13133 Brooks Landing - Lucas, P. David I�
CONSENT TO ENCROACH APPROVED, AS TO
FORM BY:
THIS CONSENT TO ENCROACH hereinafter the A g "Agreement") is entered into y and between
P. David Lucas, 13133 Brooks Landing Place, Carmel, Hamilton County, Indiana 46033 (the "Owner
and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety
"City
WITNESSETH:
WHEREAS, Owner alone owns in fee simple Lot Number 21 "Lot in the Brooks Landing at
Prairie View 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 as Instrument #9720008 in Plat
Cabinet No.1, Slide No. 780 in the Office of the Hamilton County Recorder on May 22, 1997, as Brooks
Landing at Prairie View, Section 1; and
WHEREAS, Owner wishes to construct a Fence (the "Fence on the Lot and receive the City's
consent to an existing residential Irrigation System (the "System and Landscape Mounds /Trees (the
"Mounds located on the Lot; and
WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
Fence and the existing location of the System and the Mounds on the Lot, a copy of which is attached
hereto and incorporated herein by this reference as Exhibit A; and
WHEREAS, the Fence will be, and the System and the Mounds are, constructed on a portion of the
Lot designated as Drainage, Utility Sewer Easements (the "Easements identified as "15' D.U. S.E."
and "10' D.U. S.E. on Exhibit A; and
WHEREAS, the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Fence, the System 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
[eb. nuword:s: \,Qull\Conns lucasconsat doc:5 /11/001 1
WHEREAS, the location of the Fence, the System and the Mounds, as indicated by Owner on
Exhibit A, should not materially interfere with the City's use of the Easement.
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 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 Encroachment, the Fence, the System and /or the Mounds from what
is depicted on Exhibit A.
4. Owner agrees that City shall have the right to remove any portion of the Fence, the System
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
City shall incur no obligation to repair, replace or reimburse Owner for the cost of any
damages thereby caused to the Fence, the System and /or to the Mounds.
5. It is soley the Owner's obligation to assure the Fence does not impede drainage so as to
create drainage problems on adjacent properties. This obligation shall include all necessary
maintenance and repairs to all Fence components, including the removal of any debris
collected on Fence panels.
6. The Mounds at the Southwest corner of the Lot have been installed over a 24 -inch
reinforced concrete storm sewer pipe. The City will not be responsible for the replacement
[eb:msword s \dbilbfomis locascnnsent dor s /11 /00] 2
of the Mounds should maintenance or repair of the underground storm sewer pipe or
structure be required thereon at any time in the future. Additionally, the Mounds contain
large quantities of mulch at surface level. The Owner is soley responsible for the removal of
any accumulation of this and other material upon the storm sewer structure.
7. Moreover, the storm sewer pipe at issue is shallow in depth. The Owner is responsible for
locating this pipe onsite prior to the installation of the Fence. The City's Public Works
Inspector shall be notified prior to the installation of Fence posts in the area where the
Fence crosses the underground storm sewer pipe. Such posts are to be installed so as not
to damage the existing underground pipe.
8. Moreover, there exists a storm sewer structure on the south property line of the Lot. The
Owner shall follow the recommendation of the City's Public Works Inspector regarding the
location of the Fence in relation to this structure. The storm sewer structure must not be
enclosed by the Fence and must be accessible to the City or its agents at all times.
9. Owner agrees to provide the City with a drawing indicating the as -built location of the
System within the Easements.
10. 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 or damage to any property or improvements, located on the
Lot, or otherwise, which results directly or indirectly from any action or inaction of the
Owner, its employees, officers, officials, invitees, licensees and /or agents, regarding or
related to the Fence, the System, the Mounds, the referenced concrete storm sewer pipe and
structure located in or adjacent to the Easements, or otherwise.
11. Owner agrees to reimburse City for any and all costs and expenses incurred by City
[ebmsword s \AhilMorms\IocasconsarLdocS /I I /00] 3
to replace or repair any damage to the Easement and any improvements located therein
caused by the installation, construction, maintenance and /or operation of the Fence, the
System and /or the Mounds, or due to Owner's obligations, responsibilities, actions or
inactions as set forth herein.
12. 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.
13. The parties agree that the terms of this Agreement shall be binding upon and inure to the
benefit of their respective heirs, administrators, successors and assigns.
14. 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.
15. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
"OWNER" "CITY"
CITY OF CARMEL, INDIANA
P. David Lucas BY AND THROUGH ITS BOARD OF
SSN: 3 Z c 7 S C l PUBL C WORKS AND SAFETY
Date: S// z 0 0
R mes Brainard, Presiding Officer
Date: 7 nc)
Mary Ann Burke, Member
Date:
Billy�� alker, Member
Date: G
ATTEST:
Diana Cordray, I G Clerk- Tre... rer
Date:
mswurd s\dloInfoens \lucasconsen.doc. 5 /1I /00] 4
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared P. DAVID
LUCAS, 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 a day ofn 2000
NOTARY PUBLIC
My Commission Expires:
L. Vroz_e,1�
a a o (3 Co Printed Name
My County of Residence: Wa
STATE OF 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 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 7/A day of )72 20 CO.
NOTARY PUBLIC
My Commission Expires:
0/ I2 /E I L�,?QI
Printed Name
My County of Residence: HCC rci Q fIYL,
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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Plot Plan
LOT 21 IN BROOKS LANDING SEC 1, A SUBDIVISION IN HAMILTON COUNTY, INDIANA
AS PER PLAT THEREOF. RLCORDED AS INSTRUMENT NO. 9720008. IN P.C. NO. 1
SLOE NO. 780, IN THE OFFICE OF THE RE CORDER OF HAMILTON COUNTY, INDIANA
EXHIBIT A
is ENCROACHMENT
PROPOSED FENCE