116th/Carriage Lane-Conley Homes p� 200300059352
Filed for Record in
C?/\ (S H IFER COUNTY J HAYDN INDIANA
06 -20 -2003 At 1.1 :04 am.
ENCROACHMNT 24.00
CONSENT TO ENCROACH APPRQvE,
FORM
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Conley Homes, Inc., P.O. Box 3154, Carmel, Hamilton County, Indiana 46032 "Owner and the City of
Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety "City
WITNESSETH:
WHEREAS, Owner owns in fee simple certain real estate (`Real Estate in the Williams Ridge
Estates 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 as Instrument #200200083530, Plat
Cabinet 3, Slide No. 83 in the Office of the Hamilton County Recorder on November 16, 2002, as
Williams Ridge Estates; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
System on the Real Estate, a copy of which is attached hereto and incorporated herein by this reference as
Exhibit A; and
WHEREAS, the System will be constructed on a portion of the Real Estate designated as Public
Right of Way (the Right of Way), identified as 116 Street and Carriage Lane on Exhibit A, and as
Drainage Easement, Drainage Utility Landscape Easement, Non Access Easements and Landscape
Sign Easements (collectively, the "Easements identified, respectively, as "13.5' Drainage Easement,
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D. &U.E. L.S.E., 5' Non access Easement and 10' and 15' Landscape Sign Easements" on Exhibit A;
and
WHEREAS, the Right of Way and the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachments upon the
Right of Way and the Easements, which Encroachments are crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the installation of the System as proposed by the Owner on Exhibit A should not
materially interfere with the City's use of the Right of Way 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:
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
A.
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,
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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
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/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 homeowner's association to which Owner may transfer its responsibility for the
System.
8. Owner agrees that its usage of the System will be restricted to non -peak hours and that the
System may, at any time, be subject to other use restrictions by the City including, but not
limited to, the System being used only on designated days or from "dusk to dawn
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9. 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.
10. 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.
11. 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.
12. 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
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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"
CONLEY HOMES, INC. CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
Steven L. Moed, President James Brainard, Presiding Officer
SSN: 082 6O -O6 z-3 Date:
Date: S //3/0,2,
Mary Ann Burke, Member
Date:
Lori Watson, Member
Date:
ATTEST:
Diana Cordray, IAMC, Clerk- Treasurer
Date:
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..u;.1 t r ;r,,
STATE OF INDIANA
SS: #1
COUNTY OF
;A i F..
s
Before me, a Notary Public in and for said County and State, personally appeared STEVEN L.
MOED, President of Conley Homes, Inc., by me known, and who acknowledged the execution of the
foregoing "CONSENT TO ENCROACH" as his /her voluntary act and deed.
y 0 3
Witness my hand and Notarial Seal this 2 d of ,49--
N A R Y L IC
My Commission Expires:
\-u4 4 Si4 ii /e_ r
,2‘, 020 Printed Name
My County of Residence: T I ,7
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 LORI WATSON, 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. v
Witness my hand and Notarial Seal this 2/ day of L 1
I nL 10:'! A r
OTARY PUBLIC /i
My Commission Expires:
7 /Au 0 b x(71 D Printed Name
My County of Residence: C
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square,'Carmel,
Indiana 46032.
leb:rmwordzAcharedldhil forms willridestirr.doc3 /2/03] 6
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"
CONLEY HOMES, INC. CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
Steven L. Moed, President James Braina d, Pr; siding Officer
ssN: a k x< Date: 0
Date: 51 1 ��0�
ary Ann Burke, W r l
Date:
Lori Watson, Mem, er /I
Date:
ATTES
Diana Cord IA Clerk-TO er
Date:
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ROTOR
116TH STREET VALVE D4
SPRAY O i
EXHIBIT "A”
16. RIGHT OF WAY ENCROACHMENT
WO EASEMENT ENCROACHMENT
WILLIAMS RIDGE ESTATES