Consent to EncroachCONSENT TO ENCROACH
APPROVED, AS TO
FORM BY:
THIS CONSENT TO ENCROACH (the "Agreement ") is entered into by and between E. Nicholas
Kestner III, 2123 West 106th Street, Carmel, Hamilton County, Indiana 46032 (the "Owner "), and the City
of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety (the "City "),
WITNESSETH:
WHEREAS, Owner alone owns in fee simple certain real estate ( "Real Estate "), which is more
particularly described in Exhibit "A ", attached hereto and incorporated herein by this reference, as "Retail
Parcel 3" (the "Parcel ") in the Carmel City Center Redevelopment project (the "Project ") which Real
Estate is located within the corporate limits of the City of Carmel, Indiana ; and
WHEREAS, the Parcel is officially designated as the "Schwinn Bicycle and Fitness Center - Carmel
City Center, 625 3`d Avenue SW, Carmel, Hamilton County, Indiana 46032 "; and
WHEREAS, Owner wishes to construct a Concrete Patio (the "Patio ") on the Parcel; and
WHEREAS, Owner has given the City a sketch (the "Sketch ") depicting the proposed location of
the Patio on the Parcel, a copy of which Sketch is attached hereto as Exhibit `B" and incorporated herein
by this reference; and
WHEREAS, the Patio will be constructed on an area owned by the City, located outside of the
Parcel and designated as "The Monon Trail" (the "Trail ") on Exhibit "B "; and
WHEREAS, as indicated on the Sketch, the Patio will encroach (the "Encroachment ") upon the
Trail, which Encroachment is crosshatched on the Sketch; and
WHEREAS, Owner and City acknowledge the location of the Encroachment; and
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WHEREAS, the location of the Patio as indicated by the Owner on Exhibit "B" should not
materially interfere with the use of the Trail by the City and the public.
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 Patio from what is depicted on Exhibit "B ".
4. Owner agrees that City and /or anyone who owns an applicable property interest in the Trail,
shall have the right to remove any portion of the Patio as they deem necessary, in their sole
discretion, to install, protect and /or repair any utility lines, sewer lines, telecommunication
lines, paths, fences or drainage ditches located in and on the Trail, 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 Patio.
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
Parcel, or otherwise, which results directly or indirectly from any act of the Owner, its
employees, contractors and /or agents in or on the Trail or the Encroachment area.
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6. Owner agrees to reimburse City for any and all costs and expenses incurred by City
to replace or repair any damage to the Trail, the Encroachment area and /or to any
improvements located therein or thereon, that is caused by the installation, construction,
maintenance and /or operation of the Patio.
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
benefit of their respective heirs, administrators, successors and assigns.
9 Owner understands and agrees that this Consent to Encroach is made expressly contingent
upon and subject to any easements or other property interests of record, that City may not
hold a fee simple interest in the Trail, that the ownership of certain property interests in the
Trail may currently be in litigation, and that Owner will identify and obtain the consent of all
other holders of a property interest in the Trail, if any, prior to encroaching upon same.
10. 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.
11. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
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"OWNER"
f 0/9
E. Nicholas Kestner III
SSN: 306' - 3 `- 9Z /
Date: 7 - / 0 — ( f ) /
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"CITY"
CITY OF CARMEL, INDIANA
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
�t o,L7'
James Brainard, Presiding Officer
Date:
Ma
Date:
k Member
/0-0
Billy
Date:
ATTEST:
Wait(' , aei&Q,/tet J
-Cle - Treasurer
Q -O/
lker, Member
O V-5f
c ,Diana Cordray, I
`- G Date: 7
4
STATE OF INDIANA )
) SS:
COUNTY OF MILION )
Before me, a Notary Public in and for said County and State, personally appeared E. NICHOLAS
KESTNER III, by me known, and who acknowledged the execution of the foregoing "CONSENT TO
ENCROACH" as his voluntary act and deed.
Witness my hand and Notarial Seal this l /
6"day of ( /(,(i[Lt/ , 20
(1-AHL. CI
NOTARY PUBL
My Commission Expires:
0E- os-ort
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Vlivyta
C--/-/ /96i/6C-, _
My County of Residence: < l 0
Before me, a Notary Public in and for said County and State, personally appeared JAMES
, MARY ANN BURKE and BILLY WALKER, by me knowfnB b' 9v r} g Sith ANAL.
Members of the City of Carmel Board of Public Works and Safety, and iI` tk L. `)RDA, Clerk- c° Ay.,
Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "Consent To
Encroach" on behalf of the City of Carmel, Indianna.
Witness my hand and Notarial Seal this /0 day of �• , 20 l
My Commission Expires:
__I�TOgPLTBTTC-- // ^
/a % (tei
Printed Name 11'e6 -
My County of Residence:
fiazi-ht//,11
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
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EXHIBIT "A"
LAND DESCRIPTION:
Retail Parcel
Parcel 3 Land Description
A part of the Northeast Quarter of Section 36, Township 18 North, Range 3
East, Hamilton County, Indiana and more particularly described as follows:
Commencing at the brass plug marking the Northeast corner of the
Northeast Quarter of Section 36, Township 18 North, Range 3 East; thence
South 89 degrees 12 minutes 13 seconds West 773.40 feet along the North
line of said quarter section to the West line of the right –of –way of the forrr
Monon Railway and the Point of Beginning; thence South 00 degrees 51
_minutes 54._se.conds_ East ._.98.93.- .feet_al.on_g _said nig }it— afeewa_y;_..thence_._South
43 degrees 41 minutes 40 seconds West 15.59 feet; thence South 89
degrees 45 minutes 36 seconds West 29.31 feet; thence South 00 degrees
14 minutes 24 seconds East 30.42 feet; thence South 43 degrees 41
minutes 40 seconds West 24.57 feet to the proposed right –of –way of City
Center Drive; thence South 89 degrees 45 minutes 36 seconds West
260.26 feet along said proposed right –of –way; thence North 45 degrees 00
minutes =00 seconds West 53.07 feet along said proposed right –of –way to
the proposed right –of –way of Third Avenue Southwest; thence North 00
degrees 46 minutes 50 seconds West 89.75 feet along said proposed
right –of –way; thence North 00 degrees 12 minutes 12 seconds East 27.40
feet along said proposed right –of –way to the North line of said Quarter
section; thence North 89 degrees 12 minutes 13 seconds East 354.38 feet
to the Point of Beginning and containing 1.210 acres more or less.
- -
/ NORTH LINE, NE Y, SECTION 36
EXHIBIT "B"
ENCROACHMENT
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SCHWINN BICYCLE AND FITNESS CENTER
CITY CENTER DRIVE
625 r° AVENUE SW, CARMEL, IN 46032
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CITY CENTER DRIVE