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HomeMy WebLinkAboutV12, LLC - Encroachment Agreement - 10.16.2023 ENCROACHMENT AGREEMENT Prepared by: Seth Hyberger, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4366 THIS ENCROACHMENT AGREEMENT is entered into by and between VI2, LLC, hereinafter"VI2", and the City of Waterloo, Iowa, hereinafter"City"this I b day of OG4-OW 23 WHEREAS, VI2 is the owner of real estate commonly known as 1039 People's Square, Waterloo, Iowa 50702 and legally described in attached Exhibit"A", in the City of Waterloo, Black Hawk County, Iowa, hereinafter"VI2 Property"; and WHEREAS, VI2 is proposing to build and maintain a parking lot on a portion of W San Marnan Drive City owned right-of-way, hereinafter"Encroachment"that will encroach into City right-of-way; and WHEREAS, for the benefit of VI2 Property, VI2 is requesting to allow said Encroachment within a portion of said City right-or-way along W San Marnan Drive as shown on the attached Exhibit`B"; and WHEREAS, the City is willing to allow said Encroachment into said City Right-of-Way as shown on attached Exhibit`B" (hereinafter the "Encroachment Area"), subject to the following agreement regarding each party's rights. THEREFOR IT IS HEARBY AGREED by and between the parties as follows. 1. VI2 hereby recognizes and reaffirms, said city right-of-way, and claims no rights or privileges therein except to the limited extent provided for in this agreement. 2. The City grants VI2 the right to place and maintain said Encroachment in said Encroachment Area, 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 Encroachment Area, expressly recognizing and acknowledging that any damage that occurs to said Encroachment will be the sole risk and expense of VI2 and all successors or assigns, 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 Encroachment to be temporarily moved for access to said Encroachment Area, VI2 and all successors or assign shall move said improvements in the Encroachment Area if present and able, otherwise the City of Waterloo and/or any agency to which the City has granted a utility franchise shall be authorized to move said Encroachment and assess any costs for moving against VI2 or any successors or assigns, or against VI2 Property. 3. The term of this agreement shall be for so long as said Encroachment is maintained by VI2, or any successors or assigns, and said Encroachment continues to exist, and that this agreement shall automatically terminate if said Encroachment is removed (other than for temporary removal during replacement or repair). It is understood and agreed that this Agreement is appurtenant to the VI2 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 VI2, or any successors and assigns, and that VI2, and any successors and assigns agree to remove said Encroachment(s)prior to the end of the 60 days notice and termination of this agreement. If VI2, or any successors and assigns fail to remove said Encroachment upon termination of this agreement, VI2, or any successors and assigns authorize the City of Waterloo to remove said Encroachment and assess costs to VI2, or any successors and assigns, or against VI2 Property. 4. VI2, and all successors and assigns shall protect, defend, indemnify, and hold harmless the City and its successors and assigns, and its officers, elected officials, employees, and agents, and any agency to which the City has granted a utility franchise from any claim, damages, liability and expenses (including, but not limited to, reasonable attorney's fees and costs of litigation) arising out of the use, maintenance, or removal of said Encroachment. 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 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 above. .Z a d VI2 Prop i sL C By: riP.li Its: iPjji*fr City of Waterloo: D_A__L6_—:::::Act:)___,t— By: Quentin Hart Its: Mayor Attest: .Ke1l�Felc e, City Clerk STATE OF IOWA ) �J COUNTY OF BLACK HAWK ) SS. On this a(p day of iliber , %as‘,3 before me,the un ersigned, a Notary Public in and for the State of Iowa, personally appeared R.c l 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. friI IGACommission Number8497161 � /My Commission Expires July 27,2026 Z. Notary Publi STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. This instrument was acknowledged before me on this day of May, 2022, by Quentin Hart and Kelly Felchle as Mayor and City Clerk, respectively, of the City of Waterloo. Notary Public Exhibit "A" Lot 2, "Kaspend Addition, a Replat of tract C, Granger' s Second Addition, City of Waterloo, Black Hawk County, Iowa, and a Part of vacated West San Marnan Drive and vacated Kimball Avenue in the City of Waterloo, Black Hawk County, Iowa, except Parcel A of Plat of Survey Doc. #2006-28544 and futher except that part conveyed to the City of Waterloo in Doc.#2015-06430 .