Townhomes at Hazel Dell HOA, Inc.2017035547 ENCR $25.00
07/25/2017 10:13:18AM 8 PGS
Jennifer Hayden
Hamilton County Recorder IN
Recorded as Presented
II II II II I I III I I I I II I I I II
ZCONSENT TO ENCROACH
THIS CONSENT TO ENCROACH (hereinafter the "Agreement') is entered into by and between Townhomes at Hazel Dell
Homeowners Association, Inc., 11910 Esty Way, Carmel, Hamilton County, Indiana 46033, (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 Common Area "A" ("Lot') in The Townhomes at Hazel Dell 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 137, Instrument Number
200300012987 in the Office of the Hamilton County Recorder on 2/6/2003, as The Townhomes At Hazel Dell (the "Plat'); and
WHEREAS, the current Owner wishes to install safety barriers 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 Drainage Utility and Sewer
Easement and Access Easement, identified as "DU & SE & AE" 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 ; and
V4®
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 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. 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.
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.
10. 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.
11. This Agreement shall be effective as of the date on which it is last executed by a party hereto.
12. 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.
13. Owner agrees not to alter the ground surface elevation within the limits of the easement at any time.
14. 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"
The Townhomes at Hazel Dell Homeowners Association, Inc.
—6paz�a . ® d1�
Signature
Date: rO f
STATE OF INDIANA )
e ) SS:
COUNTY OF V�o _)
Before me, a Notary Public in and for said County and State, personally appeared The Townhomes at Hazel Dell
Homeowners Association, 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 7 day of - , 20
LIC
My Commissign xpires: Aa C�
ay Printed Name %
My County of Residence: / ' AQP -,rd n
"CITY"
CITY OF CARMEL, INDIANA,
BY AND THROUGH ITS BOARD OF
PUBLIC WORKS AND SAFETY
BY,OX: GfL.
ames Brainard, Presidin Officer/
ate:
wlzvw,14!K�
Ma A Burke, Member
Date: 72 9'—1 7
Lori Watson, Member
Date: i
ATTEST:
Christine S. Pauley, C rk-Tr��,Iv j_,,,_
Date:
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 Lq*day of , 20)7.
N A�Y PUBLIC��,,{{�� / )
n Expires: / ad�l)� Y �Q 14A o-11
oZ DIANNE WALTHALL Printed Name
Seal -
Notary Public - State -of Indiana My County of Residence:
Hamilton County
LiMy Commission Expires Mar 16,2024
This instrument was prepared By Doilglis aney; E7squire, Corporate 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
LEGAL DESCRIPTION
A part of the East Half and o part of the West Half of the Southeast Quarter of Section 33, Township 18
North, Range 4 East, Hamilton County, Indiana, more particularly described as follows:
COMMENCING at the Southeast Corner of the Southeast Quarter of said Section 33, Township 18 North, Range
4 East; thence North 89 degrees 33 minutes 35 seconds West along the South Line of said Southeast Quarter
Section a distance of 1322.98 feel to the Southwest Comer of the East Half of said Southeast Quarter
Section; thence North 00 degrees 07 minutes 45 seconds East along the West Line of the East Half of said
Southeast Quarter Section a distance of 268.00 feet to the BEGINNING POINT; thence continuing North 00
degrees 07 minutes 45 seconds East along said West Line a distance of 2174.70 feet to the Northeast Corner
of Lake Forest Section 7, o subdivision in Hamilton County, Indiana, the plat of which is recorded as
instrument number 9239580 in Plat Cabinet 1 Page 266 in the office of the recorder of Hamilton County,
Indiana; thence North 89 degrees 41 minutes 57 seconds West along the North Line of said Lake Forest
Section 7 o distance of 1326.87 feet to the West Line of said Southeast Quarter Section; thence North 00
degrees 02 minutes 16 seconds East along said West line a distance of 199.67 feet to the Northwest Comer
of said Southeast Quarter Section; thence South 89 degrees 41 minutes 51 seconds East along the North Line
of said Southeast Quarter Section a distance of 1327.18 feet to the Northwest Corner of the East Half of the
said Southeast Quarter Section; thence continuing South 89 degrees 41 minutes 51 seconds East along the
North Line of the said Southeast Quarter Section a distance of 732.17 feet to the Northwest. corner of a Tract
of Land to the City of Carmel and recorded as Instrument Number 9709731112 in the Office of the Recorder
of Hamilton County, Indiana; thence South 00 degrees 11 minutes 12 seconds West .along the West Line of said
Tract of Land a distance of 138.31 feet to the Northwesterly right—of—way line of Ho2el Dell Parkway (the next
two (2) described courses being along the Northwesterly and Westerly right—of—way line); (1) thence South 25
degrees 08 minutas 32 seconds West o distance of 1044.61 feet to a tangent curve to the left having a
radius of 1994.86 feet, the radius.poinl of which bears South 64 degrees 51 'minutes 28 seconds East; (2)
thence Southwesterly, Southerly and Southeasterly along said curve an are distance of 1319.17 feet to a point
which beers South 77 degrees 15 minutes 13 seconds West from sold radius point (said point also being on
the No-th line of a Tract of Land to Randolph D. & Michoelene Martin, recorded as Instrument Number
8819464 in said Recorder's Office); thence North 89 degrees 33 minutes 35 seconds West along said North
Line a distance of 153.41 feet to the Point of Beginning, containing 23.939 acres, more or less.
