Cherry Tree at Coopers Hawk - The Trails at Avian Glen HOA 200500059083
Filed for Record in
HAMILTON COUNTY? INDIANA
a JENNIFER J HAYDEN
09-08-2005 At 02 :56 PM.
D\ ENCROACHtINT 27.00
CONSENT TO ENCROACH
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
The Trails at Avian Glen Homeowners' Association, Inc., P.O. Box 1706, 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
WITNES SETH:
WHEREAS, City owns in fee simple certain real estate "Real Estate in The Trails at Avian Glen
and Emerald Crest at Hazel Dell Summit subdivisions, located within the corporate limits of the City of
Carmel, Indiana "Subdivision which real estate is more particularly described in Exhibit A, attached
hereto and incorporated herein by this reference; and
WHEREAS, the official plats of the Subdivisions were recorded in the Office of the Hamilton
County Recorder on July 19, 1996, as Instrument Number 9609630227 in Plat Cabinet 1, Slide Number
694 as The Trails at Avian Glen, Section 9; and on September 17, 1999, as Instrument Number
199909954919 in Plat Cabinet 2, Slide Number 316 as Emerald Crest at Hazel Dell Summit, Section 1;
and
WHEREAS, Owner wishes to place three lights (the "Lights next to existing trees in the
dedicated Right of Way (individually and collectively referred to hereinafter as the "Site Improvements
at the southern end of the pedestrian trail at the corner of Cherry Tree Avenue and Coopers Hawk Drive;
and
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WHEREAS, Owner has given the City a sketch "Sketch depicting the proposed location of the
Site Improvements in the Right of Way, a copy of which is attached hereto and incorporated herein by this
reference as Exhibit B; and
WHEREAS, the Site Improvements will be constructed on a portion of the Real Estate designated
as dedicated public right of way (the "Right of Way identified as "80' Cherry Tree Avenue R.O.W. on
Exhibit B; and
WHEREAS, the Right of Way is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvements 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 an approval of existing or
future improvements not indicated by Owner on Exhibit B; and
WHEREAS, the location of the Site Improvements as indicated 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 Site Improvements and/or the Encroachments from what is depicted
on Exhibit B.
4. Owner agrees that City shall have the right to remove any portion of the Site Improvements
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 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 agents 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
Site Improvements.
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7. 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.
8. 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.
9. 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.
10. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
"OWNER" "CITY"
THE TRAILS AT AVIAN GLEN HOMEOWNERS' CITY OF CARMEL, INDIANA
ASSOCIATI N, INC. BY AND THROUGH ITS BOARD OF
By: Alan P s nt PUB IC WORKS AND SAFETY
i L
Ala Figg F E fmes Biard ranficer
SSN: gg n 1IL C r Brainard, Presiding Of- S
4 A-►Tp Date: O
Date: 7 --D� 4--Ae
Mary A Burk ember
Date: 3 -0s
Y)o
Lori Watson, Mem ,�1 a R
Date:
l ae:
ATTES F
iana Cord w, IA 4 y Treasur
Date: o"
3
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STATE OF INDIANA
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared ALAN FIGG,
President of The Trails at Avian Glen Homeowners' Association, Inc., 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 a day of t J.4__ 20
i
NOTARY PUBLIC
My Commission Expires:
gic.07 iubka Q I4.1.
fraRx` 9
5 Printed Name
I:Iy �L!i r:'.55Er.1i C5
9TF My County of Residence: /1"1 M
STATE OF DIANA
SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and State, personally appeared JAMES
BRAINARD, MARY ANN BURKE by me known, and r by me known to be the
Members of the City of Carmel Board of Public Works and Safety, and VIAVA L. C
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 3 day of ,S� 20 6c
2.
NOTARY PUBLIC
My Commission Expires:
/VD Printed Name M Y
My County of Residence: 1 �`s�
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic SSuar
Indiana 46032.
�wt4.
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LEGAL DESCRIPTION
Part of the Northeast Quarter and the Northwest Quarter of
Section 28 of Township 18 North, Range 4 East, located in Clay
Township, Hamilton County, Indiana, being more particularly
described as follows:
That portion of the platted /dedicated Right of Way of Cherry
Tree Avenue adjacent to Lot 373 (13267 Snow Owl Drive),
Coopers Hawk Drive and Lot 316 (5759 Coopers Hawk Drive)
included with Section 9 of The Trails at Avian Glen
subdivision as recorded in the Office of the Hamilton County
Recorder on July 19, 1996, as Instrument Number 9609630227
in Plat Cabinet 1, Slide Number 694; and that portion of the
platted /dedicated Right of Way of Cherry Tree Avenue
adjacent to Lot 11 (13248 Aquamarine Drive) and Lot 12
(13272 Aquamarine Drive) included with Section 1 of the
Emerald Crest at Hazel Dell Summit subdivision as recorded
in the Office of the Hamilton County Recorder on September
17, 1999, as Instrument Number 199909954919 in Plat Cabinet
2, Slide Number 316
EXHIBIT "A"
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SPECIFICATIONS
Housing and Shield: Die -cast lo•.: copper aluminum. I
Swivel: Die -cast aluminum with looking teeth and solid brass
NPT mount. Provides horizontal rotation independent of the
threaded mount. Snivel locked by -20 stainless set screw. Clear
anodized prior to Titanated Zirconium conversion coating for
added corrosion resistance
Gasket: Silicone lamp gasket.
Socket: Porcelain medium base.
Wiring: No. 18AWM rated 105'C
Finish: Super TGIC thermoset polyester powder coat paint.
2.5 mil nominal thickness, applied over a Titanated Zirconium
conversion coating: 2500 hour salt spray test endurance rating.
Standard colors are Black (BL), Dark Bronze (DB). and Verde
Green (GR).
Certification: UL Listed to U.S. and Canadian safety standards for
wet locations. Fixture manufacturer shall employ a quality program
that is certified to meet the ISO 9001:2000 standard.
I
EXHIBIT "B
120 Volt PAR38 I ncanc 7 Halogen
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ORDERING INFORMATION MOUNTING OPTIONS
Cat. No. Construction Wattage /Lamp Cat. No. Option See page
EL2ICBL Aluminum 150W EP17 Powe Pcst Mount 94
EL2
Aluminum JB1 Archir cr al J Box 94
EL Aluminum Incand. Halogen J 25N Portable Spear Mount 94
1 E PHOTOMETRIC DATA JBR-2 thru 24 In gra e !Box 95
i See page 104 JBR30, JBR32 Staked In -grade J -Box 95
SM18 Stancnion Mount 96
Os
unto J -27N Surface Mount 96
JW Architectural Wall Mount 96
See Option pages for complete ordering information and finishes
available.
B
Aluminum Finishes EXHIBIT 13"3
Blat, BL
D DB
V= GR