HomeMy WebLinkAboutAccess Reservation AgmtPage 1 of 2
Tara Green
From: Sonya Wafters
Sent: Friday, August 22, 2008 2:58 PM
To: Tara Green; Machelle Hill; Nancy Radford; Jaycee Holman
Subject: FW: Shops at Victory
Attachments: Access Reservation Agreement.PDF
From: Deborah E. Nelson [mailto:den@givenspursley.com]
Sent: Thursday, August 21, 2008 5:17 PM
To: Sonya Wafters
Cc: Bill Nary; Tamara Thompson'; 'Greg Goins'
Subject: FW: Shops at Victory
Sonya,
The copy that has been provided to the City (and is attached here for your convenience) is the final, fully-
executed agreement between ACHD and the Axelrod Living Trust. It is executed by both parties on page 10. All
subsequent pages of the agreement are merely exhibits that need not be signed by either party. The fact that one
party but not the other actually signed the exhibits does not affect the validity and enforceability of the agreement.
It is not clear to me why the parties signed a version of the agreement showing tracked changes but that is the
form they chose to make final, and the format does not render the contract invalid.
Please feel free to contact me with any questions,
Deb
Deborah E. Nelson, Esquire
Givens Pursley LLP
601 W. Bannock St.
P.O. Box 2720
Boise, Idaho 83702
phone: (208) 388-1200
fax: (208) 388-1300
website: www.givenspursley.com
CONFIDENTIALITY NOTICE: This a-mail contains confidential information that is protected by the attorney-client
and/or work product privilege. It is intended only for the use of the individual(s) named as recipients. If you are
not the intended recipient of this a-mail, please notify the sender, and please do not deliver, distribute or copy this
e-mail, or disclose its contents or take any action in reliance on the information it contains.
From: Sonya Wafters [mailto:watterss@meridiancity.org]
Sent: Wednesday, August 20, 2008 11:00 AM
To: Tamara Thompson
Subject: Shops at Victory
If you have a final purchase ~ sale agreement from Charles Axelrod with ACHD it would probably be good for you
8/22/2008
Page 2 of 2
to submit that before the Council meeting. The one the City has is a draft version.
Thx!
sow~a wafters
CITY OF MERIDIAN
Planning Department
660 E. Watertower Street, Ste. 202
Meridian, Idaho 83642
208.884.5533 ph. / 208.888.6854 fax
8/22/2008
SALE AND PURCHASE AGREEMENT
(Partial Take)
THIS SAL~AN PURC ASE AGREEMENT (the "Agreement") is made
and entered into this~J ~y of , 2006, by and between the Axelrad
Living Trust, (herein "SELLER"), and DA COUNTY HIGHWAY DISTRICT (herein
"ACRD"); ' ,
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 tent "ACRD" shall refer to ADA COUNTY HIGHWAY DISTRICT, a
body politic and corporate of the State of Idaho, ,whose address is 3775 Adams Street,
Garden City, Idaho 837146499, ~Attentlori: Kathy Smith, whose telephone number is
(208) 387-6275 and whose fax telephone number is (208) 387-6393.
(c) The term "Closing Agent" shall refer to Pioneer Title Company, 8151 W
Rifleman, Boise, Idaho, 83704. The Escrow Agent will be Kathy Coontz, whose
telephone number is (208) 377-2700.
(d) The term "Closing Date" shall mean ,a date no later than.August 91 2006;
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 7.7 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
u1 •n
(f) The term "Easements" shall mean, collectively, the Permanent Slope/Cut
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.
(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.
Sale and Purchase Agreement, page 1
{ 12/28!01)
{i) The term "Hazardous Materials" shall mean any substance, material, or
waste which is regulated as hazardous lay any federal, state andlor local governmental
authority.
tj) The term "Project" shalt refer to the highway improvement program being
undertaken by ACHD, internally known as Projec# Number 303094 and commonly
known as Victory and Eagle Intersection Project.
{k) The term "Property" steal! refer to the real property described on Exhibit
"A" to the Deed.
(f) The Property is a part of a larger parcel of rest 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, and
shall include the Easement Area.
{m) The term "Setter" shall refer to the above named Setter, the sole trustee of
which is Charles D. Axelrod, a resident of the state of California, whose address isiMo6~
~, Beverly Hilts, CA 90212, and whose telephone number is
and whose fax number is
Setter is represented by Attorney a# Law, whose address i
SECTION 2. ctt ts.
2.9. ACHD is a single county-wide highway district organized and existing
under the laws of the sta#e 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 as
described in the Easement{s), 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 Protect, and for the price and
on the terms and conditions hereinafter set forth SeAer is willing to seN and grant the
same to ACRD and settle such damage claims, if any.
