Fairfax Manor Drive/Virginia Blvd - Edward Rose Development Co /./1 1 2013043453 ENCROACHME $27.00
07/12/2013 10:26:23A 9 PGS
Mary L: CI"ark :
HAMILTON County Recorder IN
Approved By , 17. A% Recorded as Presented
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APPROVED 6P- CONSENT TO ENCROACH sit01F
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THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between
Edward Rose Development Company, L.L.C., 7901 Crawfordsville Road, Indianapolis, Indiana, 46214, a
Michigan limited liability company, ("Owner"), and the City of Carmel, Hamilton County, Indiana, by
and through its Board of Public Works and Safety ("City"),
WITNESS ETH:
WHEREAS, Owner owns in fee simple certain real estate ("Real Estate"), known as Alexandria
Apartments ("Apartments"), located within the corporate limits of the City of Carmel, Indiana; and
WHEREAS, certain rights-of-way for Fairfax Manor Drive and Virginia Boulevard were granted
to the City, and were recorded in the Office of the Hamilton County Recorder on March 7, 2005 as
Instrument No. 2005-00014014 and as Instrument No. 2005-00014015. In addition, certain existing rights
of way for West Main Street, Pennsylvania Street and Grande Boulevard adjoin the Real Estate (all such
rights of way are collectively referred to as the "Rights of Way"); and
WHEREAS, Owner wishes to install decorative street name signs and posts, decorative stop signs,
assemblies and posts and related equipment and appurtences (individually and collectively the
"Decorative Signage") within certain portions of the Rights of Way depicted on the drawing attached as
Exhibit A; and
WHEREAS, Owner also wishes to install irrigation, landscaping, lighting, a fountain and facilities
and equipment for the provision of telecommunication, broadband and/or video services (individually and
collectively referred to hereinafter as the "Improvements"; the Improvements also include the Decorative
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Street Signs as applicable) within certain portions of the Rights of Way depicted by cross-hatching on the
drawing attached as Exhibit A (the"Rights of Ways Encroachments"); and
WHEREAS, the Rights of Way are beneficial to the City and its residents; and
WHEREAS, certain of the Improvements will be constructed on portions of the Real Estate
designated as Sanitary Sewer Easements, granted to the City of Carmel and recorded in the Office of the
Hamilton County Recorder on October I8, 2005 as Instrument No. 2005-68467 and as Instrument No.
2005-68468 and identified on Exhibit A (collectively, the "Easements"); and
WHEREAS, the Easements are beneficial to the City and its residents; and
WHEREAS, as indicated on Exhibit A, the Improvements encroach upon the Easements, which
encroachments are at the locations crosshatched on Exhibit A (together with the Right of Way
Encroachments, the "Encroachments"); and
WHEREAS, Owner and City acknowledge the Encroachments; and
WHEREAS, Owner acknowledges that this Agreement does not imply any approval of
improvements other than the Improvements indicated in these Recitals; and
WHEREAS, the City acknowledges that the location of the Improvements within the cross-
hatched area on Exhibit A should not materially interfere with the City's use of the Right of Way or
Easements.
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:
I. The foregoing preambles, recitations and definitions are made a part hereof as though such
13148210
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 install any item or improvement in the Easements or
Rights of Way, other than the Improvements, without the express written consent of the
City.
4. Owner agrees that all Decorative Signage will meet the legal requirements for Uniform
Traffic Control Devices and will comply with all applicable laws rules and ordinances.
The Decorative Signage shall be kept free from obstruction and in good condition and
repair. All Decorative Signage must be replaced within two (2) hours of Owner having
knowledge or notice that the Decorative Signage has been removed, damaged or otherwise
unavailable. In the event the Decorative Signage cannot be replaced within this two (2)
hour period, Owner covenants and agrees to install proper temporary signage. All such
maintenance, repair and replacement shall be at Owner's sole cost and expense. The City
has the right, within its sole discretion and acting in the interest of public safety, at any
time and without notice to Owner_to provide any such replacement and/or temporary
signage or take any other public safety measures the City deems warranted, at the sole cost
and expense of Owner. Such replacement and/or temporary signage installed by the City
shall be the City's standard signs and equipment. The City may also, acting in the interest
of public safety and/or as required by any applicable laws, rules or ordinances, require the
Owner, at Owner's expense, to replace all Decorative Signage with the City's standard
11143210 3
•
signage or signage that otherwise complies with all applicable laws, rules and ordinances.
