HomeMy Public PortalAbout2013.06.13 Sewer Line Encroachment Agreement O'Leary and McFeeleyInstrument # 378463
VALLEY COUNTY, CASCADE, IDAHO
6-26-2013 08:55:51 No. of Pages: 12
Recorded for : CITY OF MCCALL
ARCHIE N. BANBURY Eee: 0.0
Ex-Officio Recorder Dep
Index to: AGREEMENT
ENCROACHMENT AGREEMENT
Sewer Line
THIS ENCROACHMENT AGREEMENT (the "Agreement") is made and entered into
this I S day of "Su,np, , 2013, by and between the CITY OF McCALL a municipal
corporation, hereinafter referred to as the "City," and MOLLY O'LEARY and NEIL
McFEELEY, hereinafter collectively referred to as "Second Party."
WITNESSETH:
WHEREAS, Second Party is the owner of the following described real property located
on Rio Vista Avenue in the City of McCall, Idaho to -wit:
See Exhibit A attached hereto and, by this reference, incorporated
herein as if set forth in full; and
WHEREAS, a sewer line owned and maintained by the City is located beneath, and runs
through, the Exhibit A property in a northwest to southeast direction as depicted on Exhibit B
attached hereto; and
WHEREAS, the sewer line was constructed prior to the platting of the Exhibit A property
and before Second Party's purchase thereof; and
WHEREAS, there was no written easement granting the City a right-of-way and/or
easement for the sewer line across the Exhibit A property; and
WHEREAS, City maintains that it has a license to occupy the location of the sewer line
and such additional property on either side of the line as is necessary for the operation, cleaning,
maintenance, and repair of the same in order to preserve and protect public health and safety; and
WHEREAS, Second Party, without conceding the nature, if any, of the City's claimed
right to access the sewer line, desires to construct a residence, detached garage, and breezeway
and brick or stone pavers on the Exhibit A property; and
WHEREAS, the breezeway will consist of modular units bolted together as described on
Exhibit C attached hereto; and
WHEREAS, the breezeway and some brick or stone pavers are to be constructed over the
City's existing sewer line.
NOW, THEREFORE, in consideration of the recitals above, which are incorporated
below, and for the City allowing the Second Party to construct the breezeway and install pavers
as an encroachment over the City's existing sewer line, and for other valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the City and the Second Party
covenant and agree as follows:
ENCROACHMENT AGREEMENT - 1
1. Second Party recognizes that the City claims that construction of the breezeway
over the existing City sewer line is an encroachment.
2. Second Party shall construct, maintain, and repair the breezeway and pavers at
Second Party's own cost and expense.
3. Second Party grants to City the right to occupy that portion of the Exhibit A
property as depicted on Exhibit D, such portion being 10 feet north and 15 feet south of the
existing sewer line, necessary to properly do the work of operating, cleaning, maintaining and
repairing the sewer line with personnel and with such equipment as is commonly used, or is
reasonably adapted, to that work and including the right to deposit debris and operate equipment
within the above dimensions during such operating, cleaning, maintenance and repair. Except in
the case of an emergency repair as set forth in paragraph 5 below, City agrees to provide written
notice to Second Party in advance of any work on Second Party's property and will describe the
work to be done, the name of the contractor if the work will not be performed by City
employees, the date that work is scheduled to start and the estimated date of completion. This
grant by Second Party shall expire if and when the City abandons the subject sewer line in favor
of another line.
4. Upon written notification from the City that the City must access the existing
sewer line for purposes of operation, cleaning, maintenance, or repairing the sewer line, the
Second Party agrees that they will, within 30 days of such notification, remove, and store the
breezeway and brick or stone pavers at Second Party's expense. In the event the Second Party
fails, within such 30 day period to remove the breezeway and/or pavers, the City may cause said
breezeway and/or pavers to be removed and stored and the expense of such removal and storage
will be borne by the Second Party who agrees to pay the same. Following such operation,
cleaning, maintenance or repair, City will take reasonable steps to restore the premises to the
condition it was in before the work began, grade, and provide a reasonable level of compaction
to those portions over the existing sewer line disturbed by such operation, cleaning, maintenance
or repair, provided, however that restoration of the breezeway or pavers shall be the
responsibility and expense of Second Party. For the purposes of this section, "reasonable steps"
shall mean, at a minimum, that the soil is to be placed and compacted in 8" lifts w/ moisture -
conditioned granular soil (well -graded sand -gravel types GP, GW, SP, or SW), and compaction
shall be to 92% dry density as determined by ASTM D-1557 Modified Proctor. The top 12" of
soil directly under any footing, pier, or wall shall be compacted to 95% dry density. Compaction
shall be achieved with a vibratory drum type device, or other acceptable means and methods of
compaction approved by the City Engineer.
