LIMITED, TEMPORARY, NON- EXCLUSIVE EASEMENT AGREEMENT THIS LIMITED, TEMPORARY, NON-EXCLUSIVE EASEMENTAGREEMENT (the Agreement ) is made this day of April, 2013, by and between the Town of Brownsburg, Indiana, an Indiana political subdivision with offices at 61 N. Green Street, Brownsburg, Indiana ( the Town ), and Savor Thyme Cafe LLC, a domestic limited liability company located at 55 Hollaway Boulevard, Brownsburg, IN 46112, hereinafter referred to as " Developer". The Town and Developer are together hereinafter referred to as the "Parties". RECITALS WHEREAS, the Parties have obtained a survey of a certain parcel of property owned by the Developer and a certain parcel of property owned by the Town along Green Street (SR 267) in the form attached hereto and incorporated herein by reference as Exhibit A (the Survey ); WHEREAS, the Town is the owner of a certain parcel of land in the area identified on the Survey as the Town of Brownsburg D.B. 194, Pg 443 (the Town s Property ); WHEREAS, the Developer is the owner of a certain parcel of land in the area identified on the Survey as Savor Thyme LLC Inst. # 201300178 (the Developer s Property ); WHEREAS, certain improvements relating to access and/or parking being proposed by the Developer encroach on the Town s Property in the area identified in blue (the Easement Area ) WHEREAS, other than the encroachment by the Developer on the Town s Property as set forth above, the Parties agree that no other encroachments on the Town s Property and/or the Developer s Property exist as of the date of this Agreement; WHEREAS, the Developer hereby represents and warrants to the Town that the limited liability company ownership structure in existence as of the date of this Agreement for the Developer consists only of the following: Sheron Bowman 100 % Ownership (the Developer s Ownership Structure ); WHEREAS, the Developer hereby represents and warrants to the Town that the Developer s Property will only be used by the Developer for restaurant purposes as specifically identified as Savor Thyme Cafe LLC (the Limited Restaurant Use ); WHEREAS, the Developer has requested that the Town grant the Developer an easement in the Easement Area; WHEREAS, the Developer has represented to the Town that the Limited Restaurant Use on the Developer s Property will bring additional employment opportunities to the Town and that the Easement Area is needed in order to better facilitate the development of the Developer s Property for the Limited Restaurant Use; and
WHEREAS, The Town desires to grant a limited, non-exclusive easement on the terms and conditions set forth herein to better accommodate the Developer s development of the Limited Restaurant Use on the Developer s Property. NOW, THEREFORE, in consideration of the foregoing Recitals, the execution of this Agreement by the Parties hereto, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, it is agreed as follows: 1. Incorporation of Recitals as Part of Agreement. The representations, covenants, and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Paragraph 1. 2. Grant of Easement on the Town s Property. The Town hereby grants to the Developer (for the benefit of the Developer with its current Developer s Ownership Structure and the Limited Restaurant Use on the Developer s Property) a limited, non-exclusive easement over and across that portion of the Easement Area for the sole purpose of parking for the Limited Restaurant Use. The Developer shall not construct and/or cause to be constructed any permanent structures in the Easement Area and shall only be permitted to provide for paving in such area. 3. Encumbrances. The easement granted herein to the Developer is made subject to and subordinate to all mortgages, covenants, conditions, restrictions, encumbrances, and easements of record as of the date of recording. 4. Non-Exclusive. Developer acknowledges that the Town may grant other easements and encumbrances over and across the Easement Area as determined necessary in the Town s sole discretion and that the easements granted hereunder are non-exclusive. 5. Reservation of Rights. a) The Town s Reservation. The Town hereby reserves for itself, its successors and assigns, the right to use all and/or any portion of the Easement Area for any purpose deemed reasonably appropriate and/or necessary by the Town. b) Temporary Interruption. The Town hereby reserves the right to close off all and/or any portion of the Easement Area for such reasonable period or periods of time as may be required in connection with any necessary repairs to and/or use of the Easement Area, or installation or maintenance of utility lines across and under the Easement Area. The Town will give written notice to the Developer before any such temporary closing of any portion of the Easement Area. c) Termination. The easement created by this Agreement is solely for the purpose of ingress and egress for person and vehicles and to accommodate the Developer s use of its parcel for the Limited Restaurant Use only. This easement granted by the Town is limited, nonexclusive, for the Limited Restaurant Use by this Developer with the Developer s Ownership Structure. In the event that: 1) The Developer s Ownership Structure changes in any form; 2) The use of the property changes in any way from the Limited Restaurant Use; and/or