Owner shall indemnify the City and hold harmless the City, its officers, officials, members,
employees, invitees, licensees and agents from and against any and all losses, liabilities,
damages, claims, judgments, attorneys' fees, costs rising from any bodily injury and/or
death and from any destruction or damage to any property or improvements related to the
Decorative Signage or arising from Owner's breach of this Agreement or Owner's actions
taken in furtherance thereof.
5. In addition to the City's rights with respect to the Decorative Signage, Owner agrees that
the City shall have the right to remove any portion of the Improvements as the City deems
necessary, in the 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 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 Improvements or to Owner.
6. Owner agrees that the operation of the Improvements will not create standing water and/or
other drainage problems that affect the City or adjacent property owners and that, if such
problems arise, the City, in its sole discretion, may itself remove or may notify Owner who
shall then immediately remove, all or any portion of the Improvements as is necessary to
correct such problems, at Owner's sole cost and expense; provided that, except in the case
of a bona fide emergency, the City shall provide Owner fifteen (15) days written notice and
an opportunity to correct such problems during such notice period before exercising its
rights hereunder.
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7. Owner agrees that the water flow from the Improvements shall be directed away from all
street travel lanes and that water from the Improvements 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.
8. 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 from the location of the Improvements in the
Rights of Way or Easements, the Encroachments, Owner's breach of this Agreement
and/or Owner's actions taken in furtherance thereof.
9. Owner agrees to repair or replace, at Owner's sole cost and expense and to the City's
reasonable satisfaction, any utilities or improvements (whether located above, below or on
the surface of the Right-of-Way and/or the Easements) damaged as a result of the
installation, construction, maintenance or operation of the Improvements.
10. 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 or Easements and/or any
improvements located therein caused by the installation, construction, maintenance or
operation of the Improvements.
11. Owner agrees to install identification tape or identification wire on the Improvements that
will allow the City to readily determine the underground location of any Improvements.
mixa0 5
12. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder
within ten (10) days from the date a fully executed copy is delivered by the City to the
Owner and to provide to the City with a recorded copy of same within ten (10) business
days from the recording date of this Agreement. In the event this Agreement is not timely
recorded by Owner, Owner agrees and consents to the City recording same, at Owner's
sole expense.
13. 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.
14. The parties hereto agree that the invalidity of any section, subsection, clause or provision
of this Agreement shall not affect the validity of the remaining sections, subsections,
clauses or provisions of this Agreement.
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.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
16. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
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"OWNER" "CITY"
EDWARD ROSE DEVELOPMENT CITY OF CARMEL, INDIANA
COMPANY, LLC. BY AND THROUGH ITS BOARD OF
By: PUBLIC WORKS AND SAFETY
Authorized Representative ames Brainard, residing Officer
Date:
Date: 77(..11-t— (7 2- °(.� �I /
Mary A Burke, Member
Date: - — �3
i
Lori Watso , e er
Date: 77a// 3
ATTEST:
M
Diana Cordray, IAMC, lerk-Treasurer
Date: —7-3—/3
uuxmm 7
M!co (GAN
STATE OF HNBhA-NA )
) SS:
COUNTY OF O A-KU1,� )
Before me, a Notary Public in and for said County and State, personally appeared
Warren Rose of Edward Rose Development Company, 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 /7 day of , 2013.
Zazay--1,
NOTARY PUBLIC
My Commission Expires: DAWN E. SCHULTZ
NOTARY PUBLIC,STATE OF MI
co INT(nr OAK'AND
-,34,A2 26, 2014, Printed Name MY COMMISSION EXPIRES Jun 26,2016
ACTING IN COUNTY OF ofK�p,odlN
My County of Residence: (.7AKcNN A
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 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 rot day of p ' � , 20 I� •
NOTARY PUBLIC S
*� SE
�P
My Commission Expires: g
+/V l'TU+) Printed Namlt/ /L O1/4 * <�t' t:t, ,1
My County of Residence: •,'� ' *.� a
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each
Social Security Number in this document, unless required by law.
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