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116th and Carmel Creek - 4-L CompanyCross Reference to Prior Deed of Record: Corporate Warranty Deed recorded in Book 300, Pau 825 in the Hamilton County, Indiana Recorder's Office 200400050559 Filed for Record in �.C. J-23 13• HAMILTON COUNTY INDIANA JENNIFER J HAYDEN .6 DRAINAGE EASEMENT AGREEMENT 07-20-2004 At 12:49 pm. ��� EASEMENTS 31.00 This. Easement Agreement (this "Agreement") is made and entered into this day of kocAuci. . 2003 by and between 4-L COMPANY OF CARMEL, and Indiana partneYship ("Grantor") and THE CITY OF CARMEL, INDIANA ("Grantee"). RECITALS A. Grantor owns certain real property (the "Grantor Parcel") located in Hamilton County, Indiana more particularly described as follows: See Exhibit A attached hereto and incorporated herein. B. Grantee, in connection with Grantee's improvement and widening of 116' Street and Grantee's construction of certain storm water drainage improvements related to such widening and located in the vicinity of the intersection of 1 16th Street and Carmel Creek (the "Project"), requires a permanent easement over a portion of the Grantor Parcel which permanent easement area (herein referred to as the "Permanent Easement Parcel") is more particularly described as follows: See Exhibit B attached hereto and incorporated herein. NOW, THEREFORE, in consideration of the foregoing recitals, all of which are incorporated herein by this reference, and of the grants of easements and the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Grant of Permanent Access. Drainage and Maintenance Easement. Grantor hereby grants and conveys to Grantee an exclusive, perpetual easement over, under, through and across the Permanent Easement Parcel for the purpose of: (a) Storm water drainage. (b) Access, ingress and egress for the initial installation, future maintenance, repair and replacement of (i) other improvements related to the Project and (ii) future improvements conducive to the drainage of storm water. (c) Removal, without liability to Grantee (except as otherwise provided below), of any "improvements" (hereinafter defined) located within the Permanent Easement Parcel, whether now existing or hereafter placed or constructed; provided, however, Grantee shall be solely responsible for the cost and expense of removing any Improvements existing as of the date hereof and identified on Exhibit C attached hereto and incorporated herein by this reference, and Grantor shall reimburse Grantee (within thirty (30) days following written demand therefor) the cost and expense of removing any Improvements placed or constructed thereon at any time after the date hereof unless such Improvements are either constructed by Grantee pursuant to (b) above, or approved by Grantee in advance in writing which approval may be withheld in Grantee's sole discretion. The term "Improvements" in the immediately preceding sentence hereof shall include, without limitation, fences, buildings, structures, asphalt or concrete paving., curbing or other similar improvements, trees, bushes, earthen or other mounds, levees or berms, and other structures. 2. Oblig.ations of Grantee. Subject to the terms described in Section 1, Grantee shall restore the Pemianent Easement Parcel, to the extent practicable, to the condition as existed prior to the commencement of the Project. 3. Rights Retained by Grantor. Grantor shall retain unto itself, and its grantees, heirs, successors and assigns, and others to whom Grantor may grant rights or easements, the right to use the Pemmanent Easement Parcel for any and all purposes and uses not inconsistent with the foregoing rights granted to Grantee. 4. Obligations of Grantor. Unless the prior written consent of Grantee is obtained as aforesaid, Grantor shall keep the Permanent Easement Parcel free of any and all Improvements (other than those placed or constructed by Grantee). Grantor shall mow and care for the grass located within the Permanent Easement Parcel and shall keep the Permanent Easement Parcel free from debris, silt, weeds, refuse and any other obstructions. 