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HomeMy WebLinkAbout3657 Walden Place-McClure, Richard/SandraCONSENT TO ENCROACH 2015005085 ENCR $27.00 02/05/2015 03:15:51PM 9 PGS Jennifer Hayden Hamilton County Recorder IN Recorded as Presented 1111111111111111111111111111111111111111111111111111111111111 THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and between Richard O. & Sandra J. McClure, 3657 Walden Place, Cannel, Hamilton County, Indiana 46033, (individually and collectively, "Improvement Owner "), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ( "City "). WITNESSETH: WHEREAS, Gerald J. & Linda J. Gelsomino, 12043 Hampton Court, Carmel, Hamilton County, Indiana 46033, (individually and collectively, "Property Owner ") own in fee simple Lot 50 ( "Lot ") in Eden Estates, Section 2 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 for the Lot was recorded in P.B. 5, Pages 46 -47 as Instrument # 2596 in the Office of the Hamilton County Recorder on April 2, 1974, as Eden Estates, Section 2 (the "Plat "); and WHEREAS, the Improvement Owner wishes to install a 100' Geo Webb Wall on the Lot (the "Site Improvement ") to stabilize the stream bank and repair soil erosion; and WHEREAS, the Improvement Owner has obtained written permission, a copy of which is attached hereto and incorporated herein by this reference as Exhibit B, from the Property Owner to purchase and install an improvement on the Lot; and WHEREAS, the Improvement 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 C; and WHEREAS, the Site Improvement will be constructed on portions of the Lot designated as Drainage and Utility Easement, identified as "40' D &U.E." on Exhibit C (the "Easement "); and WHEREAS, the Easement is beneficial to the City and its residents; and CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and between Richard O. & Sandra J. McClure, 3657 Walden Place, Carmel, Hamilton County, Indiana 46033, (individually and collectively, "Improvement Owner "), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ( "City "). WITNESSETH: WHEREAS, Gerald J. & Linda J. Gelsomino, 12043 Hampton Court, Carmel, Hamilton County, Indiana 46033, (individually and collectively, "Property Owner ") own in fee simple Lot 50 ( "Lot ") in Eden Estates, Section 2 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 for the Lot was recorded in P.B. 5, Pages 46 -47 as Instrument # 2596 in the Office of the Hamilton County Recorder on April 2, 1974, as Eden Estates, Section 2 (the "Plat "); and WHEREAS, the Improvement Owner wishes to install a 100' Geo Webb Wall on the Lot (the "Site Improvement ") to stabilize the stream bank and repair soil erosion; and WHEREAS, the Improvement Owner has obtained written permission, a copy of which is attached hereto and incorporated herein by this reference as Exhibit B, from the Property Owner to purchase and install an improvement on the Lot; and WHEREAS, the Improvement 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 C; and WHEREAS, the Site Improvement will be constructed on portions of the Lot designated as Drainage and Utility Easement, identified as "40' D &U.E." on Exhibit C (the "Easement "); 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 Exhibit C; and WHEREAS, City of Carmel Board of Public Works and Safety approved the Improvement Owner's request for a variance from Carmel City Code Section 6- 227(4) on 1"- bruIry{t'LO1S • and WHEREAS, Improvement Owner and City acknowledge the location of the Encroachment; and WHEREAS, Improvement Owner acknowledges that this Agreement does not grant or imply any approval of existing or future improvements not indicated by Improvement Owner on Exhibit C; and WHEREAS, the location of the Site Improvement as indicated by the Improvement Owner on Exhibit C 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) Improvement Owner complies with all of the terms and provisions of this Agreement; and (iii) Exhibit B between the Improvement Owner and Property Owner remains in full force and effect. 3. Improvement Owner covenants and agrees not to extend, increase, modify, alter, landscape, reconfigure or otherwise change the Site Improvement from what is depicted on Exhibit C, and to maintain the Site Improvement in good condition and repair. 4. Improvement 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 Improvement Owner for the cost of any damages thereby caused to the Site Improvement, the Lot, or to Improvement Owner. 5. Improvement Owner agrees and acknowledges that the City's consent to encroach upon the Easement, as provided in this instrument, regards the City's Easement interests only, and does not constitute permission or authority for the Improvement Owner to otherwise enter on, in, under, over, or upon the property interests of the Property Owner or of any other person without that person's consent even if such property interests are also located within the Easement. 6. Improvement 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, from any destruction or damage to any property or improvements, located on the Lot, or otherwise, from any unlawful or unauthorized encroachment on and/or damage to the Lot, and/or for any failure of proper disclosure pursuant to Paragraph 12 hereof, which results directly or indirectly by or from any act of Improvement Owner, its employees, contractors and/or agents in, on, under, across or to the Easement and/or the Lot. 7. Improvement 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. 