Village of Towne Pointe - Landlink Development (2) 200500047086
Filed for Record in
r, HAMILTON COUNTY, INDIANA
JENNIFER J HAYDEN
07 -28 -2005 At 08 :54 am,
ENCROAt:HMNT 30.00
CONSENT TO ENCROACH
APPROVED AS TO FORM SY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Landlink Development, LLC, P.O. Box 301, Carmel, Hamilton County, Indiana 46082 "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 Village of Towne Pointe 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 February 20, 2004, in Plat Cabinet 3, Slide 348 as Instrument No. 200400010842, as The
Village of Towne Pointe; 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, copies of which are attached hereto and incorporated herein by
reference as Exhibit B; and
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WHEREAS, the System will be constructed on portions of the Real Estate designated as Public
Rights of Way (the Rights of Way), identified as Towne Road and West 131 Street on Exhibit B; and
WHEREAS, the Rights of Way are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the System will encroach (the "Encroachments upon the
Rights 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 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 Rights 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.
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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 Rights 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 Rights of Way.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
relymsword :zA shared\ dhill\ consrnttoencroach Will[ownep[rntrywayirr.doc:7 /19/05] 3
to replace or repair any damage to any or all of the Rights 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
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 Rights 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
[eb.nsword:zAshared\dhill\ consent[ cencroach \vdlrowneptennywayirr.doc:7 /19/05] 4
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
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.
[eb:rsword:zAshared\dhill\ consentt oencroach \villtowneptennywayirr.doc:7 /19/05] 5
"OWNER" "CITY"
LANDLINK DEVELOPMENT, LLC CITY OF CARMEL, INDIANA
BY AND THROUGH ITS DEPARTMENT
OF ENGINEERING
77. 2
Kayser S i Managing Member Michael T. McBride P.E., City Engineer
SSN: O/,/ Rue: Berri -f C/ T V 4r it QjsJ Date: `7 1 -as
Date: 'f 220 5
[eh:n¢word:z: shared\ dhill\ consenttoencroach \villtowneptentrywayirr.doc:7 /19/05] 6
STATE OF INDIANA t'
SS: 4 !N,� o Q
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared KAYSER
SWIDAN, Managing Member of LANDLINK DEVELOPMENT, 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 2 Z day of G 20 0.3.
'NOT •'YP %r LIC
My Commission Expires:
va Ai /er
�v o20v Printed Name
My County of Residence: mIt,
STATE OF INDIANA
A'
COUNTY OF HAMILTON n
Before me, a Notary Public in and for said County and State, personally app d ;1VIICYYIEL T.
MCBRIDE, by me known, and by me known to be City Engineer of the CITY OF L, who
acknowledged the execution of the foregoing "Consent To Encroach" on behalf of the City of
Indiana.
Witness my hand and Notarial Seal thiso.•s day of G 20
NOT? Y P LIC
My Commission Expires:
\cidy L. .S 01 leX
6 Lo Printed Nate
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
[eb:msword:zA shared\dhilkonscnttoencroach \villtowneptentrywayirr.doc:7 /19/05] 7
LEGAL DESCRIPTION
A part of the Northwest Quarter of Section 28, Township 18
North, Range 3 East of Clay Township, Hamilton County,
Indiana, more particularly described as follows:
Portions of the dedicated right of way of Towne Road, adjacent
to the west boundaries of the Village of Towne Pointe
subdivision, including Block A,- Common Area -A and Common
Area C at the President Street and Towne Road intersection of
said Village of Towne Point.
Also, portions of the dedicated right of way of West 131
Street, adjacent to the south boundary of the Village of Towne
Pointe subdivision, including Block B and Common Area C of
said Village of Towne Pointe.
As recorded in the Office of the Hamilton County Recorder on:
February 20, 2004 in Plat Cabinet 3, Slide 348 as Instrument
#200400010842 as The Village of Towne Pointe.
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