5. Easement and Covenants Appurtenant. The easement and other rights granted, created and made herein, together with the benefits thereof, shall run with the Grantor Parcel and inure to the benefit of Grantee and its grantees, successors and assigns. The easement granted, created and made herein, together with the burdens thereof, shall run with and bind the Grantor Parcel, and shall bind Grantor and its grantees, successors and assigns. All covenants and agreements of the Grantor and Grantee hereunder, together with the benefits and burdens thereof, shall be deemed to be real covenants which touch and concern the Permanent Easement Parcel and the Grantor Parcel, as applicable, shall run with the Permanent Easement Parcel and the Grantor Parcel, and shall inure to the benefit of and be binding upon Grantor and Grantee, as applicable, and their respective grantees, successors and assigns. All covenants and agreements hereunder may be enforced by an action for specific performance, and in the event that a party breaches any such covenant or agreement, the other party may exercise any remedy available hereunder, at law or in equity, and recover from the breaching party all amounts expended in connection with exercising any such remedy (including without limitation, court costs and attorneys' fees). 6. Notices. Any and all notices, demands, requests, submissions, approvals, consents, or other communications or documents required to be given, delivered or served or which may be given, delivered or served under or by the terms and provisions of this Agreement or pursuant to law or otherwise, shall be in writing. All notices shall be either (a) sent by 2 overnight delivery using a nationally recognized overnight courier, in which case notice shall be deemed delivered one business day after deposit with such courier, (b) sent by certified or regular U.S. mail, postage prepaid, in which case notice shall be deemed delivered two business days after deposit in such mails, or (c) sent by personal delivery, in which case notice shall be deemed delivered upon receipt or refusal of delivery. All notices shall be addressed, if to the Grantee, to Grantee at: City of Carmel Board of Public Works and Safety One Civic Square Carmel, Indiana 46032 Attn: President with a copy to: Hall, Render, Killian, Heath & Lyman, P.S.C. One American Square, Suite 2000 Indianapolis, Indiana 46282 Phone: 317-633-4884 Fax: 317-633-4972 Attn: Robert A. Hicks, Esq. or to such other address as Grantee may from time to time designate by written notice to Grantor, or if to Grantor, addressed to Grantor at: 4-L Company of Carmel 8960 S. Keystone Avenue Indianapolis, IN 46227 or to such address as may be designated by the Grantor from time to time. 7. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the date first written above. GRANTOR: GRANTEE 4-L COMPANY OF CARMEL. an Indiana partnership By: By:��Pi L. Printed: f:', HAI u •, 6-C4a 3 Printed: Stephen Engelkine Title: Director of Administration STATE OF INDIANA ) ) SS: COUNTY OF kA) -(ti..-- ) Before me, a Notary Public in and for said County and State, personally appeared �r r S • t , theeaca cz I pq r Ikzr of Grantor and who, having been duly sworn, acknowledged the truth and accuracy of the representations made herein and the execution of the foregoing Agreement. Witness my hand and Notarial Seal this )Z day of My commission expires: `) e - L% -o ff 1 am a resident of kig,(a'" County, Indiana STATE OF %' /t4 ✓ d ) ) SS: COUNTY OF ,2/4y(C�/"/ ) , 2003. Notary Public )46<:-c/..J \J /'"/ ' .!;' i' Printed Name Before me, a Notary Public in and for said County and State, personally appeared Stephen Engelking, the Director of Administration of Grantee, who, having been duly sworn, acknowledged the truth and accuracy of the representations made herein and the execution of the foregoing Agreement for and on behalf of said Grantee. Witness my hand and Notarial Seal this Eday of My commission expires: -07-c" I am a resident of H4R /v"-1 County, Indiana , 2003. 5 Notary Public mecca) c0 Printed Name CONSENT AND SUBORDINATION The undersigned, as the owner of an interest in the Grantor Parcel, hereby consents to the foregoing Agreement and agrees. that such interest, as more particularly described in that certain Option to Purchase dated March 25, 2002, which is referenced to in a Memorandum of Option to Purchase dated April 10, 2002 and recorded on May 20, 2002 as Instrument No. 2002- 200036738, together with all rights appurtenant thereto, is subject to and subordinate to the Agreement and that any exercise of such Option to Purchase shall not extinguish, invalidate or otherwise affect the Agreement or the rights, benefits, duties and burdens of the parties thereto and their respective successors and assigns. STATE OF INDIANA COUNTY OF Cti:101 Before me, a Notary Public in and for said County and State, personally appeared Charles M. Lee, who