City Center - RH of Indiana o
O
Ob i APPROVED, AS TO
FORM dY•
CONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
RH of Indiana, L.P., 7400 North Shadeland Avenue, Suite 250, Indianapolis, Marion County, Indiana
"Owner and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works
and Safety "City 200200078626
Filed for Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
WITNESSETH: 10 -21 -22 02 :04 pm.
ENCROAC00HMNT 29.00
WHEREAS, Owner owns in fee simple certain real estate (the "Real Estate located within the
corporate limits of the City of Carmel, Indiana, which real estate is more particularly described in Exhibit
"A attached hereto and incorporated herein by this reference, and in that certain Declaration of
Covenants and Easements which is to be recorded in the Office of the Hamilton County Recorder and
which describes therein the Real Estate as "Parcel 6, depicted and described on Exhibit B -5" thereto and as
the "Single Family Parcel and
WHEREAS, Owner wishes to construct an irrigation system (the "System on the Real Estate as
part of the City Center Redevelopment Project; and
WHEREAS, Owner has given the City sketches depicting the proposed location of the System on
the Real Estate, copies of which are attached hereto and incorporated herein by this reference as Exhibit
"B Exhibit "C Exhibit "D" and Exhibit "E respectively, (the "Sketches and
WHEREAS, the System will be constructed on a portion of the Real Estate designated as Drainage,
Utility and Sewer Easement and Access Easements and Drainage, Utility and Sewer Easements (the
"Easements identified as "D.U. S.E A.E., D.U. S.E." and as dedicated "RIGHT OF WAY" (the
"Right of Way on the Sketches; and
WHEREAS, the Easements and the Right of Way are beneficial to the City and its residents; and
cb: msword: z\ shmcd dhill l forms VwnhomccirrcommLdoc:9 /11/02] 1
WHEREAS, as indicated on the Sketches, the System encroaches (individually and collectively, the
"Encroachments upon the Easements and /or the Right of W; and
WHEREAS, Owner and City acknowledge the location of the Encroachments; and
WHEREAS, the location of the System as indicated by the Owner on the Sketches, should not
materially interfere with the City's use of the Easements or 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 any or all of the Encroachments and /or the System from what is depicted
on the Sketches. Owner further covenants and agrees to maintain the System in good, safe,
clean and sightly condition, which maintenance shall include, but not be limited to, the
Owner's repair and replacement of the System at Owner's own expense as is necessary to
satisfy such covenant and agreement.
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 Easements and /or the Right of
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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.
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 action or
inaction of the Owner, its employees, officers, officials, invitees, licensees and /or agents,
regarding or related to the System and /or the Encroachments.
6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
to replace or repair any damage to the Easement and /or the Right of Way and any
improvements located therein caused by the installation, construction, maintenance and /or
operation of the System due to Owner' s other obligations, responsibilities, actions or
inactions as set forth herein. Owner further agrees that, at the expense of Owner, City may
enforce Owner's obligations and responsibilities as set forth herein through the exercise of
any legal or equitable remedies, including, but not limited to, that City may cure any
continuing breach of Owner's obligations and responsibilities.
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.
[eb msword:z\shared\ Vbrms twnhomccirrconsenLdoc:9 1/02] 3
8. Owner agrees that its usage of the System will be restricted to non -peak hours and that
the System may, at any time, be subject to other use restrictions by the City including, but
not limited to, the System being used only on designated days or from "dusk to dawn
9. 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.
10. 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.
11. Owner agrees that the placement of the System in the Right of Way and /or the Easements
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 and /or the Easements, 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 therof, 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 cost of relocation and /or repair of the System.
12. 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
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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 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
RH of INDIANA, L.P. CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
'1 1. Ve-...- Kenny Windier, Vice President of Operations J es Brainard, Presi 4 ing Officer
SSN: 3i? 4 3 L /y.5 9 D te: 0 d_
Date: 9//7/o
o f d 1_.�.—.
Mary Ann 5 urke, Me ber
Date: D r 0
1111111
Yrr
Lori Watson, Me vier
Date. 10 4 Jo
ATTEST: -max a
dttnrlra.,t)41car( &ir, J TI /i
Diana Cordri l Clerk Treasurer
Date: O.D
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F
STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared KENNY
WINDLER, VICE PRESIDENT OF OPERATIONS OF RH OF INDIANA, L.P., by me known, and who
acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his or her voluntary act
and deed.
