Sewer Connection Ponce Michael 124 E. Idaho Avenue Temporary Construction Easement ADA COUNTY RECORDER Trent Tripple 2024-015445
BOISE IDAHO Pgs=7 CHE FOWLER 03/27/2024 08:04 AM
RECORDING REQUESTED BY AND CITY OF MERIDIAN, IDAHO NO FEE
WHEN RECORDED RETURN TO:
City Clerk
City of Meridian
33 E.Broadway Avenue
Meridian,ID 83642
TEMPORARY CONSTRUCTION EASEMENT AND
AGREEMENT FOR CONNECTION TO SEWER SERVICE:
124 E IDAHO AVE,MERIDIAN,ID 83642-0000
This TEMPORARY CONSTRUCITON EASEMENT AND AGREEMENT FOR
CONNECTION TO SEWER SERVICE ("Agreement") is made this 26th day of
March 2024("Effective Date"),by and between the City of Meridian,a municipal
corporation organized under the laws of the State of Idaho,whose address is 33 East Broadway
Avenue, Meridian,Idaho ("City"), and PONCE MICHAEL A, owner of the property at 124 E
IDAHO AVE, Meridian, Idaho("Property Owner') (collectively, "Parties").
WHEREAS,Property Owner is the owner of the property at 124 E IDAHO AVE,
Meridian, Idaho,Ada County parcel no. R5672000742, LOT 6 BLK 5 ("Property");
WHEREAS,the sewer line serving Property is currently located in the alley to the north
of the Property;
WHEREAS, in Spring 2024,pursuant to its authority under Idaho Code section 50-332,
the City of Meridian will begin a public works project that includes installing a new sewer main
along E. Idaho Avenue,from Meridian Road to 6th Street("Project");
WHEREAS,to improve efficiency and long-term viability of sewer service to properties
along E. Idaho Avenue from Meridian Road to 6th Street, including the Property,the City has
offered to assess the feasibility of rerouting the plumbing serving Property to connect to the new
sewer line along E. Idaho Avenue, and, if it is feasible,to cause such work to be completed at the
City's expense;and
WHEREAS,Property Owner has accepted this offer and wishes to authorize City 1)to
initiate the feasibility assessment, and 2) if the City determines that it is feasible,to include in the
scope of work for the Project the rerouting of the plumbing serving the building at Property and
its connection to the new sewer line;
NOW,THEREFORE, for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged and agreed, and in consideration of the mutual promises and
covenants herein contained,and in consideration of the recitals above, which are incorporated
herein, the Parties agree as follows:
RECORDING REQUESTED BYAND
WHEN RECORDED RETURN TO:
City Clerk
City of Meridian
33 E.Broadway Avenue
Meridian,ID 83642
TEMPORARY CONSTRUCTION EASEMENT AND
AGREEMENT FOR CONNECTION TO SEWER SERVICE:
124 E IDAHO AVE,MERIDIAN,ID 83642-0000
This TEMPORARY CONSTRUCITON EASEMENT AND AGREEMENT FOR
CONNECTION TO SEWER SERVICE ("Agreement") is made this 26th day of
March .2024 ("Effective Date"),by and between the City of Meridian,a municipal
corporation organized under the laws of the State of Idaho,whose address is 33 East Broadway
Avenue, Meridian,Idaho ("City"), and PONCE MICHAEL A, owner of the property at 124 E
IDAHO AVE, Meridian, Idaho ("Property Owner') (collectively, "Parties").
WHEREAS, Property Owner is the owner of the property at 124 E IDAHO AVE,
Meridian, Idaho,Ada County parcel no. R5672000742, LOT 6 BLK 5 ("Property");
WHEREAS, the sewer line serving Property is currently located in the alley to the north
of the Property;
WHEREAS, in Spring 2024,pursuant to its authority under Idaho Code section 50-332,
the City of Meridian will begin a public works project that includes installing a new sewer main
along E. Idaho Avenue, from Meridian Road to 6th Street("Project");
WHEREAS,to improve efficiency and long-term viability of sewer service to properties
along E. Idaho Avenue from Meridian Road to 6th Street, including the Property,the City has
offered to assess the feasibility of rerouting the plumbing serving Property to connect to the new
sewer line along E. Idaho Avenue, and, if it is feasible,to cause such work to be completed at the
City's expense; and
WHEREAS,Property Owner has accepted this offer and wishes to authorize City 1)to
initiate the feasibility assessment, and 2) if the City determines that it is feasible,to include in the
scope of work for the Project the rerouting of the plumbing serving the building at Property and
its connection to the new sewer line;
NOW, THEREFORE, for good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged and agreed, and in consideration of the mutual promises and
covenants herein contained,and in consideration of the recitals above, which are incorporated
herein, the Parties agree as follows:
i
I. COMMITMENTS BY CITY.
A. FEASIBILITY ASSESSMENT. Within one hundred and eighty(180) days of execution of this
Agreement, City shall conduct an assessment of the structural integrity,plumbing condition,
and other factors and risks related to the feasibility of replumbing the building at Property to
connect to the new sewer main to be placed in the right-of-way along E. Idaho Avenue.
