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Home My WebLink AboutROW Esmnt for Creamery Alley MAYOR Tammy de Weerd CITY COUNCIL MEMBERS Keith Bird Joseph W. Borton Shaun Wardle Charles M. Rountree / --f:'f !i£ cM'e;;di~n- - IDAHO City Attorney/HR Department 703 N. Main Street Ph.# 898-5506/Fax 884-8723 --';'-t. - "{, 'I' \1 V " / William LM. Nary City Attorney/HR Director Ted W. Baird Deputy City Attorney RECEIVED To: Mayor and City Council From: Ted Baird, Deputy City Attorney MAY 0 8 2006 Re: Right of Way Easement as Condition of ACHD Creamery Alley VaJ;fl..tio» '.. Date: May 8 2006 lJ~ty uf Mendian , City Clerk Office Please pull this item from the May 9. 2006 consent item and add it as item 6(C)(2) under the Lee:al Department Report. The attached draft easement is being required by ACHD as a condition of the Creamery Alley Vacation. ACHD does not favor vacating part of an alley unless circulation and connectivity are provided. The easement allows the public to use the drive aisle of the City parking lot to provide access between the end of the public alley and Broadway Avenue. Here are the key provisions of the easement: 1. The easement is non-exclusive and is not intended to interfere with the parking uses that currently take place on the City's property. 2. A relocation provision has been reserved in the event that the future development of the properties on the block (or the proposed land trade) necessitates moving the easement. 3. The City is not required to make any additional improvements to the parking lot, and the City agrees to continue its obligation to maintain and repair the surface of the lot. 4. Indemnification is mutual, based on ACHD's right-of-way use and the City's parking lot use. 5. The easement automatically tenninates in the event that the balance of the alley is vacated. This draft is currently being reviewed by ACHD' s legal department. We intend to have the final document on the Meridian City Council consent agenda at the May 16, 2006 meeting on order to meet ACHD's May 17 deadline for presentation of findings to the ACHD commission. PUBLIC RIGHT-Of-WAY EASEMENT THIS PUBLIC RIGHT-OF-WAY EASEMENT (the "Easement"), is made and entered into this - day of ,2006, by and between The City of Meridian, an Idaho Municipal Corporation, hereinafter referred to as "Grantor," and the ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, hereinafter referred to as "ACHD." WITNESSETH: FOR GOOD AND SUFFICIENT CONSIDERATION, IT IS AGREED: SECTION 1. Recitals. 1.1 Grantor owns the real property located in Ada County, Idaho more particularly described as Lots 20 and 21 of the Amended Plat of Block No.1 of the townsite of Meridian located in the SW X of Section 7, T3N, R1 E, Ada County, Idaho; Tax Parcel Number R5672000140; commonly referred to as the public parking lot located at 55 E. Broadway Avenue and depicted on Exhibits "A-1" and "A-2" attached hereto and by this reference incorporated herein (hereinafter "Servient Estate"). 1.2 ACHD has jurisdiction over the public rights-of-way and highways in Ada County, Idaho, and those which adjoin and are adjacent to the Servient Estate (hereinafter the "Dominant Estate"). 1.3 ACHD is vacating a portion of the alley in Block No.1 of the Meridian townsite, specifically the portiones) in or adjacent to Lots 1 through 9, depicted on Exhibit "A-1" as "Parcel 1" and "Parcel 2" (hereinafter referred to as the "Creamery Alley Vacation"). The portion of the alley located in or adjacent to Lots 10 through 15 shall remain open to the public. 1.4 The Servient Estate is a developed public parking lot and is adjacent to the terminus of the portion of the alley to remain open to the public. 1.5 As a condition of approving the Creamery Alley Vacation, ACHD desires to obtain an easement and public right-of-way on, over and across the Servient Estate to provide access, connectivity, and circulation between the terminus of the alley and E. Broadway avenue, and for the purposes hereinafter described, and, for the consideration and on the terms and conditions hereinafter set forth, Grantor is willing to grant such easement and public right-of-way to ACHD. Right-of-Way Easement, page 1 SECTION 2. Grant and Authorized Use; Non-exclusive Easement; Relocation. 2.1 2.2 2.3 Grantor hereby grants to ACHD a non-exclusive easement for a public right-of-way on, over, under and across the Servient Estate for use by ACHD and the public, including but not limited to, members of the public driving vehicles, those who are pedestrians (as defined in Idaho Code, section 49-117) and those who are bicyclists, and for ingress and egress for utilities to exercise their statutory rights to use the public right-of-way, if any. The easement is being granted as a blanket easement on the Servient Estate and is not intended to interfere with the public parking uses thereon. The parties anticipate that the public right-of-way uses will take place in the drive aisle in the middle of the Servient Estate. Because the parcels to the East and West of the Servient Estate are expected to undergo redevelopment in the near future which may affect the configuration of the public parking on the Servient Estate, Grantor hereby reserves the right to relocate the Easement upon the Grantor's property upon thirty days' prior written notice to ACHD. The parties then agree to execute, deliver and record an amendment to this document to evidence the relocation. SECTION 3. Improvements; Repair and Maintenance. 