THIS SUBDIVISION CONSISTS OF 65 LOTS NUMBERED 101 THROUGH 1.07, 201 THROUGH 207, 301 THROUGH 306,
401 THROUGH 405, 501 THROUGH 505, 601 THROUGH 605, 701 THROUGH 707, 801 THROUGH 807, 901
THROUGH 905, 1001 THROUGH 1005, 1101 THROUGH 1104, 1201 THROUGH 1204, 1301 THROUGH 1305, 1401
THROUGH 1406 AND 1501 THROUGH 1507 TOGETHER PATH COMMON AREA -9, STREETS AND EASEMENTS AS
SHOWN HEREON.
THE SIZE OF LOTS AND COMMON AREA AND WIDTHS OF STREETS AND EASEMENTS ARE SHOWN IN FIGURES
DENOTING FEET AND DECIMAL PARTS THEREOF.
I, the undersigned, hereby certify that I am a registered land surveyor, licensed in compliance with the laws of
the Slate of Indiana. and that the within plot represents a subiSvision of the lands surveyed within a survey
plat recorded as instrument number 200200089075 in the office of the recorder of Hamilton County, Indiana,
and that to the best of my knowledge and belief there have been no changes from the matters of survey
revealed by said plot on any lines that are common with this new subdivision. I further certify that the within
subdivision plat was prepared under my direct supervision and control and that it is true and correct to the
best of my professional knovrledge and belief.
+t t F Il l + t
CI' Y*Y"I ARMEL
r
JAbmES BRAINARD, MAYOR
July 12, 2017
Board of Public Works and Safety
One Civic Square
Carmel, IN 46032
Re: Consent to Encroach (safety barrier) at The Townhomes at Hazel Dell, 11910 Esty Way
Dear Board Members:
A Consent to Encroach document signed by The Townhomes at Hazel Dell Homeowners Association,
Inc., owner of the common area within the Townhomes at Hazel Dell, 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 July 19, 2017 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,
;4 -�2�
Jeremy Kashman, PE
City Engineer
ATTACHEMENT: CONSENT TO ENCROACH DOCUMENT
t� i fl fi i
CITY 1 , ARMEL
JAMES BRAINARD, MAYOR
July 12, 2017
Board of Public Works and Safety
One Civic Square
Carmel, IN 46032
Re: Request for Variance (safety barrier) at The Townhomes at Hazel Dell, 11910. Esty Way
Dear Board Members:
The Townhomes at Hazel Dell Homeowners Association, Inc., owner of the common area within the
Townhomes at Hazel Dell, has requested a variance from Carmel City Code Section §6-227 (a)(4) for the
installation of safety barriers within a portion of the lot designated as an easement. Generally, the safety
barriers are proposed to be installed at the location indicated on the attached exhibit.
It is not expected that the improvements at the proposed location will result in a Detriment (as defined by
City Code) to the subject property or the adjacent properties (provided the petitioner adheres to the
conditions recommended below). The Engineering 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. (we will record the agreement for you)
2. Petitioners (and successors and assigns) agree to remedy any drainage issues resulting from the
installation of the safety barrier that, in the opinion of the City, represents a Detriment as defined
in City Code.
Respectfully,
Jeremy Kashman, PE
City Engineer
EXHIBIT B
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