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Home My WebLink About#3053- Deed; ENCROACHMENT EASEMENT 202 East Ireland1 3053 3/27/2006 Encroachment Easement LOT NO. SUB: Burkhart Advertising 202 East Ireland Road Description: 202 East Ireland 3053 3/27/2006 Encroachment Easement LOT NO. SUB: Burkhart Advertising 202 East Ireland Road Description: 202 East Ireland ENCROACHMENT EASEMENT SIGNAGE BY BURKHART ADVERTISING, INC. ENCROACHMENT OF PUBLIC RIGHT-OF-WAY THIS ENCROACHMENT EASEMENT made this � ay of May, 2006, by the City of South Bend, Indiana, through its Board of Public Works (the "Grantor"), in favor of Burkhart Advertising, Inc., its successors and assigns (collectively, the "Grantee"). WITNESSETH THAT: WHEREAS, Grantee owns a billboard (the "Billboard") on certain real estate located at 202 East Ireland Road in the City of South Bend, Indiana (the "Real Estate"); and WHEREAS, the Grantor desires to acquire an interest in a portion of the Real Estate in order to expand the public right -of --way along Ireland Road (the "Property Interest") for the purpose of making certain improvements to Ireland Road; and WHEREAS, upon the Grantor's acquisition of the Property Interest, the Billboard will encroach the public right -of --way, a description of said Billboard and public right-of-way is as set forth at Exhibit A; and WHEREAS, in the determination of Grantor, such encroachment will not interfere with the free and safe flow of traffic on such public right-of-way; and WHEREAS, in order to facilitate the Grantor's acquisition of the Property Interest, the Grantor desires to grant Grantee a right of encroachment easement for the purpose of maintaining the current billboard at its current location. NOW, THEREFORE, for and in consideration of the foregoing, of the agreements and covenants herein contained and other good and valuable consideration given by each party hereto unto the others, the receipt of sufficiency of which are hereby acknowledged, the parties agree as follows: I . Grant of Easements. Grantor hereby grants and conveys to Grantee, its successors and assigns, (i) a permanent, exclusive, and perpetual easement in, on, under, over and across that area of the Property Interest identified in Exhibit A (the "Sign Easement") For the purposes set forth below, and (ii) a permanent, exclusive, and perpetual easement in, on, under, over and across the Property Interest (the "Access Easement" and, together with the Sign Easement, the "Easements") for the purposes set forth below. The Sign Easement shall include the right to improve, upgrade and update the Billboard, including the right to install and use new technologies, to the extent such improvements, upgrades or updates would otherwise be permitted if the Billboard did not encroach the public right-of-way, and accordingly, the Grantor shall not withhold a permit for the same. Notwithstanding the foregoing, to the extent that the current Billboard must be reconstructed due to being destroyed (due to storm, fire or similar casualty) the Easements shall automatically cease, and all future structures shall abide by the zoning laws and regulations generally and specifically applicable to such structures provided, however, that such zoning laws and regulations shall be modified to the extent necessary to apply grandfather provisions applicable to the Billboard's current location in order for Grantee to obtain permits necessary to relocate the Billboard at a new location (provided that the new location does not encroach the public right-of-way as it exists at that time). 