SECTfO,~L 3. A r ement to Sell and P rcha a the Pro ert and Gr n# Ea ement s .
For the purchase price reflected in Section 5.9 and on Exhibit "A" attached hereto and
on the terms and conditions hereinafter set forth, Seller hereby agrees to self, grant and
convey the Property and grant the rights of access and use of the Easement Area to
ACHD, and ACHD hereby agrees to purchase the Property, subject to the Exceptions to
Title, and acquire the rights set forth in the Easement(s) from Seller.
Sate and Aurchase Agreement, page 2
(12/28/09 )
SECT(QN 4. Sattlemant_ of Damages to Remaining Pror~erty Release and Survival.
The parties agree tha# the purchase price set forth in Section 5 includes reimbursement
for any and all damages which,shaii have accrued to the Seller's Remaining Property
and/or any eligible business located thereon by reason of: (i} its severance from the
Property, (ii) the Easements thereon, and (iii} the construction of the Project on the
Property and Easement Area(s) in the manner proposed by ACRD, and that this
payment is in full settlement of all claims, demands and causes of action Seiler may
have against ACRD for such damages.
Accordingly, Seller hereby forever releases, discharges and acquits AGHD from any-
and all ac#lons, causes of action, claims or suits for damages, dosses, expenses,
attorney's fees and costs of suit which Seller shat! have, xo the Seifer's Remaining
Properfy and/or any eligible business located thereon from or as a result of or by
reason of or in connection with: (i) the severance of the Property from the
Remaining Property, (ii) the Easement(s) thereon, and (iii) the construction of the
Project on the Property and Easement Areas} in the manner proposed by ACRD. It
is agreed this release will survive the closing ender this Agreement. This does not
rc.ie~~e Af'Ll114. It..Aaa.. A_ __.. _i_.___ _ _ _ _. __
a : re air or maintenance thereof b or u der the authority of ACND which may
occur subsequent to the sianina of this Agreement
SECTION 5. Purchase Price; M@thod of Pavmen,~.
5.1. The purchase price to be paid by the ACRD for the Property and for the
rights of access and use of the Easement Area set forth in the Easement(s) and for any
severance or business damages to the Remaining Property of SeNer is
+~uirilllll~r ~
~~~~
5.2. The purchase price shall be paid by the ACRD through the Closing Agent
for the account of Salter on or before the Closing Date, 6y the deposit with Closing
Agent of ACHD's check made payable to the Closing Agent.
SECTION 6. Possession. ACND shall be entitled to quiet and peaceful possession of
the Property on the recording of the peed, and of the Easement Area as providod in the
Easement(s).
SECTION 7. !sin ,
7.9. The closing under this Agreement and delivery of all cash and ail
executed instruments and documents contemplated herein shall take place at the
offices of the Closing Agent.
Deletedt may ~~~
Trotmattetit Tndent: Left: 0.25"
Deleted: or vhtieh in the rWwe mey
arse,
Commeat[mjhijt.~sdiuulsed ~irh
Steve. Ibis tayta 6hanened to address the
liability caused by acei~ties ml tiu
Easements which aererrotcovaed in
those athera~•aements.
Deletedt q
Sala and Purchase Agreement, page 3
(12/28/01)
7.2. On or before the Closing Date, the Seller shall deposit with the Closing
Agent the following instruments and documents, each duly execu#ed, and, where
appropriate, acknowledged:
{a) the peed;
(b) the Easement(s); and
(c) such other documents as are required to effect the agreements of the
Seller herein con#ained.
7.3. On or before the Closing Date, the ACRD shall deposit with the Closing
Agent the following:
(a} i#s check made payable to the order of 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 ACRD herein contained.
7.4. Before the Closing Date, the Seller and ACRD shall deposit with the
Closing Agent the following:
(a) a true copy of this Agreement, fo be executed by Closing Agent;
and
as required bythe Closing Agentg, executed by ACHD, Seller and C o+s ng AgentreBmenf,
7.5. Closing Agent is authorized and directed by Seller to pay Seller's portion
of the closing costs and any payments required under Section 8.1 to remove all
exceptions to title to the Property which are not Exceptions to Title and by ACRD to pay
ACND's portion of the closing costs from the funds deposited with the Closing Agent by
ACRD under Section 7.3.
