411" ,(Private Drive)' E :e r o I f 3 BORE 6 ii; �O ,W A E ASEMENT Ps Pa41 �..aY AN DU&SE V ATctt MINTCt -k M HAZEL DELL PARKWAY a kle. Pv .SE Z v c:lei 1 Stper\-; eXT61 SAC EXHIBIT "C3" EXISTING PHASE 1 IRRIGATION SYSTEM l �m14251 r C u7.18' i n/1mr_v4 -L 4s c _43 C_QU '4rf� 4 YQ8 6 Q ti S "f. e COMMON AREA "A" o 695,825 S.F. fH i o uasEaAE MOM uu¢ VORtlk POOL 745.5 4 100 WAR= 149.ee ELEVATIONS ARE FOR INFORMATIONAL 1 're. PURPOSES ONLY AND ARE NOT PART s OF PUT CERT#ICATION A. 4 0 2 (7/ .r/---- 4 4 2„s'�r sF i ta ii' 44 F c' 4 N may. Y y 8'���+�':^ 4, IT 8 "6 '3 r 'Qb PP a K 1 b" �1 Sr'�.. Q A. I ..t.. .t', 2V t;2- 27 4 r a 4 4433 4' /r I i i. i ::,,y 7 4 �y COMMON AREA "A" 1 895,825 S.F. OuxsEkAE 2 h: O y Q it ,1` z. 0 i�� Also R ,w 1 *241:21!.. i a 'tr s, A? AF.- 4%, 1/4 1.°4° 8 4.7 '�''4:a .4 EXHIBIT "C4” r s7 Q AREAS OF ENCROACHMENT E sz'.% V 4:6, 4' +1,,, sp y V• 4 ,P