141st-Giovanni Drive - Centex Homes Instrument
200400040 ROVED AS TO FORM BY
200400040383
Filed for Record in
Q' H AMILTON COUNTY INDIANA
CONSENT TO ENCROACH JENNIFER J HAYD�N
06-10-2004 At 03 :43 pm.
ENCROACHMNT 24. u0
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Centex Homes, A Nevada General Partnership, By: Centex Real Estate Corporation, a Nevada
Corporation, Its Managing General Partner, 8440 Allison Pointe Boulevard, Suite 200, Indianapolis,
Marion County, Indiana 46250 "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 which is more
particularly described in Exhibit A attached hereto and incorporated herein by reference "Real Estate
commonly known as the Ridge at Hayden Run residential subdivision, which is located within the
corporate limits of the City of Carmel, Indiana; and
WHEREAS, the official plat of the Subdivision was recorded in the Office of the Hamilton County
Recorder on December 3, 2003, in Plat Cabinet 3, Slide 306 as Instrument No. 200300121756, and as the
Ridge at Hayden Run, Section 1; and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate;
and
WHEREAS, Owner has given the City a sketch (the "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 B; 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 141 Street, Giovanni Drive, Primo Way and Da Vinci
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I
Drive on Exhibit B, and as Variable Drainage, Utility Sanitary Sewer Easement Landscape,
Maintenance Access Easement Public Pedestrian Access Easement, Variable Drainage, Utility
Sanitary Sewer Easement Landscape, Maintenance Access Easement, Drainage Utility Easement
Landscape, Maintenance Access Easement Sign Landscape Easement and Sign Landscape Easement
(collectively, the "Easements identified, respectively as Var. D.U. &S.S.E. L.M.A.E. P.P.A.E.,
Var. D.0 &S.S.E. &L.M.A.E., 25' D. &U.E. &L.M.A.E. &S.L.E. and 2' N.A.E." on Exhibit B;
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 Easements, which Encroachments are crosshatched on the Sketch; 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 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.
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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,
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 entity to which Owner may transfer its responsibility for the System.
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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/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.
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"
CENTEX HOMES, A NEVADA GENERAL CITY OF CARMEL, INDIANA
PARTNERSHIP, BY: CENTEX REAL ESTATE BY AND THROUGH ITS BOARD OF
CORPORATION, A NEVADA CORPORATION, ITS PUBLIC WORKS AND SAFETY
MANAGING GENERAL PARTNER
Thomas L. Kutz, Land Development Manager Imes Brainard, Presiding Officer
SSN: j. P. 75 z.So 2.0 Z Date: Alp
Date: z3 °1 I
Mary An. urke, Msuiber
Date: -en
i
Lori Watson,
Date/
57 c 1 pV
ATTEST:
Sandra
l iana Cordray, A l', Clerk- Treasurer
Date: j d
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STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared THOMAS L.
KUTZ, Land Development Manager of CENTEX HOMES, 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 o da of Apn I 200.
0.•' 'YP "g' IC
My Commission Expires:
S
&,hin L n
Ise w �_s 'rinted Name
illm li!,vap! My County of Residence: _TohylLon
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 knov� by.mee known to bee
Members of the City of Camel Board of Public Works and Safety, and IA A Lm
CUKllAY, er
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 /7 day of al 20(
1. ..t `Ai
NOTARY PUBLIC
My Commission Expires: AM) V/S
/9/c J Printed Name
My County of Residence: /74m/hid t/
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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THE RIDGE AT HAYDEN RUN SECTION ONE
I, the undersigned Registered Land Surveyor hereby certify that the included plot correctly represents a subdivision
of part of the Southwest Quarter of Section 20, Township 18 North, Range 3 East, Hamilton County, Indiana, more
particularly described os follows:
Commencing at the Northwest Corner of said Quarter Section; thence North 89 degrees 37 minutes 59 seconds
East (Assumed Bearing) along the North line of said Quarter Section, 1,326.23 feet to the POINT OF BEGINNING;
thence continuing North 89 degrees 37 minutes 59 seconds East along said North line, 499.63 feet; thence- South
00 degrees 09 minutes 06 seconds West parallel to the East line of said. Quarter Section 263.49 feet; thence
North 89 degrees 37 minutes 59 seconds East parallel to the said North line 826.60 feet to a point on the East
line of the said Southwest Quarter section; thence South 00 degrees 09 minutes 06 seconds West along the said
East line 1,547.75 feet; thence North 89 degrees 34' minutes 15 seconds West 240.99 feet; thence North 28
degrees 22 minutes 26 seconds West 270.00 feet; thence North 09 degrees 31 minutes 19 seconds West 51.97
feet; thence North 36 degrees 48 minutes 06 seconds East 153.61 feet; thence North 51 degrees 49 minutes 52
seconds West 197.65 feet; thence North 38 degrees 10 minutes 08 seconds East 38.62 feet; thence North 51
degrees 49 minutes 52 seconds West 140.00 feet; thence North 76 degrees 44 minutes 57 seconds West 209.26
feet; thence North 00 degrees 03 minutes 08 seconds East 97.03 feet; thence North 28 degrees 35 minutes 44
seconds West 99.64 feet; thence North 58 degrees 43 minutes 09 seconds West 104.22 feet; thence North 89
degrees 56 minutes 52 seconds West 51.47 feet; thence South 74 degrees 31 minutes 57 seconds West 67.46
feet; thence North 00 degrees 03 minutes 08 seconds East 83.06 feet; thence North 07 degrees 17 minutes 30
seconds East 134.13 feet; thence North 60 degrees 58 minutes 08 seconds West 190.00 feet to a point on a
curve concave southeasterly, the radius point of said curve being South 60 degrees 58 minutes 08 seconds East
325.00 feet from said point; thence southwesterly along said curve 54.90 feet to a point on said curve, said point
being North 70 degrees 38 _minutes 50 seconds West 325.00 feet from a radius point of said curve; thence North
89 degrees 57 minutes 40 seconds West 166.67 feet; thence North 00 degrees 05 minutes 53 seconds East
623.05 feet to the place of beginning. Containing 29.675 acres, more or less, subject to all legal highways,
rights —of —ways, easements, and restrictions of record.
This subdivision consists of 30 lots numbered 1 -18 and 24 -35 both inclusive) and 5 Common Areas labeled 1
through 5 (all inclusive). The size of lots and width of streets are shown in feet and decimal parts thereof.
Cross Reference is hereby made to survey plat prepared by Stoeppelwerth Associates, Inc. in accordance with
Title 865, Article 1, Chapter 12 of the Indiana Administrative Code recorded as Instrument Number 200300094220
in the Office of the Recorder of Hamilton County, Indiana.
EXHIBIT "A"
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EXHIBIT "B"
Kg RIGHT OF WAY ENCROACHMENT
EASEMENT ENCROACHMENT
1