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HomeMy WebLinkAbout1465 Morningcrest Ct - O'Neil2018028108 ENCR $25.00 06/25/2018 10:32:51AM 9 PGS Jennifer Hayden Hamilton County Recorder IN Recorded as Presented II II II II I II I II II III III II �4�GF CONSENT TO ENCROACH `� Owl THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Thomas and Elizabeth O'Neil, 1465 Momingcrest Court, Carmel, Hamilton County, Indiana 46280, (individually and collectively, "Owner"), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ("City"). WITNESSETH: WHEREAS, Owner owns in fee simple Lot 147 ("Lot") in Sunrise on the Monon 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 5, Slide Number 400, Instrument Number 2015053081 in the Office of the Hamilton County Recorder on 10/9/2015, as Sunrise on the Monon (the "Plat"); and WHEREAS, the current Owner wishes to construct a pool with decking on the Lot (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 WHEREAS, the Site Improvement will be constructed on portions of the Lot designated as a BMP and Drainage Easement, identified as "30' BMPE and DE" on Exhibit B (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 B; and WHEREAS, City of Carmel Board of Public Works and Safety approved the Owner's request for a variance from Carmel City Code Section 6-227(4) on ; and WHEREAS, Owner and City. cnowledge 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 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 Improvement in good condition and repair. 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, the Lot, or to Owner. 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 Owner to otherwise enter on, in, under, over, or upon the property interests of any other person without that person's consent even if such property interests are also located within the Easement. 6. 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, and/or for any failure of proper disclosure pursuant to Paragraph 12 hereof, which results directly or indirectly from any act of Owner, its employees, contractors and/or agents in, on, under, across or to the Easement. 7. 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. 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. 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 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. 13. Owner agrees not to alter the ground surface elevation within the limits of the easement at any time. 14. 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. r Thom Oi1 Signature �r i Date: 6 E '}�abe-'th O' eil � Signature Date: 1( STATE OF INDIANA ) SS: COUNTY OF M Before me, a Notary Public in and for said County and State, personally appeared Thomas and Elizabeth O'Neil, 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 day of f� Off –1 5— My Commission I ©� 00 `dx�o°�S'vo £zpZ op�1 e� ONO,_ 0 A-5 Name County of Residence: `� V, y ,) "CITY" CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY: James Brainard, Presiding Officer ATTEST: Christine S. Paul e, Clerk-Treasu;e`t/�/ ate: % l/ STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared , 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 CHRISTINE S. PAULEY, 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 thisday of CJc,4—ober 201 Y PUBLIC M Co -Ji AAJ /ll� OIANNE WALTHALL Printed Name Selo Notary Public - State -of Indiana Hamilton County My County of Residence: My Commission Expires Mar 16, 2024 This instrument was prepared by Douglas C. Haney, Esquire, Corporate Counsel, 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 _ ,I.EGkL�DESC - PT ON f THE NORTH HALF OF THE SOUTHEAST QUARTER OF MRON 12. R1VW 17 NORTH, RANGE 3 EAST LOCATED iN CLAY 101Wl4{IP,. FIAMRIQN CONR4T 1, iNTAAHNA ExU r THE FTkIA7ANG DESCRIBED REAL. ESTATE BE�XAOIDNG AT THE SOU11iEAST CORDER OF THE NORTH HAF OF THE WnOEAST QUARTER OF SWRDN 12. TOW HIP 17 NORK RANGE 3 EAST RUNNING THM VEST 402 FEET TO AN WON STAJ& THENCE NORTH PARALLEL. KiTH THE EAST LONE OF SAiD QUARTER SECTION, 325 FEET TO AN IRM SIAM MENCE FAST PARAUFL IM THE SOUTH LANE OF THIS TRACT 402 FEET TO THE IN ERSECIiDN WIH iFE EAST LINE OF SAO WARIER SECTION: THENCE SOUTH ON AND ALONG SAID EAST LINE.325 FEET M THE PUKE OF IEGAOIDIE, 0W4rAD= 3 AGREE, MORE OR LESS, IN CLAY TOWSLQOP, HAMILTON COMM, INDIANA ALSO O PT THAT REAL ESTATE CONYEYED TO THE Ott OF CARMQL BY WARRANTY cm DATED AUGUST 9. 