7.6. 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 8.1 to issue title insurance in the form
described in Section 8.2, it wilt proceed to close by recording the Deed and obtaining
the Owner's Policy of Title Insurance In the form contemplated by Section B.Z. Then
the Dosing Agent steal! deliver ifs closing accounting, showing the prorations,
applications and paymen#s herein agreed to be made by the parties through the Closing
Agent (the same having been submitted and approved by the parties prior to
Sale and Purchase Agreement, page 4
(92!28104)
commencement of this closing process), and deliver the funds and documents related
to this transaction in ifs possession as follows:
(a} To the Seller:
{1} the closing accounting; and
(2} as reflected in the closing accounting, funds to be paid to Seiler on
completion of closing shall be sent by wire transfer pursuant to
instructions provided by Speller but if Seiler fails to provide said transfer
instructions, then by check. ire transfer fees will be born by ACRD for
sending wire and Seiler far receiving wire
(b) Ta ACHD:
(1) the recorded Deed;
(2) the Easement(s);
(3} the Owner's Rolicy of Title #nsurance;
(4) the closing accounting; and
(5) as reflected in the closing accounting, its check for the funds, if
any, to be paid to ACRD on completion of closing.
7.7. In the event the Closing Agent is unable, for any reason, to cbse an the
Closing Date, it shall immediately notify both parties by both (i) telephone and (ii) malt
or fax of the reason. The parry 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 concem, and the
Closing pate shall be extended accordingly. If the defect or other concem 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. Ofherwise, 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 7.7 shalt not affect the obligations
of the parties under this Agreement, and the party not in default shall have ail rights and
remedies for default as may be applicable including, without limitation, fhe remedy of
specific performance.
SECTION B. Title insurance.
Deleted: ils ehedc for the
Deleted: §
Deletedi 1
.~.d-_-..-.~~„
DeleReds
Sale and Purchase Agreement, page 5
{ 12/28/01)
8.1. ACRD, afi its sole cost, has already obtained, and made available to
Seller, a Commitment for Title insurance issued by Pioneer Title Company, dated July
2, 2004, commitmen# number 237421 (the "commitment°}. The commitment shows title
to the Property and the Easement Area in Seller, the Property subject only to the
standard general exceptions, the Exceptions to Ti#le and such other exceptions as can
be either removed by Seller through the closing process or are acceptable to ACRD
under Section 8.2. Seller hereby authorizes the Closing Agent, simultaneously with
closing hereunder and at Seller's sole cosy and under separate escrow Enstrucfions
between Seiter and Closing Agent, to apply such portions of the purchase price as are
necessary to obtain satisfactions and releases of encumbrances, terminations of any
leases and the removal of afi other exceptions to title shown on the commitment insofar
as they relate to the Property.
8.2. On the Closing Date, the Closing Agent shall cause such title insurance
company to issue an Owner's Policy of Title Insurance (upon notice to Closing Agent
and Seiler, at ACHD's option and at its sole cosf and expense, such policy may contain
extended coverage endorsements), insuring title to the Property in ACRD 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 (hereon, payments far
the Easement{sj), free and clear of all liens, encumbrances and other exceptions to title
except the standard general exceptions, the Exceptions to Title and exceptions shown
on the commitment related to the right of units of local government, irrigation, drainage
and other public d'+stricts and utilities fo claim levies and assessments, where no
delinquencies appear of record, and any other exceptions fo title ACRD has waived by
written notice delivered to tl7e Seller and Closing Agent. The premium for ibis policy of
title insurance shall be paid by ACRD.
SECTION 9. Closing Costs.
9.1. ACRD shall pay the following costs and expenses in connection with the
Closing:
(a) the costs of the recording of the Deed;
(b) the premium payable for the Owner's Policy of Title Insurance described
in Section 8.2; and
(c) all of the fees ofi the Closing Agent required to accommodate the terms
and provisions of closing under this Agreement, exclusive of those described in
Section 9.2(a).
(d) ail caas, electric and yard maintenance expenses paid by Seller or Seller's
A ent from A nl 1 2005 throu h t e month of closin • and if the closin occurs
in the middle of env month. the prior months charges shalt be pro-rated
Sale and Purchase Agreement, page 6
{7 2128101 }
9.2, Seiler shall pay the following costs and expenses in connection with the
C€osing:
{a) All casts and expenses related to obtaining the removal of a!I except€ons
to Seller's title to the Property which are not Exceptions to Title, except that
Seller shall have the riaht to opt out of this Agreement should there be costs
Greater than Seller deems u2reasonable and
(b) Seller's portion of property faxes and assessments determined under
Section 10.
SECTION 1 Q. Proraflorl of Prone y Taxes. Property taxes on the Property for the
current year which are a lien but not yet due and payable shalt be prorated between
ACRD and Seller as of the Cfos€ng 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 pr€or to closing hereunder. The Seller shall pay the
Closing Agent the Seller's prorated portion of property taxes. The Closing Agent shall
submit the prorated portion to the appropriate county assessor's office.
SECTION 11. ACRD Covenan(~: Suryjual.
