HomeMy Public PortalAbout2013.12.19 Sewer Line Encroachment Agreement DeAngelisInstrument # 382859
VALLEY COUNTY, CASCADE, IDAHO
1-15-2014 04:32:28 No. of Pages: 8
Recorded for : CITY OF M ALL
DOUGLAS A. MILLER
Ex-Officio Recorder Depu
Index to: DEEDS
DEED OF EASEMENT
AND ENCROACHMENT AGREEMENT
THIS DEED OF EASEMENT AND ENCROACHMENT AGREEMENT ("Agreement") is
made and entered into by and between JOSEPH W. DeANGELIS, hereinafter collectively referred to
as "DeAngelis," and THE CITY OF McCALL, IDAHO, a municipal corporation, hereinafter referred
to as "McCall" on December 19, 2013.
WITNESSETH:
WHEREAS, this Agreement is relevant to a City of McCall sewer line that runs through Rio
Vista Subdivision No. 5; and
WHEREAS, DeAngelis is the owner in fee simple of real property known as Lot 37, Rio
Vista Subdivision No. 5, located in Valley County, Idaho, legally described on Exhibit A attached
hereto; and
WHEREAS, a portion of the existing sewer line runs through the Exhibit A property; and
WHEREAS, DeAngelis has agreed to grant unto McCall an easement over that portion of the
Exhibit A property for the operation, maintenance and repair of the existing sewer line that currently
runs under and through the Exhibit A property and for access, ingress and egress thereto; and
WHEREAS, an improvement consisting of a deck encroaches over a portion of the easement
herein granted as depicted on Exhibit C attached hereto; and
WHEREAS, McCall has agreed to permit the existing encroachment over a portion of the
easement herein granted under the circumstances set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, DeAngelis and McCall agree as follows:
1. Recitals. The above recitals are hereby incorporated into and made a part of this
Agreement.
2. Grant of Easement. DeAngelis hereby grants to McCall, its successors and
assigns, forever a perpetual easement particularly described in Exhibit B attached hereto (the
"Easement Premises"), in, to, over, upon, across and through the Exhibit A property in the
location indicated in Exhibit C attached hereto, for the operation, maintenance and repair of the
existing sewer line (the "easement"), together with ingress and egress over the Exhibit A
property for the purposes of accessing the sewer line for such operation, maintenance and repair
and the right to occupy such width of the land along the boundaries of the Easement Premises as
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 1
December 19, 2013
is necessary to properly do the work of operating, maintaining and repairing the sewer line with
personnel and with such equipment as is commonly used, or is reasonably adapted, to that work.
DeAngelis, for themselves, their heirs, successors and assigns, reserves the right to use
the Easement Premises so long as DeAngelis' use does not interfere with the McCall's use of the
Easement Premises. Except as expressly reserved herein to DeAngelis, the Easement granted
hereby is exclusive to McCall.
3. Perpetual. The above -described easement shall continue perpetually and shall run
with the Exhibit A real property above described.
4. Encroachment. DeAngelis acknowledges that the existing improvement consisting
of a deck on the Exhibit A property constitutes an encroachment over a portion of the Easement
Premises.
5. Existing Encroachment Permitted. McCall agrees to permit the encroachment to
remain so long as it is not enlarged or expanded and DeAngelis agrees that if the encroachment is
removed for any reason, that its replacement shall be constructed entirely outside the boundaries of
the Easement Premises and said encroachment shall no longer be permitted upon the Exhibit A
property.
6. No New Encroachments. It is the purpose of this Agreement to permit the limited
encroachment by DeAngelis of the existing improvement consisting of a deck over a portion of the
Easement Premises, but the parties agree that DeAngelis will not erect, construct or install any new
building, improvement, structure or addition on, in, to, over, upon, across or through the Exhibit A
property which would encroach upon the Easement Premises.
7. Landscaping. DeAngelis may landscape the Easement Premises with plantings and
ground cover. No trees or large shrubbery may be planted on the Easement Premises. McCall will
grade those portions of the Easement Premises disturbed by McCall's use thereof, but McCall shall
not be responsible to restore or replace any landscaping.
