HomeMy WebLinkAbout#3054- Deed; ENCROACHMENT EASEMENT South Michigan Street3054
3/27/2006
Encroachment Easement
23-1025-1444
LOT NO.
SUB:
Barclay Corp
South Michigan
Description:
South Michigan Street
PERMANENT ENCROACHMENT EASEMENT
SIGNAGE BY THE BARCLAY CORPORATION
ENCROACHMENT OF PUBLIC RIGHT-OF-WAY
THIS ENCROACHMENT EASEMENT made this,2a Id
day of May, 2006, by the City of
South Bend, Indiana, through its Board of Public Works (the "Grantor"), in favor of The Barclay
Corporation (`Barclay") and Burkhart Advertising, Inc. ("Burkhart"), and their respective successors
and assigns (Barclay and Burkhart sometimes collectively referred to herein as the "Grantee").
WITNESSETH THAT:
WHEREAS, Barclay owns certain real estate located on South Michigan Street (Parcel No.
23-1025-1444) 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 Michigan Street (the "Property Interest") for the purpose of
making certain improvements to Michigan Street; and
WHEREAS, upon the Grantor's acquisition of the Property Interest, a billboard owned by
Burkhart located on the Real Estate will encroach the public right-of-way (the "Billboard"), 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:
1. Grant of Easements. Grantor hereby grants and conveys to Grantee, its successors
and assigns, (1) 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 a
public right-of-way, and accordingly the Grantor shall not withhold permits requested from time to
time for the same. 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 rebuild at current location or 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 Interest for the
purposes of maintaining and repairing the outdoor advertising display; and (iii) 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 usefulness 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 Michigan Street of any outdoor
advertising display erected on the Property Interest in the Sign
Easement. The Barclay Corporation, 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.
S. 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.
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 of the Real
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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 orproceeding 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.
8. Severabili . 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.
M Entire A eement. 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.
12. Indemni . 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
-3-
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 INDIANA CODE § 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.
in
IN WITNESS WHEREOF, this Agreement has been executed as of the effective date
set forth above.
GRANTEE:
THE BARCLAY CORPORATION
Printed:
Its:
BURKHART ADVERTISING, INC.
In
Printed:
Its:
GRANTOR:
CITY OF SOUTH BEND
BOARD OF PUBLIC WORKS
Gary A. Gilot, President
Carl/I. Littrell, Member
nald E. Inks, Member
ATTEST:
Angela K. Ja b, Clerk
IN WITNESS WTIEREOF, this Ag eement .has been executed as of the effective date
set forth above.
THE BARCLAY CORPORATION
Printed
Its:
�'mALW
BURKHART ADVERTISING, INC.
GRANTOR. -
CITY OF SOUTH BEND
BOARD OF PUBLIC WORKS
Gary A. Gilot, President
Carl P. Littrell, Member
Donald E. Inks, Member
.� ATTEST:
By:
Printed: L �'J�GL�-u-L�(•/`i��
Angela K.:Iacob, Clerk ^
Its: �OE 0
STATE OF II LDIANA
SS:
ST. JOSEPH COUNTY
Before me, the undersigned, a Notary Public in and for St. Joseph County, Indiana, personally
appeared Carl P. LittrelI 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 Permanent
Encroachment Easement as their voluntary act or deed.
WITNESS my hand and Notarial Seal this day of / / / G , 2006.
Notary Public
A resident of St. Joseph County, IN
My Commission Expires:
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 The Barclay
Corporation and personally appeared , personally known by me to be the
of Burkhart Advertising, Inc. and each such person acknowledged the execution
of this Permanent 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 4660I.
-6-
STATE OF INDIANA
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 Permanent 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:
STATE OF INDIANA
SS:
ST. JOSEPH COUNTY
Before me, the undersiim
gned, a Notary Public in and for St. Joseph County, Indiana,
personally appeared t- i , personally known by me to be the Fge:s of
The Barclay Corporation and personally appeared Jd,--�rr� r3c,, vv c.�.Azr"^pers Ily known by me
to be the of Burkhart Advertising, Inc. and each such person acknowledged the
execution of this Permanent Encroachment Easement as their voluntary act or deed.
