11900 Dubarry Drive-Irizarry, Michael/BethCONSENT TO ENCROACH
2015001313 ENCR $23.00
01/09/2015 02:23:50PM 7 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
111111I11111111111111111111111111111111111111111111111111111111111111
Acit
THIS CONSENT 0 E ROACH (hereinafter the "Agreement") as =entered into by and between
Mr. Michael C. & Mrs. Beth A. Irizarry, 11900 Dubarry Drive, Carmel, Hamilton County, Indiana 46033,
(individually and collectively, "Owner "), and the City of Cannel, Hamilton County, Indiana, by and
through its Board of Public Works and Safety ( "City ").
W ITN ESS ETH:
WHEREAS, Owner owns in fee simple Lot 4 ( "Lot ") in the Brighton Woods Section I
Subdivision 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 as Plat Cabinet 2, Slide 286 as
Instrument #9909940773 in the Office of the Hamilton County Recorder on July 9, 1999, as Brighton
Woods Section 1 (the "Plat "); and
WHEREAS, the current Owner wishes to install a fence 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, Utility and Sewer Easement identified as "15' D.U. &S.E." & "20' D.U. &S.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 approved the Owner's request for
a variance from Carmel City Code Section 6- 227(4) on befennbzr , 2014; and
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CONSENT TO ENCROACH
THIS CONSENT 0 E ROACH (hereinafter the "Agreement ").i`s.entered into by and between
Mr. Michael C. & Mrs. Beth A. Irizarry, 11900 Dubarry Drive, Cannel, Hamilton County, Indiana 46033,
(individually and collectively, "Owner "), and the City of Cannel, Hamilton County, Indiana, by and
through its Board of Public Works and Safety ( "City ").
WITNESSETFI:
WHEREAS, Owner owns in fee simple Lot 4 ( "Lot ") in the Brighton Woods Section 1
Subdivision 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 as Plat Cabinet 2, Slide 286 as
Instrument #9909940773 in the Office of the Hamilton County Recorder on July 9, 1999, as Brighton
Woods Section 1 (the "Plat "); and
WHEREAS, the current Owner wishes to install a fence 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, Utility and Sewer Easement identified as "15' D.U. &S.E." & "20' D.U. &S.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 approved the Owner's request for
a variance from Cannel City Code Section 6- 227(4) on ()t mber t R- , 2014; and
3 0 14 cS-
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 terns 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 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 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"
Michael C. Irizarry
Signature
S
Date: t\ I Z b l l ti
Beth A. Irizarry
Signature
Date: U / 26 1 tuk
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
BY:
ames Brainard, Presiding Officer
Date: / 2 -1 3 -/
Mfry An'Bwk ember
Date: �—� 7 -/y
7
Lori Watson
Date:
enter
la 17/if
Diana Cordray, IAM
Date: l
STATE OF INDIANA )
) SS:
COUNTY OF NQMr Mn )
Before me, a Notary Public in and for said County and State, personally appeared Michael C. &
Beth A. Irizarry, 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 2-6 day of ildveMia. , 201Y
NOT Y PUBLIC
My Comi}�issi n Expires: !'c -koLM F- ' int ep —
02 / 2.7%17
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Printed Name
My County of Residence: WW 4 Hj l ent
NICHOLAS F. MISHLER
County of Res: Hamilton
My Comm. Expires 02 -27 -2019
Comm, No 624589
Before me, a Notary Public in and for said County and State, personally appeared JAMES
Brainard, MARY ANN BURKE and LORI WATSON, by me known, and by me known to be the
'£cry -c0 3ck- nson p
Members of the City of Carmel Board of Public Works and Safety, and -D1 ICA— L�ORDRAY— 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 17 day of D €Ce,nnbe -t , 20
My Commission Expires:
0.
NOTARY P BLIC
Printed Name
My County of Residence:
This instrument was prepared by Douglas C. Haney, Esquire, City Attorney, One Civic Square, Carmel,
Indiana 46032.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security
Numbcr in this document, unless required by law.
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EXHIBIT A
LOT 4 IN THE BRIGHTON WOODS SECTION 1 SUBDIVISION RECORDED IN THE OFFICE OF
THE HAMILTON COUNTY RECORDER ON JULY 9, 1999 AS INSTRUMENT #9940773
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December 9, 2014 J:vMFS 13RAINARD: MAYOR
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: CONSENT TO ENCROACH —11900 DUBARRY DRIVE — FENCE IN EASEMENT
Dear Board Members:
A Consent to Encroach document, signed by Mr. & Mrs. Michael C. and Beth A. Irizarry, is submitted to
the Board for signatures. Board approval of a variance for the encroachment is granted by the Board of
Public Works during the December 17, 2014 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,
Jeremy Kashman, P.E.
City Engineer
ATTACHMENT: CONSENT TO ENCROACH DOCUMENT
S: \BPW 14 \11900DU BARRYDRIVEEN CROACH MENTDOCU M ENT.DOC
DI :PAVEMENT OP ENGINEERING
ONE CIPIC SOcvir, CARMIII., IN 46032 Office 31757/2441 FAX 3175712439
EMAIL engincurin};- )earmel.fn.g( nV