acknowledged execution of the foregoing Consent and Subordination as his voluntary act and deed. ) SS Charles M. Lee 144/ William R. Lee WITNESS my hand and Notarial Seal this / My commission expires: ! f ZA9 CSV I am a resident of Mar w( County, Indiana day of 0' vt V-' ,20 Notary Public Le9 Printed Name glia L {FSA C.OUVAU. NCI NOTARY RUNIC STATE OF SEXANAMARION COUNT(' LW COMMISSION VW. SEFT 7, 2008 STATE OF INDIANA COUNTY OF LESA C. DUVALL NOTARY PUBUC STATE OF INDIANA MARION COUNTY ) SS: MY COMMISSION DIP. SEPT 7, 2CO3 Before me, a Notary Public in and for said- County and State, personally appeared William R. Lee, who acknowledged execution of the foregoing Consent and Subordinationtionas his voluntary act and deed. WITNESS my hand and Notarial Seal this day of C )G�- ✓f ✓ ' 200 ii My commission expires: c1/7P g I am a resident of ActrI414 County, Indiana Notary Public j_esa c.� Printed Name This instrument was prepared by and, following recording, should be returned to: Robert A. Hicks, Attorney at Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.S.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4834. 65147 I.DOCRAH 7 CONSENT AND SUBORDINATION The undersigned, as the holder of a lien on the Grantor Parcel, hereby consents to the foregoing Agreement and agrees that the lien of that certain Second Real Estate Mortgage and Security Agreement dated May 31, 1985 and recorded on June 5, 1985 as Instrument No. 85- 7403 in the Office of the Recorder of Hamilton County, Indiana, as modified by that certain First Modification of Loan Documents dated December 31, 1991 and recorded on January 7. 1991 as Instrument No. 92-00791 in the Office of the Recorder of I-Iamilton County, Indiana, as modified by that certain Second Modification of Loan Documents dated June 1, 2000 and recorded on April 1, 2002 in the Office of the Recorder of Hamilton County, Indiana, together with all documents executed in connection with such Mortgage is subject to and subordinate to the Agreement and that any foreclosure or deed -in -lieu under such Mortgage shall not extinguish or invalidate the Agreement or the rights, benefits, duties and burdens of the parties thereto and their respective successors and assigns. STATE OF INDIANA ) SS: COUNTY OF AR tort Bank One, NA Successor in interest to The Indiana National Bank Bv: AiGllco�-- Printed: gen Alei(?0(ah Before me, a Notary Public in and for said County and State, personally appeared RIAN Mc -1/4 Own\ , the duly authorized officer of Bank One, NA, who acknowledged execution ofthe foregoing Consent and Subordination for and on behalf of said Bank One, NA. WITNESS my hand and Notarial Seal this $ day of De C £MBF R . 2003. My commission expires: q \\ I am a resident of \\DRtCKS County, Indiana Y \ e, A.,.,P. Notary Public NINA L,. WINDELL 'O Printed Name This instrument was prepared by and, following recording, should be returned to: Robert A. I -Licks, Attorney at Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.S.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4884. CONSENT AND SUBORDINATION The undersigned, as the holder of a lien on the Grantor Parcel, hereby consents to the foregoing Agreement and agrees that the lien of that certain Mortgage dated August 9, 1996 and recorded on August 21, 1996 as Instrument No.96-35261 in the Office of the Recorder of Hamilton County, hndiana, together with all documents executed in connection with such Mortgage is subject to and subordinate to the Agreement and that any foreclosure or deed -in -lieu under such Mortgage shall not extinguish or invalidate the Agreement or the rights, benefits, duties and burdens of the parties thereto and their respective successors and assigns. STATE OF INDIANA COUNTY OF MARton1 ) SS: Bank One, NA Successor in interest to The Indiana National Bank By: Printed: Ryan ithKeowh Before me, a Notary Public in and for said County and State, personally appeared R`IAN Mckeo .) . the duly authorized officer of Bank One, NA, who acknowledged execution of the foregoing Consent and Subordination for and on behalf of said Bank One, NA. WITNESS my hand and Notarial Seal this 5 day of 1) ECENISER_ . 2003. My commission expires: Ck -\ \ I am a resident of a4.1JDR1c45 County, Indiana otary Public tJtNA L. V,lwD.A__t— Printed Name ( r This instrument was prepared by and, following recording, should be returned to: Robert A. 1"wwi" i Hicks, Attorney at Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.S.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4884.