11.1 From and after the date of th€s Agreement until the Deed is recorded,
Seller extends to ACND, its Commissioners, employees, contractors and agents,
access to the Property and the Easement Area during normal and customary business
hours, to inspect, survey, sample and test soils and similar purposes. In exercising this
right of access, ACND will cooperate wifh Se!!er so as not to materially interfere with
Seller's use of the Property or the Easement Area, or the use of the same by tenants of
Seller. ACRD hereby indemnifies and holds Setter harmless from and against any and
all loss, Injury, death or damage caused by or arising out of the acts or omissions of
ACRD, 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 cla€m.
11.2 In addition #o the obligations required to be performed hereunder by
ACND at closing, ACND covenants and agrees to perform such other acts, and fo
execute, acknowledge, and/or deliver subsequent to the closing such other documents
as Seller may reasonably request in order to effectuate the complete consummation of
the transaction contemplated herein.
11.3 These covenan#s by ACRD shall survive closing under this Agreemenf.
SECTION 12. Affirmative Covenants and V~l~rranties Survivajr
12.1. Prom and after the date of this Agreement until possession of the Property
and Easement Area is delivered to ACRD, Seller covenants and agrees that Seller will:
{i) refrain from creating or incurring any mortgage, lien, or other encumbrance in any
Sale and Purchase Agreement, page 7
(12/28/09)
way affecting the Property; {ii) sell or otherwise transfer ownership yr possession of the
Property or the Easamenf Area; (iii) not cause or permit the presence, use, generation,
release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or
about, ar the transportation of any Hazardous Materials to or from, the Property or the
Easement Area in violation of applicable laws; (iv} not commit any waste or allow any
nuisance upon the Property or the Easement Area; (v} maintain and keep the Property
and the Easement Area in its present condition; and (vi) observe all taws, ordinances,
regulations, and restrictions affecting the Property and its use and the Easement Araa
and ifs use.
12.2. Seiler 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, ar about the
Property ar the Easement Area, or transported any Hazardous Materials to ar from the
Properly or the Easement Area in violation of applicable laws.
12.3, In addition to the obligations required to be performed hereunder by Seiler
at the closing, Seiler agrees #o perform such other acts, and to execute, acknowledge,
and/vr deliver subsequent to the closing such other documents as ACRD may
reasonably request in order to effectuate the complete consummation of the transaction
contemplated herein.
12,4. These covenants and warranties by Seller shall no# be merged into the
Deed and shat! survive the closing under this Agreement.
SECTiOIy 13. Remedies for Default. 1n the event of the failure or neglect by either
party in the performance required under this Agreement, the other parry steal! have all
the remedies available under the laws of the Sta#e of Idaho for breach of a contract,
including the remedy of specific performance.
SECTION 14. Attomevs' 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 interesf in any matter arising
under #his Agreement, or to recover damages for the breach of this Agreement, or #o
resolve any disagreement in interpretation of this Agreement, the unsuccessful party in
any fine! 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 wi#h any
appeal, and the same may be included in such judgmen#.
SECTION 15. Notices. Any and all notices required to be given by either of the parties
hereto and/or by the Closing Agen# 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 part},, and/or the Closing
Agent at the address set forth in Section 1, or (iii} deposited in the United Slates Mait,
Sale and Purchase Agreement, page 8
(12/2t3lt)1 }
certified, return receipt requested, postage prepaid, addressed to the other party andlor
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 wri#ten notice of such change given
to the a#her 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. !t 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. i3inding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors, provided no assignment
of theft respec#ive rights and obligations hereunder shall be made by either party
without the written consent of the other.
SECTION 19. Time of Essence. Ali 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 Agreament.
SECTION 20. Entire Agreemeni:: Modification. This Agreement and the Exhibits
attached hereto embody and constitute the entire understanding between the parties
with respect to the #ransaction contemplated herein, and all prior or contemporaneous
agreements, understandings, representa#ions, and statements, oral or written, are
merged into this Agreement. Nei#her 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 terming#ion is sought, and then only to the extent set forth in
such instrument.
~S,~CTION 21. Warranty of Authori#y to execute.
21.1. The person(s) executing this Agreement on behalf of ACRD represents}
and warrants} due authorization to do so on behalf of ACRD, and that upon execu#ion
of this Agreemen# on behalf of ACHD, the same is binding upon, and shall inure to the
benefit of, ACHD.
21.2. If Seiler 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 an 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 Seiler.
Sale and Purchase Agreement, page 9
(12/28!01)
SECTION 22. Counterparts. This Agreement shall be executed in two counterparts,
each of which shall be deemed an original but both of which toge#her shall constitute
one and the same instrument.
1N WITNESS WHEREOF, the parties hereto hav® executed this Agreement the
day, month and year first above written.
