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56l8H9 NO._liT'"'TLil''nr""'°~=- AT TH E REQUUrt OF: _ f.Ln/ A1pJ:c..~ . o.5' . a ENCROACHMENT AGREEMENT SUS/l.N PETERSEN- 1005 WEST STREET LATAH ~NTY ::JJl°~ FEE THIS ENCROACHMENT AGREEMENT 1005 WEST STREET (hereinafter "Agreement") entered into the~ day of 5~-B12~_2013, by and between City of Moscow, Idaho, a municipal corporation of the State of Idaho, (hereinafter "CITY"), 206 East 3rd Street, Moscow, Idaho, 83843, and Joan C. Kneass 1994 Trust (hereinafter "OWNER"), owner of property located at 1005 West Moscow, Idaho, 83843. WITNESSETH: WHEREAS, CITY is the owner of the sixty foot (60') wide public right-of-way known as Street contiguous with privately owned property at the location commonly known as 1005 West Street; and WHEREAS, OWNER is the exclusive and sole owner of the premises commonly known as 1005 West Street; and, WHEREAS, OWNER desires to encroach upon CITY's property by nine feet for a distance of one hundred fifty six feet (156'); and WHEREAS, CITY is willing to allow such encroachment only to the extent set out herein; NOW, THEREFORE, CITY and OWNER hereby agree as follows: 1. Description. CITY will permit OWNER to maintain the following described encroachment(s) upon CITY right-of-way to the extent and in the manner described below: A. Premises. CITY-owned right-of-way contiguous with 1005 West Street. B. Encroached Space. The portion of CITY's right-of-way (as defined in I.A., above) upon which OWNER will encroach, all as shown on Exhibit to this Encroachment Agreement, the same as if fully copied, transcribed, and adopted therein. 2. Use. OWNER shall have the right and privilege to utilize only the above-ground Encroached Space for any lawful purposes (including, but not limited to, the presence of a retaining wall and off-street parking area) . 3. Cleanliness. OWNER agrees that said Encroached Space shall be kept in good repair and in a neat, safe and sanitary condition and that the Encroached Space shall be utilized in a manner so as not to endanger the safety or property of others. 4. Surrender of Premises and Return to Previous Condition. A. OWNER agrees and understands that the Encroached Space shall be vacated at OWNER's expense upon any of the following conditions: ENCROACHMENT AGREEMENT - CITY AND I 005 WEST STREET PAGE I OF5 ---PAGE BREAK--- 1. The principal building upon the subject property is destroyed by any means to an extent of more than seventy percent (70%) of the replacement cost of the whole structure at the time of destruction; or IL The use of the principal building upon the subject property is discontinued for more than six consecutive months; or m. The parking area serving the principal building is altered, reconstructed or other wise modified; or iv. The use of the principal building is changed to a different use than existed at the time of execution of this agreement; or v. CITY delivers notice to OWNER that CITY desires said Encroached Space to be vacated at any time and for any reason. B. Following CITY's request that OWNER vacate said Encroached Space for any of the conditions listed above, OWNER shall vacate said Encroached Space within ninety (90) days of CITY's issuance of written notice to OWNER's last known address, as shown in the records of the Latah County Assessor's office. C. Should OWNER fail to vacate said Encroached Space within ninety (90) days of written notice sent by CITY requesting vacation of Encroached Space, CITY may cause said vacation without further notice to OWNER and OWNER shall be responsible for all expenses incurred by CITY in ensuring vacation of Encroached Space. D. OWNER understands and agrees that CITY shall have the unqualified right to revoke this Encroachment Agreement and demand that OWNER vacate the Encroached Space. 5. Limitation of Right. This Encroachment Agreement and the rights and privileges accruing to OWNER therefrom, shall not be construed to grant OWNER a property right, easement or any other interest in the public right-of-way, but shall only act as a revocable permission to encroach as set out in this Encroachment Agreement. CITY specifically and explicitly retains the right to enter the premises described herein. 6. Assignability Clause. Neither this Encroachment Agreement nor the rights, privileges, or obligations herein shall be assigned to any other party without prior written consent of CITY; however, such assignment shall not be unreasonably withheld by CITY as long as the party to which this Encroachment Agreement is assigned agrees in writing to abide by all obligations contained in this Encroachment Agreement. Any assignment of this Encroachment Agreement without prior written approval by CITY shall be immediately and automatically void. 7. OWNER agrees to indemnify, defend, and hold harmless CITY, and its officers, agents and employees, from and against any and all claims, losses, actions, or judgments for damages or injury to persons or property arising out of or in connection with the acts and/or any performances or activities of OWNER and related to construction and maintenance of the Encroached Space and anything within such Encroached Space and any other ENCROACHMENT AGREEMENT - CITY AND I 005 WEST STREET PAGE2 OF5 ---PAGE BREAK--- . . . encroachment in CITY right-of-way, specifically excepting any claims arising out of the negligence, gross negligence, and/or intentional acts of CITY or its officers, agents, or employees. 8. The mutual promises and covenants in this Encroachment Agreement shall constitute a covenant running with the land for the benefit of CITY, its successors and assigns, and the terms, conditions, and covenants herein shall be binding upon and shall inure to the benefit of the successors and assigns of CITY and of OWNER. IN W~NESS WHEREOF, OWNER and CITY have caused this Agreement to be executed on the _LL_ day of .SEp"f~~013. OWNER: in behalf of Joan C. Kneass 1994 Trust P 0 Box 3122 Santa Cruz, CA 95063 CITY OF MOSCOW, IDAHO ~ Director of Public Works ENCROACHMENT AGREEMENT - CITY AND ] 005 WEST STREET PAGE3 OF5 ---PAGE BREAK--- ACKNOWLEDGMENT STATE OF IDAHO ) ) ss: County of Latah ) On tbi. _l_j_ ~ay of , 201 3, before me, a Notary Public in and for • aid State, appeared Les MacDonald, Director of Public Works, known to me to be the person named above and acknowledged that he executed the foregoing Encroachment Agreement as the duly authorized representative of the City of Moscow, Idaho. a . D.«tv 11''" 'PVL,o ~ ~ ~ ~ · . : • ~ Notary Pu ic t'gt ~ l1e State ofldaho Residing at 1 lcJf.}- , , . ~ , \ = : ~ • : : = ..a.A ' : ~ · -U8\.\v / , ~n " ' . ~ ~ ~ ~'11 ~ OF My commission expires 7/f /11 ACKNOWLEDGMENT STATE OF J:AAAn County of l.Af4h ) ) ss: ) On this ~day of "SLpt. , 2013, before me, a Notary Public in and for said State, appeared Joan C. Kneass, known to me to be the person named above and acknowledged that he/she executed the foregoing Encroachment Agreement as the duly authorized agent and for and in behalf of Joan C. Kneass 1994 Trust, the exclusive and sole owner of 1005 West Street, Moscow, Idaho. JILL GRAVES NOTARY PUBLIC STATE OF IDAHO Notar Pt1bljc for the State of ;:Ji:i Residing at D1oj(DU2 My commission expiJe tJ3,2./t?' l{o ENCROACHMENT AGREEMENT - CITY AND 1005 WEST STREET PAGE40F5 ---PAGE BREAK--- , I EXHIBIT ' . Ji!: ' ·.f..:i.ill.t ' • - R/W . I ~ I STREET EXHIBIT ENCROACHMENT AGREEMENT 1005 W. STREET THE JOAN C. KNEASS 1994 TRUST March 2013 ENCROACHMENT AGREEMENT - CITY AND 1005 WEST STREET Scale: 1 "=50' PAGE 5 OF5