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HomeMy WebLinkAboutSale and Purchase Agreement -, ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 SALE AND PURCHASE AGREEMENT (Partial Take) THIS SALE AND PURCHASE AGREEMENT (the "Agreement") is made and entered into this _ day of , 2002, by and between THE CITY OF MERIDIAN, (herein "SELLER"), and ADA COUNTY HIGHWAY DISTRICT (herein "ACHD"); WITNESSETH: FOR GOOD AND SUFFICIENT CONSIDERATION, IT IS AGREED: SECTION 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: (a) The term "Agreement" shall refer to this Sale and Purchase Agreement. (b) The term "ACHD" shall refer to ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, whose address is 318 East 37th Street, Garden City, Idaho 83714-6499, Attention: Marilyn Adarbeh, whose telephone number is (208) 387-6276 and whose fax telephone number is (208) 387-6380. (c) The term "Closing Agent" shall refer to Alliance Title & Escrow, 250 S. 5th Street, Suite 100, Boise, Idaho 83702. (d) The term "Closing Date" shall mean ,20 ; provided, by written addendum signed by both parties and delivered to Closing Agent, the Closing Date may be rescheduled to such date as the parties agree, and under Section 8.7 the Closing Date may also be extended, and in either event the Closing Date shall then mean such rescheduled date. (e) The term "Deed" shall mean the form of deed attached hereto as Exhibit "1." (f) The term Easements shall mean, collectively, the Permanent Slope Easement and the Temporary Construction Easement attached hereto as Exhibits "2" and "3". (g) The term "Easement Area" shall mean, collectively, the real property described on Exhibit "A" to each Easement. Sale and Purchase Agreement, Page 1 (8/20/2002) (h) The term "Exceptions to Title" shall refer to those existing exceptions to Seller's title to the Property described on Exhibit "B" to the Deed. (i) The term "Hazardous Materials" shall mean any substance, material, or waste which is regulated by any local governmental authority, the State of Idaho or the United States of America, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "PCB waste," or "restricted hazardous waste" under the Idaho Hazardous Waste Management Act of 1983; (ii) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act (33 U.S.C. 91317); or (iii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 99601(14). G) The term "Project" shall refer to the highway improvement program being undertaken by ACHD, internally known as Project Number 502005 and commonly known as Overland Road (Eagle Rd. to Meridian Rd.). (k) The term "Property" shall refer to the real property described on Exhibit "A" to the Deed. (I) The term "Purchase Price" is the amount set forth in Section 6.1. (m) The Property is a part of a larger parcel of real property owned by Seller, and the term "Remaining Property" shall refer to the remainder of the parcel of real property which will continue to be owned by Seller after this transaction is closed. (n) The term "Seller" shall refer to the above named Seller, which is a municipal corporation organized and existing under the laws of the State of Idaho, whose address is 33 E. Idaho Avenue, Meridian, Idaho 83642, whose telephone number is (208) 898-5500 and whose fax telephone number is 887-1297. SECTION 2. Recitals. 2.1. ACHD is a single county-wide highway district organized and existing under the laws of the state of Idaho, with the responsibility and jurisdiction and authority to construct and improve highways in Ada County, Idaho, and in that connection has undertaken the Project. 2.2. In lieu of condemnation and in furtherance of the Project and for the price and on the terms and conditions hereinafter set forth, ACHD desires to purchase the Property from Seller, acquire the rights of access and use of the Easement Area set forth in the Easements, and pay for any damages which may accrue to the Remaining Property and/or any eligible business located thereon by reason of its severance from the Property and the construction of the Project, and for the price and on the terms and conditions hereinafter set forth Seller is willing to sell and grant the same to ACHD and settle such damage claims, if any. SECTION 3. Aqreement to Sell and Purchase the Property. Seller hereby agrees to sell, grant and convey the Property to ACHD, and ACHD hereby agrees to purchase the Sale and Purchase Agreement, Page 2 (8/20/2002) Property from Seller, subject to the Exceptions to Title, for the Purchase Price and on the terms and conditions hereinafter set forth. SECTION 4. Aqreement to Grant Easements. Seller hereby agrees to grant the rights of access and use of the Easement areas to ACHD on the terms and conditions set forth in the Easements, and ACHD hereby agrees to purchase the same from Seller as a part of the Purchase Price and on the terms and conditions set forth in the Easements. SECTION 5. Damaqes to Remaininq Property; Release and Survival. As a part of the purchase price ACHD hereby agrees to pay andlor provide mitigation as generally described on Exhibit "4" for all damages which may accrue to the Remaining Property andlor any eligible business located thereon by reason of its severance from the Property and the construction of the Project on the Property in the manner proposed by ACHD. This paymenUmitigation is intended to be in full settlement of all claims, demands and causes of action Seller may have against ACHD for such damages. Accordingly, Seller, on Seller's behalf and on behalf of successors and assigns to the Remaining Property, hereby forever releases, discharges and acquits ACHD from any and all actions, causes of action, claims or suits for damages, losses, expenses, attorney's fees and costs of suit which Seller shall have or which in the future may arise, whether vested or contingent, at law or in equity, foreseen or unforeseen, known or unknown, and whether or not described on Exhibit "4", from or as a result of or by reason of or in connection with the severance of the Property from the Remaining Property and the construction of the Project on the Property in the manner proposed by ACHD. It is agreed this release will survive the closing under this Agreement. SECTION 6. Purchase Price: Method of Payment. 