B. IF NOT FEASIBLE. If, in the City's sole discretion, it is not feasible to replumb the building at
Property and connect it to the new sewer main to be placed in the right-of-way along E. Idaho
Avenue,the City will take no further action with regard to the Property.
C. IF FEASIBLE. If,in the City's sole discretion, it is feasible to replumb the building at Property
to connect it to the new sewer main to be placed in the right-of-way along E. Idaho Avenue,
City shall:
1. Add this work to the scope of work for the Project, and shall complete such work at the
City's sole expense. This work shall include restoration of the interior and exterior of the
Property to its general pre-Project condition, as nearly as is feasible.
2. Contact Property Owner to provide details regarding scheduling,timeline, and the next
steps for completion of this work.
3. Select and hire a licensed plumber to install all related plumbing and infrastructure
necessary to connect the building at Property to the new sewer main along E. Idaho
Avenue. Such work shall be completed in accordance with the regulations of the
Building Services Division of the City of Meridian Community Development
Department, the City of Meridian Public Works Department, and any and all other
applicable rules or laws.
4. As practicable,provide notice to Property Owner of any need to access the Property and
building thereon in order to complete City's obligations under this Agreement.
D. PROVISION OF SEWER SERVICES. At all times, City shall provide sewer services to the
Subject Property, subject to necessary stoppages due to construction,and all applicable laws
and City ordinances. City shall bill Property Owner for sewer usage according to the
metering, accounting, and billing system in place under Meridian City Code and the policies
and practices of the City of Meridian.
II.COMMITMENTS BY PROPERTY OWNER.
A. EASEMENT;RIGHT OF ENTRY. Property Owner authorizes the City, its consultants, agents,
employees and/or contractors, a temporary easement over and across the Property, and the
right to enter the Property and all buildings thereon, in order to complete all necessary work
to fulfill City's obligations under this Agreement. City shall have and hold the temporary
easement and right of entry until the Project is complete. Property Owner shall notify the
occupant(s)of the building located on Property of the terms of this Agreement and instruct
such occupant(s)to provide access to City, its consultants, and/or its contractors as necessary
to complete the work described by this Agreement.
B. No GUARANTEE. Property Owner acknowledges that City may not elect to reroute the sewer
service from the existing main in the alley to the new main in the right-of-way along E. Idaho
Street. The City may decline to reroute the plumbing from the building on Property, if such
work is not feasible, in City's sole discretion.
C. PAYMENT FOR CITY SERVICES. Upon connection to and whenever Property is connected to
the City's sewer system, regardless of the location of such connection,Property Owner shall
pay to City all applicable fees and costs for services provided, as such fees are calculated and
billed by City as set forth herein and established by law or City policy or ordinance. The
exclusive remedy for any disputes,objections, or appeals regarding such fees and costs shall
be with the Board of Adjustment, under the procedures set forth in Meridian City Code.
D. OPERATION AND MAINTENANCE. Upon connection to and at all times Property is connected
to the City's sewer system, regardless of the location of such connection,Property Owner
shall be solely responsible for any and all costs related to operation and maintenance of all
portions and functions of the plumbing between the sewer line and the Property served by the
City sewer system.
E. ACKNOWLEDGMENT OF SCOPE OF WORK. Property Owner acknowledges that construction
related to the rerouting of plumbing and installation of new plumbing may require the
temporary removal of landscaping,walkways, walls, flooring, and other structural aspects of
the building at Property. While City shall restore the interior and exterior of the Property to
the condition they were in prior to the Project, Property Owner shall be responsible for any
other repair, maintenance, or other work where the need for same is revealed by the removal
of walls and floors in order to complete the work contemplated by this Agreement. City shall
not be responsible for any repair to structural, electrical, mechanical, or other systems at
Property, even if such necessity is revealed by work undertaken pursuant to this Agreement
or any other aspect of the Project.
