HomeMy WebLinkAboutENCROACHMENT-Consent to Encroach - 321 1st Ave SE - Van Ostrand Fakehany-20230817DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
JANirs 13it.AiNARI), Nl.avcA,
6/28/2023
Board of Public Works and Safety
One Civic Square
Carmel. IN 46032
Re: Consent to Encroach (fence) at 321 1 st Ave SE
Dear Board Members:
2023031560 ENCR $25.00
08/17/2023 03:59:26PM 8 PGS
Trini Beaver
Hamilton County Recorder IN
Recorded as Presented
A Consent to Encroach document signed by Van Ostrand Fakehany, Derek T & Amy C. owners of the property with
the common address 321 Ist Ave SE , 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.
fhe 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.
'�
Ja
an, PE
City Engineer
Af FACI IMEN"I : CONSENT TO ENCROACH DOCUMENT
JMZ
DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
T ' t i_,�
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CITY""-v EL
.l.ANrts 13RAIN RD, Nl,AMR
6/28/2023
Board of Public Works and Safety
One Civic Square
Carmel, IN 46032
Re: Request for Variance (fence) at 321 1 st Ave SE
Dear Board Mernbers:
Van Ostrand Fakchany, Derek T & Amy C. owner of the property with the common address 321 lst Ave SE, have
requested a variance from the Carmel City Code Section 6-227(a)(4) for the installation of a fence within a portion of the lot
which will encroach into those segments of Ist Avenue SE and Elm Street which are contiguous to the Real Estate.
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.
Respectfully,
.Jeremy Kashman, PE
City Engineer
DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
CONSENT TO ENCROACH`
�ij i)
THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Van Ostrand Fakehany. Derek T
Amy C, 321 Ist Ave SE, Carmel, Hamilton County, Indiana 46032, (individually and collectively, "Owner"), and the City of Cannel.
Hamilton County, Indiana, by and through its Board of Public Works and Safety
WITNESSETIL
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 fence on the Real Estate (the "Encroachment)" which will encroach
into those segments of 1st Avenue SE and Elm Street (the "Right of Way") which arc contiguous to the Real Estate and
which are identified on the drawing attached hereto and incorporated herein by reference as lixhibit 11 (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 It; and
NOW. THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and other good and
valuable consideration. the sutlicicncy and receipt of which arc hereby acknowledged, the patties 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 fi-om what is depicted on I{xhihit B, and to maintain the Site Improvement in
good condition and repair.
DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
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 properly interests of any other
person without that person's consent even if such property interests are also located within the Right of Way.
6. 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 Encroachment shall be directed away from all street travel lanes
and that water from the Fncroachment shall not be permitted to spray onto, traverse or otherwise come into
contact with any travel lanes or paved areas ol'any street or street intersection.
9. Owner agrees to repair or replace, at Owner's sole cost and expense and to the City's reasonable satisfaction,
any utilities or improvements (whether 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.
to. 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.
H . 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 Fncroachment and (ii) for any failure of proper
disclosure pursuant to Paragraph 17 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. 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.
DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
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 Real Estate on and after the effective date of this Agreement.
"OWNER"
PROPERTY OWNER
Printed Name jlt
Signature
Date: "
STATE 01;1NDIANA
1 SS:
COUNTYOF
PROPERTY OWNER
Pri - 11\'a le
Si nature
Date:
Before me, a Notary Public in and for said County and Stale, personally appeared J'"v U;�t++.a Fatc.� ••+v/ �'^`y
tl �n a Nur� -
bv me known, and who acknowledged the execution of the foregoing "CONSENT TO ENCROACH' as his or��,wy
her voluntary act and deed. k _
Witness my hand and Notarial Seal this (� day of 20-7-3.
My Commission Expires:
11 h--I / Z c L S
Adam P Ruberry
Notary Public - Seal
State of Indiana
Hamlllon County
My Commission Expires 11/24/2026
Commission No. NP0730154
C
NOTARY PUBLIC:
P(A aVti
Printed Name
My County of Residence: Ilrt lt\ , I t G �`
DocuSign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
"CITY.,
CITY OF CARMEL. INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
P11
DocuSigned by:
BY: � I� ..
James Brainard, Presiding Officer
Date: 8/16/2023
DocuSigned by:
Mar A€Hth3fYW&, Member
Date: 8/16/2023
F;DocuSigned by:
(,evt Ulahaln,
I.on�Waison, Member
Date: 8/16/2023
STATE OF INDIANA )
SS:
COUNTY OF HAMII TON 1
—DocuSigned by:
51- "
Sue Wollgang, Clerk -
Date: 8/16/2023
Before me, a Notary Public in and for said County and State, personally appeared JAMES BRAINARD,
MARY ANN BURKE and LORI WNI'SON, by me known, and by me known to be the Members of the City of
Carmel Board of Public Works and Safety, and Site Wolfgang, Clerk of THE, CITY OF CARMEL, who
acknowledged the execution of the foregoing "CONSENT TO ENCROACII" on behalf of the City of Carmel,
Indiana.
Witness my hand and Notarial Seal this day of
My Commission Expires:
Di/Kp
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No
in PUBLIC
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Jess,ca - . KoMn
Printed Name
ytv County of Residence: Clout I
This instrument was prepared by Jon Oberlandcr, Esquire, Assistant Corporation Counsel, One Civic Square, Carmel,
Indiana 46032.
1 affirm, under the penalties f'or 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: A783BF4D-1315-40FE-B644-39D2680629DF
Hamilton County, IN - Property Report for Parcel #: 16-10-30-03-02-013.000
Current Owner as of. une 08 2023
I 'iS ICiO-1 :O'l is 1m cs a week
PROPFRTYAGDRFSS
321 1 st Ave SE
Carmel, IN 46032
Legal Description:
Section/Township/Range:
Subdivision Name:
Subdivision Section:
Deeded Acres:
Political Township:
Lot Number(s):
Last Recorded Date:
6FFDFF) O'V NFR
Van Ostrand Fakehany, Derek T & Amy C
321 1st Ave SE
Carmel, IN 46032
SIMMP.RY INFORMATION
Parcel Number: 16-10-30-03-02-013.000
State Parcel Number:29-10-30.302-013.000-018
Acreage .00 Section 30, Township 18, Range 4 JOHN A PHELPS Lot 9
30/18/4
JOHN A PHELPS
Not Available
0
Clay
9
Not Available
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match. All information has been derived from public records that are constantly undergoing change and is not warranted for content or accuracy. It may not reflect the current information pertaining to the
property of interest.
'ign Envelope ID: A783BF4D-1315-40FE-B644-39D2680629DF
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