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HomeMy WebLinkAboutConsent to EncroachCONSENT TO ENCROACH THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Pegues, Eric & Janice A Pegues h&w, 14406 Marsdale Pl, Carmel, Hamilton County, Indiana 46074, (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 38 ("Lot") in ALBANY VILLAGE, 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 the reference; and WHEREAS, the official plat of the Subdivision was recorded in PC 6 SLIDE 318, Instrument Number 2022-52348 in the Office of the Hamilton County Recorder on 10/27/2022, as ALBANY VILLAGE (the "Plat"); and WHEREAS, the current Owner wishes to install a Pool deck 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 15-foot drainage and utility easement , identified as "15' D.&.U.E."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 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 WHEREAS, the location of the Site Improvement as indicated by the Owner on l;Nhibit 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 Improvment, 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. 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. 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. 11. 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. 12. Owner 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. "OWNER" PROPERTY OWNER Print • Name Igni"atd� e n I a� Date: STATE OF INDIANA ) `� I ) SS: COUNTY OF l�A M1�11 6% ) PROPERTY OWNER ref" s Printed Name Signature �J1 1/2 Date: Before me, a Notary Public in and for said County and State, personally appeared ?Pmy eS by me known, and who acknowledged the execution of the foregoing "CONSENT TO ENCROACH' as his or her voluntary act and dirvd. Witness my hand and Notarial Seal this � day of 20ay . My Commission Expires: AW l?_ a o-)o E E7'H M RUFERy Public- Seal ty - state of indiana Number MP0741249 n Expires May 17, 203a NOT)rRY PUBLIC rCcr Printed Name My County of Residence: IAMi 16 "CITY" CITY OF CARMEL, INDIANA, BY AND THROUGH ITS BOARD OF PUBLIC WORKS AND SAFETY BY: Sue Finkam, Presiding Officer Date: Laura Campbell, Member Date: Alan Potasnik, Member Date: STATE OF INDIANA ) SS: COUNTY OF HAMILTON ) Jacob Quinn, Clerk Date: Before me, a Notary Public in and for said County and State, personally appeared SUE FINKAM, LAURA CAMPBELL and ALAN POTASNIK, by me known, and by me known to be the Members of the City of Carmel Board of Public Works and Safety, and Jacob Quinn, 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 day of , 20 . My Commission Expires: NOTARY PUBLIC Printed Name My County of Residence: This instrument was prepared by Sergey Grechukhin, Esquire, Transactions Chief, 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. Sergey Grechukhin, Esquire Exhibit A —Land Description LAND DESCRIPRON Part of the Northwest Quarter of Section 20, Township 18 North, Range 3 East, of the Second Principal Meridian, Gay Township, Hamilton County, Indiana, based upon an ALTA/NSPS Land Title Survey prepared by James D. Hall, Professional Surveyor Number 20500017, Terra Site Development Job Number 2004006, dated January 13, 2021, more particularly described as follows: Beginning at the Northeast comer of a tract of real estate conveyed to Hamilton County, Indiana, as described in Instrument Number 2018037540, said paint being along the North line of said Quarter section, North 89 degrees 36 minutes 02 seconds East, 513.36 feet from the Northwest comer of said Northwest Quarter, marked by a Harrison monument; thence continue along said North line, North 89 degrees 36 minutes 02 seconds East 811.71 feet to the Northeast corner of said Quarter —Quarter section, also being the Northwest comer of Tdlyn's Ridge subdivision as per plat thereof recorded in Instrument Number 2016048354; thence along the west line of said subdivision and east line of said quarter —quarter, South 00 degrees 04 minutes 02 seconds West, 1314.83 feet to a capped rebar at the Southeast comer of said quarter —quarter (said point also being the Southwest comer of said Tallyn's Ridge subdivision and the Northeast corner of Albany Place Section 2 as per plat thereof recorded as Instrument Number 2018050330 in said Recorders office); thence along the South line of said quarter —quarter section(and north line of said Albany Place Section 2 and the North time of Haskell property described in Instrument Number 9427730), South 89 degrees 36 minutes 47 seconds West, 1325.57 feet to a point on the West line of said Northwest Quarter, Also being Southwest comer of said quarter --quarter section thence along said West line, North 00 degrees, D5 minutes 20 seconds East, 789.55 feet to the Southwest comer of said Hamilton County property, thence along the Eastern boundary thereof the following nine (9) courses: 1) South 89 degrees 53 minutes 48 seconds East, 10.87 feet, 2) North 68 degrees 36 minutes 20 seconds East, 67.78 feet to a point of curvature of a non —tangent curve to the left, having a radius of 205.00 feet and subtended by a long chord having a bearing of North 69 degrees 33 minutes 03 seconds East, 155.69 feet: 3) thence along said curve an arc distance of 159.70 feet; 4) North 33 degrees 39 minutes 10 seconds East, 65.23 feet to a point of curvature of a curve to the left having a radius of 200.00 feet and subtended by a long chord having a bearing of North 14 degrees 27 minutes 47 seconds East, 98.72 feet; 5) thence along said curve an arc distance of 99.75 feet; 6) North 00 degrees 10 minutes 32 seconds East, 144,07 feet to a point of a tangent curve to the right, having a radius of 110.00 feet and subtended by a long chord of North 44 degrees 53 minutes 18 seconds East, 154.78 feet, 7) thence along said curve an arc distance of 171.68 feet; 8) North 89 degrees 31 minutes 43 seconds East, 124.14 feet; 9) North 00 degrees 23 minutes 13 seconds West, 44.84 feet to the Point of Beginning, containing 36.649 acres more or less. THIS SUBDIVISION CONSISTS OF 82 LOTS NUMBERED IA-23B, 24-59 (ALL INCLUSIVE) TOGETHER WITH FIVE (5) COMMON AREAS LABELED C.A. "A", C.A. 'B", C.A. "Cr, C.A. 'T, AND C.A. "E', AND TWO (2) BLOCKS LABELED BLOCK T AND BLOCK T, STREETS, EASEMENTS AND PUBLIC WAYS AS SHOWN ON THE WITHIN PLAT. THE SIZE OF THE LOTS AND WIDTH OF STREETS ARE SHOWN IN FEET AND DECIMAL PARTS THEREOF.