2544 Milano Drive/Zierke, William/SherillC'�f
CONSENT TO ENCROACH
APPROVED SW
2014041759 ENCROACHME $29.00
09/19/2014 08:21:27A 9 PGS
Mary L. Clark
HAMILTON County Recorder IN
Recorded as Presented
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opt,
THIS CONSENT TO ENCROACH (hereinafter the "Agreement ") is entered into by and
between Sherill & William J. Zierke, 2544 Milano Drive, Cannel, 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 2 ( "Lot ") in The Lakes At Towne Road
Section One 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 Plat Cabinet 3, Slide
Number 728 as Instrument #200500063267 in the Office of the Hamilton County Recorder on
September 26, 2005, as The Lakes At Towne Road (the "Plat "); and
WHEREAS, the current Owner wishes to install a patio addition 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 a Drainage Easement identified as "30' D.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 Cannel Board of Public Works and Safety approved the Owner's
request for a variance from Carmel City Code Section 6- 227(4) on August 6, 2014; 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 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 pernission 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 and acknowledges that the Encroachment, as provided in this
instrument, does not violate the original Plat, any subsequent amendments or
restatements thereof, and /or any covenants and restrictions applicable to the
Encroachment.
7. 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 13 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. This Agreement shall be effective as of the date on which it is last executed by a
party hereto.
13. 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.
14. Owner agrees not to alter the ground surface elevation within the limits of the
easement at any time.
15. 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"
Sherill Zierke
Signature
Date: r 1 t 5 / /
Will�n "J. Ziei`e
I�l I /,000 C_
Signature
Date: U7 /Z / /!
San4ra AbfinAgon
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
BY:
James
Date.
Mary An�Bu��M / 1ep
Date: ,,
No r' Pre &2n7 -
Lori Watson, Member
Date:
A 'BEST
Lana Cord
Date:
lerk- Treasurer
STATE OF INDIANA
) SS:
COUNTY OF -o' i iO" )
Kathryn 0 Lustig
Notary Public Seal State of Indiana
Hamilton County
My Commission Expires 08/21/2016
Before me, a Notary Public in and for said County and State, personally appeared Sheri ll
Zierke and William J. Zierke, 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 2 th day of flu bi , 20 4.
f
I u I
My Commission Expires:
Auclusi- 21, 2OWj
STATE OF INDIANA
) SS:
COUNTY OF I- IAMILTON )
NOTARY PUBLIC
Printed Name Kc-t-I yr, 0. Lush `)
My County of Residence: 4-1 c-' - t .1 -ate
Before nie, a Notary Public in and for said County and State, personally appeared
JAMES BRAINARD, MARY ANN BURKE and LORI WATSON, by me known, and byc Y-c>„ me
SanGI
known to b e the Members of the City of Carmel Board of Public Works and Safety, and -Dil,4
1 ohason repp
<- .0 Rl3RAY, clerk- Treasurer of THE CITY OF CARMEL, who acknowledged the execution
of the foregoing "Consent To Encroach" on behalf of the City of Cannel, Indiana.
Witness my hand and Notarial Seal this /,v day of
My Commission Expires:
My County of Residence: `
NOTARY PUBLIC
Printed Name
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square,
Cannel, 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.
EXHIBIT A
LOT 2 IN THE LAKES AT TOWNE ROAD SECTION ONE
RECORDED IN THE OFFICE OF THE HAMILTON
COUNTY RECORDER ON SEPTEMBER 26, 2005 AS
INSTRUMENT #200500063267
06/02/2014 17:39 FAX
r
EXHIBIT B
1 002/003
SURVEYOR. LOCATION REPORT
OkAWING NO r'r 0 rl¢SCALOD• DIMENSIONSPREVAIL
TI US REPORT IS DESIGNED FOR USE DY ATITLE INSURANCE COMPANY WITH RESIDENTIAL LOANPOMCIES. NO CORNER MARKERS W!R0
361'AND'I Rk1.M'ATION DATA NPRRIN Li NASEION 11h11I ) ACCURACY 0IL13URkMPNllS. TEA RR RFOkp,NO IAAmIYIY w11.1. 4 AESUNIMll
FOR ANY 05D OP THIS DATA FOR TIM CONSTRUCTION DP NEW IMPROVEMENTS OR FENCDS.
Property Address: 2544 Milano Drive
Property Description: Lot 2 Lakes At Towne Read, a subdivision in Hamilton County,
Indiana. is per plot recorded us Instrument No. 200500063267, Plat Cabinet 3, Slide 728
in the Office of the Recorder of said county.
LENDER:
SELLER: KB HOME
BUYER:
Inspection Data; 2 -22 -06
Rcinspcction Date: 3 -7 -07
L
Scala; 1 "= 30'
Job No. 05 -0094
Drawn By: JEC
GRAPHIC SCALE IN FEET
1, the undersigned, hardly cattily In the
tin parties mimed above Una the real
esin le described Therein was inspected under
my su pervisiun urr Thu duo: indicated Rri,
to the best of my Itnowledge and belief, This
report conforms with the requirements for
Surveyor Location Reports sel out in sections
27 through 29 of IAC 865, I -I2.
Certified: February 22,2°06
Recertified: March 7, 2007
Terry D. Wrig
Rog. L.S. Thai ul +119700015
I5' COMMON AREA &TREE PRESERVATION AREA
95.00'
Orkin
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Cane.
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95.00'
Milano Drive
71T RAN
(36' Point.)
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NOTJ3;
'[1111 DRAW INU IS NUT' IN'IENLIDD TO BE kOPRLSEN'1'61)
AS A RGTRAC'EMSNr 011 ORIGINAL BOUNDARY SURVEY,
010 A ROUTE SURVEY,
Nola: No pitysieN evidence of possession
tmlcss noted othorwixe.
T. WRIGHT CORP.
9w SURVEYING SERVICES
300 I
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Crnnnwned, Indians 4042
phone 131%1505.0000
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CITY OF CA ° EL
JAi \IES BRAINARD, MAYOR
July 30, 2014
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: REQUEST FOR VARIANCE (PATIO IN EASEMENT) —2544 MILANO DRIVE, CARMEL, INDIANA 46074
Dear Board Members:
Mr. and Mrs. William and Sheri!! Zierke, owners of the property with the common address of 2544
Milano Drive, (Lot 2, The Lakes At Towne Road Section One) has requested a variance from Section 6-
227(a)(4) of the City of Carmel Code for the construction of a patio addition within the portion of the lot
designated as an easement per the attached exhibit.
It is not expected that the installation of the additional patio area at the proposed location will result in
a Detriment (as defined in City Code) to the subject property or the adjacent properties (provided the
petitioner adheres to the conditions recommended below). The 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 (including removal of the patio area
from the installed location) any drainage issues that in the opinion of the City represent a
Detriment as defined in City Code.
3. Petitioners must provide written proof to the City of approval of the improvement in the
easement by the ROA (if such approval is required by the restrictive covenants of the
development).
Sincerely,
Jeremy Kashman, P.E.
City Engineer
S: \BP W14 \2544M I LANODRIVEREQU ESTFORVARIANCEPATIO.DOC
DEPARTJIENT or ENGINEFRINc
ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAX 317.571.2439
EJIAIL engincering@carmel.ingov