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Home My WebLink AboutConsent to Encroach and Variance; 3973 Bear Creek Way; Scott and Elizabeth Herman, Property OwnersDocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C 8/29/2022 Board of Public Works and Safety One Civic Square Carmel, IN 46032 Re: Consent to Encroach (Pool, pool decking and landscaping) at 3973 Bear Creek Way Dear Board Members: A Consent to Encroach document signed by Herman. Scott A & Elizabeth M, owners of the property with the common address 3973 Bear Creek Way , 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 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, remy Kashman, PE City Engineer ATTACHMENT: CONSENT TO ENCROACH DOCUMENT DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C CONSENT TO ENCROACH TIIIS CONSENT 1'0 ENCROACH (hereinafter the "Agreement") is entered into by and between Herman, Scott A & Elizabeth M, 3973 Hear Creek Way, Carmel, Hamilton County, Indiana 46074, (individually and collectively, "Owner"), and the City of Carmel, Iamilton County, Indiana, by and through its Board of Public Works and Safety ("City"). WITNESSETH: Wf fIREAS, Owner owns in fee simple Lot 101 ("Lot") in OVERBROOK FARMS, section 3, which is located within the corporate limits of tlx: City of Carmel. Indiana ("Subdivision"), which real estate is more particularly described in Exhibit A. attached hereto and incorporated herein by the reference; and WIH.REAS, the official plat of the Subdivision was recorded in PC 5 SLIDE 275, Instrument Number 2014-53278 in the Oiiiee of the Hamilton County Recorder on 11/24/2014, as OVF.RBROOK FARMS, section 3 (the "Plat"); and WIIFRE,AS, the current Owner wishes to install a Pool, pool decking and landscaping on the Lot (the "Site Improvement"); and WIII;REAS. 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 WI IEREAS, the Site Improvement will be constructed on portions of the Lot designated as 50-foot and 15-foot Drainage and Utility Easements, identified as "50' Easement and 15' D.&II.E."on Exhibit B (the "Easement"); and WHEREAS, the Easement is beneficial to the City and its residents, and WIIERIiAS. as indicated on the Sketch, the Site Improvement will encroach (the "Encroachment") upon the Easement, which Encroachment is crosshatched on Exhibit B; and WIiEREAS, City of Cannel Board of Public Works and Safety approves the Owner's request for a variance from Carmel City Code Section 6-227(4); and Wl ll;IZl.;AS, Owner and City acknowledge the location ofthe Encroachment; and WI11iREAS, Owner acknowledges that this Agreement does not imply any approval of existing or future improvements not indicated by Owner on Exhibit B; and Will -'RI -AS, 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. DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C 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 H, 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 hnprovmcnt, 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. S. The parties agree that the ternis of this Agreement shall be binding upon and inure to the 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. DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C 11. The Owner agrees to provide fills 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 cffective date of this Agreement. 12. Owucr agrees not to alter the ground surface elevation within the limits of the easement at any time. 13. 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. "OWNT:R„ PROPERTY OWNER 1C-1arr H (3 n--^A A) Printed Name Signature Dater �2oZ 2 STArE Or INDIANA ) ) SS: COUNTY OF MaG ) PROPERTY OWNER �•_i:.� Iti:�_ pit � Printed Name QignatUre 11; • • Belbre me, a Notary Public in and for said County and State, personally appeared 9 - ILI �I °°lam[ 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 -LA' dayof 20;V—. My Commission Expires: NOTARY PUBLIC -ALW- &-1 Printed Name „nuw,,, pr a % PAMELA L. HALECu'c ®G/� o!:....... ff o; Nolary Public, Stale of Indiana My County of Residence: :SEAL* Marion Marion County • rr a' Commission Number 670514 My Commission Expires DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C "CITY11 CITY OF CARMEL, INDIANA, 13Y AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY 13Y: Not Present James Brainard, Presiding Officer Date: �D—SlUmd by: ��,,�.. JJ kjwu Intti. I/IAY4t. �14y'AhfVkfte, Member Date: 9/7/2022 ;0—Sig-d by: INS � (Pd s�V offW081 Member 9/7/2022 Date: --Docuftned by: 5.1- (k i ue M", Ierk Date: 9/7/2022 STNI'E OF INDIANA ) SS: COUNTY OF FIAMIL TON )t O,gF�t�LS��'4 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 Sue Wolfgang, Clerk of THE CITY OF CARMEL, who acknowledged the execution of the foregoing "CONSENT TO ENCROACIT' on behalf of the City of Carmel, I d' n lana. •� Witness my hand and Notarial Seal this 2day of September, 20 2 2 `0Jiy P&I HOLLY J. HARMEYER Vim% Notary Public, State of Indiana 2:SEAQ; ;s Hamilton County =Commission Number NP0737882 �P�� My Commission Expires NOTARY PUBAC My Commission Expires: '��nuM\\, December 15, 2029 Holly J Harmeyer 12/15/2029 Printed Name My County of Residence: Haml 1 ton This instrument was prepared by Jon Oberlander, Esquire, Assistant Corporation 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. Jon Oberlander, Esquire DocuSign Envelope ID: 42ADFD07-04244C64-9F08-3FE95EED7C8C Exhibit A VAR1 Os 1t* mon*AST iW1*M of SW 10M 11 TOWNSW 1014* M RANt3E 3 L49 OF THE MOND PO K I At BAN M CLAY I0WN *V INAMMIM COIJMY MAM 100 Jr1M PARTLUMV DUCROW AS #OUOw= CO MfM Al ►! NOR1M QUA3'RJ1 CKlme OF MOSCOW 19 DOCI SOM M O', 13 WMAli 13 ECCOMDi 111LIt At13MKi fAE'! 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M s Mkt 034lW 1(9 M 1W U* F 11M APOMMAD NOMOU Q1h► M rdPKX IM,MI 00DErOWS 13AM 4NS iR 3=IM1i LAff A1*MC#'MD WZg W* 4 V fW 1131fM' /MMM W O MMM" COWA1014 011 ACM MORE OJt IDS. DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C JANHis BRAINARD, N AYO R 8/29/2022 Board of Public Works and Safety One Civic Square Carmel, IN 46032 Re: Request for Variance (Pool, pool decking and landscaping) at 3973 Bear Creek Way Dear Board Members: Herman, Scott A & Elizabeth M, owner of the property with the common address 3973 Bear Creek Way, have requested a variance from the Carmel City Code Section 6-227(a)(4) for the installation of a Pool, pool decking and landscaping within a portion of the lot designated as an easement. Generally, the improvement 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): Petitioners enter into a Consent -to -Encroach Agreement with the City and record the Agreement. (we will record the agreement for you). Petitioners (and successors and assigns) agree to remedy any drainage issues resulting from the installation of the improvement that, in the opinion of the City, represents a Detriment as defined in City Code. Petitioners shall obtain approval from the HOA for installation of the improvement if such approval is required by the restrictive covenants of the development. Respectfully, '7), _— Jellmy Kashman, PE City Engineer DocuSign Envelope ID: 42ADFD07-0424-4C64-9F08-3FE95EED7C8C C, <1 a C-1 EIL .74 CM PROPERTY Igo PROS