2. Purposes of Easements. The purposes of the easements granted and conveyed by Paragraph I above are: (i) to allow the owner of the Easements to illuminate, maintain, repair, remove, use and/or operate an outdoor advertising display in the location where an outdoor advertising display is currently located on the Property Interest and permitted by or excepted from the applicable zoning laws and regulations; (ii) to create exclusive access for vehicular traffic, for the benefit of the owner of the Easements, in, on, under, over and across the Property tntbrest for the purposes of maintaining and repairing the outdoor advertising display; and (Ili) to provide an area for the installation, maintenance, repair, replacement, removal, use and operation of utility lines and other utility improvements in, on, under, over and across the Property Interest necessary to operate or illuminate an outdoor advertising display. The Easements are not intended, and shall not be construed, to grant or dedicate any rights to the general public to use the portion of the Property Interest subject to the Easements. 3. Restrictive Covenant. Grantor agrees not to permit any portion of the Property Interest to be used for purposes that would obstruct the view of, or otherwise impair the usefiilness or value of, Grantee's outdoor advertising display. Grantor therefore restricts and encumbers the Property Interest with the following restrictive covenant: "No building or structure may be erected on the Property Interest that would block the view from Ireland Road of any outdoor advertising display erected on the Property Interest in the Sign Easement. Burkhart Advertising, Inc., its successors and assigns, shall be permitted to trim or remove any trees or other obstructions that would block the view of the structure." 4. Additional Improvements to the Property Interest. No fence, barrier, trench or other improvement or impediment shall be constructed or installed within the Property Interest that would prevent access to the Billboard or the use of the Sign Easement for the purposes described in this Agreement. 5. Property Taxes/Assessments. Any taxes levied or assessed on the improvements to the Sign Easement constructed or owned by Grantee shall be the responsibility of Grantee. Upon receipt of a tax bill relating to the Property Interest, Grantor shall deliver a copy of the tax bill to Grantee. Grantee shall pay to Grantor the property taxes relating to the improvements constructed or owned by Grantee upon the Sign Easement. -2- 6. Appurtenant. The Easements granted herein shall benefit and be appurtenant to and run with the title to the Real Estate, and shall bind and inure to the benefit of the owner oEthe Real Estate and its respective heirs, devisees, personal representatives, successors and assigns, who from time to time hold legal or equitable title to all or portions of the Real Estate. The terms, provisions, conditions, covenants and agreements contained in this Agreement are intended to be permanent (as set forth at Paragraph 1) and appurtenant to and run with the title to the Real Estate and the Property Interest, and shall bind and inure to the benefit of the parties hereto and their respective heirs, devisees, personal representatives, successors and assigns, who from time to time hold legal or equitable title to all or portions of the Real Estate or the Property Interest. 7. Enforcement. In the event of a breach or threatened breach of any of the terms, provisions, conditions, covenants and agreements contained in this Agreement in addition to any other remedy provided herein or at law or in equity, any affected party shall be entitled to full and adequate relief by injunction and/or all other available legal and equitable remedies; including, without limitation, suit for collection of amounts due and specific performance; however, the non - breaching party shall not have the right to terminate the breaching party's rights and benefits hereunder. In any legal action or proceeding to enforce the terms, provisions, conditions, covenants and agreements contained in this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and court costs. S. Severability. If any term, provision, condition, covenant of agreement contained in this Agreement is held to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms, provisions, conditions, covenants or agreements contained in this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term, provision, condition, covenant or agreement, there shall be added to this Agreement a legal, valid and enforceable term, provision, condition, covenant or agreement as similar as possible to the term, provision, condition., covenant or agreement declared illegal, invalid or unenforceable. 