6.1. The Purchase Price to be paid by the ACHD for the Property, the Easements and for damages to the remaining property and/or any eligible business located thereon under Section 5 is TEN THOUSAND FOUR HUNDRED AND TWENTY AND NOl100 DOLLARS ($10,420.00). 6.2. The Purchase Price shall be paid by the ACHD through the Closing Agent for the account of Seller on or before the Closing Date, by the deposit with Closing Agent of ACHD's check made payable to the Closing Agent. SECTION 7. Covenant of Peaceful Possession. At the conclusion of closing, Seller covenants and agrees to grant quiet and peaceful possession of the Easement Property for the term of, and as provided in, the Easements. SECTION 8. Closinq. 8.1. The closing under this Agreement and delivery of all cash and all executed instruments and documents contemplated herein shall take place at the offices of the Closing Agent. Sale and Purchase Agreement, Page 3 (8120/2002) 8.2. On or before the Closing Date, the Seller shall deposit with the Closing Agent the following instruments and documents, each duly executed, and, where appropriate, acknowledged: (a) the Deed; and (b) the Easements; and (c) such other documents as are required to effect the agreements of the Seller herein contained. 8.3. On or before the Closing Date, the ACHD shall deposit with the Closing Agent the following: (a) its check made payable to the order of the Closing Agent for the amount of the Purchase Price as the same may be adjusted by Closing Agent's closing accounting reflecting the amount shown by the Closing Agent as necessary to pay ACHD's portion of closing costs and Seller's tax proration; and (b) such other instruments and documents as are required to effect the agreements of the ACHD herein contained. 8.4. Before the Closing Date, the Seller and ACHD shall deposit with the Closing Agent the following: (a) a true copy of this Agreement, to be executed by Closing Agent; and (b) such closing escrow instructions, consistent with this Agreement, as required by the Closing Agent, executed by ACHD, Seller and Closing Agent. 8.5. Closing Agent is authorized and directed by Seller to pay Seller's portion of the closing costs and any payments required under Section 9.1 to remove all exceptions to title to the Property which are not Exceptions to Title and by ACHD to pay ACHD's portion of the closing costs from the funds deposited with the Closing Agent by the ACHD under Section 8.3. 8.6. When, on or before the Closing Date, the Closing Agent has received the above described funds, instruments and documents and obtained the commitment of the title insurance company named in Section 9.1 to issue title insurance in the form described in Section 9.2, it will proceed to close by recording the Deed and obtaining the Owner's Policy of Title Insurance in the form contemplated by Section 9.2. Then the Closing Agent shall deliver its closing accounting, showing the prorations, applications and payments herein agreed to be made by the parties through the Closing Agent (the same having been submitted and approved by the parties prior to commencement of this closing process), and deliver the funds and documents related to this transaction in its possession as follows: Sale and Purchase Agreement, Page 4 (8/20/2002) (a) To the Seller: (1) the closing accounting; and (2) as reflected in the closing accounting, its check for the funds to be paid to Seller on completion of closing. (b) To ACHD: (1) the recorded Deed; and (2) the Easements; and (3) the Owner's Policy of Title Insurance; and (4) the closing accounting; and (5) as reflected in the closing accounting, its check for the funds, if any, to be paid to ACHD on completion of closing. 8.7. In the event the Closing Agent is unable, for any reason, to close on the Closing Date, it shall immediately notify both parties by both (i) telephone and (ii) mail or fax of the reason. The party causing the delay shall have ten (10) days from the date of the receipt of such notification in which to cure the defect or other concern, and the Closing Date shall be extended accordingly. If the defect or other concern is cured within such period or the party not causing the delay shall waive the same by written notice delivered to the other party and Closing Agent within such period, the Closing Agent shall proceed to close. Otherwise, upon receipt of its fees the Closing Agent shall return all funds and documents in its possession to the party depositing the same and the duties of the Closing Agent shall terminate. This return of the funds and documents by the Closing Agent under this Section 8.7 shall not affect the obligations of the parties under this Agreement, and the party not in default shall have all rights and remedies for default as may be applicable including, without limitation, the remedy of specific performance. SECTION 9. Title Insurance. 