The URL can be used to link to this page

Home My Public Portal About2014.05.08 Encroachment Agreement Alpine Village CarportsInstrument # 387252 VALLEY COUNTY, CASCADE, IDAHO 8-15 2014 12:37:13 No. of Pages: 7 Recorded for : CITY OF CALL DOUGLAS A. MILLER Ex-OfScio Recorder Index to: AGREEMENT CROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 8 day of May, 2014, by and between the CITY OF McCALL, IDAHO, an Idaho municipal corporation, hereinafter referred to as the "City," and ALPINE VILLAGE COMPANY, an Idaho corporation, hereinafter collectively referred to as "Second Party." WITNESSETH: WHEREAS, Second Party is the owner of the following described real property commonly known as Alpine Village, legally described as follows, to -wit: See Exhibit A attached hereto and, by this reference, incorporated herein as if set forth in full; and WHEREAS, the City has a public right-of-way on and/or an easement(s) for water and sewer lines on the above described real property; and WHEREAS, Second Party desires to install and/or construct carports, hereinafter collectively referred to as the "improvement," on a portion of Second Party's above described property, which improvement would encroach upon the City's public right-of-way and/or easement(s) as indicated on Exhibit B attached hereto and, by this reference, incorporated herein as if set forth in full. NOW, THEREFORE, in consideration for the City allowing the Second Party to install and/or construct the improvement which will encroach upon the City's public right-of-way and/or easement(s), the City and the Second Party covenant and agree as follows: 1. Recitals. The above recitals are hereby incorporated into and made a part of this Agreement. 2. Encroachment. Upon the recording of this Agreement, Second Party shall be allowed to install and/or construct the improvement over the City's public right-of-way and/or easements. The Second Party acknowledges that the installation and/or construction of the improvement on the City's public right-of-way and/or easements constitute an encroachment. 3. Construction Of Improvement; Restoration. Second Party shall construct, maintain, repair, and restore the improvement at Second Party's own cost and expense. 4. Maintenance, Repair And/Or Replacement. When the encroached area, or a portion thereof, must be utilized by City for maintenance, repair or replacement of a water or sewer line and such maintenance, repair or replacement requires removal of the improvement, or any portion thereof, Second Party agrees that, subject to the following provisions, City shall have the right to remove the improvement, or such portion of the improvement as is reasonably necessary to complete the maintenance, repair or replacement, from City's public right-of-way and/or easement and Second Party agrees to reimburse City all costs associated with such ENCROACHMENT AGREEMENT - 1 removal. Before beginning any work, City agrees to first determine whether the maintenance, repair or replacement can be reasonably accomplished without removal of any portion of the improvement in a manner that does not add cost or additional time to the project, and if those conditions are satisfied, the maintenance, repair or replacement will proceed at City's expense without removal of any portion of the improvement. If City determines that such maintenance, repair or replacement can be reasonably accomplished without removal of any portion of the improvement, but doing so will add cost or time to the project, then City shall notify Second Party in writing of this fact and Second Party shall be given the option of either reimbursing the City, at the City's actual cost, for the additional cost or time, or removing the improvement. Second Party shall notify the City of which aforesaid option Second Party has elected within fifteen (15) days after receiving the notice from City. Except for emergency repairs, if City determines that the maintenance, repair or replacement requires removal of part or all of the improvement, City shall first give Second Party reasonable advance written notice in order to allow Second Party to take steps to remove the improvement, or the portion thereof identified by City, if Second Party so chooses. All costs associated with the removal of the improvement shall be borne by Second Party, regardless of which party removes the improvement. All costs associated with the maintenance, repair or replacement of the water or sewer line shall be borne by the City. Restoration of the improvement following such maintenance, repair, or replacement shall be the responsibility of Second Party. Second Party hereby releases the City from and indemnifies the City against any claims of any kind whatsoever that might be asserted by Second Party or any third party which stem from or are related in any way to damage which occurs to the improvement as a result of City's repair, maintenance or replacement of the said utility line(s), save and except only claims for the enforcement or breach of this Agreement. 5. Indemnification. In consideration for the City allowing Second Party to encroach upon its public right-of-way and/or easement(s) at no charge, Second Party does hereby indemnify and hold the City 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 this right-of-way by Second Party or any persons going onto the right-of-way, whether invitees of Second Party or otherwise. 