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, and all parties hereto irrevocably agree that venue for any dispute involving this Agreement shall be in any court of competent jurisdiction in St. Joseph County, Indiana. 10. Entire Agreement. This Agreement, including the exhibit attached hereto, embodies the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect to the subject matter hereto. 11. Non -waiver of Purchase or Condemnation Rights. The Grantor reserves the right to remove the encroachment by providing for its relocation or removal through a negotiated purchase of the encroachment interest or through the condemnation process should the Grantor determine that the Easements present a safety hazard to the public or the full use of the right-of-way at this location is required. -3- 12. Indemnity. The Grantee agrees to indemnify, defend and hold harmless the Grantor, its agents and employees, from any claim, suit, cause of action or loss of any kind, including attorney's fees, arising from or related to the use or misuse of the herein -granted Easements by the Grantee or its agents, employees and contractors. The Grantor agrees to indemnify, defend and hold harmless the Grantee, its agents and employees, from any claim, suit, cause of action or loss of any kind, including attorney's fees, arising from or related to the use or misuse of the Property Interest by the Grantee or its agents, employees and contractors, including, but not limited to, a use of the Property Interest that violations the Easements Agreements granted herein. 13. Warranty. Grantor hereby agrees to warrant and forever defend any right or interest of Grantee, its successors, and assigns, in and to the Easements against every person whomsoever lawfully claiming or to claim any rights or interest in and to the Easements or any part of thereof. 14. Original Plat. Pursuant to 1NDIANA Coon § ,32-23-2-5(a), the original recorded plat containing the Property Interest (or if no plat for parcel is recorded, the most recent deed of record) is: Doc. No. , recorded on the day of , in the Office of the Recorder of St. Joseph County, Indiana. 15. Effective Date. This Agreement shall be effective upon recording. I! IN WITNESS WHEREOF, this Agreement has been executed as of the effective date set forth above. GRANTEE: BURKHART ADVERTISING, INC. Printed: Its: GRANTOR: CITY OF SOUTH BEND BOARD OF PUBLIC WORKS Gary A. Gilot, President CarYP) Littrell, Member d E. Inks, Member ATTEST: OL 1'l ��• D UJ Angela k3. Jacob, Clerk IN WITNESS WHEREOF, this Agreement has been executed as of the e.ffective date set forth above. GRANTEE: BURKHART ADVERTISING, INC. Its: C E6 GRANTOR: CITY OF SOUTH BEND BOARD OF PUBLIC WORKS Gary A. Gilot, President Carl P. Littrel], .Member Donald E. Inks, Member ATTEST: Angela K. Jacob, Clerk STATE OF INDIANA SS: ST. JOS.EPH COUNTY Before me, the undersigned, allotary Public in and for St. Joseph County, Indiana, personally appeared Carl P. Littrell and Donald E. Inks, personally known by me to be members of the Board of Public Works of the City of South Bend, Indiana, and acknowledged the execution of this Grant of Fnr.rnachment Easement as their voluntary act or deed. J WITNESS my hand and Notarial Seal this day of y lr, 72006. Q, NotaryPublic A resident of St. Joseph County, IN My Commission Expires: 1--d0-a-01 a STATE OF INDIANA SS: ST. JOSEPH COUNTY Before me, the undersigned, a Notary Public in and for St. Joseph County, Indiana, personally appeared , personally known by me to be the of Burkhart Advertising, Inc., and acknowledged the execution of