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AGREEMENT TO MODIFY AND TO HOLD HARMLESS This Agreement is entered into thi/ay of September, 1994, by and between Glenr1 Petry, owner of real property situated in the CITY of Moscow, Latah County, Idaho (hereinafter OWNER), and the City of Moscow, 122 E. 4th Street, Moscow, Idaho 83843, a municipal corporation of the State ofldaho (hereinafter, CITY); WITNESSETH: WHEREAS, OWNER has purchased real property more particularly described as Lots 1-6 of Lieuallen's 4th Addition to the City of Moscow; and WHEREAS, the CITY negotiated an agreement with J&D Rentals, the prior owner of the property, for the rechanneling of Hogg, Creek, which traverses portions of the property(the J&D agreement); and WHEREAS, the OWNER understands that the obligations of the CITY regarding the property are limited to the terms of the J &D agreement; and WHEREAS, the OWNER desires to modifY the J&D agreement to the extent that Hogg Creek not be rechannelled, but covered with a culvert, over which the OWNER expects to build an apartment building; and WHEREAS, the CITY is willing to consent to such modification, provided that the OWNER execute an agreement to hold the CITY harmless and indemnifY the CITY for any and all liability and damages from such modification, and subject to the condition that the CITY's cost pursuant to such modification does not exceed the CITY's costs pursuant to the J&D Agreement. NOW THEREFORE, OWNER and the CITY hereby agree as follows: I. That the OWNER shall hold the CITY harmless for any and all liability and/or damages of whatever nature arising from the CITY'S actions in covering of Hogg Creek by a culvert, including any liability or damages to any structure constructed by OWNER over the culverted area of Hogg Creek. 2. That OWNER acknowledges that he is acting at his own risk in constructing a structure over the culverted area of Hogg Creek, and that he accepts all risk of damage to such structure, including damages occasioned by the CITY's actions in culverting Hogg Creek, even in the event that the CITY's actions were negligent. PERMANENT CULVERT EASEMENT PAGE 1 94-65 ---PAGE BREAK--- 3. That it is intended that this Agreement be recorded with the Latah County Recorder and shall run with the land. 4. That this Agreement shall be binding upon the heirs, assignees and purchasers of OWNER' S property. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective the date first above written. OWNER: ACKNOWLEDGMENT On this /4aay of 1994, before me, a Notary Public of the State ofldaho, personally ap eared Glen/)petry, known to me to be the person described in the foregoing document, and acknowledged to me that he executed the foregoing instrument. PERMANENT CULVERT EASEMENT PAGE2