HomeMy WebLinkAboutJames Hurst - Encroachment Agreement (2425 W. 4th Street) 11.23.2020Prepared by: Seth Hyberger, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4366
ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT is entered into by and between Donald J Hurst
Trust, hereinafter "Hurst", and the City of Waterloo, Iowa, hereinafter "City" this a3` day of
gc reMl, 2020.
WHEREAS, Hurst is the owner of real estate commonly known as 2425 W 4th Street,
Waterloo, Iowa 50703 and legally described as Kendalls Fourth Street Addition Lot 4 Block 4
and Lot 5 Block 4, hereinafter "Hurst Property"; and
WHEREAS, Hurst is proposing to construct and maintain an electronic chain fence gate,
hereinafter "Gate" that encroaches 1' into a public right-of-way of Fletcher Avenue,
WHEREAS, Hurst is requesting to allow said gate within a portion of said "right-of-way as
shown on the attached Exhibit "A" hereinafter "Encroachment Area"; and
WHEREAS, the City is willing to allow said Gate to encroach into said right-of-way as
described above, subject to terms and conditions set forth herein.
1. Hurst hereby recognizes and reaffirms, said right-of-way, and claims no rights or
privileges therein except to the limited extent provided for in this agreement.
2. The City grants Hurst the right to place and maintain said Gate in said Encroachment
Area, subject to the rights of the City and/or any agency to which the City has
granted a utility franchise or right-of-way License Agreement to and for access over,
under and upon said right-of-way, expressly recognizing and acknowledging that
any damage that occurs to said Gate will be the sole risk and expense of Hurst
including repairs moving or replacement expenses. In the event that the City and/or
any agency to which the City has granted a utility franchise or right-of-way License
Agreement needs said Gate to be temporarily moved or removed for access to said
right-of-way, Hurst shall move said Gate if present and able, otherwise the City of
Waterloo and/or any agency to which the City has granted a utility franchise or
right-of-way License Agreement shall be authorized to move or remove said Gate
and assess any costs for moving or removal against Hurst, or Hurst Property.
3. The term of this agreement shall be for so long as said Gate is maintained by Hurst,
and said Gate continues to exist, and that this agreement shall automatically
terminate if said Gate is removed (other than for temporary removal during
replacement or repair). It is understood and agreed that this Agreement is
appurtenant to the Hurst Property and runs with the land. It is further understood
and agreed that this agreement may be terminated by the City of Waterloo upon 60
days notice and order to permanently remove to Hurst and that Hurst agree to
remove said Gate prior to the end of the 60 days notice and termination of this
agreement. If Hurst fails to remove said Gate upon termination of this agreement
Hurst authorize the City of Waterloo to remove said Gate and assess costs to Hurst,
or against Hurst Property.
4. Hurst 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 or right-of-way
License Agreement from and against any claim, damages, liability and expenses
(including, but not limited to, reasonable attorney's fees and costs of litigation) of
any type or nature whatsoever arising out of the use, maintenance, or removal of
said Gate, including, but not limited to any damage to said Gate except those arising
out of negligent acts or omissions of the indemnified parties or said Gate. This
covenant shall survive the termination of this Agreement.
5. This is the entire agreement between the parties with respect to 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.
6. The fence will hang over the right-of-way, but does not connect, attach, or be
supported by any connection to the right-of-way.
In WITNESS WHEREOF, the parties have executed this Encroachment Agreement by
their duly authorized representatives as of the date first set forth above.
Donald J. Hurst Trust City of Waterloo
James Hurst, Trustee
By: Quentin Hart
Its: Mayor
Att- st:
K-lley Felchle, V; lerk
STATE OF 6 C )
COUNTY OF ii%) SS.
On this 13 day of /%UtlIN.. 2020 before me, the undersigned, a Notary Public in and
for the State of —,Plea, James Hurst, personally appeared to me known to be the identical
person named herein and who executed the foregoing instrument and acknowledged that they
executed the same as their voluntary act and deed.
Notary Public
STATE OF IOWA )
COUNTY OF BLACK HAWK ) SS.
This instrument was acknowledged before me on this 4 day of IJecew,6.,—', 2020 by
Quentin Hart and Kelley Felchle as Mayor and City Clerk, respectively, of the City of Waterloo
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NANCY HIGBY
COMMISSION NO.788229
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Encroachment Agreement Area Map 2425 W 4th Street
Exhibit "A"
2425 W 4th Street
Enroachment Agreement Area Map
James Hurst