WITNESS my hand and Notarial Seal this
CHRISTINE R, EVEIOCK
., Notary Public, slate of Indiana
wSt_ Joseph County
My Commission Expires
December 12, 2007
My Commission Expires:
Z�ay of 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 4660I.
M
PARCEL k: IqA AREA PERMANENT R/W (FEE): N/A OWNER,/RECORD REFERENCE;
PROJECT ft; STP-9971 i0J_i I DE5 0: 0101 1- 3 AREA PERMANENT EASEMENT: U.0 103 .Ac. BARCLAY CORPORATION
ROAD: MICHIGAN S 1'. AREA TEMPORARY R/W: N/A C/O BURKHART ADVERTISIi fG
COUNTY. ST, JOSI PII P.O. BOX 536
SECTION: 25 SOUTH BEND, 1N 46624
TOWNSHIP: CENTRE
RANGE: 2E DOC.# 851 -573
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15.00'
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15.00'
POINT
LINE
STATION
OFFSET
NORTHING
I EASTING
2020
A
1050+05
50.00' Rt,
11305.9726
10037. 4413
2021
A
1050+35
50,00' Rt.
11335..9052
109-510
039.32022
A
1050+35
65-00' Rt.
113349
1
2023 1
A 1
1050+05
65.00' Rt.1
11304.9677 1
10052,9075
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SCALE: 1 "=20'
HATCH LEGEND
PERMANENT 1 R/W L
(FEE) L ---J
PERMANENT u
EASEMENT
TEMPORARY Rl%ll
TERRITORIAL ENGINEERING,
LLCM
w ��� VAN H. JANOVIC 40BERT S. AL01
INEYANA L.S. S0411 L.S 20200024
2006
INVALID UNLESS
EMBOSS SEALED
m
PROPOSED DESCRIPTION
PARCEL ITSA- ENCROACH-IENT EASE"
Alt ENCROACH.VIENT EASEMENT LOCATED N THE NORTHWEST QUARTER
OF SECTION 25. TOWNSHIP 37 NORTH. RANGE 2 LEAST OF "IT11" SECOND
PRINCIPAL IfERIDIAN, CENTRE TO\VNSHIP. ST. JOSEPH COUNTY. IND1.=\N:l
BEfNG MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE WEST QUARTER CORNIER OF SECTION 25, AS
FVlDENCE D BY AN aLUMINU[M SECTIO' CORNER. MARKER: -THENCE
NORTH 57°40'50" EAST ON THE SOUTH LINE OF THE NORTHWEST QUARTER
OF SECTION 25. ALSO BFII\G LINE "S-1 I -A" PER I.N.D.O.T. ROAD PLANS STP-
9971(053). A DISTANCE OF 726.57 FEET TO LINE "A" PER I.N.D.O.-T. ROAD
PLANS STP-9971(053): TI-11;NCf, NOR-fI-I 03°50'29'" I AS"T ON SAID UNI_: ,"A". A
DISTANCE 01= 557.90 F1=ET', THENCE SOUTH 86°09*,3I" EAST A DISTANCE OF
50.00 FEET TO A POINT (2020) ON THE EASTERLY RIGHT-OF-WAY" OF
LIICHIGAN STREET (US 3.1) BEING THE POTNT OF REGINNING: TI-II NCE
NO , -1 03050'29" EAST ON SAID RIGHT-OF-WAY A DISTANNCF OF 30.00 FELT;
THENCE SOUTH 86009'_ l" EASTA DISTANCE OF 15.00 FEET: THENCE SOUTH
03050'29" WEST A DISTANCE OF 30.00 FEET; TFII NCE, NORTH 86°09'31" \VF'S'I'
A DISTANCE O1= 15.00 FEET TO THE PONT OF BEGINNING.
PARC'EI, CONTAINS 0.0103 ACRES I/10RE OR LESS.
TERRITORIAL. ENGINEERM. L.LC
WALKERTON. INDIANA
MARCH 3, 2006
04-151.01
SFIEET I OF I