F. WAIVER. Property Owner acquits and forever discharges the City of Meridian, its
employees, and agents, from any and all claims, actions, causes of action, demands, rights,
damages, costs, expenses and additional compensation, including attorney fees, which
Property Owner now has or may later realize in relation to any expense of any type related
this Agreement or to Project, whether such expense is foreseen, unforeseen, known, or
unknown. Except as may be provided in any written warranty provided by the contractor
completing the work contemplated by this Agreement, Property Owner shall be solely
responsible for any structural, electrical, mechanical, or other malfunction or damage
occurring after completion of the work contemplated by this Agreement,and shall not make
any claim or demand, or bring any cause of action against City for same.
G. INDEMNIFICATION. Property Owner acknowledges that provision of services under this
Agreement may carry risks of property damage, property loss, personal injury, illness, and/or
death, some of which risks are unknown, and, with that knowledge, Property Owner hereby
assumes all such risks and hazards. Property Owner shall indemnify, save, and hold harmless
the City and any and all of its employees, agents, volunteers, and/or elected officials from any
and all losses, claims, and judgments for damages or injury to persons or property, and from
any and all losses and expenses caused or incurred by Property Owner or Property Owner's
tenants, agents, employees, guests, and/or business invitees.
III.GENERAL.PROVISIONS..
A. TERM. This Agreement shall become effective on the Effective Date first written above, and
shall be effective through the earlier of completion of the Project or September 30, 2024,
unless earlier extended or terminated by the Parties.
B. RECORDATION. City shall record this Agreement against the Property, at City's cost.
C. TERMINATION. If City determines that Property Owner has failed to comply with any term
or condition of this Agreement, violated any of the covenants, agreements, and/or stipulations
of this Agreement; engaged in fraud,dishonesty, or any other act of misconduct in the
performance of this Agreement;or if either Party willfully or negligently defaults in,or fails
to fulfill, its material obligations under this Agreement; the other Party shall have the right to
terminate the Agreement by giving written notice to the defaulting party of its intent to
terminate, and shall specify the grounds for termination. The defaulting party shall have
seven(7)days after receipt of such notice to cure the default. If the default is not cured
within such period,this Agreement shall be terminated upon mailing of written notice of such
termination by the terminating party.
D. TERMINATION OR RESCISSION BY PROPERTY OWNER. If,prior to initiation of construction
as part of Project, Property Owner terminates this Agreement, and/or rescinds Property
Owner's acceptance of City's offer to assess and potentially reroute the service line, for any
reason,the City shall not be responsible for any costs related to the Project or the Project's
impact on Property,other than connecting the Property's existing plumbing to the
rehabilitated main when complete.
E. CITY NOT RESPONSIBLE FOR OTHER COSTS. Property Owner acknowledges and agrees that
except as explicitly stated in this Agreement, the City will not be responsible for any costs
Property Owner may incur as a result of or otherwise attributable to the Project, whether such
costs are related to known or unknown risks or factors. Specifically, without limitation, City
shall not be responsible for any lost business or other revenue during or attributable to the
Project, nor for any plumbing- or sewer-related costs following Project completion.
P. DAY-TO-DAY COMMUNICATIONS. Communication between Property Owner and City
regarding day-to-day matters(e.g., issues related to construction,property entry, scheduling,
etc.) shall occur via e-mail or telephone. City shall provide Property Owner the name,e-mail
address, and telephone number of specific City personnel("City Contact")who shall serve as
the liaison between City and Property Owner for all day-to-day matters. Property Owner
shall provide City the name, e-mail address, and telephone number of the specific person
("Property Owner Contact")who shall serve as the liaison between Property Owner and City
for all day-to-day matters.
G. ALL OTHER NOTICES. All other notices required to be given by either of the parties hereto
shall be in writing and be deemed communicated when sent via e-mail,personally served, or
mailed via United States mail, to the following personnel and address:
If to Cif If to Property Owner:
City Clerk, City of Meridian PONCE MICHAEL A
33 E. Broadway Ave. 5061 N ASISSI AVE
Meridian, Idaho 83642 MERIDIAN, ID 83646-0000
cityclerk@meridiancity.org
Either Party may change its address for the purpose of this section by delivering to the other
Party written notification of such change, establishing a new address for noticing purposes, in
accordance with the requirements of this section.
H. LIMITATION OF LIABILITY. City is not liable for consequential, indirect, incidental, special,
exemplary,punitive, or enhanced damages arising out of or relating to any breach of this
Agreement, whether or not such damages are foreseeable or Property Owner was advised of
the possibility of such damages, regardless of the legal or equitable theory(contract, tort or
otherwise)upon which the claim is based, and notwithstanding the failure of any agreed or
other remedy of its essential purpose. This limitation of City's liability shall not apply to (i)
liability resulting from City's gross negligence or willful misconduct and(ii) death or bodily
injury resulting from City's acts or omissions.