9.1. ACHD, at its sole cost, has already obtained, and made available to Seller, a Commitment for Title Insurance issued by Alliance Title & Escrow, Inc., dated May 30, 2002, commitment number 01094116 (the "commitment"). The commitment shows title to the Property and the Easement Areas in Seller, the Property subject only to the standard general exceptions, the Exceptions to Title and such other exceptions as can be either removed by Seller through the closing process or are acceptable to ACHD under section 9.2. Seller hereby authorizes the Closing Agent, simultaneously with closing hereunder and at Seller's sole cost and under separate escrow instructions between Seller and Closing Agent, to apply such portions of the Purchase Price as are necessary to obtain satisfactions and releases of encumbrances, terminations of any Sale and Purchase Agreement, Page 5 (8/20/2002) leases and the removal of all other exceptions to title shown on the commitment insofar as they relate to the Property. 9.2. On the Closing Date, the Closing Agent shall cause such title insurance company to issue an Owner's Policy of Title Insurance, insuring title to the Property in ACHD in the amount of that portion of the Purchase Price attributable to the value of the Property (exclusive of damages to the Remaining Property and any business located thereon, payments for the Easements, etc.), free and clear of all liens, encumbrances and other exceptions to title except the standard printed exceptions, the Exceptions to Title, exceptions shown on the commitment related to the right of units of local government, irrigation, drainage and other public districts and utilities to claim levies and assessments, where no delinquencies appear of record, and any other exceptions to title ACHD has waived by written notice delivered to the Seller and Closing Agent. The premium for this policy of title insurance shall be paid by ACHD. SECTION 10. Closinq Costs. 10.1. ACHD shall pay the following costs and expenses in connection with the Closing: (a) the costs of the recording of the Deed; and (b) the premium payable for the Owner's Policy of Title Insurance described in Section 9.2; and (c) all of the fees of the Closing Agent required to accommodate the terms and provisions of closing under this Agreement, exclusive of those described in Section 10.2(a). 10.2. Seller shall pay the following costs and expenses in connection with the Closing: (a) all costs and expenses related to obtaining the removal of all exceptions to Seller's title to the Property which are not Exceptions to Title; and (b) Seller's portion of property taxes and assessments determined under Section 11. SECTION 11. Proration of Propertv Taxes. Property taxes on the Property for the current year which are a lien but not yet due and payable shall be prorated between ACHD and Seller as of the Closing Date based on the assessed value of the Property and the assessed value of the entire parcel (the Property plus the Remaining Property), without improvements, for the year prior to closing hereunder. The Seller shall pay Seller's prorated portion to ACHD through the Closing Agent. Sale and Purchase Agreement, Page 6 (8/20/2002) SECTION 12. Access for Insoection and Indemnification: Possession. 12.1. From and after the date of this Agreement until the Deed is recorded, Seller extends to ACHD, its Commissioners, employees, contractors and agents, access to the Property and the Easement Areas during normal and customary business hours, to inspect, survey, sample and test soils and similar purposes. In exercising this right of access, ACHD will cooperate with Seller so as not to materially interfere with Seller's use of the Property or the Easement Areas, or the use of the same by tenants of Seller. ACHD hereby indemnifies and holds Seller harmless from and against any and all loss, injury, death or damage caused by or arising out of the acts or omissions of ACHD, its Commissioners, employees, contractors and agents, in their exercise of this right of access, and any attorney fees and costs that might be incurred by Seller in defending any such claim. 12.2. ACHD shall be entitled to possession of the Property from and after the date the Deed is recorded and to possession of the Easement Areas as provided in the Easements. SECTION 13. Affirmative Covenants and Warranties; Survival. 13.1. From and after the date of this Agreement until possession of the Property is delivered to ACHD, Seller covenants and agrees that Seller will: (i) refrain from creating or incurring any mortgage, lien, or other encumbrance in any way affecting the Property; (ii) not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property or the Easement Areas in violation of applicable laws; (iii) not commit any waste or allow any nuisance upon the Property or the Easement Areas; (iv) maintain and keep the Property and the Easement Areas in its present condition; and (v) observe all laws, ordinances, regulations, and restrictions affecting the Property and its use and the Easement Areas and its use. 13.2. Seller warrants that neither Seller, nor, to the knowledge of Seller, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any Hazardous Materials under, in, or about the Property or the Easement Areas, or transported any Hazardous Materials to or from the Property or the Easement Areas in violation of applicable laws. 13.3. In addition to the obligations required to be performed hereunder by Seller at the closing, Seller agrees to perform such other acts, and to execute, acknowledge, and/or deliver subsequent to the closing such other documents as ACHD may reasonably request in order to effectuate the complete consummation of the transaction contemplated herein. 