Bellewood - Platinum Properties 200500053811
Filed Record in
HAMILTON INDIANA
JENNIFER J HAYDEN
08 -19 -2005 At 08 :24 am.
ENCROACHMNT 26.00
CONSENT TO ENCROACH
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Platinum Properties, LLC, 9551 Delegates Row, Indianapolis, Marion County, Indiana 46240 "Owner
and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety
("City"),
WITNESSETH:
WHEREAS, City 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 BelleWood 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 July 18, 2005, in Plat Cabinet 3, Slide 670 as Instrument No. 200500044405 as BelleWood
Subdivision; and
WHEREAS, 1 "System")
Owner wishes to construct an irrigation system (the Systerii» on the Real Estate;
and
WHEREAS, Owner has given the City sketches (the "Sketches depicting the proposed location
of the System on the Real Estate, copies of which are attached hereto and incorporated herein by this
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reference as Exhibit B; and
WHEREAS, the System will be constructed on portions of the Real Estate designated as Public
Right of Way (the Right of Way), identified as West 131 Street and West Road on Exhibit B; 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 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.
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
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(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
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, 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
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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
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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,
g
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
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.
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"OWNER" "CITY"
PLATINUM PROPERTIES, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS DEPARTMENT
OF ENGINEERING
24 C4 P 7 e" el 21Z 2 ??4(..,g,
Paul F. Rioux, Preside t Michael T. McBride P.E., City Engineer
SSN: �3� l% B 9c Date: g //6/260 S
Date: 7- 260
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STATE OF INDIANA
SS:
COUNTY OF M/is4 t4
Before me, a Notary Public in and for said County and State, personally appeared PAUL F.
RIOUX, President of PLATINUM PROPERTI1 S, LLC, 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 26 day of J14i 20eG.
SP I)(1 R 1
ovvIcile NOTARY PUBLIC
My Commission Expires: n
ERIC W SIMONS v' o
NOTARY PUBLIC STATE OF INDIANS y s� Printed Name
LONE X Op 1NO ti Q' My County of Residence: V4
4 us a
STATE OF INDIANA O
COUNTY OF HAMILTON ��t�°:
•••IM M +•1111 t
Before me, a Notary Public in and for said County and State, personally appeared MICHAEL 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.
i
Witness my hand and Notarial Seal this /6 day of 20 Os•
NO ARY UBLIC
My Commission Expires:
aiy '3
6 c Lo Printed Name
My County of Residence:
1.10-,-paj&
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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LEGAL DESCRIPTION
A part of the West Half of the Northwest Quarter of Section
30, Township 18 North, Range 3 East in Clay Township,
Hamilton County, Indiana, more particularly described as
follows:
Portions of the dedicated right of way of West 131 Street,
adjacent to the south boundary of the BelleWood Subdivision
including Common Area 2 and Common Area 3; Portions of
the dedicated right of way of West Road adjacent to the east
boundary of the BelleWood Subdivision including Common
Area 2 and Common Area 1; and the portion of dedicated
right of way of Hansen Lane, from 131 Street to Repass Drive
of said BelleWood Subdivision.
As recorded in the Office of the Hamilton County Recorder on:
July 18, 2005 in Plat Cabinet 3, Slide 670 as Instrument
#200500044405 as BelleWood Subdivision.
EXHIBIT "A"
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BELLEWOOD SUBDIVISION L� FLOW Ta■1■14
IRRIGATION SYSTEM
EXHIBIT "B”
a`i RIGHT OF WAY ENCROACHMENT