SELLER:
The Axelrod Li i~Trust~ ~ ~`
ay: Charles D. Axelrod, Trustee
Sale and Purchase Agreement, page 10
('12!28!01 }
ADA COUNTY HIGHWAY DISTRICT
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, 5, 7, 8, 9,
10 and 15 and hereby agrees to perform its responsibilities thereunder, and ACRD
agrees to pay its fees for such services. After closing, Closing Agent agrees to deliver
to each of the parties a copy of ail the documents.
Dated this day of , 2006.
CLOSING AGENT
By: _
Title:
EXHIBITS
"1" Deed, wi#h legal description of Property and Exceptions to Title attached.
"2" Permanent SlopelCut Easement, with description of Easement Area
attached as Exhibi# "A".
"3" Temporary Construction Easement with depiction of Easement Area
attached as Exhibit "A".
"A" Appraisal Summary
Sale and Purchase Agreement, page 11
(12/28101 }
Vctory Road/Eagle Road Intersection
ACHD Protect No. 303014
Parcel No. 9
T3N, R1 E, Section 28
EXHIBIT "2"
(Reserved for Ada County Recorder)
PERMANENT SLOPE/CUT EASEMENT AGREEMENT
THIS PERMANENT SLOPE/CUTASEMEN AG MENT (the
"Agreement', made and entered into this ~ day of~- rc -,2006, by and
bettyeen The Axelrod Uving Trust, hereinafter referred to as "GRANTOR", and
ADA COUNTY HIGHWAY DISTRICT, a body politic and corporete 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 to Ada County, State of
Idaho as more parttcularty described on Exhibit "A" attached hereto and by this
reference made a part hereof (hereinafter the "Servlent Estate").
1.2 ACRD 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 § 40-109(5)) located in Ada County, Idaho and Including the
Highway which abuts and adjoins the "Servlent Estate" (the "Dominant Estate").
1.3 ACRD is improving, reconstructing andlor constructing the Highway
on the Dominant Estate and desires to obtain aslope/cut easement on, under,
over and across the Servlent Estate in order to provide structural Integrity to
such Highway andlor stability to the adjacent embankment, 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, over and across the Servlent
Estate for the following uses and purposes and no others:
Sale and Purchase Agreement, page 16
(11-19-01)
(a) the sanction and -for the pia~ement of base rnateria(, dirt- and
related. clean till -creatin8 a permanent fill slope supporting -the adjacent
Highway on -the Dominant Estate and/or the construction of a permanent
cut slope allowing-for thastability of the embankments-which-adjoin the
Highway on tha Dominant Estate (hereinafter collectively "Slope"); .and for
maintenance and repair-of such Slope.
2.2 Th[s Agreement does not extend to ACRD the right to use the surface
of the Seroient Estate to the exclusion of GRANTOR, and ACHD's rights under
this Agreement are subject to the rights of the GRANTOR and ORANTOR's
guests, Invitees, agents and contractors to use and enjoy the surface of the
Servlent Estate and landscape and irrigate the same, provided the structural
integrity of the Slope is not compromised by such activities.
SECTION 3. Consideration.
As consideration for the grant of this easement ACHD agrees to pay
GRANTOR EIGHTEEN THOUSAND FORTY-ONE AND 40/100 Dollars ($18,041.40),
receipt of which is hereby acknowledged.
SECTION 4. Construction and Installation.
The construction of the Slope on, under, over and across 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, ACRD. Provided, the-costs of Irrigating,
weeding, fet#illzing, replacing diseased- and .dead shrubs and plants. and
otherwise maintaining. any.landscaping placed ar Installed on the surface of the
Senrlent Estate- after completion of th® construction of the Slope by ACHD shall
beat the sole cos# and expense of GRANTOR.
SECTION 5. Maintenance
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 ACRD and sound engineering practices. Unlese necessitated by acts
of GRANTOR, GRANTOR's guests, invitees, contractors or agents: (i) the repair
and maintenance of the structural integNty of the Slope, and (Ii) the restoration of
any landscaping planted or installed after completion of the construction of the
Slope necessitated by repairs and maintenance to the structural integrity of the
Slope by ACRD, shall be at the sole cost and expense ACRD. This shall include
reatacement of the underground sprinkler system.
Sale and Purchase Agreement, page 17
(11-19-01)
SECTION 6. Compliance with the Law.
In fts use of the Servient Estate, ACRD hereby covenants and agrees to
comply in all respects with any and ail federal, state and local statutes, law,
ordinances, codes, policies, rules and regulattans.
SECTION 7. IndemniFcatian.