8. Maintenance/Repair. McCall will maintain and repair the easement in a manner
designed to reasonably minimize impact on the encroachment. McCall will grade those portions of
the Easement Premises disturbed by McCall's use thereof, but McCall shall not be responsible to
restore or replace any portion of the encroachment, nor shall McCall be responsible for any damage
to the encroachment nor for any repairs made necessary to the encroachment after maintenance or
repair to the easement.
9. Notice. Upon receiving written notice from McCall of the need for maintenance or
repair to the easement, DeAngelis will have ten (10) days in which to provide access to the easement
that is sufficient for McCall's purposes; provided, however, in the event sufficient access is not
provided to McCall, or in the case of an emergency, in which event no written notice from McCall is
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 2
December 19, 2013
required, McCall will remove all or such portion of the encroachment impeding McCall's ability to
maintain or repair the easement.
10. Costs of Operation, Maintenance & Repair. McCall shall be solely responsible for
all costs of maintenance and repair to the easement and to the Easement Premises, but not the
encroachment, as may be required from time to time.
11. Run with the Land. All provisions of the easement and its benefits and burdens
shall run with the land and shall benefit and bind the heirs, successors, and assigns of DeAngelis and
McCall.
12. Indemnification. In consideration for McCall allowing DeAngelis to encroach upon
a portion of the Easement Premises at no charge, DeAngelis does hereby indemnify and hold McCall
and its personnel, employees and agents harmless 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, arising
from the encroachment upon and use of the Easement Premises by DeAngelis or any persons going
onto the Easement Premises, whether invitees of DeAngelis or otherwise.
DeAngelis expressly executes this Agreement with the intent of relieving McCall of any and
all liability created by or arising from DeAngelis' encroachment upon and use of the Easement
Premises and hereby discharges McCall 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 DeAngelis, or anyone claiming under
DeAngelis, against McCall or its legal representatives, successors and assigns.
13. No Liens. DeAngelis warrants and represents that DeAngelis can convey the
easement to McCall in fee simple, free and clear of encumbrances, and subject only to taxes,
assessments, easements, and restrictions as appear of record.
14. Entire Agreement; Indemnification. This easement constitutes the entire
agreement of DeAngelis and McCall, and the execution hereof by DeAngelis shall serve to
indemnify McCall of and from any and all liability for any loss, claim, or damage, demand, cause of
action, costs or attorney's fees arising from McCall's use of the Easement Premises.
15. Situs. This easement shall be construed under the laws of the State of Idaho.
16. Remedies. The parties, their heirs, successors and assigns shall have all rights and
remedies provided at law or in equity to enforce their rights hereunder. In the event of any action or
proceeding by either party hereto against the other, in any way arising out of this easement, or
attempting to enforce any right herein granted, the losing party shall pay the prevailing party's
reasonable attorney fees and costs.
17. Remedies; Attorney's Fees. 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
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 3
December 19, 2013
the parties hereto, the 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 case suit shall be brought for an unlawful detainer, DeAngelis shall pay to McCall all costs,
expenses and attorney's fees which shall be incurred by McCall in obtaining possession of the right-
of-way and/or easement.
18. Situs. 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.
19. Entire Agreement. The parties agree that this Agreement constitutes the entire
agreement between the parties hereto.
20. Severability. In the event any of the provisions of this Agreement shall be deemed
illegal or unenforceable, such determination shall not operate to invalidate any of the remaining
provisions of this Agreement.
21. Headings. The bolded paragraph headings are for convenience only and are not a
part of this Agreement and shall not be used in interpreting or construing this Agreement.
22. Binding Effect. The provisions and stipulations of this Agreement shall inure to
and bind the heirs, personal representatives, assigns, and successors in interest of the parties hereto.
IN WITNESS WHEREOF, the DeAngelis and McCall have executed this easement effective
as of the day and year first above written.
DEANGELIS:
Josejh
. DeAngelis
MCCALL:
By:
Attest:
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 4
December 19, 2013
Donald
essieJo W . _ r, City ? lerk
STATE OF IDAHO
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County of Valley
On this q4k—day of ,c)N b ) )1- , before me, �,, n dam,
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a Not. * Public, personally appe ed JOSEPH W. DeANGELIS known or ide tified t me to be
the �� rso s) whose name(s is are subscribed to the within instrument, and acknowledged to
me gia"jihe)(they) executed the same.
