116th - Monon Farms, LLC 200500021 925
F i l e d for Record in
0 HAMILTON COUNTY? INDIANA
JENNIFER J HAYDEN
04 -14- 2005 At 08:19 o.m.
ENC:ROACHIHT 24.00
0
CONSENT TO ENCROACH
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Monon Farm, LLC, 6930 Atrium Boardwalk South, Suite 100, Indianapolis, Marion County, Indiana
46250 -2028 (individually "Owner and the City of Carmel, Hamilton County, Indiana, by and through
its Department of Engineering "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 this reference "Real
Estate commonly known as Monon Farms, which real estate is located within the corporate limits of the
City of Carmel, Indiana; and
WHEREAS, the official deed of the Real Estate was recorded in the Office of the Hamilton
County Recorder on October 6, 2000 as Instrument Number 200300103773; 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 Lot, 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 Lot designated as Public Right of
Way (the "Right of Way"), identified as 116` Street on Exhibit B; and
WHEREAS, the Right of Way is beneficial to the City and its residents; and
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WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachments upon the
Right of Way, 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 of 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
(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,
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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
System 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
to replace or repair any damage to any or all of the Right of Way 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
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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
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
effective date of this Agreement. In the event this Agreement is not timely recorded by
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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"
MONON FARMS, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS DEPARTMENT
OF ENGINEERING
ame Thomas, J} Ma age Michael T. cBri e P.E., City Engineer
S fin/ Fr U/ i Date: 2 2 .g 26r)6
Date: °1 AVA
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STATE OF INDIANA
SS:
COUNTY OF MIN 1Z-.)o rJ
Before me, a Notary Public in and for said County and State, personally appeared JAMES E.
THOMAS, JR., MANAGER, MONON FARMS LLC, 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 thl day of w'
NOTARY •UBLI
My Commission Expires:
l Printed Name
My County of Residence: 4\ LA
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
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 the 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.
Witness my hand and Notarial Seal th 3
day of ht a.t ,d. 2006T
NOi
My Commission Expires:
ca-e) 1/ Printed Naihe
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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Monon Town Homes PUD
Legal Description
Beginning at the Northwest comer of the Northeast Quarter of Section 1, Township 17 North,
Range 3 East, in Hamilton County, Indiana, thence East on and along the North line of the
Northeast Quarter Section, a distance of 33 feet to the East right -of -way line of the Monon
Railroad as it is now located and is the point of beginning;
Thence continuing Eastward on and along said North line a distance of 330 feet to a point;
thence South parallel to the West line of said Northeast Quarter Section a distance of 660 feet to
a point, -said point being 6 feet North of the fence corner as it is now located; thence West and
parallel with the North line of said Quarter Section a distance of 37.125 feet to a point, said point
being a distance of 6 feet North of a fence corner as it is now located; thence South and
parallel to the West line of said Quarter Section a distance of 330 feet to a point, said point being
marked by a fence post; thence West and parallel to the North line of said Quarter Section a
distance of 292.87 feet; thence North 990.10 feet to a point, said point being the point of
beginning, all of said land is located in the Northeast Quarter of Section 1, Township 17 North,
Range 3 East in Clay Township of Hamilton County, Indiana.
Except
Part of the Northeast Quarter (NE '/4) of Section 1, Township 17 North, Range 3 East, being
more particularly described as follows:
Beginning at a point in the North line of said Northeast Quarter Section, distance East 33 feet of
the Northwest corner thereof (the same being the East right -of -way line of the Monon Railroad);
thence East in and along said North line 157 feet; thence South 234 feet; thence West 159 feet to
a point in said East right -of -way line of the Monon Railroad; thence North in and along said East
right -of -way line of the Monon Railroad 234 feet to the place of beginning.
Subject to the rights of the public, State of Indiana and the municipality in and to that portion of
the property used for road purposes, including utility rights of way for East 116 Street being
approximately 26.5 feet by parallel lines off the entire North end as assumed and shown hereon.
Subject to and in favor of Terms and Provisions of Deed and Covenants from Davis to the City
of Carmel per Instrument No. 99 -32867 for the Monon Trail as shown hereon.
EXHIBIT "A"
116TH ST.
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4,-•ti. EXHIBIT "B"
I {///1 RIGHT OF WAY ENCROACHMENT
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