8. Improvement 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 Improvement Owner, Improvement Owner agrees and consents to City recording same, at Improvement Owner's sole expense. 9. 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. 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. 12. The Improvement Owner agrees to provide full disclosure of this Agreement to all persons, entities and others who acquire by or through Improvement Owner any interest in the Lot on and after the effective date of this Agreement. 13. Improvement Owner agrees not to alter the ground surface elevation, beyond that necessary to make the Site Improvement, within the limits of the easement at any time. 14. Improvement Owner agrees to remedy any drainage problems or issues, saturated soil or standing water on the Lot or adjacent properties determined by the City to be resulting from the Encroachment. "IMPROVEMENT OWNER" Richar4 O. McClure ignature Date: Sandra Al McClure nature Date: a-J-1 C/ ,2.C7 /„r STATE OF INDIANA ) ) SS: COUNTY OF (I ) Before me, a Notary Public in and for said County and State, personally appeared Richard O. McClure and Sandra J. McClure, 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 litP day of L Y1tJW9 , 20 5 NOTARY UBLIcC" " " R bcofr My Commission Expires: Printed Name My County of Residence: Wan I419/1 "CITY" CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY: es Brainard, Presiding Officer Date: d"`f-l5 Mary Ann Burke, Member Date: 02-'4-15 Lori Watson, Date: ATTEST: ember Sandra M Johnson Deputy Clerk For Diana Cordray, IAM , lerk- Treasurer Date: '/ -15 STATE OF INDIANA ) SS: COUNTY OF HAMILTON Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD, I4A14-1(--ANN L and LORI WATSON, by me known, and by me known to be the Members of the City of Carmel Board of Public Works and andro- L) chInsart,6(4_1(.116 Safety, and , lerk- 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 4 rk day of My Commission Expires: t//i/7-7 NOTARY PUBLIC C -7(1 n r) Printed Name My County of Residence: +47-k. Yri.i I61^— This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel, Indiana 46032. 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. Douglas C. Haney, Esquire EXHIBIT A LOT 50 IN THE EDEN ESTATES SUBDIVISION SECTION 2 RECORDED IN THE OFFICE OF THE HAMILTON COUNTY RECORDER ON APRIL 2, 1974 IN P.B. 5, PAGES 46 -47 AS INSTRUMENT #2596 EXHIBIT B Notice to Adjoining Landowner that Proposed Structure Will Constitute Encroachment To: Gerald Gelsomino & Linda Krueger Gelsomino 12043 Hampton Ct. Lot 50 Eden Estates Carmel IN. (Name and address of adjoining landowner) You are hereby notified and agree to the installation of a 100' Geo Webb Wall along the creek bank. The wall is being constructed for Richard & Sandra McClure at 3657 Walden PI. Carmel, IN. The Wall is to be built along the back bank of 3657 Walden PI Lot 100 in Eden Estates, this will encroach on your property at 12043 Hampton Ct Lot 50 in Eden Estates. This signed letter will act as your consent to the encroachment of your property. When the Geo Webb Wall is built as proposed, it will encroach on the above - described property of the undersigned as follows: 100' installation of a Geo Webb Wall to stabilize the bank and repair the erosion damage. Lfi t--71- -42-0 c� �c • � ��/�� i 7 2v/5 Printed Name Landowner Signature G &Au) 7. COLSomio. Printed Name STATE OF INDIANA SS: COUNTY OF VA o-✓ Landowner Signature Date Date Before me, a Notary Public in and for said County and State, personally appeared Gerald Gelsomino and Linda Krueger Gelsomino, by me known, and who acknowledged the execution of this "Notice to Adjoining Landowner that Proposed Structure Will Constitute Encroachment" as his or her voluntary act and deed. Witness my hand and Notarial Seal this / day of` a. ��� , 206. a JOSEPH KYLE WICHMAN Notary Public- Seal State of Indiana My Commission Expires Sep 20, 2019 My Commission Expires NOTARY PUBLIC Printed Name My County of Residence: " 1' 10.,-'ct., 0 1- m z W, Point OF Access eat. OA FP CI too' c,�o wE3 3 20`x'.) Hativ el C* `ot 5D c c-kaktS 795 (1EE0AL (06115L15010(05 1 CRIIROCRR 10110X. 00 F501CC1 All 0700901000101(5 OJL0 BW: 510aa2A1010000 11000M1010 WPM ALL 16000 l AREA 050 75061 Cr OF 005. NL D6V9D 5..05 HL BEOR.10(D 10 00706 021571016 07095010 00600 51100 116011 R➢902 55100 CREDR 507015 vra10-ral 0001 00915 OUR 0001 L01UN N LRF 71GE100CD WIL 6 500001605105 0 REFER TOMR15FF0 51100 15010015 OCR MT000L 55040116 50161400A0E17 1011119 NORM 3657 WALDEN PLACE, CARMEI. INDIANA V 3K ,lul4u o 0 o ufJun, 0�0 o ©© J. 1 I CITY O CARMEL January 28, 2015 JAMES BRAINARD, MAYOR Board of Public Works and Safety One Civic Square Carmel, Indiana 46032 RE: CONSENT TO ENCROACH —12043 HAMPTON COURT — ROCK WALL IN EASEMENT Dear Board Members: A Consent to Encroach document, signed by improvement owners, Mr. & Mrs. Richard O. McClure & Sandra J. McClure, is submitted to the Board for signatures. Board approval for the encroachment is granted by the Board of Public Works during the February 4, 2015 BPW meeting. The Department of Engineering has reviewed and approved the encroachment document. Upon approval and signature by the Board members the document will be recorded with the Hamilton County Recorder's Office. Sincerely, Gary Dungan, P.E. Assistant City Engineer ATTACHMENT: CONSENT TO ENCROACH DOCUMENT S: \BPW15 \12043HAMPTONCTENCROACH MENTDOCUMENT.DOC DEPARTMENT OF ENGINEERING ONE Civic SQUARE, CARMEL, IN 46032 OErlcE 317.571.2441 FAX 317.571.2439 EMAIL engineering@carincl.in.gov