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Home My WebLink About3780 Barrington Drive2018043739 ENCR $25.00 09/19/2018 03:30:44PM 8 PGS Jennifer Hayden Hamilton County Recorder IN SAG Recorded as Presented II II II II I II I I I I I I III I I II CONSENT TO ENCROACH �� THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into d between Todd Cunningham, 3780 Barrington Drive, 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"). WITNESSETH: WHEREAS, Owner owns in fee simple Lot 25 ("Lot") in The Woodlands, Section Number 3 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 Book 5, Pages 171-172 in the Office of the Hamilton County Recorder on March 9, 1976, as The Woodlands, Section Number 3 (the "Plat"); and WHEREAS, the current Owner wishes to install a fence 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 Utility Easement and Drainage, identified as "7.5' UE&D" 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 -txp G 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 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. 5. 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. "OWNER" Todd Cunningham Signature Date: STATE OF INDIANA ) SS: COUNTY OF I Before me, a Notary Public in and for said County and State, personally appeared Todd Cunningham, 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- f -'day of 2017 �/` XML✓ - NQTAIj.Y PUBLIC My Commission Expires:466" ,q C DEBORAH HARUNG Printed Name IC S' .. N51M(A COUNTY Of RESIC-MCE .HAMMTON ' M7lCUlv%ussION'•EXPIIkES FESRu Rl'19, 20a -l' "CITY" My County of Residence: 1 CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY James Brainard, Presiding Officer Date: Al"C76S. Z(�/ MW Anpf ITurke mb r Date: Lori Watso Mem Date: ATTEST: Cle -Treas er Date: 214 7 STATE OF INDIANA ) SS: COUNTY OF HAMILTON ) Before me, a Notary Public in and for said County and State, personally appeared J 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 GHRLSZ Y, Clerk -Treasurer of THE CITY OF CARMEL, who acknowledged the execution of the Llndc�. ra+�vz� foregoing "Consent To Encroach" on behalf of the City of Carmel, Indiana. Witness my hand and Notarial Seal this �` day of 20 NOTARY PUBLIC 1 My Commission ExpFNotary I GI n n e— i/lJ 4�51/ANNE WALTHALL P ' ed Name Seal n' ublic - Stl[Wof Indiana M ounty of Residence:Hamilton County sion Expires Mai 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 -Ki -�- W , _ S m i-rp.»o0 Z - �T o O n - im Oi�O s» _ n z .. i3• N C, 4i - „y 0 m J . . � p _� • n i= _ K `mem m �aNw O n ohm' ol no 'm mam' V llgIHXH JAMES BRAINARD, MAYOR February 20, 2017 Board of Public Works and Safety One Civic Square Carmel, IN 46032 Re: Consent to Encroach (Fence) at 3780 Barrington Drive Dear Board Members: A Consent to Encroach document signed by Mr. Todd Cunningham, owner of the property with the common address 3780 Barrington Drive, is submitted to the Board for signatures. A variance for the encroachment is also submitted to the Board of Public Works for approval during the March 1, 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, Jeremy Kashman, PE City Engineer ATTACHEMENT: CONSENT TO ENCROACH DOCUMENT DEPARTMENT OF ENGINEERING ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439 EMAIL engineering@carmel.in.gov C February 20, 2017 Board of Public Works and Safety One Civic Square Carmel, IN 46032 JAMES BRAINARD, MAYOR Re: Request for Variance (Fence) at 3780 Barrington Drive Dear Board Members: Mr. Todd Cunningham, owner of the property with the common address 3780 Barrington Drive, has requested a variance from Carmel City Code Section §6-227 (a)(4) for the installation of a fence within a portion of the lot designated as an easement. Generally, the fence is proposed to be installed 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. 2. Petitioners (and successors and assigns) agree to remedy any drainage issues resulting from the installation of the fence 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 the fence if such approval is required by the restrictive covenants of the development. Respectfully, Jeremy Kashman, PE City Engineer DEPARTMENT OF ENGINEERING ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439 EMAIL engineering@carmel.in.gov EXHIBIT B 25. 4 ` ! 0�NQ � �•