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HomeMy WebLinkAboutJeremey Bullerman-4/23/2012ENCROACHMENT AGREEMENT Prepared by: David Zellhoefer, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4327 THIS ENCROACHMENT AGREEMENT is entered into by and between Jeremey J. Bullerman ("Bullerman"), and the City of Waterloo, Iowa ("City"), this day of April, 2012. WHEREAS, Bullerman is the owner of real estate commonly known as 100 Martin Avenue, Waterloo, Iowa 50701 and legally described as set forth in "Exhibit A" (the `Bullerman property"); and WHEREAS, Bullerman is the owner of a stone wall that is located upon and encroaching into Martin Avenue right-of-way (the "ROW"); and WHEREAS, Bullerman is requesting to allow improve the stone wall (the "Wall") and to formally allow its location on and over a portion of said ROW as shown on the attached Exhibit "B"; and WHEREAS, the City is willing to allow the improved Wall to encroach into the ROW as shown on Exhibit "B", subject to the terms set forth below. THEREFORE, IT IS HEREBY AGREED by and between the parties as follows: 1. Bullerman hereby recognizes and reaffirms the ROW and agrees that the Wall, as it now exists and as it is proposed to be improved, is an encroachment in and upon the ROW. Bullerman also agrees that nothing in this agreement gives him any right to maintain, erect, construct, or otherwise allow any encroachment in or upon the ROW other than the Wall. Bullerman claims no rights in or to the ROW, or any part thereof, except as expressly granted by the City in this agreement. 2. The City grants Bullerman the right to place and maintain the Wall on and over the ROW as shown on attached Exhibit "B", subject to the rights of the City and/or any company or agency (a "Franchisee") to which the City has granted a utility franchise to and for access over, under and upon the ROW, expressly recognizing and acknowledging that any damage that occurs to the Wall will be the sole risk and expense of Bullerman, including but not limited to any cost or expense to move or replace the Wall or any other encroachments. In the event that the City and/or any Franchisee needs the Wall to be temporarily moved or displaced for access to the ROW, Bullerman shall move the Wall within the time requested, otherwise the City and/or any Franchisee shall be authorized to move the Wall and specially assess any costs related thereto to Bullerman and/or against the Bullerman property for collection in the manner of a property tax. 3. The Wall shall be limited to a maximum height of 2.5 feet on the westerly end of the Wall and a maximum height of 1 foot on the easterly end of the Wall. 4. The term of this agreement shall be for so long as the Wall is maintained by Bullerman or his successors in interest. This agreement shall automatically terminate if the Wall is removed. It is further understood and agreed that this agreement may be terminated by the City of Waterloo upon 60 days notice advance written notice and order to permanently remove the Wall, and Bullerman agrees to timely remove said encroachment. If Bullerman fails to remove the Wall before 60 days has elapsed, then Bullerman hereby authorizes the City to remove the Wall and to specially assess the costs thereof to Bullerman, or against the Bullerman property for collection in the mariner of a property tax. 5. Bullerman shall protect, defend, indemnify, and hold harmless the City and its successors and assigns, and its officers, elected officials, employees, and agents, and any Franchisee, its officers, employees, and agents, from and against any and all claims, damages, liabilities and expenses of any type or nature whatsoever (including, but not limited to, reasonable attorneys fees and costs of litigation) arising out of the use or maintenance of the ROW, including but not limited to any damage to the Wall and damage or injury to the property or persons of third parties. This covenant shall survive the termination of this Agreement for any reason. 6. This agreement runs with the land and is binding on the parties and the respective heirs, personal representatives, transferees, successors and assigns of each. This agreement and the exhibits hereto constitute the entire agreement of the parties concerning the subject matter hereof, and this agreement may not be modified or amended except in a written instrument signed by the parties. Time is of the essence of this agreement. IN WITNESS WHEREOF, the parties have executed this Encroachment Agreement by their duly authorized representatives as of the date set forth above. CITY OF '1bRLOO, IOWA �l0 11 y By: rnest G. Clark, Mayor Attest:. — Suzy Sh'es, City Clerk STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. On this / day of April, 2012, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Jeremey J. Bullerman, to me known to be the identical persons named herein and who executed the foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. 2 (et' 1-6 Notary Public STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. This instrument was acknowledged before me on April , 2012, by Ernest G. Clark and Suzy Shares as Mayor and City Clerk, respectively, of the 'ty of Waterloo, Iowa. Public 1,.\gt\ti 3 "Exhibit A" That part of the South One-half of the Northwest Quarter of Section No. 34, Township No. 89 North, Range No. 13 West of the Fifth Principal Meridian in the City of Waterloo, Black Hawk County, Iowa, described as follows: Beginning at the Southeast comer of the Southwest Quarter of said Northwest Quarter; thence West along the South line of said Northwest Quarter 118 feet; thence North parallel with the East line of said Southwest quarter of the Northwest Quarter 165 feet; thence West parallel with the South line of said Northwest Quarter 20 feet; thence North parallel with the East line of said Southwest Quarter of the Northwest Quarter 55 feet to a line 220 feet North of and parallel with the South line of said Northwest Quarter; thence East parallel with the South line of said Northwest Quarter 160 feet to a point 22 feet East of the East line of said Southwest Quarter of the Northwest Quarter thence Southeasterly 225.2 feet to a point on the South line of said Northwest Quarter which is 66 feet East of the Southeast comer of said Southwest Quarter of the Northwest Quarter; thence West along the South line of said Northwest Quarter 66 feet to the point of beginning; and That part of the South One-half of the Northwest Quarter of Section No. 34, Township No. 89 North, Range No. 13 West of the Fifth Principal Meridian in the City of Waterloo, Black Hawk County, Iowa, described as follows: Commencing at the Southeast corner of the Southwest Quarter of said Northwest Quarter; thence West along the South line of said Northwest Quarter 116 feet to the point of Beginning; thence continuing West along the South line of said Northwest Quarter 15 feet; thence North parallel with the East line of said Southwest Quarter of the Northwest Quarter 165 feet; thence East parallel with the South line of said Northwest Quarter 15 feet; thence South parallel with the East line of said Southwest Quarter of the Northwest Quarter 165 feet to the point of beginning. "Exhibit B" 100 Martin Rd _ II �I m 128' 6D1 Location of encroaching stonewall within the Right -of -Way 40 20 0 40 Feet Martin Rd