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HomeMy WebLinkAboutCTE - 15 W Executive Drive-20221118DocuSign Envelope ID: C6116F7F-BE53-4F6E-A420-7D7E8247DiBB 2022055184 ENCR $25.00 FDS 11/18/2022 12:07:15PM 6 PGS Jennifer Hayden Hamilton County Recorder IN Recorded as Presented 11111111111111111111111111111111111111111111111111111111111111 II II CONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Carmel Development Ili LLC, 15 W Executive Dr, Carmel, Hamilton County, Indiana 46032, (individually and collectively, "Owner"), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ("City"). WITNFSSETH: WHEREAS, Owner owns in fee simple certain real estate which is located within the corporate limits of the City of Carmel, Indiana and is more particularly described in Exhibit A (the "Real Estate"), attached hereto and incorporated herein by this reference; and WHEREAS, the current Owner wishes to install Balconies on the Real Estate (the 'Encroachment)" which will encroach into those segments of West Executive Drive (the "Right of Way") which are contiguous to the Real Estate and which are identified on the drawing attached hereto and incorporated herein by reference as Exhibit 8 (the "Drawing"), in the manner and locations shown on the Drawing; and WHEREAS, City of Carmel Board of Public Works and Safety approves the Owner's request for a variance from Carmel City Code Section 6-227(4); and 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 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: 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. DocuSign Envelope ID: C6116F7F-BE53-4F6E-A420-7D7E8247D1BB 4. Owner agrees that City shall have the right to remove any portion of the Encroachment as City deems necessary, in City's sole discretion 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 Encroachment, the Real Estate, or to Owner 5. Owner agrees and acknowledges that the City's consent to encroach within the Right of Way, as provided in this instrument, regards the City's Right of Way 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 Right of b. Owner agrees and acknowledges that the Encroachment, as provided in this instrument, does not violate any covenants and restrictions applicable to the Encroachment 7. Owner agrees that the Encroachment will not create standing water and/or other drainage problems that affect the City or adjacent property owners and that, if such problems arise, the City, in its sole discretion, may itself remove or may notify Owner who shall then immediately remove, all or any portion of the Encroachment as is necessary to correct such problems, at Owner's sole cost and expense. 8. Owner agrees that the water flow from the Eneroachment shall be directed away from all street travel lanes and that water from the Encroachment shall not be permitted to spray onto, traverse or otherwise come into contact with any travel lanes or paved areas of any street or street intersection, 4. Owner agrees to repair or replace, at Owner's sole cost and expense and to the City's reasonable satisfaction, any utilities or improvements (%vhcther located above, below or on the surface of the Right -of -Way) damaged as a result of the installation, construction, maintenance or operation of the Encroachment. 10, Owner agrees to install identification tape or identification wire on the Encroachment that will allow the City to readily determine the underground location of any Encroachment. 11. Owner agrees not to alter the ground surface elevation within the limits of the Right of Way at any time. 12. Owner agrees to reimburse City for any and all costs and expenses incurred by City to replace or repair any damage to the Right of Way and any improvements located therein caused by the installation, construction, maintenance and/or operation of the Encroachment. 13. Owner agrees to indemnify and hold harmless City, its officers, officials.. members, employees, invitees, licensees and agents, (i) from and against any and all losses, liabilities, damages, claims, judgments, attorney fees and costs arising from any bodily injury, death or property damage occurring during the initial installation and during any subsequent use, maintenance or repair of the Encroachment and (ii) for any failure of proper disclosure pursuant to Paragraph 18 hereof. 14. 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. 15. "1 he 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. DocuSign Envelope ID: C6116F7F-BE53-4F6E-A420.707EB247D1BB 16. This Agreement shall be effective as of the date on which it is last executed by a party hereto. 17. 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 (teal Estate on and after the effective date of this Agreement, "OWNER" PROPERTY OWNER; Carmel Development ill, LLC AnthonyW. Birkla Printed Name gnature Date: 10/10/2022 STATE OF INDIANA ) ) SS; COUNTY OF Hamilton ) PROPERTY OWNER Printed Name Signature Date: Before me, a Notary Public in and for said County and State, personally appeared AnthOriV W. Rirkla 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 Sea] this 10 day of Oetobar 20 22 , My Commission Expires: NOTARY �L[C mm Tracy L. Van Osdol 9/28/2024 Printed Name My County of Residence: Marion TRACY t- VAN OSDOL Notary Publa SEA State of Indiana My Commission Expires September 28, 2024 DccuSign Envelope ID: C6116F7F-BE53AF6E-A420-7D7E8247D18B "CITY" CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY: Not Present James BrAinard, Presiding Officer Date: Docu iyPZ0 by AA t16& 2 2 Date: �Dx r b►c set 't�ttiti@31lg�I6l&nber Date: 10/19/2022 F Docu$lgned by. Sue o gang, , ei-k Date: 10/19/2022 James Brainard ,I"'?1y s�' HOLLY J. HARMEYER STATE OF INDIANA o. $ ' Notary Public, state of Indiana Not Present `� SF = Hamilton County SS: t ° : + Commission Number NP07379182 COUNTY OF HAMILTON LgjaNpti MY Commissign Expires December 15, 2029 h j h Before me, a Notary Public in and for said County and State, personally appeared JAWS IBRArINAR-a—,-- -- 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 ENCROACH" on behalf of the City of Carmel, Indiana. Witness my hand and Notarial Seal this 19th day of October , 20 2 2 ti My Commission Expires: NOTA Y PUBLI 12/15/2029 Holly J Harmeyer Printed Name My County of Residence: Hamilton This instrument was prepared by ion 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 s1w31Vrvo3 aid 133SIUd rLZ/41/60 s1W3W103 aid 03SUA3d 6S//6L160 !! SiN3YfR03 aid 03SVIII iz/ar/so a y ash 3 — — -- n :9 a g. .. _ ..__ _. .� L 41 gib tj Nix \/� F ! A jig a A�i;D Sj iN o &� 1 I a w d R six mBa F .� z r. .s1M �ebar:e 0 ? U O 17aaE2 axiaxa iaiiai iiiia7 .T■ EL i i o s� F- Q a I .. r. rY }q;Ljf y O yyjj Q Z--✓�i-N -- -N h�NNYr; "x f i J §Q W U ICI v I w �$4 Z 3 $ a N;�� �g v ra v� g --wo k.® E �N H 1CL � jiryy I W 6 ry x n W w L lit It Jw U. o gg $. 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