2006, AND RECOROFD JANUARY 10, 2007. AS INSTRUMENT 200700M, AND MORE PARUMARLT DESCRIBED AS FOILOYB; A PART OF THE NORTH HALF OF THE SUREAST QUARTER OF SECTION 12, TDKINSIOP 17 NORTH, RANGE 3 EAST, HAM117EN COUNTY, INDIANA, AND BEING THAT PART OF THE GSUWTOWS LAND LYN WON THE RIGNFOF-NAY LANES DEPICTED ON THE ATTACHED RIGHT -GS -WAY PLAT HARM E111;)BiT V DESCRTBED AS FOLLOWS BEG7,AM AT THE NORTKAST CANER OF SAID SOUTHEAST ER QUART; THENCE SOUTH 0 DEGRIn 07 MINUTES 23 SUM %EST (SEARING ASSUIM) 101406 FEET ALONG THE EAST LME OF SAID SOUTHEAST QUARiER TO THE MIRECAST CCRAER OF A 3 ACRE D PION PARCEL DESGM IN A WARRANTY DEED RE(3kM AS (IM MFNT N0. 9501488 IN THE OFFICE OF THE RECORDER OF HAMEiON COIDITY. INDIANA; THENCE NORTH 69 DEGREES W NXI S 53 SECDXDS KIST 70.01 FEET ALONG TE NORTH LUC OF SAiD OWIM PARCEL 70 POINT '336' DESIGNATED ON SAID PLAT; T1EKM NORTH 0 DEGREES 07 HOMES 23 SECONDS FAST 1013.34. FEET TO THE NORTH LINE OF SAID SOUiHE/ST QUARTER AND PONT '335` DESIGNATED ON SAID PLAT; THENCE. SO" 89 DECREES 41 MINUTES 06 SECONDS EAST 70A0 FEET ALONG SAID NURM UNE SO THE POW OF BEGINNING AND CONTAINING 1.629 ACRES, MORE OR LESS. AL50 EXCEPT THE FOLLOi9,N6 DESCRBFD REAL ESTATE BERG A PART OF THE NORTH HALF OF THE'SOi1TIOX QUARTER OF SECTION IZ. TOLHISHIP 17 NWTH,'RANGE 3 EAST, CLAT TOYd790P, HAMILTON COUNTY, INDEX S DESCRIBED AS F'OILQn8: BEGINNING AT TELT NMTHWEST CORNER OF THE SOUTHEAST WARIER OF SAO SECTION 12; i ENCE.EDURN.99 (IMM 09 MINUTES 02 MUM EAST. ALDMG THE. NORTH UNE OF SAID QUARTER SECTION, A DISTANCE OF 953.30 "FEET; THENCE .SOUTH 30 DEGREES" 42 MUTES 15 SEMS W. A DWANSE OF 142.48 FEET; THENCE NOM 63 DEGREES 17 NNNUTFS 10 SECONAS WEST, A DISTANCE OF 157.14 FEET; THENCE SOUTH 71 OHMS 53 MINUTE 16 SECONDS WEST. A DISTANCE OF 60.17 FEET DEICE SOUTH 57 DEGREES 27 MINUFc'S_23 SECONDS NEST, A DSTANLE OF.1OU,08.FEET; THENCE NORTH 42 DEGREES 10 MIRM 10 SECONDS WESF,'A DISTANCE OF 20.66 FEET; i1,1= NOM 54 DEEM 34 MINUTES 55 SECONDS .&ESE. A DISTANCE OF'.58.10 FEET RENff NORTH 70 DEGREES 32 MLYIFFES 07 SMOHDS WEST, 'A DISTANCE CE 84.10 FEET; DOM SOUTH 86 DEGREES QZ lRaW 22 SECONDS WEST, :A DISTANCE &330 FIEF, IMCE SOUTH 62 DEGREES 16 MINUTES 37 SECONDS WESL- A. DWANCE OF SM FEET; Ma'SOUTH 37 DEGREES 24 1CWHTES 33 _SE3bNLF8 MST, A DISTANCE OF M41: FEET; ROXE .STALTIC 17 DEME 53 MINUTES 54 SEDWDS PEST, A DSi'MSL'OFM54'FEET;"THENCE SOUiH 02 DESM 02.01W 43 SEOOHIDS EAST, A DISTANCE OF 77.10 FEET. 1HMCE SOUTH 25 DEGREES 11 MMUTM 04 SE MMS EAST, A DISTANCE OF 91.41 FEET; TTENGE SOUTH 50 DEMS 05 MINUTES (13 SECONDS EAST, A DISTANCE OF, 59.13 FEET; THENCE SOUTH 71 DEGREES 25 MINUTES 32 MOM EAST, A DISTANCE OF MIS FEET- THENCE SOUTH B3 DEGREES 55 MUM 02 M)OKDS EAST. A DISTANCE OF 30.16 FEET; lOtCE:SOUM 33 DEME 20 04M 53 SECONDS WEST, A DISTANCE OF 235.13 FEET. Ma SOUTH 06 DEGREES 37 MUTES 07 SECONDS WEST; A DISTANT OF 129.76 FELT; THENCE SWM 15 DEGREES 28 MINUTES 13 SECONDS EAST, A DISTANCE OF 74.71 FEET- T ENCS -MUTH 44 DEGREES 37 MWI.RES 03 MCM EAST, A DISTANCE CE 113.47. FEET; no= MM 71 DEGREES 50 LoWIES 39 SE IDS FAST, A DISTANCE CE 130.95 FEET; THENCE" SOUTH 00 DEREES 00 MINUTES W SEC= EAST.' A. DISTANCE OF 6QB8 FEET- RENSE SOUTH 83 DEGREES 06 Woo 25 SECRM RESP. A DISTANCE OF 465.78 FEET TO "A PONT ON RE WEST LINE SE SAID SOUTHEAST WARTER; iFENCE NORTH 00 DWIEFS 07 MUM 43 .SECONDS EAST, ALQX THE SAID WEST LME :A DISTANCE OF 1194.45 FEET TD THE 'pAa OF 'BEG.?Mr, CONTAN97G 9.754 ACRES OR (424,871 SQUARE FE M, I&M OR LESS. PART OF THE SOUiHWEST QUARTER OF SECTION 12. TO'B,ISROP 17 RDM RAHG;E'3 EAST, HA3L1.T8N CUM. INDIANA LLORE. 