5. In case an emergency repair of the sewer line is required, no written notice from
City is necessary and Second Party hereby waives such requirement; if Second Party is unable to
immediately remove and store the breezeway or pavers, City may cause the breezeway or pavers
to be immediately removed and stored and the expense of such removal and storage will be
borne by the Second Party who agrees to pay the same. Following the emergency repair, City
will take reasonable steps to restore the premises to the condition it was in before the work
began, grade, and provide a reasonable level of compaction to those portions over the existing
ENCROACHMENT AGREEMENT - 2
sewer line disturbed by such operation, cleaning, maintenance or repair, provided, however that
restoration of the breezeway or pavers shall be the responsibility and expense of Second Party.
6. Second Party may landscape around the breezeway or pavers with plantings and
ground cover but no trees or large shrubbery may be planted within the dimensions depicted on
Exhibit D.
7. Second Party does hereby indemnify and hold the City and its personnel,
employees and agents, harmless of and from any and all liability, loss, claim, demand or action,
costs or attorney's fees, by any person and/or entity, or any assigns of any claims, or any persons
going within the dimensions depicted on Exhibit D, whether invitees of Second Party or
otherwise, in connection with the breezeway, pavers, or any other private infrastructure of the
Second Party, the construction, removal, storage or restoration of the breezeway or pavers, or the
operation, cleaning, maintenance or repair of the sewer line. This indemnity will not apply to the
City's gross negligence in the operation, cleaning, maintenance, or repair of the sewer line.
Second Party expressly executes this Agreement with the intent of relieving the City of
any and all liability created by or arising from Second Party's construction, removal, storage or
restoration of the breezeway or pavers upon the Exhibit A property and the City's right to
operate, clean, maintain or repair of the sewer line within the dimensions depicted on Exhibit D
and Second Party hereby discharges the City and its assigns and legal representatives from all
claims, demands, causes of action, liability, loss, costs or attorney's fees, and/or any other claim
with respect to which this Agreement is executed, that may arise through Second Party, or
anyone claiming under Second Party, against the City or its legal representatives, successors and
assigns. This release and discharge will not apply to the City's gross negligence in the operation,
cleaning, maintenance, or repair of the sewer line.
8. Second Party agrees that they will not erect any other permanent or temporary
structures over the existing sewer line and will plant no trees or large shrubbery over the existing
sewer line.
9. City agrees to cooperate with Second Party should conflicting maintenance
activities occur in proximity to the existing sewer line in order to minimize any costs or damages
associated with the breezeway or other infrastructure.
10. This Agreement will be recorded in the records of Valley County, Idaho, and all
provisions of this Agreement shall run with the land and shall benefit and bind the heirs,
successors, and assigns of the City and the Second Party.
11. This Agreement shall be construed under the laws of the State of Idaho. This
Agreement shall inure to and bind the respective heirs, legal representatives, successors, and
assigns of the parties.
12. In the event an action is brought to enforce any of the terms or provisions of this
Agreement, or enforce forfeiture thereof for default thereof by either of the parties hereto, the
ENCROACHMENT AGREEMENT - 3
successful party to such action or collection shall be entitled to recover from the losing party a
reasonable attorney's fee, together with such other costs as may be authorized by law.
IN WITNESS WHEREOF, the parties hereto execute this Encroachment Agreement the
day and year first above written.
CIS i cCA
By:.
Donald C Bailey
"City"
MO
NEIL McFEELEY
"Second Party"
ENCROACHMENT AGREEMENT - 4
STATE OF IDAHO )
:ss
County of
On this ail day of U , 2013, before me, the undersigned, a
Notary Public in and for said State, personally appeared Donald C. Bailey, the Mayor of the City
of McCall, Idaho, known to me to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the same on behalf of the City of McCall,
Idaho, and was so authorized to do so.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
��►►►mmrunoi
5��� . WAGM..;.
��°.� ••' TA ''" 46.
(SEAL) �O�y • Notary Publifor Idaho
▪ Avet.
STATE OF IDAHO
mom �....
r
Commission Expires: 5.! I 1 L%
:ss
County of 4c t. )
On this a08 day of 3 1-1 e_ , 2013, before me, the undersigned,
a Notary Public in and for said State, personally appeared Molly O'Leary and Neil McFeeley,
known to me to be the persons whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affied my official
seal the day and year first above written.
(SEAL)
ENCROACHMENT AGREEMENT - 5
otary Public for Idaho
Commission Expires: /0 '!J' -c2D/6
LENDER CONSENT
The undersigned lender hereby consents to this Encroachment Agreement and the access to the
Exhibit A property permitted herein and agrees to be bound by the terms hereof to the extent that
default may result in the Exhibit A property not receiving a Certificate of Occupancy or
Completion, and that any foreclosure of the underlying loan will not absolve any subsequent
owner of the requirement of said Encroachment Agreement.