ACRD hereby indemniftes and saves and holds GRANTOR harmless from
and against any and all claims for loss, injury, death or damage, and reasonable
aftorney'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 Servlent
Estat®, and any repair or maintenance thereof by or under the authority of ACRD.
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
sand.
SECTION 9. Exhib'
All exh(bits attached hereto and the recitals contained herein are
incorporated herein as if set forth in full herein.
SECTION 10. Successors and AssP~ns.
This Agreement, the slope easement herein granted, and the covenants
and agreements herein contained shal# inure to the benei`b of and be binding
upon the parties hereto and their successors and assigns to the Senrient and
Dominant Estate.
SECTION 11. Recordation.
This Agreement shad be recorded in the Official Real Property Records of
Ada County, Idaho.
Sale and Purchase Agreement, page 18
(11-19-01)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed the day, month and year first set forth above.
GRANTOR ~~ J:~~
l,' ~ ,
Charles D. Axelrod ~ __ _ _~~ ~~;' .
ADA COUfdTY HIGHWAY DISTRICT
By
Kathy Smith, Supervisor
Right-of-Way
Safe and Purchase Agreement, page 19
(11-19-t)9)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed the day, month and year first set forth above.
GRA R
-~..,
Charles D. Axelrod
ADA COUNTY HIGHWAY DISTRICT
sy
Kathy Smith, Supervisor
Right-oi--Way
Sale and Purchase Agreement, page 19
(11-19-0'i )
STATE OF ~~~+~or~'7 ire.., )
ss.
County of ~d-5' ~~ }
On this i(~day of _~~~e~a 2006, before me, ~ehr~, ~. .,L.~m~.
a Notary Public in and far the S ate of ~es^/t warn r'G+.. ,personally appeared Charles D.
Axelrod, known or identified to me to be the person(s) wha executed this instrument, and
acknowledged to me that he executed the same.
IN VVTTNESS V~REOF, I have hereunto set my hand and affixed my official seal the day and year first
above written.
~~~~
DEBRA 6. tG E
~omss,~ston €~ 18asa67
• tdolary Puhflc - Ca~&Poenta
B Los 1~ge!®s Cesunfy
A+lyComm. ExglresAu~ 17, 2008
STATE OF 1DAH0 ~
ss.
County of Ada )
Notary Public for ~~ ~~ d ~ ~~ ~~~
d
lily commissioH expires: ~ ~~,~ ~@E
On this day of 2006, before me,
a Notary Public in and for the stafie of Idaho,
personally appeared Kathy Smith, known or identified to me to be the Supervisor of the
Right-o#--Way for the Ada County Highway District, the person who executed this
instrument of behalf of said Dis#rict, and acknowledged to me that. the Ada Coun#y
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 wrif~en.
Notary Public for Idaho
Residing at:
My commission expires:
Sale and Purchase Agreement, page 20
(17 -7 9-01)
STATE OF }
ss.
County of )
On this ~ day of , 2006. before me,
a 1~#otary Pub#ic in and far the State of personally appeared Charles D.
Axelrod, known or identified to me fo be the person{s} who executed this instrument, and
acknowledged to me that he executed the same.
IN WITNESS WHL-REOF. I have hereunto set my band and affixed my ot~;cial seal the day and year first
above ~eritten.
Notary PubJ~cfor
Reslding nC
Asy ca»anrission expfres:
STATE OP IDAHO }
ss.
County of Ada }
On this day of 2006, before me,
a Notary Public in and for the state of Idaho,
personally appeared Kathy Smith, known or identified #o me to be the Supervisor of the
Right-of--Way for the Ada County Highway District, the person who execufed 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 20
{11-19-01 }
STATE OF ID, County of ADA, ss.
On this 3rd day of August, in the year of 2006, before me Jolene Stephenson, a notary public personally appeared
Mark Hartenstein, known or identified to me to be the person whose name is subscribed to the within instrument as
the attorney in Fact of Charles D. Axelrod, Trustee of the Axelrod Living Trust and acknowledged to me that
he/she/they subscribed the name{s} of Charles D. Axelrod, Trustee thereto as principal, and his/her/their own name
as attorney in fact.