13.4. These covenants and warranties by Seller shall not be merged into the Deed and shall survive the closing under this Agreement. Sale and Purchase Agreement, Page 7 (8/20/2002) SECTION 14. Attornevs' Fees. Should either party or the Closing Agent find it necessary to employ an attorney for representation in any action seeking enforcement of any of the provisions of this Agreement, or to protect its interest in any matter arising under this Agreement, or to recover damages for the breach of this Agreement, or to resolve any disagreement in interpretation of this Agreement, the unsuccessful party in any final judgment entered therein agrees to reimburse the prevailing party for all reasonable costs, charges and expenses, including attorneys' fees, expended or incurred by the prevailing party in connection therewith and in connection with any appeal, and the same may be included in such judgment. SECTION 15. Notices. Any and all notices required to be given by either of the parties hereto and/or by the Closing Agent shall be in writing and deemed delivered when either (i) delivered personally, or (ii) sent by fax by a program that will confirm fax delivery to the fax telephone number set forth in Section 1 and with a copy by First Class U. S. Mail, postage prepaid, addressed to the other party, and/or the Closing Agent at the address set forth in Section 1, or (Hi) deposited in the United States Mail, certified, return receipt requested, postage prepaid, addressed to the other party and/or the Closing Agent at the address set forth in Section 1, or such other fax telephone number or mailing address as may be provided by written notice of such change given to the other in the same manner as above provided. SECTION 16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Idaho. SECTION 17. Incorporation of Exhibits. It is agreed that all exhibits to this Agreement are incorporated by reference and made a part of the terms, provisions and covenants of this Agreement. SECTION 18. Bindinq Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, provided that no assignment of their respective rights and obligations hereunder shall be made by either party. SECTION 19. Time of Essence. All times provided for in this Agreement or in any other instrument or document incorporated herein or contemplated hereby for the performance of an act will be strictly construed, it being agreed that time is of the essence of this Agreement. SECTION 20. Entire Aqreement: Modification. This Agreement and the Exhibits attached hereto embody and constitute the entire understanding between the parties with respect to the transaction contemplated herein, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge, or termination is sought, and then only to the extent set forth in such instrument. Sale and Purchase Agreement, Page 8 (8/20/2002) SECTION 21. Warranty of Authoritv to Execute. 21.1. The person(s) executing this Agreement on behalf of ACHD represent(s) and warrant(s) due authorization to do so on behalf of ACHD, and that upon execution of this Agreement on behalf of ACHD, the same is binding upon, and shall inure to the benefit of, ACHD. 21.2. If Seller is not a natural person, the person(s) executing the Agreement on behalf of Seller represent(s) and warrant(s) due authorization to do so on behalf of Seller, and that upon execution of this Agreement on behalf of Seller, the same is binding upon, and shall inure to the benefit, of Seller. SECTION 22. Counterparts. This Agreement shall be executed in two counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day, month and year first above written. THE CITY OF MERIDIAN Tax ID No: By: By: ADA COUNTY HIGHWAY DISTRICT By: Title: Sale and Purchase Agreement, Page 9 (8/20/2002) CLOSING AGENT AGREEMENT Closing Agent hereby accepts the provisions of this Agreement which relate to closing the sale and purchase herein contemplated as set forth in Sections 3, 6, 8, 9, 10, 11 and 15 and hereby agrees to perform its responsibilities thereunder, and ACHD agrees to pay its fees for such services. After closing, Closing Agent agrees to deliver to each of the parties a copy of all the documents. Dated this day of ,2002. CLOSING AGENT By: Title: EXHIBITS "1" Deed, with legal description of Property and Exceptions to Title attached. "2" Construction Easement "3" Permanent Easement "4" Appraisal Summary/Mitigation of Damages Sale and Purchase Agreement, Page 10 (8/20/2002) ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 Exhibit "1" (Reserved for Ada County Recorder) WARRANTY DEED THIS INDENTURE, made this day of , 2002, THE CITY OF MERIDIAN, the "GRANTOR", and ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, the "GRANTEE"; WITNESSETH: FOR VALUE RECEIVED, the GRANTOR has granted, conveyed, bargained and sold, and does hereby grant, bargain, sell, convey and confirm to the GRANTEE and its successors and assigns forever, that certain real property situated in the COUNTY OF ADA, STATE OF IDAHO, more particularly described on Exhibit "A" and depicted on Exhibit "B" attached hereto and by this reference made a part hereof, TOGETHER with all and singular the buildings, structures, improvements and fixtures thereto, the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, the reversion and reversions, remainder and remainders, and rents, issues and profits thereof (the "Premises"). Subject to those exceptions to GRANTOR's title as are set forth on Exhibit "C" attached hereto and by this reference made a part hereof. SUBJECT TO those exceptions to title to which this conveyance is expressly made subject and those made, suffered or done by the GRANTEE: (a) the GRANTOR covenants to the GRANTEE, its successors and assigns, that the GRANTEE shall enjoy the quiet and peaceful possession of the Premises; and (b) GRANTOR warrants to the GRANTEE, its successors and assigns, that GRANTOR is the owner of said Premises in fee simple and has the right and authority to convey the