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 encroachment upon and use of the right-of-way and 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. 6. Run With The Land. This Agreement shall be recorded in Valley County, Idaho, shall continue perpetually and shall run with the Exhibit A real property. 7. 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 the parties hereto, the successful party to such action or collection shall be entitled to ENCROACHMENT AGREEMENT - 2 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, Second Party shall pay to City all costs, expenses and attorney's fees which shall be incurred by City in obtaining possession of the right-of-way and/or easement(s). 8. 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. 9. Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties hereto. 10. 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. 11. 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. 12. 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. 13. Entity Authority. The individuals executing this Agreement on behalf of an entity represent and warrant that they are duly authorized to execute and deliver this Agreement on behalf of said entity in accordance with duly adopted organizational documents or agreements and if appropriate a resolution of the entity, and that this Agreement is binding upon said entity in accordance with its terms. IN WITNESS WHEREOF, the parties hereto execute this Encroachment Agreement the day and year first above written. CITY OF McCALL: By: �yor /) r Attest: , City Clerk ALPINE VILLAGE COMPANY: By: By: "CITY" "SECOND PARTY" ENCROACHMENT AGREEMENT - 3 STATE OF IDAHO ) :ss County of Valleys ) ak On this 25') day of , 2014, before me, the undersigned, a Notary Public inandfor said State, per,ally appeared JACKIE J. AYMON and BESSIEJO WAGNER, the Mayor and City Clerk, respectively, of the CITY OF MCCALL, IDAHO, known to me to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same on behalf of the City of McCall, Idaho and were so authorized to do so IN WITI�] day and year f (SEAL) STATE OF IDAHO County of OF, I have hereunto set my hand and affixed my official seal the :ss otary P .lic for daho Commission -xpires: On this day of , 2014, before me, the undersigned, a Notary Public in and for said State, personally appeared , the and , respectively of ALPINE VILLAGE COMPANY, known to me to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same on behalf of Alpine Village Company and were 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. (SEAL) Notary Public for Idaho Commission Expires: ENCROACHMENT AGREEMENT - 4 STATE OF IDAHO :SS County of Valley On this 14 day of /y ),4y) , 201 efore me, the undersigned, a Notary Public in and for said State, personally appea : , ACKIE J. AYMON and BESSIEJO WAGNER, the Mayor and City Clerk, respectiv of the CITY OF MCCALL, IDAHO, known to me to be the persons whose names are cribed to the within instrument, and acknowledged to me that they executed the same o alf of the City of McCall, Idaho and were so authorized to do so IN WITNESS ' EREOF, I have hereunto set my hand and affixed my official seal the day and year first �``� �X1(kiA�t 111 �M• Y _ �...? #O T (SEAL '4I' % r Notary ' . is for f aho CD f ' . 4 rrt y C • mission Expires: 3 ;�;G . �Ff' eLIC `:O = '�,,'O..,„,„a..., STATE OF IDAHO rriri1F`‘�a,,• :ss County of Ma__ ) Or On this P-3 day of /in a4/ , 2014, before me, the undersigned, a Notary Public in and for said State, personally appeared /}'j(doel Ho r-m.a e pInat , the t'rc5 ►<i-e tro: roses -of ALPINE VILLAGE COMPANY, known to me to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same on behalf of Alpine Village Company and were 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. w�•\‘‘"‘"%i i 1 (SEAL) _��`0. YE,gi1141 Notary Public for Id .:CO.+O RI i '�'%'< J,%',AV B tAGIPp= • OF ‘ ENCROACHMENT AGREEMENT - 4 /y/ Commission Expires: EXHIBIT A Legal Description of Al Rne Village Company Real Property LEGAL DESCRIPTION ALPINE VILLAGE PLANNED UNIT DEVELOPMENT A parcel of land, a part of blocks 2, 5 and 6, vacated Lakeport Addition, located in the SW 1/4 of Section 9, T.18N., I13 E.,13.M., City of McCall, 'Walley County, Idaho, more particularly described as; COMMENCING at the south 1/4 corner of said Section 9, A.) N.38°38'32"W., 869.03 feet to a point on the west Right -of -Way line for Third Street, and the SE corner Block 6 Vacated Lakeport Addition, and the POINT OF BEGINNING; thence, 1.) N.89°54'34"W., 578.96 feet; thence, 2.) N.0°35142"E., 222.25 feet, to a point on a curve ; thence, 3.) Northeasterly along said curve to the left having a radius of 2934.93 feet, an arc length of 410.70 feet, through a central angle of 8°01'04", and a chord bearing and distance of N.44°39'20°8., 410,37 feet; thence 4.) S.0°46'47"W., 45.05 feet; thence, 5.) 5.89°54' 10"E., 127.93 feet; thence, 6.) S.1°07'41"W., 0.00 feet; thence, 7.) N.89°44'40"B., 162.52 feet; thence, 8.) S.0°03'08"w., 407.54 feet; to the POINT OF BEGINNING. CONTAINING 5.28 Acres, more or less. SUBJECT TO all Covenants, Rights -of -Way and Basements of Record. ENCROACHMENT AGREEMENT - 5 BUILDING 3 (FUTURE) 0 ARCHITECTURAL SITE PLAN 1• • a'a. 4ET) WWI EXISTING BUILDING, PHASE I - BUILDING 2 EXHIBIT B THIRD STEET LEGEND 6:6:44 PLAN NOTES 0 SEC.. IS E GENERAL NOTES c :LT :ARKINGIOT 91.•ES A2T=CrEt.l. POT BE ALTERED it 6 618N.3ROST.N1oCALL |D8383O COPYRIGHT 2013 CTA, INC. AP PINTS RESERVED ARCHITECTURAL SITE PLAN SHEET A001