Witness my hand and Notarial Seal this 1 day ofIll' !.k I. 2co d
AP AY p N O r Y PUB Al
My Commission Expires: SEAL n r
z/0 U 4.4117 11' Printed Name
00_,-.0
My County of Residence: r
STATE 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 LORI WATSON, by me known, and d m e
bv known to be the
Members of the City of Carmel Board of Public Works and Safety, and ANA L. C�URDKAY, Lle k-
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoin "CONSENT
TO ENCROACH" on behalf of the City of Carmel, Indiana. -s
Witness my hand and Notarial Seal this e2. day of Mid /3 2 2Q•6. ,••t
C." L
NOTARY PUBLIC r
My Commission Expires: 4�cl/
N
ii//gia Printed Name
My County of Residence: /1
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
Nyms wd:zWlar kkill\fonm\h id omccirmommitdoc:9/11/02] 6
Legal Description:
Townhouse Development at Carmel City Center Parcel 1
Part of the Northeast Quarter of Section 36, Township 18 North, Range 3 East, of the Second Principal I` Meridian, Hamilton County.
Indiana, being more particularly described as follows:
Commencing at the Northeast Corner of said Quarter; thence South 89 degrees 12 minutes 13 seconds West (Assumed Bearing) along
the north line thereof a distance of 1850.19 feet to the Point of Beginning: thence South 00 degrees 12 minutes 12 seconds East a
distance of 35.98 feet; thence South 28 degrees 27 minutes 45 seconds East a distance of 74.31 feet; thence South 11 degrees 35
minutes 59 seconds West a distance of 44.41 feet to a curve to the right, non tangent to the previously described course, having a
radius of 460.96 feet, the radius point of which bears North 07 degrees 11 minutes 48 seconds East; thence Northwesterly along said
curve an arc distance of 35.42 feet to a point which bears South 11 degrees 35 minutes 59 seconds West from said radius point; thence
North 78 degrees 24 minutes 01 seconds West a distance of 181.16 feet to a curve to the left, having a radius of 558.94 feet, the radius
point of which bears South 11 degrees 35 minutes 59 seconds West; thence Northwesterly along said curve an arc distance of 113.16
feet to a point which bears North 00 degrees 00 minutes 00 seconds East from said radius point; thence North 90 degrees 00 minutes
00 seconds West a distance of 153.98 feet to a curve to the left, having a radius of 749.00 feet, the radius point of which bears South
00 degrees 00 minutes 00 seconds East; thence Southwesterly along said curve an arc distance of 333.14 feet to a point on the west
line of a tract of land as described in Miscellaneous Record 48, Page 462 and 463 in the Office of the Recorder of Hamilton County.
Indiana, said point bears North 25 degrees 29 minutes 04 seconds West from said radius point; thence North 00 degrees 11 minutes 57
seconds West along said west line a distance of 153.30 feet to the North Line of the said Quarter; thence North 89 degrees 12 minutes
13 second East along said North line a distance of 775.03 feet to the Point of Beginning. Containing 1.899 acres, more or less.
Legal Description:
Townhouse Development at Carmel City Center Parcel 2
Part of the Northeast Quarter of- Section 36, Township 18 North, Range 3 East, of the Second Principal Meridian, Hamilton County,
Indiana, being more particularly described as follows:
Commencing at the Northeast Corner of said Quarter; thence South 89 degrees 12 minutes 13 seconds West (Assumed Bearing) along
the North line thereof a distance of 1392.84 feet to the Point of Beginning; thence South 00 degrees 12 minutes 12 seconds West a
distance of 153.25 feet; thence South 89 degrees 45 minutes 36 seconds West a distance of 173.87 feet; thence North 02 degrees 10
minutes 57 seconds East a distance of 54.87 feet; thence North 68 degrees 55 minutes 42 seconds East a distance of 29.50 feet; thence
North 16 degrees 37 minutes 44 seconds East a distance of 34.79 feet; thence North 00 degrees 14 minutes 14 seconds West a distance
of 53.35 feet to the North Line of the said Quarter; thence North 89 degrees 12 minutes 13 seconds East along said north line a
distance of 135.05 feet to the Point of Beginning. Containing 0.530 acres, more or less.
J: \3k \3696 \001 \docs\land_description.doc
04 /20/01 kdk
EXHIBIT "A"
Right
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CO
IRRIGATION SYSTEM ENCROACHMENT
THE TOWNHOMES AT CITY CENTER
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EXHIBIT "C"
IRRIGATION SYSTEM ENCROACHMENT
THE TOWNHOMES AT CITY CENTER
Go -EET1
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XHIDIT�
IRRIGATION SYSTEM ENCROACHMENT
THE TOWNHOMES AT CITY CENTER
C AUTUMN DRIVE (OLD 126 STREET)
AUTUMN -H-
7 1
1 Right of Way Ltne
1
.1.--___ C;"'",
fr 4 WALK I C
1 i r .2'
---=11 1'1" 4 W4,,_I\ D1.1.5: I 1 T I I I 7. I I I 5 7.1 -c 1
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49' Half Right of Way Line
Sidewalk
w____ w w ci. TT EXHIBIT "E"
IRRIGATION SYSTEM ENCROACHMENT CITY CENTER DRIVE
THE TOWNHOMES AT CITY CENTER