same to GRANTEE, and GRANTOR will defend the GRANTEE's title from all lawful claims whatsoever. The current address of the GRANTEE is: Ada County Highway District 318 East 37th Street Garden, Idaho 83714-6499 Sale and Purchase Agreement, Page 11 (8/20/2002) IN WITNESS WHEREOF, this WARRANTY DEED has been duly executed by and on behalf of the GRANTOR, the day, month and year herein first above written. THE CITY OF MERIDIAN By: EXHIBIT ONL Y. DO NO SIGN. By: EXHIBIT ONL Y. DO NO SIGN. State of Idaho ) ) ss. County of Ada ) On this day of 2002, before me, a Notary Public in and for the State of Idaho, personally appeared , known or identified to me to be the (office held), and , known or identified to me to be the (office held) of the Corporation that executed this instrument or the persons who executed this instrument on behalf of said Corporation, and acknowledged to me that such Corporation executed the same. 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 Sale and Purchase Agreement, Page 12 (8/20/2002) Ada County Highway District Project No. 502005.0 RD202-01 Overland Road - Meridian Road to Locust Grove Road . Parcel 47 . Right-oC-Way Take Description A parcel located in the NE Y. oC the NW Y. of Section 19, Township 3 North, Range I East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the northeasterly comer of said NE Y. of the NW Y. from which a 5/8 inch diameter iron pin marking the northwesterly comer of said NE Y. of the NW Y. bears S 89043'25" Wa distance of 1327.75 feet; Thence S 89043 '25" W along the northerly boundary of said NE Y. of the NW Y. a distance of 179.60 feet to a point; Thence leaving said northerly boundary S 0016'35" E a distance of 45.00 feet to the POINT OF BEGINNING; Thence S 44043 '25" W a distance of28.28 feet to a point; Thence a distance of 31.42 feet along the arc of a 20.00 foot radius non-tangent curve right, said curve having a central angle of90000'00" and a long chord bearing N 44043'25" E a distance of 28.28 feet to the POINT OF BEGINNING. This parcel contains 0.003 acres (114 square feet) and is subject to any easements existing or in use. Prepared by: Glenn K. Bennett, PLS Civil Survey Consultants, Incorporated February 26, 2002 EXHIBIT "A" ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1 E, Section 19 EXCEPTIONS: Exhibit "B" SCHEDULE B - SECTION 2 ORDER NUMBER: 01094116 Alliance Title & Escrow 1. General Taxes for the year, 2001, which are liens, of which the second half is due June 20th. 2. General Taxes for the year, 2002, which are liens, but not yet due and payable. 3. Ditch, road and public utility easements as the same may exist over said premises. 4. Right of Way for EIGHT MILE LATREAL and the rights of access thereto for maintenance of said lateral. 5. An easement for the purpose shown below and rights incidental thereto as set forth in a document. Granted to Purpose Recorded Instrument No. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation RIGHT OF WAY EASEMENT DECEMBER 21, 1987 8769409 of Official Records 6. An easement for the purpose shown below and rights incidental thereto as set forth in a document. Granted to Purpose Recorded Instrument No. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation RIGHT OF WAY EASEMENT DECEMBER 14, 1988 8861298 of Official Records END OF SCHEDULE B - SECTION 2 ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 Exhibit "2" TEMPORARY CONSTRUOTION EASEMENT THIS INDENTURE, made this I day of , 2002, THE CITY OF MERIDIAN, hereinafter "GRA~TOR", and ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, hereinafter "ACHD"; I WITNESSETH: FOR VALUE RECEIVED, and for the erm and uses and on the terms and conditions hereinafter set forth, GRANTOR do s hereby grant to ACHD an easement (the "Easement") under, over, through and acr ss that certain real property owned by GRANTOR situated in the COUNTY OF AD~, STATE OF IDAHO more particularly described on Exhibit "A" attached hereto and by this reference made a part hereof (the "Servient Estate"). This grant is made on the following terms: 1. Authorized Uses Bv ACHD. ACHl.s use of the Easement granted herein shall be in connection with the construction and~mprovement of a highway on adjoining and abutting property owned by ACHD (the "Dominant Estate"), for access and egress for equipment and vehicles, for construction, ~xcavation, storage of earth and other materials thereon, for surveying, and for all oth~r reasonable uses that are necessary, advisable or convenient to ACHD in connecti~n with such highway construction and improvement project, and for ingress and egresj to and from the Dominant Estate. 2. Use bv Others Under ACHD. ACHD's right to so use the Servient Estate during the term of the Easement shall extel1d to use by ACHD's Commissioners, employees, contractors and agents. 3. Term. This Easement shall be fori a term commencing on the date of the GRANTOR's execution of this Indenture and terminating on the completion of the highway construction and improvement projeFt on the Dominant Estate. On the expiration of the term of this Easement, the rights and privileges granted to ACHD hereunder shall cease and terminate and this Elsement shall be null and void and of no fu rther force and effect. 4. Indemnification. ACHD hereby a rees to indemnify and hold GRANTOR harmless from and against any and all claims fO~ loss, injury, death and damage caused by or arising out of the use' of the Servient Estate by ACHD, its Commissioners, employees, contractors and agents, hereun er, and including, without limitation, attorneys fees and costs that might be incurre by GRANTOR in defending any such claims. Sale and Purchase Agreement, Page 13 (8/20/2002) 5. Restoration on Expiration of Term. On the expiration of the term of this Easement the Servient Estate shall be restored by ACHD, at its sole cost and expense, to at least as good a condition as existing on the date of this Indenture. 