741 1st Avenue NW-Driscoll, Peter/Jean•
APPROVED CEO
2015024641 ENCR $27.00
05/22/2015 03:23:51PM 8 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
CONSENT TO ENCROACH / 111 1111 1 1111 I 110 1 1111 11111 1 1111 11111 11111 11111 11111 11111 11111 11111111
00e,
THIS CONSENTVI'O ENCROACH (hereinafter the "Agreement ") is entered into by and between
Mr. and Mrs. Peter J. & Jean M. Driscoll, 741 1s` Avenue N.W., 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").
WITNESSETH:
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 a private drainagte pipe on the Real Estate (the
"Encroachment ") which will encroach into those segments of 1st Avenue N.W. (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 B (the "Drawing "), in the manner and locations shown on the
Drawing; 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 May 21, 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.
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.
1
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 Encroachment from what is depicted on Exhibit B, and to maintain the
Encroachment in good condition and repair.
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 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 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.
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.
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 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.
14. 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 Encroachement and (ii) for any failure of proper disclosure
pursuant to Paragraph 18 hereof.
15. 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.
16. 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.
3
17. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
18. 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"
;Peter J.TDriscoll
Signature[
Date: 1"
Jean M. • riscoll
Signature
Date:
Sandra M Johnsor.
Deputy Clerk Fo r ana Cordray, I
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
BY:
James Brainard, Presidin (Nicer
Date: —.2e) "/
Mary
Date:
urke, Member
Lori V'atso , Iemb
I
Date:
ATTEST:
,•J
r! Clerk - Treasurer
Date: ,04J/'s
4
STATE OF INDIANA
COUNTY OF
) SS:
Before me, a Notary Public in and for said County and State, personally appeared Peter J. & Jean
M. Driscoll, 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 thi& day of , 20 LST
My Commission Expires:
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
OTARY PUBLIC
/ t tL(0 E
Printed Name
My County of Residence: /ViEW e1 rho, >
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
Sao ra ht-c.)11 J-
Members of the City of Carmel Board of Public Works and Safety, and, 1-1 CORDRAY, Clerk -
Treasurer 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-, ._14,
,,Mv Commission Expires:
Wak1
NoTTA jY PURI,IC.
/s
Printed Name _
My County of Residence:, h%%'�i✓- FDA)
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
Number in this document, unless required by law. Douglas C. Haney Esquire
5
EXHIBIT A
0.25 ACRE RECORDED IN THE OFFICE OF THE HAMILTON COUNTY RECORDER ON
FEBRUARY 12, 2014 AS DEED RECORD #2014004941
6
„E� IS 1.'3 -u T 'A MR.i`�
YEXISTING STONE DRIVE- $,TO:`
,cBE USED' ASiCONSTRUCTICI
EN TRY....nf
SITE PLAN
741 1ST AVE NW
CARMEL, INDIANA
GRAPHI
SCALE
0 10 20
SCALE : 1 = 20'
REV: 4/20/2014
REV: 5/05/2014
REV: 5/11/2014
LEGEND
000.0
000.0
M.E
40
SURFACE FLOW DIRECTION
PROPOSED ELEVATION
EXISTING ELEVATION
MATCH EXISTING ELEVATION
THE EASEMENTS SHOWN ARE BASED ON FIELD EVIDENCE
ONLY. NO OTHER EASEMENT OR POTENTIAL EASMENTS WERE
DISCOVERED.
THE SITE PLAN WAS PREPARED WITHOUT THE BENEFIT OF A
CURRENT TITLE POLICY AND IS THEREFORE SUBJECT TO ANY
STATEMENT OF FACTS REVEALED BY EXAMINATION OF
SCHEDULE "A” AND SCHEDULE "B" OF A TITLE POLICY.
9 LS20500017
FOR: OLD TOWN DEVELOPMENT
BY: JD HALL LAND SURVEYING
1631 S. J STREET
ELWOOD, INDIANA 46036
Ph: 317 -696 -3594
Fx: 317-773-7161
JOB NO: 14-024
4/6/2014
DATE: `"Upllll 16'11110/ / ///
P O
No. _
LS20500017
STATE OF
<-9`'.. /401 N'TP �"`.`:
SHEET 1 OF' / / //4 V,'\ `•
lit() Id
fi
n
El
Cis o CARMEL
May 13, 2015
JAMES BRAINARD, MAYOR
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: CONSENT TO ENCROACH — 741 ft AVENUE N.W. — PRIVATE PIPING IN RIGHT OF WAY
Dear Board Members:
A Consent to Encroach document signed by property owners signed by property owners Peter & Jean
Driscoll, 741 1st Avenue N.W., is submitted to the Board for signatures. Board approval for the
encroachment was granted by the Board of Public Works during the May 21, 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:\ BPW15 \7411STAVENUENWENCROACHMENT.DOC
DEPARTMENT OF ENGINEERING
ONE Civic SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439
EMAIL engineering @cannel.in.gov