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HomeMy WebLinkAboutBlack Hawk Contracting and Development-5/11/2015Prepared by: Aric Schroeder, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4366 ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT is entered into by and between Black Hawk Contracting and Development Co. (hereinafter "BHCD"), and the City of Waterloo, Iowa (hereinafter "City") this 4- day of May, 2015. WHEREAS, BHCD is the owner of real estate commonly known as 301 East 3rd Street, 303 East 3rd Street, 305 East 3rd Street, 309 East 3rd Street and 311 East 3rd Street, Waterloo, Iowa 50703 and legally described as Lot 1 through Lot 6 of St. Joseph's Square, in the City of Waterloo, Black Hawk County, Iowa (hereinafter `BHCD Property"); and WHEREAS, BHCD is proposing to build and maintain a fence approximately three (3) feet in height (hereinafter the "Fence") that will encroach into the public right-of-way of East 3rd Street (hereinafter "Street"); and WHEREAS, for the benefit of the BHCD Property and its owner(s), BHCD is requesting to allow the Fence within a portion of said Street legally described as: The Northwesterly 0.4 feet of the Platted Public Right of Way of East Third Street, said Line of Public Right of Way is Coincident with the Easterly Lines of Lot 1, through Lot 6 of St. Joseph's Square, in the City of Waterloo, Black Hawk County, Iowa, lying adjacent to said Lots and Southwesterly of the Northeasterly Line of Lot 1 of St. Joseph's Square extended, and Northeasterly of the Southwesterly Line of Lot 6 of St. Joseph's Square extended (hereinafter the "Encroachment Area"); and WHEREAS, the City is willing to allow the Fence to encroach into said Street as described above, subject to the terms and conditions set forth herein. THEREFORE IT IS HEREBY AGREED by and between the parties as follows: 1. BHCD hereby recognizes and reaffirms the existence and public ownership of the Street and claims no rights or privileges therein except to the limited extent provided for in this agreement. 2. The City grants BHCD the right to place and maintain the Fence in and upon the Encroachment Area of said Street, subject to the rights of the City and/or any agency to which the City has granted a utility franchise to and for access over, under and upon said Street, expressly recognizing and acknowledging that any damage that occurs to the Fence will be the sole risk and expense of BHCD, including moving or replacement expenses. In the event that the City and/or any agency to which the City has granted a utility franchise needs the Fence to be temporarily moved for access to said Street, BHCD shall move the Fence if present and able, otherwise the City and/or any agency to which the City has granted a utility franchise shall be authorized to move the Fence and assess any costs for moving same against BHCD or against BHCD Property. 3. The term of this agreement shall be for so long as said encroachment is maintained by BHCD and continues to exist, and that this agreement shall automatically terminate if said encroachment is removed (other than for temporary removal during replacement or repair). The parties agree that this agreement is appurtenant to the BHCD Property and runs with the land. This agreement may be terminated by the City of Waterloo upon 60 days advance written notice and order to permanently remove to BHCD, or any transferees, successors and assigns. If responsible parties fail to remove said encroachment upon termination of this agreement, the City of Waterloo is hereby authorized to remove said encroachment and assess costs to BHCD or against BHCD Property. 4. BHCD shall protect, defend, indemnify, and hold harmless the City and its successors and assigns, and their officers, elected officials, employees, and agents, and any agency to which the City has granted a utility franchise, from and against any claim, damages, liability and expenses (including, but not limited to, reasonable attorneys fees and costs of litigation) of any type or nature whatsoever arising out of the use, maintenance or removal of said encroachment, including but not limited to any damage to said encroachment(s). This covenant shall survive the termination of this Agreement. 5. This is the entire agreement between the parties with respect to the subject matter hereof. It may be amended only in a written instrument signed by the parties. This agreement is binding upon the parties and their respective transferees, successors, heirs and assigns. Time is of the essence in observing the terms of this agreement. IN WITNESS WHEREOF, the parties have executed this Encroachment Agreement by their duly authorized officers as of the date first set forth above. BLACK HAWK CONTRACTING AND DEVELOJ MENT CO. By: off, President CITY OF WATERLOO, IOWA By: Ernest G. Clark, Mayor Attest: Suzy Sches, City Clerk STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. This instrument was acknowledged before me on this I �ay of May, 2015, by John Rooff, as President of Black Hawk Contract and Development Co. STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. c vd/ Notary Public w. WESTERN viii1 i�Y jOni NO. 772326 c M MSSioN ExP E, This instrument was acknowledged before me on this g I � day of May, 2015, by Ernest G. Clark and Suzy Schares as Mayor and City Clerk, respectively, of the City of Waterloo. 2 1 C,L vim) d �Io Notary Public •�"'"` • NANCY HIGBY COMMISSION NO.788229 ' • MY COMMISSION EXPIRES 'owl. A-a-.2r,d5,