6. Bindinq Effect. This Easement, and the covenants and agreements herein contained, shall, during the entire term hereof, be binding upon and inure to the benefit of (i) ACHD AND GRANTOR, respectively, and their successors and assigns, and (ii) their respective interests in the Dominant and Servient Estates. 7. Appurtenant. The Easement herein granted is appurtenant to the Dominant Estate. TO HAVE AND TO HOLD this Easement unto the ACHD for the term hereinabove set forth. GRANTOR covenants to ACHD that ACHD shall enjoy the quiet and peaceful possession of the Servient Estate throughout the term hereof; and, (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, this Temporary Construction Easement has been duly executed by the parties, the day, month and year herein first above written. THE CITY OF MERIDIAN By: EXHIBIT ONL Y. DO NO SIGN. By: EXHIBIT ONL Y. DO NO SIGN. ADA COUNTY HIGHWAY DISTRICT By: Randy Lane, Supervisor Right-of-Way Division Exhibits: "A" Depiction of Servient Estate NO ACKNOWLEDGEMENT NEEDED. THIS EASEMENT IS NOT TO BE RECORDED Sale and Purchase Agreement, Page 14 (8/20/2002) ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 ADDENDUM TO TEMPORARY CONSTRUCTION EASEMENT The Temporary Construction Easement is signed subject to the following conditions: The Temporary Easement requirement will be reduced to preserve and protect the owner's current fence line. The manhole proposed for HS 72+50, 55R is to be constructed at HS 72+50, 37R. The trees located at HS 71+80, 50R and HS 72+19, 50R and HS 72+65, 60R are to be removed by the District during construction. End of conditions. THE CITY OF MERIDIAN By: By: ADA COUNTY HIGHWAY DISTRICT By: Randy Lane, Supervisor Right-of-Way Division PROJECT PLANS CITY OF lvlERIDIAN Project No. 502005.0 RD 202-01 Parcel 47 Ri(. CA-'r<E pU ftl>;)-€NPv'T 'r'" TC.€. EXHIBIT "A" C1.. S( 5'" ....Oy ~/ ~ = <Y ~ " 72.00 7).0 &-c/o /~ -. J " ., ....-- -,. '" NOTES - ",A._ \.Go_Q_._"-_~_"J~Q'~ ;..;"......"..~........;:OO'.'..., ,..;)"_",- ~_l"I)l,''''' ,""_C~",c,..".""''''.._:O''',I,' 1',"_ ._____ ..... 107. lAI a"_I....(~..,_sP'."'a , "_.1".-"'............;:007.'....' "J'--_SO'."'O ~~ ~~ ,. __ c...r. _ c...._...... JOb.,....~ ~:"I.' _ c......c..... __ r""'......." 0_ totllt. ~ ..~.._ "_. po., SD-"L ""'_... I. 1'06., [' 5 '--",,-_ "_ ~. '. ,- _ c.-._ ~ "'-c....... ," ......1'O6.,,{1 ~C'O"C,....O'__<>OCft.._1OlI..," 0__..,...".~,"_1OJO.,....' ~ ...-.e. . A___ .. oO<l ..._....u._ .......-.."-- ~ C<_ r>--. ~. 5P'_11=' 6s. ""'-... P_'., c_ _ _Ill '" ?'-"IO ~_...,'-IIO"_._~..,...., c:; _ _ c_. _. ('$0-"1. ,'l... "~I. ::;__ c-_ _(;",on.., __ ''''''1' e- -- ,=. ""<:. ~- .01' '"J Io<~~ c:.-... .....,.. '...-.. ""'_.. l'06.,....J E1- "'""",_"-'lIO"....J ~"__s...."",."':O"'AI ~ "..-f"_... __. 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RIW Parcel No. 47 T3N, R1E, Section 19 Exhibit "3" (Reserved for Ada County Recorder) PERMANENT SLOPE EASEMENT AGREEMENT THIS PERMANENT SLOPE EASEMENT AGREEMENT (the "Agreement"), made and entered into this _ day of , 2002, by and between THE CITY OF MERIDIAN, hereinafter referred to as "GRANTOR", and ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the state of Idaho, hereinafter referred to as "ACHD"; WIT N E SSE T H: FOR GOOD AND SUFFICIENT CONSIDERATION, IT IS AGREED: SECTION 1. Recitals. 1.1 GRANTOR owns the real property located in Ada County, State of Idaho as more particularly described on Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter the "Servient Estate"). 1.2 ACHD owns and has exclusive jurisdiction over the public rights-of-way and Highways (as used in the Agreement, the term "Highway" is as defined in Idaho Code 940-109(5)) located in Ada County, Idaho and including the Highway which adjoins the "Servient Estate" (the "Dominant Estate"). 1.3 ACHD has reconstructed and improved the Highway on the Dominant Estate and desires to obtain a slope easement on, under and across the Servient Estate in order to provide structural integrity to such Highway, and, on the terms and conditions hereinafter set forth, GRANTOR is willing to grant such easement to ACHD. SECTION 2. Grant and Authorized Use; Use not Exclusive. 2.1 On the terms and conditions hereinafter set forth, GRANTOR hereby grants to ACHD a perpetual easement on, under and across the Servient Estate for the following uses and purposes and no others: Sale and Purchase Agreement, Page 15 (8/20/2002) the construction and for the permanent placement of rock, dirt and related clean fill creating a slope supporting and holding up the adjacent Highway on the Dominant Estate (hereinafter "Slope"), and for maintenance and repair of such Slope; and access on the Servient Estate for planting of grass and other landscaping on the surface of the Servient Estate and for related Improvements. 