Q ~ O@,°~&egoB ~ LV Lr i~~ od ~pOQO
olene Stephenson ~.,o ~m,~saaeo®'~,~ m,
otary Public State of ID 9~°~ oc~° ~ ~~~+~~°°
Residing at: Meridian a ~°~ ° ~ ®~, ° ~
Commission Expires: 01/22/20]0 a ~ ~ ~ ~ ~ ~ ~
o°a .~'' 9°~co®oc~9°0 '~'~00
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Vctory RoadlEagle Road Intersection
ACRD Project No. 303014
Parcel No. 9
T3N, R9E, Section 28
EXHIBIT "3°
TEMPORARY CONSTRUCTION EASENT
~~
THIS INDENTURE, made this~~~ day of ZC~ 2t}t)6,
CHARLES D. AXELROD, as his sole and separate property,r hereinafter "GRANTOR°)
and ADA COUNTY HIGHWAY. DISTRICT, a body politic and corporate of the State of
Idaho, {hereinafter "ACHD"};
WITNESSETH:
FOR VALUE RECEIVED, for the term and uses and on the terms and conditions
hereinafter set forth, GRANTOR does hereby gran# to the ACHD an easement (the
"Easement") under, aver, through and across that certain reaE property owned by
GRANTOR situated in the COUNTY OF ADA, STATE OF IDAHO more particularly
described on Exhiblf "A" attached hereto and by this reference made a part hereof (the
"Servient Estate"}.
This grant is made on the following terms:
4. ~thorized ~lses By ACHD. The ACHD's use of the Easement granted
herein shall be in connection with the construction and improvement of a highway (the
"Project'? on adjoining and abutting property owned by ACHD municipally known as
Victory Road and Eagle Road (the "Dominant Estate"), for access and egress for
equipment and vehicles, for construction, excavation, storage of earth and other
materials thereon, for surveying, and for all other reasonable uses that are necessary,
advisable or convenient to ACHD in connection with such Project, and for ingress and
egress to and from the Dominant Estate. The Servient Estate is a part of a larger
parcel owned by GRANTOR (the "Remaining Property"), and this Easement does no#
extend to ACRD any right to enter upon the Remaining Property.
2. Use by Ojher~ Under ACHD. The ACHD's right to so use the Serv'sent
Estate during the term of the Easement shat! extend to use by ACHD's Commissioners,
employees, contrac#ors and agents.
3. Term. This Easement shall be for a term commencing on the date of
GRANTOR's execution of this Indenture and terminating on the completion of the
highway construction and improvement project on the Dominant Estate. On the
expiration of the term of this Easement, the rights and privileges granted to ACHD
hereunder shat! cease and tem~inate and this Easement shall be null and void and of
no further force and effect.
Sale l~ Purchase Agreement, page 24
(511/03}
4. Indemnification. ACRD hereby agrees to indemnify and hold GRANTOR
harmless from and against any and a!l claims for loss, injury, death and damage
caused by or arising out of the use of the Servient Estate by ACRD, ifs Commissioners,
employees, contractors and agents, hereunder, and including, without limitation,
attorneys fees and costs that might be incurred by GRANTOR in defending any such
claims.
5. Restoration on Exoiratiop of Term. As depic#ed on Exhibit °A° hereto, on
the expiration of the term of this Easement the Senrient Estate shall be restored by
ACRD, at its sole cost and expense, to at leas# as soon as good a condition as existing
on fhe date of this indenture.
6. Damages to Remaining Property DurincLConstruction. Without limiting
the rights of GRANTOR to such remedies it may have at Isw or in equity to recover
damages to the Remaining Property that may occur during construction of the Project
as a result of a trespass on the Remaining Property by ACHD, its contractors,
employees or agents, in such evenf ACHD shall proceed to diligently cause the repair,
restoration and/or replacement of the same to, as nearly as reasonably possible, the
same condition as existed prior to such damages.
7. Access During Construction of Proiect. Throughout fhe term of this
Easement, during GRANTOR'S regular business hours, ACHD and/or its contractors
will provide and maintain continuous, safe and adequate vehicle access (ingress and
egress) for GRANTOR and its employees, agents, contractors and business invitees
and guests to and from GRANTOR's Remaining Property to and from ACHD's adjacent
public roads: It is agreed #hat access is adequate and continuous even if limited to one
vehicle lane on ACHD public streets adjacent to the Remaining Property, and even if
access is temporarily delayed because of traffic control by a flagger; at times, the
private driveway accessing GRANTOR's Remaining Property may also be restricted to
one vehicle lane, and to right-in right-out access only by a flagger or signage.
8. Binding Effect. This Easement, and the covenants and agreements
herein contained, shalt, 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.
9. A~aurtenant., The Easement herein granted is appurtenant #o the
Dominant Es#ate.
TO HAVE AND TO HOLD this Easement unto the ACHD for the term
hereinabove set forth.
GRANTOR covenants to ACHD that ACHD shaft enjoy the quiet and peaceful
possession of the Servienfi Estate throughout the term hereof; and, 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.
Sale & Purchase Agreement, page 25
(5/1/03)
IN WITNESS WHEREOF, this Temporary Construction Easement has been duly
execu#ed by the parties, the day, month and year herein first above wri#ten.