�fosture
Individual Lender: Entity Lender:
�L E/4-414 —,g/q•cl<
Name 911Entity �l
By:--itRRT fi�/
(printed name) Title: (4° Co ti! ,fle C/ X6().1-W
Signature (printed n me ecf
7¢50 �i�(f�ei4
(printed name) (address)
-� ` rs 70 f
z*:
(address)
ENCROACHMENT AGREEMENT - 6
INDIVIDUAL NOTARY FOR LENDER CONSENT
STATE OF IDAHO )
County of 1(—C/
: ss
On thisZo71A day of �f.,,.r ' oZ '
state, personally a
who executeee3k it lM ` t, and ac
same. I' 1' ‘4OTAR
:4S
%.� �''••UBIAC.O
tte
ENTITY NOT'ARyFfigt DER CONSENT
3 , before me, a Notary Public in and for said
, known to me to be the person(s)
nowledged to me that he/she/they executed the
(SEAL)
STATE OF IDAHO
County of
On this ge4 day
personally appeare
known to me to be
: ss
Notary Public for Idaho
My Commission Expires:
/p -Zeyt—Ag
of ,Zi/3, before me, a N4t9�ary Public in and for said state,
hej9 C4oletraltiof ex.4c-
p on who executed he wi i rostrum t, and acknowledged to me that
he/she executed the same on behalf of 2>. �it-it.0 ��
��.00004t1.
O •• pTAR 'S9
(SEAL)
•
• %,,,,p;14,4fUBLIC•••••
.
•, TF 1p
••,,,����OF�����,,,
1"
s
ENCROACHMENT AGREEMENT - 7
Notary Public or Idaho
My Commission Expires: M -Z44' /7
O'Leary / McFeeley Encroachment Agreement
EXHIBIT A — Legal Description
Lot 17, Rio Vista No. 2, situate in Gov't Lots 9 and 10, Section 8, T.18N., R.3E., B.M., City of McCall,
Valley County, Idaho
��i r x h i b i t C
M C C A L L D E S I G N 8 P L A N N I N G P . O . B O X 7 2 9 M C C A L L , I D . 8 3 6 3 8 P H : 2 0 8 . 6 3 4 . 5 7 0 7 F A X : 2 0 8 . 6 3 4 . 4 4 5 2
S I T E A N D C L I M A T E S P E C I F I C
A R C H I T E C T U R E
R e m o v a b l e b r e e z e w a y C o n s t r u c t i o n :
T h e b r e e z e w a y w o u l d b e b u i l t i n ( 3 ) 8 ' + / _ m o d u l e s , w i t h d o u b l e p o s t s a t a l l a t t a c h m e n t s t o e n a b l e e a s i l y
u n - b o l t e d c o n n e c t i o n s . A t t h e e n d s a d j a c e n t t o t h e g a r a g e a n d h o u s e , a n e x t e r i o r p o s t w o u l d b e
p e r m a n e n t l y a t t a c h e d t o t h e b u i l d i n g t h a t t h e b r e e z e w a y p o s t s w o u l d t h e n b o l t i n t o , e l i m i n a t i n g t h e r o o f
b e a m s d i r e c t l y c o n n e c t i n g i n t o t h e m a i n s t r u c t u r e s . R o o f b e a m s w o u l d a t t a c h t o t h e ( 4 ) p o s t s o f t h e i r
m o d u l e . M e t a l r o o f i n g w o u l d b e u s e d o n t h i s s e c t i o n t o a l l o w f o r r e m o v a l a n d a c c e s s t o t h e r o o f s h e a t h i n g .
P o s t w o u l d b e a t t a c h e d t o c o n c r e t e p i e r s w i t h u n - b o l t a b l e c o n n e c t i o n a s w e l l .
I n t h e e n d , a f o r k l i f t w o u l d b e a b l e t o l i f t e a c h o f t h e 3 m o d u l e s f o r t e m p o r a r y r e - l o c a t i o n . C o s t i n c u r r e d i n
t h i s e v e n t w o u l d b e f o r d i s a s s e m b l y , f o r k l i f t t i m e , a n d t h e r e - p o u r i n g o f t h e 4 i n t e r m e d i a t e b e a r i n g p o s t s .
PALMED GARAGE DOORS —\
EXTERIOR FIXruRE
ENCROACHING NEIGHBOR
PROM ROAD
AERIAL VIEIv
PLANNING
ro
M
0
M
co
= O
O _
n
co— Q o
wa'an
p N — N
n„
J J O
J M J M
Q m Q N
U U ap
u p u c
f a. 2 N
n
W}
J
W
W
LL
V
z
tr
} 0
Q z J
b;I
}a;4
l48
zaaz
n.6
EXHIBIT D