5702 Kirkpatrick Way - Enclave of Carmel2016019745 ENCR $27.00
05/04/2016 02:17:36PM 9 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
II II II II I II I I I I I I II I II II
CONSENT TO ENCROACH � ty
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THIS CONSENT TO ENCROACH (hereinafter the "Agreement") is entered into by and between Enclave of Carmel
Homeowners Association, Inc., 5702 Kirkpatrick Way, Indianapolis, Marion County, Indiana 46220, (individually and collectively,
"Owner"), and the City of Carmel, Hamilton County, Indiana, by and through its Board of Public Works and Safety ("City").
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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 sidewalk/path on the Real Estate (the "Encroachment") which will encroach
into those segments of Melark Drive and Enclave Circle (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 /M Z-1 t^l 'L0 14 ; 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.
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 Encroachment 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.
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"
LEE A. EUPE ,PROP TY AGER
EN VE OF CARME MEOWINERS ASSOCIATION, INC.
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Date: 6
STATE OF INDIANA )
SS:
COUNTY OF
Before me, a Notary Public in and for said County and State, personally appeared LEE A. GEUPEL, Property Manager for
Enclave of Carmel Homeowner's Associations, Inc., 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 N day of 20
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My Commission EExpire,,:��ey
q(%�a �`(D Printed Name
My County of Residence:Qywh
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THR94)bH ITS BOAIRD OF
PUBLIC WOAND SAFE,&
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Mary AnnfBurke, Me��cE_
Date:
Lori W
Date:
ATTEST:
STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
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 Members of the City of Carmel Board of Public Works and
Safety, and CHRISTINE S. PAULEY, 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 Aw ,n 20
NOTARY P�LIC
MyComm' sion Expires: e�% zohee
Printed Name z//
My County of Residence:
This-inartraient was prepared by Douglas C. Haney, Esquire, Corporation Counsel, 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
EXHIBIT A
COMMON AREA "A" IN THE ENCLAVE OF CARMEL SUBDIVISION RECORDED IN THE OFFICE OF
THE HAMILTON COUNTY RECORDER IN PLAT CABINET 1, SLIDE 192, AS INSTRUMENT #
1991025567 ON SEPTEMBER 26, 1991
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?016
,JAMES BRAINARD, MAYOR
April 26, 2016
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: CONSENT TO ENCROACH —THE ENCLAVE OF CARMEL —PATH IN COMMON AREA ROW
Dear Board Members:
A Consent to Encroach document signed by Mr. Lee Geupel, Property Manager for The Enclave of
Carmel HOA, 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 May 4, 2016 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: CONSENTTO ENCROACH DOCUMENT
S:\BPW16\ENCLAVEOFCARMELENCROACHMENT.DOC
DEPARTMENT OF ENGINEERING
ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439
EMAIL engineering®carmel.in.gov
C
April 26, 2016
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
.JAMES BRAINARD, MAYOR
L
RE: REQUEST FOR VARIANCE (COMMON AREA PATH/SIDEWALK IN RIGHT OF WAY) —ENCLAVE OF
CARMEL, CARMEL INDIANA 46032
Dear Board Members:
Mr. Lee Geupel, Property Manager for the Enclave of Carmel HOA, has requested a variance from
Section 6-227(a)(4) of the City of Carmel Code for the installation of a common area path/sidewalk in
the Right of Way of Melark Drive and Enclave Circle.
It is not expected that the installation of the path/sidewalk at the proposed location will result in a
Detriment (as defined in City Code) to the subject property or the adjacent properties (provided the
petitioners adhere 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 any drainage issues resulting from the
installation of the path/sidewalk that, in the opinion of the City, represent a Detriment as
defined in City Code.
3. Petitioners shall ensure the individual doing the work obtains a Right of Way permit from the
Engineering Department for installation of the sidewalk/path.
Sincerely,
Jeremy Kashman, P.E.
City Engineer
S:\BP W 16\ENCLAVEOFCARM ELREQUESTFORVARIANCEPATH. DOC
DEPARTMENT OF ENGINEERING
ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAx 317.571.2439
EMAIL engineering®carmel.in.gov
EXHIBIT B
016";��eAMA-