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HomeMy WebLinkAbout#3087- Deed; PERMANENT ENCRACHMENT EASEMENT Sign Easement - Michigan Street3087 5/22/2006 Permanent Encroachment Easement LOT NO. SUB: Barclay Corporation/Burkhart Advertising Michigan Description: Sign Easement - Michigan Street J' 4 0 E(-� ac 07� PERMANENT ENCROACHMENT ]CASEMENT SIGNAGE BY THE BARCLAY CORPORATION ENCROACHMENT OF PUBLIC RIGHT-OF-WAY TI-HS ENCROACHMENT EASEMENT made this 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, (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 a 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. GiIot, 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 Seal this d�"— day of , 2006 My Commission Expires: a - STATE OF INDIANA SS: ST. JOSEPH COUNTY 0 l� JOW , Notary .Public A residen of St. Joseph County, IN 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 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. IRI IN WITNESS WHEREOF, tlus Agreement has been executed as of the effective date set forth above. GRANTEE: GRANTOR: THE BARCLAY CORPORATION CITY OF SOUTH BEND BOARD OF PUBLIC WORKS Gary A. Gilot, President Printed: Its:, G Carl . Littrell, Member v`— nald E. Inks, Member BURKHART ADVERTISING, INC. ATTEST: By: n I Printed: Angela K. Jai b, Clerk Its: 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 1 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. 5. Propegy 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 -2- 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. 8. 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 A egrr ement. 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. 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 -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. Warran . 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. -4- EXHIBIT A (Diagrams Reflecting Public Right -of -Way and Encroachment of Billboard and the Description of the Property Interest) ENCROACILViENI T EASEWI NT SIGNAGE BY BURKH RT ADVERTISING, INC. ENCROACHMENT OF PUBLIC RIGHT-OF-WAY THIS ENCROACHMENT EASEMENT made this day 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"). NVITN TSSETH '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 ofthe Real Estate in order to expand the public right-of--svay 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 Bow 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, (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 Iaws 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 theBillboard'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. PgMpses of Easements. The purposes of the easements granted and conveyed by Paragraph 1 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. �_ 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 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 Pro 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 of the 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 intendedto 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 alfl 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. 8. 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 Lacy. 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 - to. 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. Ni on -waiver of Purchase or Condemnation Ri"hts. 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 land, 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. Warran . 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 Iawfully claiming or to claim any rights or interest in and to the Easements or any part of thereof A 4. Oriamal_Plat. Pursuant to INIMAN a 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. -4- IN WITNESS WHEREOF, this Agreement has been executed as of the effective date set forth above. GRANTEE: GRANTOR: BURKHART ADVERTISING, INC. CITY OF SOUTH BEND BOARD OF PUBLIC WORKS By: �. /�• / Gary A. GIlot, President Printed' ckAf. k /I[l�( l°�• Its: C e Carl P. Littrell, Member Donald E. Inks, Member ATTEST: Angela K. Jacob, Clerk 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 Grant of Encroachment Easement as their voluntary act or deed. WITNESS my hand and Notarial Seal this day of My Commission Expires: STATE OF INDTANA ) 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 County, Indiana, personally appeared -3an �r ��+�K�e perso�ry known by me to be the E o of Burkhart Advertising, Inc., and acknowledged the execution of this Grant of Encroachment Easement as their voluntary act or deed - my hand and Notarial Seal this +'".E CHRISTINE R. EVEI.QCK Notary Public, State of Indiana ` St. Joseph County My Commission Expires Decomber 12, 2007 My Commission Expires: 12/12/2op7 Z Z'" ° day of 2006. Am��- a , Notary Public A resident of St. Joseph County, IN This instrument was prepared by Shawn E. Peterson, Assistant City Attorney, 1400 County -City Building, Soudi Bend, Indiana 46601. -6- (Diagrams Reflecting Public Right -of -Way and Encroachment of Billboard and the Description of the Property Interest) PERMATNEINIT ENCROACHMENT EASETVIEli T SIGNAGE BY THE BARCLAY CORPORATION ENCROACHMENT OF PUBLIC RIGHT-OF-WAY THIS ENCROACHMENT EASEMENT trade this 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 theirrespective 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 ofthe Real Estate in order to expand the public right-of-way along Mchi gan 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 VVIfEREAS, in the determination of Grantor, such encroachment will not interfere with the free and safe flow of traffic on such public night -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, TTIEREFORE, 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, (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 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: (1) 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; (h) 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 other vise 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. 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 of the 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 I) 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. 8. 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 terra, 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 terns, 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. OriQanal 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. -4- IN WITNESS WHEREOF, this Agreement has been executed as of the effective date set forth above. GRANTEE: THE BARCLAY CORPORATION Pri nh-d Its: 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: %-j�4 P—7L6G Its: (!,OE 0 Angela K. Jacob, Clerk 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 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 County, Indiana, personally appeared so wr r ire , personally known by me to be the Pk& ,_s �C--�-,T of The Barclay Corporation and personally appeared JarAE r� gt �ra�c f pers�t5 idlly 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 CHRIMNE R. EVELOCK ` Notary Public, State of Indiana -- St. Joseph County My Commission Expires December 12, 2007 My Commission Expires: iz I Z2-"-"day of Iti14 2006. c ` 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. I on EXHIBIT A (Diagrams Reflecting Public Right -of -Way and Encroachment of Billboard and the Description of the Property Interest)