5964 Kirkendall Ct - Desormiers, Joseph/Jennifer t
200500003284
Filed for Record in
HAMILTON COUNTY, INDIANA
JENNIFER J HAYDEN
l 01 -18 -2005 At 08 :53 am.
(9 V ENCROACHMNT 21000
efr 'r •L') CONSENT TO ENCROACH
I
APPROVED AS TO FORM BY
THIS CONSENT TO ENCROACH (hereinafter the "Agreement is entered into by and between
Joseph A. Desormiers and Jennifer T. Desormiers, husband and wife, 5964 Kirkendall Court, Carmel,
Hamilton County, Indiana 46033 (individually and collectively, "Owner and the City of Carmel,
Hamilton County, Indiana, by and through its Board of Public Works and Safety "City
WITNES SETH
WHEREAS, Owner owns in fee simple Lot Number 64 "Lot with a common address of 5964
Kirkendall Court, Carmel, Hamilton County, Indiana 46033, in the Brooks Landing at Prairie View
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 2, Slide Number 457
as Instrument #200000035919 in the Office of the Hamilton County Recorder on July 25, 2000, as Brooks
Landing at Prairie View, Section 3; and
WHEREAS, the Owner has constructed a timber retaining wall (the "Wall on the lot, (referred to
hereinafter as the "Site Improvement and
WHEREAS, Owner has given the City a sketch "Sketch depicting the 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
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WHEREAS, the Site Improvement is constructed on a portion of the Lot designated as a Drainage
Utility and Sewer Easement "Easement identified as "30' DU SE" on Exhibit B; and
WHEREAS, the Easement is beneficial to the City and its residents; and
WHEREAS, as indicated on the Sketch, the Site Improvement encroaches (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.
2. The City consents to the Encroachment for only so long as
(i) the Encroachment exists; 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 Improvement from what is depicted on Exhibit B.
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4. Owner agrees that City shall have the right to remove any portion of the Site Improvement
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 Easement, 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 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
Lot, or otherwise, which results directly or indirectly from any act of Owner, its employees,
contractors and/or agents in the Easement.
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 same 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 terms of this Agreement shall be binding upon and inure to the
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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.
"OWNER" "CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
#1.
PUBLIC WORKS AND SAFETY
41P 4,- ‘,-/-e-e_ /5-
J�,OA. Desormiers ames Brainard, Presidn: Officer
SN: 033 51....— S Sf D.te: 0 a
Date: 3 DV
.1 .4„...„... A Mary An t urke, Member
Date:
W i_le• A/
Je /ifer T. 1 esormiers Lori Watson, Member
SSN: 5-7` )-72_3 Date: 1 ;P7_44.-, 1
Date: /1 70 ''k
ATTEST: C .s. o s'
,....411/tebu., )1( ett4-9 "41-
Dj�ana Cordray, IAMC e su
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ate: 1 a` IN
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STATE OF INDIANA
SS:
COUNTY OF f7//72//7 A/
Before me, a Notary Public in and for said County and State, personally appeared JENNIFER T.
DESORMIERS, 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 hee day of No al/i1,60/2
NOTARY PUBLIC u
My Commission Expires: .u4
1///9/,.e- Printed Name
My County of Residence: /nit TO
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 know a r �bym e know to b the
Members of the City of Carmel Board of Public Works and Safety, and�I A L. RAI p Clefk-
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the Kdr ping "Co sent To
Encroach" on behalf of the ~f
e City of Carmel, Indiana.
J
Witness my hand and Notarial Seal this
day of °mb���;,�20
NOTARY PUBLIC
My Commission Expires:
In
Printed Name
My County of Residence: an 1
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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LEGAL DESCRIPTION
Part of the Southwest Quarter of Section 26, Township 18
North, Range 4 East, in the Second Principal Meridian in
Hamilton County, Indiana
Lot #64 in the Brooks Landing at Prairie View Section 3
subdivision. Recorded in the Office of the Hamilton County
Recorder on July 25, 2000 in Plat Cabinet 2, Slide 457 as
Instrument #200000035919.
EXHIBIT "A"
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EXHIBIT B