Moffitt Farms/Prairie View Section 1/ BDC Cardinal Assoc. 0 0 17
(2 soh Coirt4
pi o0
f CONSENT TO ENCROACH APPROVED, AS TO
FORM BY:
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and etween
BDC /Cardinal Associates, L.P., 12722 Hamilton Crossing Boulevard, Carmel, Hamilton County, Indiana
46033 "Owner and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public
Works and Safety "City
199909969689
Filed for Record in
WITNES SETH: HAMILTON COUNTY, INDIANA
MARY L CLARK
On 12 -03 -1999 At 01:34 pm.
ENCROACHMNT 17.00
WHEREAS, Owner owns in fee simple certain real estate (`Real Estate in the Moffitt Farm at
Prairie View Subdivision which is located within the corporate limits of the City of Carmel, Indiana
"Subdivision and
WHEREAS, the official plat of the Subdivision was recorded in the Office of the Hamilton County
Recorder on December 1, 1997, as Moffitt Farm at Prairie View, Section 1; and
WHEREAS, Owner wishes to construct a playgound (the "Playground on the Real Estate; and
WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
Playground on the Real Estate, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit A; and
WHEREAS, the Playground will be constructed on a portion of the Real Estate designated as a
Drainage, Utility Sewer Easement "Easement identified as "DU &SE on Exhibit A; and
WHEREAS, the Easement is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Playground will encroach (the "Encroachment upon
the Easement, which Encroachment is crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
eb: nuword: s: �iIIV' omisWrrnwickplaycoresad .doc:10151991 1
WHEREAS, the installation of the Playground as proposed by the Owner on Exhibit A should not
materially interfere with the City's use of the Easement.
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 Playground from what is depicted on Exhibit A.
4. Owner agrees that City shall have the right to remove any portion of the Playground 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 the Easement, 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 Playground.
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 or damage to any property or improvements, located on the
bet, or otherwise, which results directly or indirectly from any act of the City, its
employees, officers, officials, invitees, licensees and agents in the Easement.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
eb mswords: Whill VortnWrenwickplayconsaa.doc.10 /5/991 2
to replace or repair any damage to the Easement and any improvements located therein
caused by the installation, construction, maintenance or operation of the Playground.
Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and
to provide to City a recorded copy of same within ten (10) business days of the effective
date of this Agreement.
8. The parties agree that the terms of this Agreement shall be binding upon and inure to the
benefit of their respective heirs, administrators, successors and assigns.
9. The parties 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.
10. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
"OWNER" "CITY"
BDC /CARDINAL ASSOCIATES, L.P. CITY OF CARMEL, INDIANA
By: Brenwick Development Company, Inc. BY AND THROUGH ITS BOARD OF
General artner PUBLIC WORKS AND SAFETY ,e-f,\_--------\
David W hauer, Executive Vice PresidentJa Brainar. Pres I ing Officer
Date: IG. /,J.- 9 7 ate: 0 p
Mary Ann ur e, Member q
Date: D lo y 41
►_r i I 1
Billy ;'calker, Member
Date: /P-V -#1
DianaCordray IAAIi; lei e easurei
Date:
rb: msvords: \AiillVomlarrnwickplryconsau.doc: 1 0/5/99) 3
STATE OF INDIANA
SS:
COUNTY OF Ham lton
Before me, a Notary Public in and for said County and State, personally appeared DAVID
WARSHAUER, Executive Vice President of Brenwick Development Company, Inc., the sole general
partner of BDC /Cardinal Associates, L.P., 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 13i-Iday of octobPr 19 99.
577 aA-
NOTARY PUBLIC 1
My Commission Expires:
Marie M. Urick i
May 24 2007 Printed Name
My County of Residence: Hpndri cks
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE and BILLY WALKER, by me known, and by me known to be the
Members of the City of Carmel Board of Public Works and Safety, and DIANA L. CORDRAY, Clerk
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To
Encroach" on behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this day of e.- C..QTYl
NOTARY PUBLIC
My Commission Expires: k
I 1 Z-OLP P rinted Name
My County of Residence: 'I+) E1,1 1 140
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
[eb:msword sAdhill\formsthrenwickplayr onsenLdoc: I 0 /5/99] 4
y
f C Vo t\
St
I 7 C j y
cam
V
(1
trl
SP'
44\
I 4 7
it, o4 c-§t' a
t
A)
LO_
77 41
y _ivy
O J),, i�'::r ll 6 2.. 5\: -C)\
4I I Ii% ,4 1 IIi ii L x wirtaimm vipturi.
le illipsite Avlipt•
14 e i
isigirvarsawiaar (-5 0-)
A,
4
4° 100 100 0 i f o r
W° LS)
EXIIIBIT A
0\.- ENCROACJIMENT y///"V-
MOFFITT FARM AT PRAIRIE VIEW
SECTION 1