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562740 ENCROACHMENT AGREEMENT 904 EAST WHITE AVENUE, MOSCOW, IDAHO THIS ENCROACHMENT AGREEMENT 904 EAST WHITE A VENUE, MOSCOW, IDAHO (hereinafter "Agreement") entered into the~ day of N OUfht-/u,, 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 P&D L.L.C., an Idaho Limited Liability Company, whose current address is 872 Troy Highway, Suite 180, Moscow, Idaho, 83843 (hereinafter "OWNER"), owner of property located at 904 East White Avenue, Moscow, Idaho, 83843. WITNESSETH: WHEREAS, CITY is the owner of the White Avenue right-of-way, within theWhite's Acre Addition to the City of Moscow, Idaho, south of the premises located at 904 East White A venue; and WHEREAS, OWNER is the exclusive and sole owner of the premises commonly known as 904 East White Avenue in the White's Acre Addition Subdivision; and, WHEREAS, OWNER desires to partially encroach upon CITY's White Avenue right-of-way by the presence of a wood/masonry fence and asphalt paving; and WHEREAS, CITY is willing to allow the continued presence of the fence and asphalt paving on White Avenue 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 right-of-way to the extent and in the manner described below: A. Premises. CITY-owned property described as the White A venue right-of-way contiguous with the length ofOWNER's property at 904 East White Avenue. B. Encroached Space. The portion of CITY's Premises (as defined in l.A., above) upon which OWNER's fence and asphalt paving are constructed, 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 fence and asphalt paving). ENCROACHMENT AGREEMENT - CITY AND KELLY ISAKSON PAGE 1 OF4 I~ ---PAGE BREAK--- . ' 562740 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 and at OWNER's expense following CITY's request that OWNER vacate said Encroached Space and 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 ENCROACHMENT AGREEMENT - CITY AND KELLY ISAKSON PAGE20F4 ---PAGE BREAK--- 562740 . 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 ~ESS WHEREOF, OWNER and CITY have caused this Agreement to be executed on the ~ day of 2013. OWNER: CITY OF MOSCOW, IDAHO ~ Director of Public Works ACKNOWLEDGMENT STATE OF IDAHO ) ) ss: County of Latah ) th On this L day of IJ~vef)(.,~ , 2013, before me, a Notary Public in and for said 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. L. 111 1~ ~ ~ S ' · · § · ~ g t~OTARI''-. s ~cffi~dabo Residing at ~ Httf.e.41 - II • - - . . - % \ PUBL\C / ; My commission expires q- 7 d-01 7 ~ . ~ 0 1'.1. 111,, OF 11111111111\\\\\\ STATE OF IDAHO ) ) ss: County of Latah ) ACKNOWLEDGMENT On this ~ay of Ako~ , 2013, before me, a Notary Public in and for said State, appeared Kelly Isakson, known to me to be the person named above and acknowledged that he/she executed the foregoing Encroachment Agreement as the authorized Agent for P&D L.L.C., the exclusive and sole owner of904 East White Avenue, Moscow, Idaho. \ \\\\\11111/ ~fl. L. . ~ . . ~ : 0 TA /1 °i . - : = · PUBL\C / j . . . ~ ~ "111, t f: OF 1111111111111\\\\\ ENCROACHMENT AGREEMENT - CITY AND KELLY ISAKSON PAGE 3 OF4 ---PAGE BREAK--- d . EXHIBIT Parcel Boundary Existing Fence SCALE: 1 , = 40, CITY OF MOSCOW DATE: ENGINEERING DEPARTMENT DRAWN EXHIBIT OCTc::JBER 16, 201 3 BY: C. EDWARDS MOSCOW, IDAHO CHK'D , BY: ENCROACHMENT AGREEMENT - CITY AND KELLY ISAKSON Note: This property has not been surveyed. LocaUons assumed from visual inspection, field measurements and aerial photos. DRAM< DATI!: BY: 904 White Ave Encroachment.dwg PAGE40F4