HomeMy WebLinkAboutThe Russell Lamson LC-5/9/2011 (2)Prepared by Christopher S. Wendland, 315 E. 5th Street, Waterloo, IA, 50703
319-234-5701
ENCROACHMENT AGREEMENT
This Encroachment Agreement (the "Agreement") is entered into as of , 2011, by
and between the City of Waterloo, Iowa (the "City") and The Russell Lamson, LC (the "Owner").
WHEREAS, Owner is the record owner of real estate commonly known as the Russell Lamson
Building, 209 W. 5th Street, Waterloo, Iowa, and legally described as: "Lots 3, 4 and 5, Block 9,
Original Plat on the West Side of the Cedar River, City of Waterloo" (the "Owner's Property"); and
WHEREAS, there is a public alley (the "City Property") abutting the Owner's Property on the
southwesterly side, and there is a loading dock (the "Encroachment") that encroaches onto and upon
the City Property from the building on the Owner's Property; and
WHEREAS, the Owner desires to maintain the Encroachment, and the City is willing to allow the
Encroachment subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises exchanged herein, the parties
agree as follows:
1. Affirmation. The Owner hereby recognizes and reaffirms the City Property,
notwithstanding the existence of the Encroachment or its previous duration for any length of time.
The Owner claims no rights in or to the City Property, or any part thereof, except as expressly
granted by the City in this Agreement.
2. Grant. The City grants the Owner the right to maintain the Encroachment into, over and
upon the City Property, subject to the rights of the City and/or any public or private agency (a
"Franchisee") to which the City has granted a utility franchise for access over, under and upon the
City Property. If the Owner chooses at any time to repair or replace the Encroachment, the physical
footprint of the Encroachment may not be enlarged as compared to its current dimensions, and any
reduction in the size of the Encroachment shall automatically cause a commensurate reduction in the
physical scope of the rights granted hereunder. The parties expressly acknowledge that any damage
that occurs to the Encroachment in connection with ordinary use of the City Property, the work of
repair or improvement to the alley, or the work of repair or improvement to public or utilities
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infrastructure located in or upon the City Property will be the sole risk and expense of the Owner,
including but not limited to repair or removal expenses.
3. Term of Agreement. The term of this Agreement shall commence upon the date hereof
and shall continue for so long as the Owner maintains the Encroachment. This Agreement shall
automatically terminate if the Encroachment is removed (other than for temporary removal as noted
above). It is understood and agreed that this Agreement is appurtenant to the real estate and shall run
with the land.
4. Indemnification. The Owner shall protect, defend, indemnify, and hold harmless the
City and any Franchisee, and the officers, elected officials, employees, contractors and agents of
each, from and against any claim, demand, cause of action, damages, of liability of any type or nature
whatsoever (including but not limited to reasonable attorneys' fees and costs) arising out of or in any
way connected with an Encroachment or the use or maintenance of the City Property by the Owner,
its employees, contractors and agents, including but not limited to any damage to the Encroachment
by any person. Nothing herein shall be construed to impose on the Owner a duty to maintain the City
Property (except generally applicable duties of maintenance, including but not limited to snow
removal and sidewalk repair) or to monitor its use by any person except for the employees,
contractors and agents of the Owner. This covenant shall survive the termination of this Agreement
for any reason.
5. General. This Agreement is binding upon and shall inure to the benefit of the parties and
the respective successors and assigns of each. This Agreement, together with any addenda or exhibits
hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous
negotiations, discussions, understandings, or agreements, whether oral or written, with respect to the
subject matter hereof. This Agreement may be modified only by the mutual written agreement of the
parties.
IN WITNESS WHEREOF, the parties have executed this Encroachment Agreement by their
duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA
By:
Ernest G. Clark, Mayor
Suzy Schar, City Clerk
r
THE RUSSELL LAMSON, LC
By:
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/11
Robert M. Heaton, Managing Member
STATE OF IOWA
COUNTY. OF BLACK HAWK
Acknowledged before me on
) ss.
2011 by Ernest G. Clark and Suzy Schares as
Mayor and City Clerk, respectively, of the City of Waterloo, Iowa.
STATE OF IOWA
COUNTY OF BLACK HAWK
) ss.
adtkA,
tary "ublic
Acknowledged before me on /VEIL 2J , 2011 by Robert M. Heaton as Managing
Member of The Russell Lamson, LC, an Iowa limited .liability company.
Notary Public
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