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Notary Publi r Idaho
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County of Valley
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On thi�1day of ate , before me, Zejati j� )14/4.,Spi1) ,
a Notary Public, personally appeared DONALD C. BAILEY and BESSIEJO WAGNER, the
Mayor and City Clerk, respectively for THE MCCALL OF McCALL, IDAHO, known or
identified to me to be the person whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same and was so authorized to do so for and on
behalf of The McCall of McCall, Idaho.
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Commission expires:
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 5
December 19, 2013
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EXHIBIT A
Legal Description
Lot 37
A parcel of land situate in the south west 1/4 of the south west 1/4 of Section 8, T. 18 N., R. 3 E.,
B.M., City of McCall, Valley County, Idaho, more particularly described as follows:
Commencing at a 1/2 inch rebar marking the north corner common to Lots 37 and 38, Rio Vista
Subdivision No. 5, as shown on the official plat thereof on file in the Office of the Recorder of
Valley County, Idaho, in Book 7 on Page 29 of Plats, the REAL POINT OF BEGINNING:
Thence, N. 32° 22' 00" E., a distance of 46.00 feet along the extended line common to
said Lots 37 and 38,
Thence, S. 44° 44' 26" E., a distance of 82.07 feet to a 1/2 inch rebar on the extended
east line of said Lot 37,
Thence, S. 32° 22' 00" W., a distance of 46.00 feet to a 1/2 inch rebar marking the north
east corner of said Lot 37,
Thence, continuing S. 32° 22' 00" W., a distance of 324.66 feet to a 1/2 inch rebar
marking the south east corner of said Lot 37,
Thence, N. 57° 38' 00" W., a distance of 80.00 feet to a 1/2 inch rebar marking the south
corner common to said Lots 37 and 38,
Thence, N. 32° 22' 00" E., a distance of 342.98 feet to the Point of Beginning, containing
30,386 square feet, more or less.
Bearings are based on the plat of Rio Vista Subdivision No. 5.
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 6
December 19, 2013
EXHIBIT B
Sewer Line Easement
Lot 37
A parcel of land situate in the south west 1/4 of the south west 1/4 of Section 8, T. 18 N., R. 3 E.,
B.M., City of McCall, Valley County, Idaho, more particularly described as follows:
Commencing at a 1/2 inch rebar marking the north corner common to Lots 36 and 37, Rio Vista
Subdivision No. 5, as shown on the official plat thereof on file in the Office of the Recorder of
Valley County, Idaho, in Book 7 on Page 29 of Plats; thence, S. 32° 22' 00" W., a distance of
29.85 feet along the line common to said Lots 36 and 37 to the REAL POINT OF BEGINNING:
Thence, continuing S. 32° 22' 00" W., a distance of 20.23 feet along said common line,
Thence, N. 48° 53' 37" W., a distance of 80.94 feet to west line of said Lot 37,
Thence, N. 32° 22' 00" E., a distance of 20.23 feet along said west line of Lot 37,
Thence, S. 48° 53' 37" E., a distance of 80.94 feet to the Point of Beginning.
Bearings are based on the plat of Rio Vista Subdivision No. 5.
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 7
December 19, 2013
ti
EXHIBIT C
Depiction of Easement & Easement Premises
60�
03..1/\
LOT 38
b'
°
0' 30' 60'
s
north west corner
of 38
sewer line
easement
so
O.P,
S, F
LOT 37
90'
LEGEND
o Found 1/2 inch dia. rebor
• Set 1/2" x 24" rebor w/plastic cap
Bearings based on plot of Rio Vista Sub. No. 5
Rotate +0' 12' 21" to McCall Modified Grid
line
e
4'ro
F y
js
2
Asz.
north east corner
Lot 37
20 ft. wide SEWER LINE EASEMENT
situate in the SW4 SW4 of
Section 8, T. 18 N., R. 3 E., B.M., City of McColl
Lots 37 and 38, Rio Vista Subdivision No. 5,
Book 7, Poge 29 of Plots, Volley County, Idaho
for
CITY OF McCALL / ROCKROHR / DeANGELIS
DRRULARD LAND SURVEYING 208-634-7398 OCT 2013
EXHIBIT
DEED OF EASEMENT AND ENCROACHMENT AGREEMENT - 8
December 19, 2013