2.2 This Agreement does not extend to ACHD the right to use the surface of the Servient Estate to the exclusion of Grantor, and ACHD's rights under this Agreement are subject to the rights of the Grantor and Grantor's guests, invitees, agents and contractors to use and enjoy the surface of the Servient Estate and the Landscaping thereon, and to irrigate and maintain the same, provided the physical integrity of the Slope is not compromised by such activities. SECTION 3. Consideration. As consideration for the grant of this Easement ACHD agrees to: (a) pay Grantor Two Thousand Two Hundred Seven and 40/100 Dollars ($2,207.40), receipt of which is hereby acknowledged; and (b) Grantor. plant and install the Landscaping on the Servient Estate, at no cost to SECTION 4. Construction and Installation. The construction of the Slope in, on and under the Servient Estate, and any repair and maintenance thereof, shall be accomplished according to good engineering practices. All costs and expenses related to the design, construction, maintenance and repair of the Slope shall be the sole responsibility and obligation of, and shall be paid by, ACHD. Provided, after the Landscaping of the Servient Estate is completed by ACHD, the costs of irrigating, weeding, fertilizing, replacing diseased and dead shrubs and plants and otherwise maintaining the Landscaping and the surface of the Servient Estate shall be at the sole cost and expense of Grantor. SECTION 5. Maintenance. 5.1 ACHD shall maintain the physical integrity of the Slope in good condition and repair and as required to satisfy all requirements of applicable laws, the policies of ACHD and sound engineering practices. The repair and maintenance of the physical integrity of the Slope shall be at the sole cost and expense of ACHD; provided if the damage to the physical integrity of the Slope is as a result of the activities of Grantor, Grantor's guests, invitees, contractors or agents, the repair shall be at the sole cost and expense of Grantor. 5.2 If the Landscaping is damaged as a result of the performance by ACHD of any repair and maintenance of the physical integrity of the Slope, at its sole cost and expense ACHD shall promptly restore the damaged Landscaping. Sale and Purchase Agreement, Page 16 (8/20/2002) SECTION 6. Compliance with the Law. In its use of the Servient Estate, ACHD hereby covenants and agrees to comply in all respects with any and all federal, state and local statutes, law, ordinances, codes, policies, rules and regulations. SECTION 7. Indemnification. ACHD hereby indemnifies and saves and holds Grantor harmless from and against any and all claims for loss, injury, death or damage, and reasonable attorney's fees and costs that may be incurred by Grantor in defending such claims, caused by or arising out of its construction of the Slope on the Servient Estate, and any repair or maintenance thereof. SECTION 8. Covenants Run with the Land. This Agreement 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 9. Exhibits. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. SECTION 10. Successors and Assians. This Agreement, the slope easement herein granted, and the covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns to the Servient and Dominant Estate. SECTION 11. Recordation. This Agreement shall be recorded in the Official Real Property Records of Ada County, Idaho. Sale and Purchase Agreement, Page 17 . (8/20/2002) IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed the day, month and year first set forth above. THE CITY OF MERIDIAN By: EXHIBIT ONL Y. DO NO SIGN. By: EXHIBIT ONL Y. DO NO SIGN. ADA COUNTY HIGHWAY DISTRICT By Randy Lane, Right of Way Supervisor State of Idaho ) ) ss. County of Ada ) On this day of , 2002, before me, a Notary Public in and for the State of Idaho, personally appeared , known or identified to me to be the (office held), and , known or identified to me to be the (office held) of the Corporation that executed this instrument or the persons who executed this instrument on behalf of said Corporation, and acknowledged to me that such Corporation executed the same. 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 Sale and Purchase Agreement, Page 18 (8/20/2002) STATE OF IDAHO) ) ss. County of Ada ) On this day of 2002, before me, , a Notary Public in and for the state of Idaho, personally appeared Randy Lane, known or identified to me to be the Supervisor of the Right of Way Division of the Ada County Highway District, the person who executed this instrument of behalf of said District, and acknowledged to me that the Ada County Highway District executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public for Idaho Residing at: My commission expires: Sale and Purchase Agreement, Page 19 (8/20/2002) ., ~ Ada County Highway District Project No. 502005.0 RD202-0l Overland Road - Meridian Road to Locust Grove Road . Parcel 47 . Permanent Easement Description An easement for roadway slope and irrigation purposes located in the NE \1.4 of the NW V. of Section 19, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the northeasterly corner of said NE Yo of the NW V. from which a 5/8 inch diameter iron pin marking the northwesterly co:mer of said NE V. of the NW V. bears S 89043'25" W a distance of 1327.75 feet; Thence S 89043 '25" W along the northerly boundary of said NE V. of the NVI V. a distance of 179.60 feet to a point; Thence leaving said northerly boundary S 0016'35" E a distance of 45.00 feet to the POINT OF BEGINNING; Thence S 44043'25" W a distance of7.64 feet to a point; Thence N 89043 '25" E a distance of 80.11 feet to a point; Thence S 0016'35" E a distance of 14.00 feet to a point; Thence N 89043 '25" E a distance of 20.19 feet to a point; Thence S 66038'46" E a distance of 29.04 feet to a point; Thence S 0016'35" E a distance of 13.74 feet to a point; Thence N 89043 '25" E a distance of 17.15 feet to a point; Thence N 0035' 12" E a distance of44.79 feet to a point; Thence S 89043 '25" W a distance of 139.32 feet to the POINT OF BEGINNING. This parcel contains 0.052 acres (2,264 square feet) and is subject to any easements existing or in use. Prepared by: Glenn K. Bennett, PLS Civil Survey Consultants, Incorporated February 26, 2002 EXHIBIT "AU ACHD Project No. 502005 Over/and Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 Exhibit "4" APPRAISAL SUMMARY MITIGATION OF DAMAGES Take Area . 