HomeMy Public PortalAbout2014.05.08 Encroachment Agreement Carports Alpine VillageInstrument * 387252
VALLEY COUNTY, CASCADE, IDAHO
9-152014 12:37:13 No. of Pages: 7
Recorded for : CITY OF M CALL
DOUGLAS A. MILLER e: 0
Index to: AGREEMENT
Ex-Officio Recorder
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:
Attest:
yor
City Clerk
ALPINE VILLAGE COMPANY:
B
By:A4 1 49M a4,e
"CITY" "SECOND PARTY"
ENCROACHMENT AGREEMENT - 3
STATE OF IDAHO )
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County of Valley )
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On this G�191 day of L , 2014, before me, the undersigned, a
Notary Public in and for 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 OF, I have hereunto set my hand and affixed my official seal the
day and year fair
(SEAL)
STATE OF IDAHO
:ss
County of )
otary P • lic or 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 J. n'I day of /y% , 201 .efore me, the undersigned, a
Notary Public in and for said State, personally appe. =: 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 .: II ;w ` ii.11
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(SEAL = #� �' �',� % Notary ' .. is for f aho
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STATE OF IDAHO �1111,�,�� \``���
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County of Ma_, )
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On this /`7 day of %I'tari, , 2014, before me, the undersigned, a
Notary Public in and for said State, personally appeared Mello llo e I for-aae 01 rcr
, the -? f e5 (e-1. v► i- _ ,
rest -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) th, YE,q�141 Ndtary Public for Idal/ /
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TA"'�ss� �ii� Commission Expires: -3 11 /
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ENCROACHMENT AGREEMENT - 4
EXHIBIT A
Legal Description of Alpine 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., R.3 E.., E.M., City of McCall, Valley 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°54134"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°39'206E., 410.37 feet; thence
4.) S.0°46'47"W., 45.05 feet; thence,
5.) S.89°54' 10"E., 127.93 feet; thence,
6.) S.1°07141"W., 63.00 feet; thence,
7.) N.89°44'40"E„ 162.52 feet; thence,
8.) S.0°03'08"w., 407.54 fleet; 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
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LEGEND
DENOTES MUD OF MASE
CARPORT CONSTRUCTION
- PROPERTY LINE
PLAN NOTES Q
=1 Or CARPORT DICTATES DE CLEAR DE.17.04TROL PONT
ROOF TOWEL. FRC44 EAST TO WEST .15TNO GRADE AND
3 %.15TINOTIVZENERA19OR ENCLOSURE TO REMAIN UNTOUCHED
GENERAL NOTES
EXCAVATION AND ...Ere OF ADE POOTINOS DR CONSTRUODON
8. UTE ACCESS OF OF THIRD STREET ANO RAILROAD ASE. TO RDALIN
C. I...PARKING LOT SLOPES AND DRAMA. SMALL DOT RE ALTERED
ONCE FINAL CONSTRUCTION 15 COUPLET.
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