Fairgreen Trace Subdivision - Irrigation SYstemCONSENT TO ENCROACH
APPROVED, AS TO
FORM BY.
THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and between
Crossmann Communities Partnership, 9202 North Meridian Street, Suite 300, Indianapolis, Marion
County, Indiana 46260 -1810 ( "Owner "), and the City of Carmel, Hamilton County, Indiana, by and
through its Board of Public Works and Safety ( "City "),
WITNE S SETH:
WHEREAS, Owner owns in fee simple certain real estate (`Real Estate ") in the Fairgreen Trace
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 July 29, 1999, as Fairgreen Trace, Section 1; and
WHEREAS, Owner wishes to construct an Irrigation System (the "System ") on the Real Estate
and receive the City's consent to an existing entrance Sign/Wall (the "Sign ") and Landscape Mounds /Trees
(the "Mounds ") located on the Real Estate; and
WHEREAS, Owner has given the City a sketch ( "Sketch ") depicting the proposed location of the
System, the Sign and the Mounds 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, and the Sign and Mounds are, constructed on a portion of the Real
Estate designated as Drainage, Utility & Sewer Easements (collectively, the "Easements "), identified as
"D.U. &S.E." on Exhibit A; and
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WHEREAS, the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System, the Sign and the Mounds encroach (the
"Encroachment ") upon the Easements, which Encroachment is crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
WHEREAS, the location of the System, the Sign and the Mounds indicated by the Owner on
Exhibit A should not materially interfere with the City's use of 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:
l . 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 System, the Sign, the Mounds and /or the Encroachment from what is
depicted on Exhibit A.
4. Owner agrees that City shall have the right to remove any portion of the System, the Sign
and /or the Mounds 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
Easements, or for any other lawful purpose, and that, should the City take such action, the
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City shall incur no obligation to repair, replace or reimburse Owner for the cost of any
damages thereby caused to the System, the Sign and /or the Mounds .
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, the Sign, the Mounds and /or the Encroachment in the Easements.
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 Easements and /or any improvements
located therein caused by the installation, construction, maintenance or operation of the
System, the Sign and /or the Mounds.
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
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 expense.
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.
9. 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.
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10. This Agreement shall be effective as of the date on which the last party hereto executes same.
"OWNER" "CITY"
CROSSMANN COMMUNITIES PARTNERSHIP CITY OF CARMEL, INDIANA
AN INDIANA GENERAL PARTNERSHIP BY AND THROUGH ITS BOARD OF
BY: CRO.r SMANN COMM ITIES, INC. PUBLIC WORKS AND SAFETY
AN�� D • NA C, Y LL `' TION
and H. Crosser, President
lax..Li� . 3T - lclol7q 1) Date:
Date: k.A. s 10 , 2 co
James Brainard, Presiding Officer
[ c0. nnword :Orlhill \tomw\lainrcon,nd doc 7/20/001
Mary Ann B
Date:
Billy \Walker, Member
Date: f� Q
ATTEST:
Lea/a, 4
C Diana Cordra A.M Clerk - Treasurer
Date: // /64)
4
STATE OF INDIANA )
) SS:
COUNTY OF Pnc 'tcn )
Before me, a Notary Public in and for said County and State, personally appeared RICHARD H.
CROSSER, President of Crossmann Communities, Inc., by me known, and who acknowledged the
execution of the foregoing "CONSENT TO ENCROACH" as his voluntary act and deed.
Witness my hand and Notarial Seal this Obrqlay of . c , ZC)cXD
My Commission Expires:
VN\ 21,20 1
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON )
NOTARY P
Printed Na e
My County of Residence: \-1 e o ck. V` I C (CS
Before me, a Notary Public in and for said County and State, personally appeared J-AM --
" ^ 1 -1 ^ R 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
My Commission Expires:
NOTARY PUBLIC
eonnie
Printed Name
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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EXHIBIT A
EASEMENT ENCROACHMENT
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