114 Sq. Ft. @ $3.90 Sq. Ft.:...................................................................... $ 445 Take Area Improvements · Landscaping ...... ... ... ............ ..... ... ... ... ... ......... ...... .... ... .......$7,635 · Landscape Timbers (12 @ $24.00 each) ..........................$ 288 Total for Improvements ................................................................................... $ 7,923 Permanent Easement Area · 2,264 Sq. Ft. @ $3.90 per Sq. Ft. x 25% .................................................. $ 2,207 Temporary Easement Area · 950 Sq. Ft. @ $3.90 per Sq. Ft. @ 12% for one year................................ $ 445 TOTAL FAIR MARKET VALUE ..................................................................... $11,020 COMPENSATION REDUCED TO MITIGATE DISTRICT EXPENSE FOR TREE REMOVAL. SEE TCE ADDENDUM. =-.$ 600 TOTAL COMPENSATION $ 10,420 Sale and Purchase Agreement, Page 20 (8/20/2002) ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 (Reserved for Ada County Recorder) WARRANTY DEED THIS INDENTURE, made this day of , 2002, THE CITY OF MERIDIAN, the "GRANTOR", and ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, the "GRANTEE"; WITNESSETH: FOR VALUE RECEIVED, the GRANTOR has granted, conveyed, bargained and sold, and does hereby grant, bargain, sell, convey and confirm to the GRANTEE and its successors and assigns forever, that certain real property situated in the COUNTY OF ADA, STATE OF IDAHO, more particularly described on Exhibit "A" and depicted on Exhibit "B" attached hereto and by this reference made a part hereof, TOGETHER with all and singular the buildings, structures, improvements and fixtures thereto, the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, the reversion and reversions, remainder and remainders, and rents, issues and profits thereof (the "Premises"). Subject to those exceptions to GRANTOR's title as are set forth on Exhibit "C" attached hereto and by this reference made a part hereof. SUBJECT TO those exceptions to title to which this conveyance is expressly made subject and those made, suffered or done by the GRANTEE: (a) the GRANTOR covenants to the GRANTEE, its successors and assigns, that the GRANTEE shall enjoy the quiet and peaceful possession of the Premises; and (b) GRANTOR warrants to the GRANTEE, its successors and assigns, that GRANTOR is the owner of said Premises in fee simple and has the right and authority to convey the same to GRANTEE, and GRANTOR will defend the GRANTEE's title from all lawful claims whatsoever. The current address of the GRANTEE is: Ada County Highway District 318 East 37th Street Garden, Idaho 83714-6499 Sale and Purchase Agreement, Page 11 (8/20/2002) IN WITNESS WHEREOF, this WARRANTY DEED has been duly executed by and on behalf of the GRANTOR, the day, month and year herein first above written. THE CITY OF MERIDIAN By: By: State of Idaho ) ) ss. County of Ada ) On this day of , 2002, before me, a Notary Public in and for the State of Idaho, personally appeared known or identified to me to be the (office held), and , known or identified to me to be the (office held) of the Corporation that executed this instrument or the persons who executed this instrument on behalf of said Corporation, and acknowledged to me that such Corporation executed the same. 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 Sale and Purchase Agreement, Page 12 (8/20/2002) Exhibit "B" ACHD Project No. 502005 Overland Road (Eagle Rd. to Meridian Rd.) RIW Parcel No. 47 T3N, R1E, Section 19 EXCEPTIONS: SCHEDULE B - SECTION 2 ORDER NUMBER: 01094116 Alliance Title & Escrow 1. General Taxes for the year, 2001, which are liens, of which the second half is due June 20th. 2. General Taxes for the year, 2002, which are liens, but not yet due and payable. 3. Ditch, road and public utility easements as the same may exist over said premises. 4. Right of Way for EIGHT MILE LA TREAL and the rights of access thereto for maintenance of said lateral. 5. An easement for the purpose shown below and rights incidental thereto as set forth in a document. Granted to Purpose Recorded Instrument No. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation RIGHT OF WAY EASEMENT DECEMBER 21,1987 8769409 of Official Records 6. An easement for the purpose shown below and rights incidental thereto as set forth in a document. Granted to Purpose Recorded Instrument No. THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation RIGHT OF WAY EASEMENT DECEMBER 14,1988 8861298 of Official Records END OF SCHEDULE B - SECTION 2 Ada County Highway District Project No. 502005.0 RD202-01 Overland Road - Meridian Road to Locust Grove Road . Parcel 47 . Right-of-Way Take Description A parcel located in the NE Yo of the NW Yo of Section 19, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the northeasterly comer of said NE V. of the NW V. from which a 5/8 inch diameter iron pin marking the northwesterly comer of said NE V. of the NW Yo bears S 89043'25" W a distance of 1327.75 feet; Thence S 89043 '25" W along the northerly boundary of said NE V. of the NW V. a distance of 179.60 feet to a point; Thence leaving said northerly boundary S 0016'35" E a distance of 45.00 feet to the POINT OF BEGINNING; Thence S 44043'25" W a distance of28.28 feet to a point; Thence a distance of 31.42 feet along the arc of a 20.00 foot radius non-tangent curve right, said curve having a central angle of 90000'00" and a long chord bearing N 44043'25" E a distance of 28.28 feet to the POINT OF BEGINNING. This parcel contains 0.003 acres (114 square feet) and is subject to any easements existing or in use. Prepared by: Glenn K. Bennett, PLS Civil Survey Consultants, Incorporated February 26, 2002 EXHIBIT "A"