Loading...
HomeMy WebLinkAboutRichard Penn and Sharon Armfield-Penn - Encroachment Agmnt-1/23/2017Prepared by: Aric Schroeder, 715 Mulberry Street, Waterloo, Iowa 50703 (319) 291-4366 ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT is entered into by and between Richard L. Perm and Sharon L. Armfield-Penn, hereinafter "Penn", and the City of Waterloo, Iowa, hereinafter "City" this _ a3kro day of January 2017. WHEREAS, Penn is the owner(s) of real estate commonly known as Parcel No. 891326232020, a vacant parcel located adjacent 316-320 West 4"' Street, Waterloo, Iowa 50701 and legally described as Original Plat, Waterloo West, the Northwesterly thirty (30) feet of Lot 9 of Block 16, all in the City of Waterloo, Black Hawk County, State of Iowa, hereinafter "Perm Property"; and WHEREAS, there is City owned right-of-way adjacent to the Southeasterly line of Penn property, which is dedicated as public alley, hereinafter "Alley"; and WHEREAS, Penn is requesting to place a fence, plantings, bollards and other improvements (hereinafter the "Encroachment" across a portion of said alley legally described as: The Northeasterly twenty (20) feet of the Southwesterly forty (40) feet of the Northwesterly ten (10) feet of the Southeasterly thirty (30) feet of Lot 9 of Block 16 of the Original Plat of Waterloo West, City of Waterloo, Black Hawk County, Iowa, (hereinafter the "Encroachment Area"; and WHEREAS, the City is willing to allow said Encroachment to encroach into said Alley as described above and as shown on the attached Exhibit "A", subject to the terms and conditions set forth herein. THEREFORE IT IS HEREBY AGREED by and between the parties as follows: 1. Penn hereby recognizes and reaffirms the existence and public ownership of said Alley and claims 110 rights or privileges therein except to the limited extent provided for in this agreement. 2. The City grants Penn the right to place and maintain said Encroachment in and upon the Encroachment Area of said Alley, 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 Alley, expressly recognizing and acknowledging that any damage that occurs to said Encroachment will be the sole risk and expense of Penn. In the event that the City needs said Encroachment to be temporarily or permanently removed for access or improvement to said Alley, the City shall provide Penn 60 days' notice and, for temporary removal the City shall be responsible for repair or replacement of the fence and any other 1 improvements of said Encroachment, and for permanent removal the City shall pay Pemi damages in the amount of $7,500. Except due to negligence by the City and/or any agency to which the City has granted a utility franchise or right-of-way License Agreement, the City and/or any agency to which the City has granted a utility franchise or right-of-way License Agreement shall not be responsible or liable for damage of said Encroachment, and any agency to which the City has granted a utility franchise or right-of-way License Agreement shall not be responsible or liable for replacement of said Encroachment. 3. The term of this agreement shall be for so long as said Encroachment is maintained by Penn 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 Penn Property and runs with the land. 4. Only to the extent due to negligence of the City, or their officers, elected officials, employees, or agents, the City shall protect, defend, indemnify, and hold harmless Penn and his successors and assigns from and against any claim, damages, liability and expense (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 Encroachment. Peim shall protect, 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 except due to negligence by the City and/or any agency to which the City has granted a utility franchise or right-of-way License Agreement arising out of the use, maintenance or removal of said Encroachment, including but not limited to any damage to said Encroachment. This indemnification provision shall survive the termination of this Agreement as it pertains to any claims or damages arising out of the encroachment during its existence. If the agreement is terminated and the encroachment is removed, the indemnification provision shall only apply to claims arising from the existence of the encroachment and when it was in use. 5. Penn agrees to install Bollards as indicated in Exhibit A in order to further protect the parties' property in this matter and Penn agrees to maintain said Bollards in good working order so long as the Encroachment Agreement is in effect. Said Bollards shall be removable, and if lockable, the City of Waterloo and adjoining property owners to the Alley shall be provided with a key or other means of unlocking and temporarily removing the Bollards for access purposes. 6. 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. 2 IN WITNESS WHEREOF, the parties have executed this Encroachment Agreement by their duly authorized officers as of the date first set forth above. City of Waterloo By: Quentin Hart Its: Mayor Attest: le, City Clerk Sharon L. Arrnfield-Penn STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. On this - day of January, 2017, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Richard L. Penn and Sharon L. Armfield-Penn 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. :Oat /0„* CATHERINE M GARRETT COMMISSION NO.763150 MY COMMISSION EXPIRES MAY 21.2019 STATE OF IOWA ) COUNTY OF BLACK HAWK ) SS. otary Public This instrument was acknowledged before me on this day of January, 2017, by Quentin Hart and Kelley Felchle as Mayor and City Clerk, respectively, of the City of Waterloo. 0,1At a� NANCY 1-4tGBY COMMISSION NO.788229 MY CO FS ON EXPIRES 3 Notary Public Exhibit "A" BOLLARD -D'DIAMETER STEEL PIPE FILLED WI CONCPETE