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ENCROACHMENT AGREEMENT 1521 PINE CONE ROAD , MOSCOW, IDAHO THIS ENCROACHMENT AGREEMENT 1521 PINE CONE ROAD, MOSCOW, IDAHO (hereinafter "Agreement"), by and between City of Moscow, Idaho, a municipal corporation of the State ofldaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and Paul and Andrea O'Sullivan, whose current address is 1521 Pine Cone Road, Moscow, Idaho, 83843, owners of property located at 1521 Pine Cone Road, Moscow, Idaho, 83843 (hereinafter "OWNER"). W I T N E S S E T H: WHEREAS, CITY is the owner of the street right-of-way within Hattabaughs's Subdivision of Lot 3 of Russell's Addition to the City of Moscow, Idaho, and WHEREAS, Paul and Andrea O'Sullivan is/are the exclusive and sole owner(s) of the premises commonly known as 1521 Pine Cone Road, and more particularly described as Lot 10 of Block 1 of The Indian Hills 3rd Addition; and, WHEREAS, OWNER desires to partially encroach upon CITY's street right-of-way by the presence of a retaining wall; and WHEREAS, CITY is willing to allow the continued presence of the retaining wall in the CITY owned street right-of-way; and WHEREAS, CITY is willing to permit such encroachments only under the terms of this Encroachment Agreement; NOW, THEREFORE, CITY and OWNER hereby agree as follows: 1. Description. CITY will permit OWNER to maintain the following described encroachments upon CITY street right-of-way to the extent and in the manner described below: A. Premises. CITY-owned steet right-of-way along the southeast property line at 1521 Pine Cone Road. B. Encroached Space. The portion of CITY's Premises (as defined in I.A., above) upon which OWNER's retaining wall 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 the Encroached Space only for the purpose of installing and maintaining the retaining wall. ENCROACHMENT AGREEMENT- CITY AND PAUL AND ANDREA O'SULLIVAN PAGE 1 0F4 ---PAGE BREAK--- 581842 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. CITY may cause said Encroached Space to be vacated at any time and for any reason at OWNER's expense, following CITY's request that OWNER 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. B. 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. C. 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 for purposes of inspection of said premises and the Encroached Space during normal business hours. 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 attempted 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 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. ENCROACHMENT AGREEMENT- CITY AND PAUL AND ANDREA 0' SULLIVAN PAGE2 0F4 ---PAGE BREAK--- 581842 IN WITNESS WHEREOF, OWNER and CITY have caused this Agreement to be executed on the 5¤day of CJr>':,&r , 2016. OWNER(S): O'Sullivan, Owner acDonald, P. E. JlJaho . H. Co no • • / k STATE OF IDAHO County of Latah s- . , · ·p • r § 0 TA R y \CP 7 = : : = \ Pueuc / ff & : :"orr,; % l m . . ' s 8 # t''11. l2 OF \v "11111111111111\\ ) ) ss: ) Notary Public for the State of Idaho Residing at MOSIPN My commission expires 3f1 o O;l.J. lh On this 13 day of (JdobH 2016, before me, a Notary Public in and for said State, appeared 61/irown to me to be the persons named above and acknowledged that they executed the foregoing Encroachment Agreement as the owner of 1521 Pine Cone Road, Moscow, Moscow, Idaho. Notary Public for the State ofldaho Residing at MOS(O{r.] , / My commission expires \j{fO {20l.2 ENCROACHMENT AGREEMENT- CITY AND PAUL AND ANDREA O'SULLIVAN PAGE 3 0F4 ---PAGE BREAK--- CRAWN BY: e. euva. BY: EXHIBIT ENCROACHMENT AGREEMENT- CITY AND PAUL AND ANDREA O'SULLIVAN 581842 PAGE4 0F4