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CONSENT TO ENCROACH
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2008060161 ENCROACHME $28.00
12/10/2008 02:10:34P 8 P65
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
APnOCD AS TO FORM 8
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
WITNESSETH:
WHEREAS, City owns in fee simple certain real estate "Real Estate in The Trails at Avian Glen
subdivision, 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 September 11, 1995 as Instrument Number 95 -51395 in Plat Cabinet 1, Slide
Number 593 as The Trails at Avian Glen, Section 8; and 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 July 7,
1998 as Instrument Number 9836788 in Plat Cabinet 2, Slide Number 135 as The Trails at Avian Glen,
Section 10; and
WHEREAS, Owner has placed thirteen street lights (the "Lights together with underground
power conductors and/or conduit, meter settings, and other ancillary equipment necessary for the
operation of the Lights on the Real Estate (individually and collectively referred to hereinafter as the "Site
Improvements") between the sidewalks and the streets; and
WHEREAS, the Site Improvements have been installed on portions of the Real Estate designated
as dedicated public rights of way (the "Rights of Way identified as Kingfisher Place, Kildeer Place,
Snow Owl Drive, Bobwhite Lane, Blacktern Way, Coopers Hawk Drive, Gyrfalcon Place, Meadowlark
Place, Hornbill Place, Whippoorwill Way, Osprey Way, Kingrail Way on Exhibit B; and
WHEREAS, Owner has given the City a sketch "Sketch depicting the approximate locations of
the Lights in the Rights of Way, (by means of an asterisk), a copy of which is attached hereto and
incorporated herein by this reference as Exhibit B; and
WHEREAS, the Rights of Way are beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvements encroach (the "Encroachments
upon the Rights of Way; 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 Rights of Way.
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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 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 Rights 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
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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 Rights 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 Rights of Way and /or any improvements
located therein caused by the installation, construction, maintenance or operation of the
Site Improvements.
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"
THE TRAILS AT AVIAN GLEN HOMEOWNERS'
ASSOCIATION, INC.
By; Ron Iacocca, President
Date:
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"CITY"
CITY OF CARMEL, INDIANA
13Y AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
L i t tat4(r/A:7 4
James Brainard, Presidi g Officer
Date:
M.ry Date: A. t Burk i Me np
Date: �/j 9
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Lori Watson embe
Date: lo
T/
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Di• .r. ray, Atj Treasurer
D t e:
Upon'
D C1e k
STATE OF INDIANA
SS:
COUNTY OF m/
Before me, a Notary Public in and for said County and State, personally appeared RON
IACCOCA, President of The Trails at Avian Glen Homeowners' Association, Inc., by me known, and
who acknowledged the execution of the foregoing "CONSEN"I' TO ENCROACH" as his /her voluntary act
and deed. r
it
Witness my hand and Notarial Seal this /o day of Dept( •4r3c
M} ,Commission Expires:
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STATE OF INDIANA
5S:
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 li}t ntealsnowiy' to, be, the
Members of the City of Carmel Board of Public Works and Safety, and DIANeeL.CORDRA
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing `fGoris6ttt To
Encroach" on behalf of the City of Carmel, Indiana.
Witness my hand and Notarial Seal this I day o t ,caU 2c or
My Commission Expires:
/a/z /e r
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. This instrument was prepared by Douglas C. Haney,
Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032.
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My County of Residence: M4-el
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NOTARY PUBLIC
C. Arum. •Dov/
Printed Name
MyCounty of Residence: -i-+ant+ [tTh'1
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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:
Within the platted right -of -way, between the curb and the
sidewalk, approximately at the extension into the right -of -way
of the common property line of the following Lots: 224/225,
242/243, 250/251, 264/265, 295/296, 308/309, 322/323, 335/336,
345/346, 359/360, 370/371, included with Section 8 of the Trails
at Avian Glen subdivision as recorded in the Office of the
Hamilton County Recorder on September 11, 1995 as
Instrument Number 95 -51395 in Plat Cabinet 1, Slide Number
593; and 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 with Section 10 of
The Trails at Avian Glen subdivision as recorded in the Office
of the Hamilton County Recorder on July 7, 1998 as
Instrument Number 9836788 in Plat Cabinet 2, Slide Number
135.
EXHIBIT "A"
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