3.1 3.2 ACHD acknowledges that the improvements on the Servient are sufficient for the purposes of this non-exclusive easement and that no additional construction shall be required by Grantor. Grantor agrees to maintain and repair the improvements at its sole cost and expense. SECTION 4. Indemnification. Subject to the provisions of, and limits of liability set forth in, the Idaho Tort Claims Act, ACHD shall indemnify and hold harmless Grantor from and against all claims, actions or judgments and expenses (including, without limitation, reasonable attorneys' fees incurred by Grantor in defense thereof) for damages, injury or death caused by or arising out of the public's use of the Servient Estate for the purposes set forth in this Easement. Right-of-Way Easement, page 2 Subject to the provisions of, and limits of liability set forth in, the Idaho Tort Claims Act, Grantor shall indemnify and hold harmless ACHD from and against all claims, actions or judgments and expenses (including, without limitation, reasonable attorneys' fees incurred by Grantor in defense thereof) for damages, injury or death caused by or arising out of the public's use of the Servient Estate for the purposes of a public parking lot. SECTION 5. Attornevs Fees and Costs. In any suit, action or appeal therefrom to enforce or interpret this Easement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees. SECTION 6. Term: ExtinQuishment. The term of this Easement is perpetual, unless amended or terminated by mutual agreement of the parties. However, this Easement shall automatically terminate in the event that the remaining alley in Block 1 of the Meridian townsite is ever vacated, because the essential purpose of this Easement shall no longer exist. SECTION 7. Covenants Run with the Land. Throughout the term of this Easement, it shall be a burden upon the Servient Estate and shall be appurtenant to and for the benefit of the Dominant Estate, and shall run with the land. SECTION 8. Exhibits. All exhibits attached hereto and the recitals contained herein are incorporated as if set forth in full herein. SECTION 9. Notices. All notices given pursuant to this Easement shall be in writing and shall be given by personal delivery, by United States Mail Certified, Return Receipt Requested, or other established express delivery service (such as Federal Express), postage or delivery charge prepaid, addressed to the appropriate party at the address set forth below. Grantor: City of Meridian, Attention City Clerk 22 East Idaho Avenue Meridian, Idaho 83642 ACHD: Ada County Highway District 3775 Adams Street Garden City, Idaho 83714-6499 SECTION 10. Recordation. This Easement shall be recorded in the Official Real Property Records of Ada County, Idaho. Grantor covenants to ACHD that ACHD shall enjoy the quiet and peaceful possession of the Servient Estate for the non-exclusive purposes granted herein; and, Right-of-Way Easement, page 3 (b) Grantor warrants to the ACHD that Grantor is lawfully seized and possessed of the Servient Estate and has the right and authority to grant this Easement to ACHD. IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed the day, month and year first set forth above. Grantor CITY OF MERIDIAN by Tammy de Weerd, Mayor Attest, City Clerk ADA COUNTY HIGHWAY DISTRICT by William J. Schweitzer, Director EXHIBIT LIST Exhibit "A" - Page 1 - Depiction of Servient Estate on Amended Plat Exhibit "A" - Page 2 - Aerial depiction of Servient Estate. Right-of-Way Easement, page 4 State of Idaho ) ) ss. ) County of Ada On this , in the year 2006, before me, , a Notary Public in and for the State of Idaho, personally appeared Tammy de Weerd and William Berg, know or identified to me to be the Mayor and City Clerk of the City of Meridian, Idaho, the persons who respectively executed and attested this instrument on behalf of said municipal corporation, and acknowledged to me that such municipal corporation executed the same. day of IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Notary Public for the State of Idaho Residing at , Idaho My Commission expires State of Idaho ) ) ss. ) County of Ada On this , in the year 2O_, before me, , a Notary Public in and for the State of Idaho, personally appeared William J. Schweitzer, know or identified to me to be the Director of the Ada County Highway District, the person who executed this instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. day of IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Notary Public for the State of Idaho Residing at , Idaho My Commission expires Right-of-Way Easement, page 5 -- Nf"..w 11~ '.I' l~ ¡I~ "'_..~ <. ØIOO.4D""'1' AOE:M£ ,,~"'. ~'! -------------~~~-------------, 'I . ..-'8""" t: [I '.- '"". "~'" '0' I I I 8 I ¡~ @ 8 @ \Ill I'} 6 @@ @J @ ø @~ ¡ . , ~ !~ J ~j : ¡ ¡ I I I Ik ¡' ~:. ¡ - ----. -_J , I ~, ~I I I ~I I, ~ I , I ¡~ I I '.. , ~I I Exhibit "A" - Page 1 Depiction of Servient Estate on Amended Plat ,,' . ;, \ .. :" ¡:;: ~ :0:' ~ ø à 2 ø t @ ~.. ~ e . ø ø e ø ø ø 0 ø~ €I ~ @ @ @ II S ;¡ !! à :¡ . awl" C ~ ""'T ~ - - - _---_EN/"- - - - ~ ~~... ID' S.. 11" I II ¡ , ~ a NOR/HtIH. T l>/.4C1r$ - P.4CIF/C Ji'M. IiDNJ 1 - - ---- -- .....-- - - ---- -,--,--- - ---- Right-of-Way Easement, page 6 Exhibit "AU - Paae 2 Aerial deDiction of Servient ~ Ada County Internet Mapping This map i; a use, generated ;tatic oulput from an Inlemel mapping sile and is for 9"no'al ,efe,ene<! only, Data layers that appea' on Ihi. map mayor may not bA a='ale. cu".nt. or 0111....108 "'~ab.- TIil5 MAP IS NOT TO BE USED FOR NAVIGATION. Use and di<lrÎhution 01 Ihi. map subject to dlsclai""" no!i"". at www.adaoou"'YasO8ssor,org. Right-of-Way Easement, page 7