MEETING DATE: February 26, 2019
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Miscellaneous
ITEM #: 6
INITIATED BY: Oksana Polhuy
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Verbal
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Board of Public Works and Safety
Agenda Item
PERMANENT ENCROACHMENT AGREEMENT
Document Cross Reference Number 2018-31775
This Agreement entered into on the dates set out herein, between the City of Noblesville, Indiana, by and through the Board of Public Works and Safety, (hereinafter referred to as the “City”) and Jose Ruy Sanchez Felix (hereinafter referred to as “Occupant”).
WITNESS THAT:
WHEREAS, the City owns or has jurisdiction over the Drainage Easement and Water Access Easement (DE & WAE) around the lake in the subdivision commonly known as Lochaven of Noblesville which is located in Noblesville Township, Hamilton County, Indiana; and
WHEREAS, the Occupant is the occupant of 7052 Spayside Drive South which property is described in and recorded as Lot 186 Section 9B in Lochaven of Noblesville subdivision, Parcel ID # 10-10-14-00-06-005.000 recorded in the office of the Hamilton County Recorder, Hamilton County, Indiana, as Instrument No. 2018-31775 and, which is incorporated hereto by reference and made a part hereof, hereinafter referred to as the “Property”; and
WHEREAS, the Occupant, at his own expense, desires to install in the Drainage Easement and Water Access Easement (DE & WAE) a fence, hereinafter referred to as the “Encroachment” to serve the property, and the City is willing to permit such installation under the terms and conditions as set out herein.
THEREFORE, in consideration of the mutual agreements and covenants contained herein and other good and valuable consideration by and between the parties as follows:
1. The City grants unto the Occupant the right to install, maintain, and replace, the Encroachment, within the Drainage Easement and Water Access Easement (DE & WAE) as outlined below:
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The initial placement of the Encroachment may be within the Drainage Easement and Water Access Easement (DE & WAE) and shall be approved by the City of Noblesville and the Hamilton County Drainage Board.
2. The placement of the Encroachment shall comply with all drawings submitted at time of application and any additional requirements or restrictions placed by either the City or the Hamilton County Drainage Board.
3. In no instance shall the Encroachment be placed any closer than ten (10) feet of the rip-rap surrounding the lake at normal pool.
4. The City shall have no duty to maintain or relocate the Encroachment, if necessitated by any future public improvement or use of the Drainage Easement and Water Access Easement (DE & WAE). In the event there is a need for maintenance or relocation of the Encroachment, the Occupants shall comply with any applicable City ordinance, and obtain any permits necessary to conduct such work. Any relocation that occupies less of the Drainage Easement and Water Access Easement (DE & WAE) may be accomplished, at Occupant’s option, by installation of a replacement Encroachment and removal of the original Encroachment.
5. In the event it becomes necessary for all, or any part of the Encroachment to be relocated to accommodate any future public improvements or maintenance work, the City may notify the Occupant of the need to relocate the Encroachment if they are aware that the Encroachment is in conflict. Because the Encroachment is not covered by the utility locate system, the City cannot insure its detection as a conflict.
6. In the event the Occupant fails to relocate the Encroachment upon notification by the City, or the City does not detect in advance that the Encroachment is in conflict with the project, the City shall be permitted to commence any work within the
Drainage Easement and Water Access Easement (DE & WAE) and in the event that the Encroachment is damaged, or in any way made inoperable by said work, the City, their agents, successors, or assigns shall have no liability to the Occupants, for any direct, or consequential damages, arising out of the Occupant’s use, or lack of use, of the Encroachment.
7. Nothing herein shall be construed as imposing a duty upon the Occupants to relocate the Encroachment. Also nothing herein shall be construed as imposing a duty upon the City to notify the Occupants of proposed construction or maintenance conflicts with the Encroachment. The City will not have any duty to stop a maintenance or construction project to allow the Occupant time to relocate the Encroachment. The Occupants shall have no cause of action against the City and shall indemnify and hold the City harmless for any direct or consequential damages arising out of any damage to the Encroachment. The Occupants shall have no recourse through the City to recover damages to the Encroachment made by a third party performing either permitted or unpermitted work within the Drainage Easement and Water Access Easement (DE & WAE). It shall be the Occupant’s exclusive duty and obligation to have the Encroachment located at its own cost for any entity entitled or permitted to work in the Drainage Easement and Water Access Easement (DE & WAE). The Occupant shall have no course of action to recover damages against any entity entitled or permitted to work in the Drainage Easement and Water Access Easement (DE & WAE) who damages the Encroachment. The Occupant shall indemnify and hold harmless the City for any legal actions brought against the City as a direct or indirect result of allowing the Encroachment within the Drainage Easement and Water Access Easement (DE & WAE). The Occupant shall reimburse the City for all legal costs incurred in the enforcement of this agreement and/or in defending the City against any legal
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actions brought against the City which are a direct or indirect result of the City allowing the Encroachment to be located within the City Drainage Easement and Water Access Easement (DE & WAE).
8. The reciprocal rights and duties under this Agreement shall be binding, on the Occupants, their agents, heirs, assigns, and successors in interest of the real property and shall run with the land. The duties and rights accrued of the City under this Agreement shall be binding to the City, their agents, assigns, contractors, successors, and any successor municipal corporation exercising control over the Drainage Easement and Water Access Easement (DE & WAE) . 9. The parties agree that this Agreement shall be recorded in the offices of the
Hamilton County Recorder, Hamilton County, Indiana.
10. All notices under this Agreement shall be mailed to the following addresses: City of Noblesville
16 South 10th Street
Noblesville, IN 46060
Jose Ruy Sanchez Felix 7052 Spayside Drive South Noblesville, IN 46062
By:
___________________________________ Jose Ruy Sanchez Felix
SUBSCRIBED AND SWORN to me, a Notary Public in and for said County and State, this ______ day of_________, 20___.
________________________________________
My Commission Expires:
Printed:____________________________
NOTARY PUBLIC, A resident of __________County, Indiana
______________________
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals, this
________ day of ______________________, 20__.
BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF NOBLESVILLE
By: _______________________________ Jack E. Martin, President
_______________________________ Lawrence J. Stork, Member
_______________________________ Robert J. Elmer, Member
ATTEST:
___________________________ Evelyn L. Lees, Clerk
Document prepared by: Denise Aschleman, Zoning Administrator, City of Noblesville, 16 South 10th Street, Suite 150, Noblesville, IN 46060 (317)
776-6325