this Grant of Encroachment Easement as their voluntary act or deed. WITNESS my hand and Notarial Seal this day of ,2006. , Notary Public A resident of St. Joseph County, IN My Commission Expires: This instrument was prepared by Shawn E. Peterson, Assistant City Attorney, 1400 County -City Building, South Bend, Indiana 46601. M STATE OF IND1ANA SS: ST. JOSEPH COUNTY Before me, the undersigned, a Notary Public .in and for St. Joseph County, Indiana, personally appeared Gary A. Gilot, Carl P. Littrell and Donald E. Inks, personally known by me to be members of the Board of Public Works of the City of South Bend, Indiana, and acknowledged the execution of this Grant of Encroachment Easement as their voluntary act or deed_ WITNESS my hand and Notarial Sea] this day of My Commission Expires: STATE OF INDIANA SS: ST_ JOSEPH COUNTY 2006. Notary Public A resident of St. Joseph County, IN Before me, the undersigned, a Notary Public in and for St. Joseph personally appeared -sari �r 3tirzKH perso` ie-we[y known by me to be the _ Burkhart Advertising, Inc., and acknowledged the execution of this Grant Easement as their voluntary act or deed. S my hand and Notarial Seal this "`f 4 CHRISTINE R. EVEtOCK _ Notary Public, State of Indiana — St. Joseph County My Commission Expires December 12, 2007 My Commission Expires, 1 Z r 2 Zap County, Indiana, r—EO of of Encroachment day of Maw ,2006_ Notary Public A resident of St_ Joseph County, IN This instrument was prepared by Shawn E_ Peterson, Assistant City Attorney, 1400 County -City Building, South Bend, Indiana 46601 _ -6- EXHIBIT A (Diagrams Reflecting Public Right -of -Way and Encroachment of Billboard and the Description of the Property Interest) PROPOSED DESCRIPTION PARCEL 5.I- ENCROACIJL- IIENT EASEIVII NT AN ENCROACI-1-MENT E'.ASE\-1L•NT LOCATED IN THE SOUTHWEST QUARTER OF SECTION 2-5. TOWNSHIP 37 NORTH. RANGE 2 .CAST 01: THE SECOND PRI:NICIPAL ,\-IEP`IDIr1:\. CFNTRE 1V-V Sl-IIP; ST. JOSEPH COUNTY, INDIA,\[A SEINCI MORE PARTICULARLY DESCRIBED AS FOLLOWS: CONIiV ENC'ING AT T'1[! WEST QUARTER CORNER OF SECTION 25, AS EVIDENCED BY AN ALUMINTUIM SECTION CORNER N-IARKER; THENCE NORTH 87040150" EAST ON T'I E NORTH LINE OFTHE HE SOUTHWEST QUARTER OF SECTION 25, ALSO BEING LINE :.S-1 I -A" PER I.N.1).U.'T'. ROAD PLANS STP- 9971(053). A DISTANCE OF 726.57 FEET TO LINT: "A-- PER I N.D.O.T. ROAD PLANS STP-9971(053). THENCE CONTINUING NOIZ-1.1I 87040'50" L""-.:\ST ON' LINO: "S-11-:-1" PER I.N.D.O.T. ROAD PLANS STP-9971(053), ADISTANCE OF 240.00 F> ET; THENCE' SOUTH 02'19'10" EAST A DISTANCE OF 30.00 FEET TO A POINT (2016) ON THE SOUTHERLY RIGHT-OF-WAY OF IRELAND ROAD, BEING T HE POINT OF BEGINNING- THENCI=; NORTH 87 40'50-' EAST. ON SAM SOUTHERLY RIGHT-OF-1 AV. .:1 DISTANCE OF 30.00 FEET. THENCE; SOUTH 02019' 10" EAST A Dis,rANCE OF 10.00 1'1-'F'f'; THENCE SOU'I'I-f 87'40'50" WEST, A DIST:-kNCE OF 30.00 FELT; FFII NCE NORI'll 02' 19' 10" WEST, A DISTANCE OF 10.00 FELT" 1'O THE POINT OF BEGINNING. PARCEL CONTAINS 0.0069 ACRES MORE OR LESS. TERRITORIAL, I NGINC-ERNG. LLC WALKER 1 ON, INDIANA MARCH 3, 2006 04-I51.01 SHEET I OF I PARCEL H: 51 AREA PERMANENT R/W (FEE}: N/A OWNER/RECORD REFERENCE: PROTECT STI'.(J97I (053) DES 3: 0101 1 s3 AREA PERMANENT EASEMENT. 0.0069 Ac. WILLIAM R. D08SLAW ROAD: NIICI- IGAN ST. AREA TEMPORARY R/W: NIA P.O. BOX 4399 COUNTY: S'r. JOSEI'll SOUTH BEND, IN 46634 SECTION: 25 TOWNSHIP: CEMI'RE DOC.# 9734186 RANGE: 2E DOC.# 9508090 HATCH LEGEND PERMANENT R/W (FEE) PERMANENT EASEMENT TEMPORARY R/W IRELAND ROAD --- I N87'40'50"E (LINE "S-11—A") 1 12+00 13+00 POINT UNE STATION OFFSET I NORTHING I FASTING 2016 S11A 12+40 30.00' Rt,j 10732.4131 110191.6959 2017 S11A 12+70 30.00' Rt.1 10733.6272 10221.6713 2018 SIIA 1 12+70 40.00' Rt. 10723.6354 10222.0760 2019 S1 TA 1 12+40 40.00' Rt.1 10722.4213 10192,1006 SCALE: L"=20' r,;. _fit. • .;��• TERRITORIAL ENGINEERING, LLC, 2006 VAN H. JANOVIC L.S. SO411 ROBERT S. AL01 L.S. 20200024 INVALID UNLESS EMBOSS SEALED WALKERTON IND[ANA