GRANTOR
d~`•
Charles D. Axelrod ,~;~~~,
ACHD
ADA COUNTY HIGHWAY DISTRICT
Kathy Smith, Supervisor, Right-of-Way
EXHIBIT LIST
Exhibit "A" Description/Depiction of Senrient Estate
NO ACKNOWLEDGEMENT NEEDED. THIS EASEMENT IS NOT TO BE RECORDED
Sale & Purchase Agreement, page 26
(5/9/03)
STATE OF ID, County of ADA, ss.
On this 3rd day of August, in the year of 2006, before me Jolene Stephenson, a notary public personally appeared
Mark Hartenstein, known or identified to me to be the person whose name is subscribed to the within insixument as
the attorney in fact of Charles D. Axelrod, Trustee of the Axelrod Living Trust and acknowledged to me that
heJshe/they subscribed the name(s) of Charles D. Axelrod, Trustee thereto as principal, and his/her/their own name
as attorney in fact.
olene Stephenson
otary Public State of ID
Residing at: Meridian
Commission Expires: 01/22/2010
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Sale & Purchase Agreement, page 30
(5!1/03)
Project #303014 - V ictory/Eagle Irnersecrion &
Parcels 9
Township/Range/Section: T3 N R 1 E Sec 28
ADDraisal Summary and Mitictation Of Damages
Land Acguisitlon
SF req'd Value/SF Capitalization Total
Partial Acquisition ~ x
Permanent Easement ~ x ~~ @ ~ _
Temporary Construction
Easement ~ @ '~ ~~+ ~
Addittonal to raise t~ -""-
Improvements troithin the Requirement
Landscaping as par Bid
1,269 Ln. Ft. Chain Link fencing @ ~ - ~
Loss n Value o emainder ra inor Dama es
Rental Value of House a for 4 years {PGA _
Loss of Concrete Parking 22 spaces ~
Just Compensation ~
ROUNDED: ~
NOTE: ACHD will provide construction features as shown on the construction plans attached, dated 7/21/04,
sheets 3, 4, 5 and 6, with the following exceptions:
1. <~CHD will connect residence with sewer acid }aster,. ~ .eS Iler agrt3es.toproyide sufitclent tmporary_
coristrucdon easement to allow access to septk: field 2s necessary et no additipnai dgmpensatlon.~
2. ACHD and Seiler agree to terminate lease at close of escrow. Seller will bill ACHD for utilises and
yard maintenance up to close of escrow.
3. Existing sprinkler system wiU be removed and reset onto Seller's remainder property and re-installed
on oemmanent easement together wfth repair of the existing system as necessary within the orolect
Emits on Seller's Re alp mina Prone at project cost.
4, Fx~ting electric, water and gas connections will be adjusted within proJed limits at project cost.
Page 1 of 2
_ -- -
rill workine,an this - it seems to me that a-1l otl-ei property o~~mers Tiaee-been sraoted eonr-ecsion
a.~ dnmsr~m~te~etsrai why A.~etraiT is t~+ingTreated differently ;
sate &~Purchase Agreement, ptage 31
(511/03)
Exhi
5. ACRD will retain roadway drainage within its right of way. Existing drainage from Seller's property will
ire discharged Into the ACRD right of way at pre-proJet~ levels. Arty new drainage generated 6Y Seller
after project ar~/or as part of development of Seller's remainder will be retained and treated try Sel~r.
6. ACRD wlli construct 35-foot wide commercial approaches. constructed to oublic road standards as
follows:
(a} a,~ie35•fooir~rnmerciatrrrrb-rEhrm for_r)g~f ire/tight.out access at afictory Road ate.-
(~3:j-- ~rr8 3a~foot ~orlimerGtat CWr1ZlgturiLfQr fU1~8GB888 8t-V~Lor~r Road StB:
(c.j ~n~35-f~tcommereiaf`~urbratam-fo[~Ightlntdghtautaccsss=at~agteiZoad-Sta.
{d.) -One 35=fobficorrlmercial curb returnfiorfulkaccess atfagie=Road~ta.
/a \ ClAcwmNre eF~sll he rnne#n,r4er1 ~rrnrrllnn !n Ar16 rumdrerr~cn#e iarhero rhnv irttrsrc~ 1ha
Agr ial):
ACHO
,~j Seller '
0 6 ~ ~a~ •.
' ~ Page 2 of 2
3 •,
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Numbered + LeveL• 2 + NutnberLlg
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AtlgnrtmrlC Left + AAgttEd at: 0.75°
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Font Alignnlenb Auto, Tabs: 2°. Ldt
+ 2.5°, left + 2.75°, Left+ 3.38°,
Left + 3.75°, Left + 4.63°, Left +
5.25°, Left
Sale 8 Purchase Agreement, page 32
(5!1/03)