3) The ownership of any portion of Developer s Property is sold and/or otherwise transferred and/or any portion of the Developer s Property is no longer owned by Developer (collectively and individually, a Terminating Event ); then Developer shall provide the Town with written notice of such Terminating Event and the Easement grant provided for herein shall automatically terminate effective as of the date such Terminating Event occurred. A Terminating Event can be items 1, 2, or 3 above and/or a combination of any of items 1, 2, or 3 above as determinate by the Town in its sole discretion. The Developer s failure and/or refusal to provide written notice to the Town shall not delay and/or otherwise impact the immediate termination of the Easement granted herein and no other action will be necessary to effectuate such termination. In addition to the automatic termination of the easement as provided for above, the Town may, with or without cause, terminate the easement granted hereunder at any time by providing ninety (90) days prior written notice to the Developer. 6. Relocation. The Town reserves for itself, its successors and assigns, the right to relocate the Easement Area on the Town s Property to a different location on the Town s Property, so long as such relocation does not unreasonably interfere with the access to Developer s Property. 7. Maintenance; Manner of Work for Easement Area. Developer agrees that it shall maintain the Easement Area in good order, appearance and repair, including, but not limited to all necessary patching and re-striping and promptly removing snow, dirt and debris therefrom. All maintenance shall be performed in an expeditious and workmanlike manner so as to minimize any interference and/or disruption to the Town s use of the Town Property. Notwithstanding the foregoing, if Developer fails to maintain the Easement Area as required herein, the Town shall notify Developer of the maintenance deficiency, and if Developer fails to correct the deficiency immediately, the Town may perform such maintenance and Developer agrees to promptly reimburse the Town for its reasonable costs in performing such maintenance. 8. Indemnity. The Developer agrees to indemnify, defend, exculpate and hold harmless, the Town and the Brownsburg Parks Recreation Department, their elected and appointed officials, agents, and employees from and against any and all liabilities and claims due to loss, damage, injuries or other casualties of whatsoever kind, or by whomsoever caused, arising out of or resulting from the occupancy or use by the Developer of any portion of the Easement Area and/or any part of the Town s Property whether due in whole or in part to the negligent acts or omissions of the Developer, its agents, employees, guests, or invitees, or whether due in whole or in part to the negligent acts or omissions of the Town, the Parks and Recreation Department, their officials, agents, or employees, including without limitation any damage or injury to person or property. The Developer further agrees to pay all reasonable expenses and attorney's fees incurred by or imposed on the Town and/or the Brownsburg Parks and Recreation Department in connection with any such claim, action or proceeding. Developer hereby releases and waives any and all claims arising out of this Agreement, including any and all legal recourse it may have now or in the future against the Town and/or Brownsburg Parks and Recreation Department for any accident, damage or injury caused to person or property on or about the Developer s Property and/or the Town Property and/or the Easement Area. 9. Insurance. During the term of this Agreement, Developer shall maintain a general liability insurance policy in a form, with such rating and with such carriers acceptable to the Town as determined in its sole discretion with limits of at least $1,000,000 or the statutory minimum limit of liability, whichever is greater, for each person, and each occurrence, for both personal injury and
property damage. This policy shall name the Town and the Brownsburg Parks and Recreation Department as additional insureds for the obligations of Developer under this Agreement and shall provide that Developer s coverage shall be the primary coverage in the event of a loss under this Agreement. This policy shall also insure the indemnification obligations of Developer set forth under this Agreement. A certificate of insurance on the Town s approved form which verifies the existence of this insurance coverage must be provided to the Town before the execution of this Agreement. 10. Notice. Notices permitted or required hereunder shall be in writing and shall be delivered or sent by certified mail to the representatives and addresses as forth below provided that any party may change such address by written notice to the other party: For the Town of Brownsburg: For the Developer: c/o Town Manager Grant Kleinhenz c/o Director Brownsburg Parks and Recreation Department Phil Parnin 61 N. Green Street Brownsburg, Indiana 46112 11. Governing Laws. This Agreement shall be construed in accordance with the laws of the State of Indiana. 12. Exhibits. All exhibits referred to herein and attached hereto shall be deemed part of this Agreement. 13. Use of the Town s Property. The Developer s use of any portion of the Easement Area shall be done in accordance with all applicable laws, rules, regulations, and any rules, policies and/or directives given by the Town. At no time shall any alcohol be permitted on the Town s Property. 14. Severability. If any term, provision or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement (or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each term, provision or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15. Non Assignable by Developer and Assignability by the Town. This Agreement and the rights applicable herein; can not and shall not be assigned by the Developer. This Agreement may be assigned by the Town to any successor in interest to the Town. IN WITNESS WHEREOF, the parties have executed this Limited, Non-Exclusive Easement Agreement as of the date and year first above written.
THE TOWN OF BROWNSBURG: By: Grant Kleinhenz, Town Manager Dated: By: Phil Parnin, Director of Parks & Recreation Dated: THE DEVELOPER By: Print Name and Title) Dated:
STATE OF INDIANA ) COUNTY OF HENDRICKS ) SS. Subscribed and sworn to before me this day of April, 2013, by, the of, an, who acknowledged the execution of the foregoing instrument as his voluntary act and deed as of the, Notary Public, Co., My commission expires: STATE OF INDIANA ) COUNTY OF HENDRICKS ) SS. Subscribed and sworn to before me this day of April, 2013, by, the of, an, who acknowledged the execution of the foregoing instrument as his voluntary act and deed as of the, DRAFTED BY AND WHEN RECORDED RETURN TO: Tricia A. Leminger Kroger Gardis & Regas, LLP 111 Monument Circle, Suite, 900 Indianapolis, IN 46204 317) 692-9000 Tal@kgrlaw.com Notary Public, Co., My commission expires: I affirm under the penalties of perjury, that I have taken reasonable care to redact each Social Security Number in this document unless required by law. Tricia A. Leminger, Esq.
EXHIBIT A The Survey