'PAR71MMY" UES= AS FOLLOWS TO-Va BEGINNING AT THE SOUTHEAST CORAM OF THE NORTH HAEf Of THE SOUTHEAST QUNRFER OF SECTION 1z TOWiW 17 NORTH, RANGE 3 EAST; RNRDW THENCE .WET 402 FEET TO AN RON STAKE; THE)a HORTH.PARAGLEL WIN RCE EAST UNE OF SAND QUARTER SECMK 325 FEET:TO AN WON STAM.THMLE FAST PARALEL Will THE SOUTH LIKE OF TO TRACT 402 FEET TO THE INIFRSECiIDN WITH THE EAST LONE CE SAID QUARTER SECDWL' Ma SOUTH. ON ANDALONG :SAID. EAST URE 325 FEET TO THE PLACE OF BEGO MGN CONTAINING 3 ACRES$ MORE OR LESS. " Mli FDR THE FOLlOM DfStRESED REAL ESTATE: A "PART OF THE NORTH HALF OF THE'SOUTHEAST CIJ60 OF SECTION 12, TOMW 17 NWK RANGE "3 EAST, WELTON CWHTY, INDIANA _ AND BEING THE REAL ESTATE OFPICiED ON THE ATTA3RED RW -OF -WAY PARCEL PLAT MAZO Dmrr'b',"BET = AT 79 SOURIEAST CORNER OF THE NORTH HALF OF SAID. SOUTHEAST' QUARTER MCE NORTH 69 DEUYNEES 65. MINUTES 53 SEGS WEST. (BEADING ASSUMED) 70 GI FEET AURID THE sQNTH LINE OF SAID HALF QUARTER SECTION TO PNMT 'Mr DESIGNATED ON. SAD PLAT, FENCE NORTH 0 OEG REES 07 MINUTES 23 SL'CM EAST 325.00 FEET TO THE NORM.. UNE OF M GRANTOR'S LARD. AND POINT '338' DMGNATFD ON SAID PLAT; THENCE SOUTH 89 DT,PffS 05 MINUTES 53 SEOM EAST 70.01 FEET ALONG SAID NORTH LINE M THE EAST LINE OF SAID SOUWAST QUARTER; THM SOUTH 0 DEWS 07.lIWW 23 SECONDS 865E 325.00 FEET ALONG SAID EAST UNE TO THE PONT OF BEBJDONG AND CONTAINING 0.522 ACNES, MORE OR LESS IH6 9k.k'K`$!I 01515 OF. 148 LOM NAO®FAiD l- ll Z HACf6 LAAQFD III= A@q0, AM 14 CMAIOU AREIS RAMD GA q-iSIF1E15 A�9L ININ BEER la DLLODII PARIS TI�.- 10 0 Too ----- �. CD cD 0 0 -nCD CD l s f. G) 1: m Cn 00 0 CD 10 5' 0 7 c� CD 1 Cn / / CD I (CD s (_n -0 � LO � 0 O A / 0 0 CO m c� m Project TitlDA eO'NEIL RESIDENCEm m 00 drawing title Master Plan (Site Plan 2A. 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A variance for the encroachment is also submitted to the Board of Public Works for approval during the October 4, 2017 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, CCpr Jeremy Kashman, PE City Engineer ATTACHEMENT: CONSENT TO ENCROACH DOCUMENT i Jivmps BRA1 YARD, MAYOR September 27, 2017 Board of Public Works and Safety One Civic Square Carmel, IN 46032 Re: Request for Variance (Decldng) at 1465 Morningcrest Court Dear Board Members: Thomas and Elizabeth O'Neil, owners of the property with the common address 1465 Morningcrest Court, have requested a variance from Carmel City Code Section §6-227 (a)(4) for the construction of a deck within a portion of the property within an easement. Generally, the decking is proposed to be constructed at the location indicated on the attached exhibit. It is not expected that the improvements at the proposed location will result in a Detriment (as defined by City Code) to the subject property or the adjacent properties (provided the petitioner adheres to the conditions recommended below). The Engineering Department recommends that the Board approve the variance conditioned upon the following (as discussed with the petitioners): 1. Petitioners enter into a Consent -to -Encroach Agreement with the City and record the Agreement. (we will record the agreement for you) 2. Petitioners (and successors and assigns) agree to remedy any drainage issues resulting from the construction of the decking that, in the opinion of the City, represents a Detriment as defined in City Code. 3. Petitioners shall obtain approval from the HOA for installation of decking if such approval is required by the restrictive covenants of the development. Respectfully, c14K• ePs Cfo.,) Jeremy Kashman, PE City Engineer