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5788 Gyrfalcon Pl - Bading, MichaelAPPROVED eb•msword :y: \shared\Iptcketdconsents to encroach \michael bading cosent.doc_2 /5 /10] CONSENT TO ENCROACH WITNESSETH: 1 2010010687 ENCROACHME $25.00 03/09/2010 0 8:59:31A 8 PGS Jennifer J Hayden HAMILTON County Recorder IN Recorded as Presented AP nov:D AS TO FORM 13Y THIS CONSENT TO CROACH (hereinafter the "Agreement is entered into by and between Michael Bading, 5788 Gyrfalcon Place, Carmel, Hamilton County, Indiana 46033 "Owner and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ("City"), WHEREAS, Owner owns in fee simple Lot Number 227 "Lot with a common address of 5788 Gyrfalcon Place, Cannel, Hamilton County, Indiana 46033, in the Trails at Avian Glen Subdivision which is 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 plat of the Subdivision was recorded in Plat Cabinet 1, Slide Number 593, Instrument Number 95- 51395, in the Office of the Hamilton County Recorder on September 11, 1995, as The Trails at Avian Glen, Section Number 8; and WHEREAS, the current Owner wishes to install a 12 -inch pipe on the lot to enclose the existing open drainage swale (the "Site Improvement and WHEREAS, Owner has given the City a sketch ("Sketch depicting the proposed location of the Site Improvement on the Lot, a copy of which is attached hereto and incorporated herein by this reference as Exhibit B; and WHEREAS, the Site Improvement is proposed to be constructed on a portion of the Lot designated as a Drainage and Utility Easement (the "Easement identified as "20' D. U.E." on Exhibit B; and WHEREAS, the calculations provided by the Owner demonstrate that the Site Improvement satisfies Section 303.05 (4) of the City of Carmel Stormwater Technical Standards; and WHEREAS, the Easement is beneficial to the City and its residents; and WHEREAS, as indicated on the Sketch, the Site Improvement will encroach (the "Encroachment upon the Easement, which Encroachment is crosshatched on the Sketch; and WHEREAS, Owner and City acknowledge the location of the Encroachment; and WHEREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not indicated by Owner on Exhibit B; and WHEREAS, the location of the Site Improvement as indicated by the Owner on Exhibit B should not materially interfere with the City's use of the Easement. 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. eb: msvord :v:\sharedhlpickett\consents to encroach\imcltael baling consent.doc 2/5/10] 2 [eb 2. The City consents to the Encroachment for only so long as (i) the Encroachment exists; and (ii) Owner complies with all of the terms and provisions of this Agreement. 3. Owner covenants and agrees not to extend, increase, modify, alter, landscape, reconfigure or otherwise change the Site Improvement from what is depicted on Exhibit B, and to maintain the Site hmprovement in good condition and repair and free of debris, sediment or other material that would reduce the capacity of the Site Improvement. Owner also covenants and agrees to keep each end of the Site Improvement open and clear of any obstructions, vegetation or material that would prohibit or limit the free flow of water in or out of the Site Improvement. 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 the 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 Site Improvement, the Lot, 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 msword} \shat ed\Ipickett\consents to enct oach \tnichael badme consent.doc2 /5/ I O] 3 Lot, or otherwise, and /or for any failure of proper disclosure pursuant to Paragraph 11 hereof, which results directly or indirectly from any act of Owner, its employees, contractors and /or agents in, on, under, across or to the Easements. 6. Owner agrees to reimburse City for any and all costs and expenses incurred by City to replace or repair any damage to the Easement and any improvements located therein caused by the installation, construction, maintenance and /or operation of the Site Improvement. 7. Owner agrees to record this Agreement in the Office of the Hamilton County Recorder and to provide to City a recorded copy of salve within ten (10) business days of 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 agree that the terns of this Agreement shall be binding upon and inure to the benefit of their respective heirs, administrators, successors and assigns. 9. The parties 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. 11. The Owner agrees to provide full disclosure of this Agreement to all persons, entities and others who acquire by or through Owner any interest in the Lot on and after the effective date of this Agreement. 12. Owner agrees to remedy any drainage problems or issues, saturated soil or standing water on the Lot or adjacent properties deternined by the City to be resulting from the Encroachment. [cb:msword y ]sharcd\Ipickett) consents to encroach\mmhael badmc consent docrJS/ 1 n] 4 "OWNER" Michael Bading Date: /0 [eb.msHordy •shvoi ennsems m encroach michaet bading mneni.doc:2 IO) "CITY" CITY OF CARMEL, INDIANA BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY Jars Brainard, Presiding Officer Date: 3 a Cordray, IAMC ate: STATE OF INDIANA SS: COUNTY OF fi BETTY NYBERG EDMAN NOTARY PUBLIC SEAL STATE OF INDIANA COUNTY OF HAMILTON MY C0M SIQN PXPIRES JAN. 16 2016 Before me, a Notary Public in and for said County and State, personally appeared MICHAEL BADING, by me known, and who acknowledged the execution of the foregoing "CONSENT TO ENCROACH" as his or her voluntary act and deed. Witness my hand and Notarial Seal this /6 day of F My Commission Expires: STATE OF INDIANA SS: COUNTY OF HAMILTON •.J% NOTAR 20/0 C� UBC 3e y y beR1, Ed errvx n Printed Name My County of Residence: 143 rrya< 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 day of NOTARY PUBLIC -(I 0 1/ My Commission Expires: Cf My County of Residence: '.t n/ f /rt t `t O', r This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic=Sq Indiana 46032: 1c13 msa nrd-y:3harn lpicActt comcnn to rncr ichm shad batbne comcnt doc;2 5 -101 °Jan Printed Name 6 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. LEGAL DESCRIPTION Part of the Northeast Quarter of Section 28, Township 18 North, Range 4 East in Clay Township, Hamilton County, Indiana Lot #227 in The Trails at Avian Glen Section 8 subdivision. Recorded in the Office of the Hamilton County Recorder on September 11, 1995 in Plat Cabinet 1, Slide 593 as Instrument #95- 51395. EXHIBIT "A" EXH/5/7 1. 8