I. FORCE MAJEURE.No Party will be liable for failure to perform any duty under this
Agreement where such failure is due to or made impracticable by unforeseeable causes
beyond the Parties' control and without the fault or negligence of the Parties, including, but
not restricted to, acts of God or the public enemy, fire, flood, natural disaster, epidemic,
strike, or order of any court or authorized agency.
J. BINDING UPON SUCCESSORS. Except as otherwise specifically provided herein, this
Agreement shall be binding upon any and all owners of the Property, any and all subsequent
owners thereof, and each and every other person acquiring an interest in the Property.
Nothing herein shall, or shall be construed to, in any way prevent the sale or alienation of the
Property,or any portion thereof, except that any sale or alienation shall occur subject to the
provisions of this Agreement, and any successive owner or owners shall be both benefited
and bound by the conditions and restrictions herein expressed.
K. SEVERABILITY. If any provision of this Agreement is held invalid by a court of competent
jurisdiction, such provision shall be deemed to be excised herefrom and the invalidity thereof
shall not affect any other provision or provisions contained herein.
L. THIRD-PARTY BENEFICIARIES. This Agreement is not intended to create,nor shall it in any
way be interpreted or construed to create, any third-party beneficiary rights in any person or
entity not a party hereto.
M. NO REAL PROPERTY INTEREST. It is expressly understood that this Easement does not in
any way whatsoever grant or convey any permanent easement, lease, fee or other interest in
the Property to the City.
N. ATTORNEY FEES. Should any litigation be commenced between the Parties concerning this
Agreement, the prevailing party shall be entitled,in addition to any other relief as may be
granted,to court costs and reasonable attorney fees as determined by such court. This
provision shall be deemed to be a separate contract between the Parties and shall survive,
inter alia, any default,termination,or forfeiture of this Agreement.
®. ENTIRE AGREEMENT. This Agreement sets forth all promises, inducements,agreements,
conditions, and understandings between City and Property Owner relative to the subject
matter hereof, and there are no promises,agreements,conditions, or understandings,either
oral or written,express or implied,between City and Property Owner, other than as are stated
herein. Except as otherwise specifically provided herein,no subsequent alteration,
amendment, change, or addition to this Agreement shall be binding upon the Parties unless
set forth in writing and duly executed by both Parties or their successors in interest.
P. NON-WAIVER. Failure of either Party to promptly enforce the strict performance of any term
of this Agreement shall not constitute a waiver or relinquishment of any Party's right to
thereafter enforce such term, and any right or remedy hereunder may be asserted at any time
after either party becomes entitled to the benefit thereof,notwithstanding delay in
enforcement. All rights and remedies herein enumerated shall be cumulative and none shall
exclude any other right or remedy allowed by law. Likewise,the exercise of any remedy
provided for herein or allowed by law shall not be to the exclusion of any other remedy.
Q. APPLICABLE LAW. The validity,interpretation,performance and enforcement of this
Agreement shall be governed by the laws of the State of Idaho,including,without limitation,
Article VIII, Section 3, of the Idaho Constitution. Venue shall be in the courts of Ada County,
Idaho.
R. COMPLIANCE WITH LAWS. Throughout the course of this Agreement,the Parties shall
comply with all applicable laws, ordinances, and codes of Federal, State, and local
governments. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Idaho, and the ordinances of the City of Meridian.
The City's ordinances appertaining to the regulation, control, and use of its sewer and water
systems, and any prospective amendments to and/or recodifications thereof, are specifically
and without limitation incorporated into this Agreement as if set forth fully herein.
S. ADVICE OF ATTORNEY. Each party warrants and represents that in executing this Agreement,
it has received independent legal and financial advice from its attorney and/or financial
advisor, or has had adequate opportunity to seek such advice.
T. WARRANTY OF AUTHORITY. Each person executing and signatory to this Agreement
represents and warrants that the execution, delivery,and performance of this Agreement has
been duly authorized by all necessary action of each respective party;that such person is, at
the time of execution, duly authorized by the respective Party's governing body to bind such
Party in all respects;and acknowledges and agrees that this Agreement is and shall be a valid
and binding obligation upon the Parties to this Agreement.
U. APPROVAL REQUIRED: This Agreement shall not become effective or binding until
approved by the City Council of the City of Meridian.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
Effective to rst written above.
PRO E NER: STATE OF IDAHO )
) ss:
County of JZ>A >
I hIEREBY CERTIFY that on this 2 day of�
Si iature• 2024,before the under ' ed,a Notary Public in ieaSgtaj—
p E of Idaho,(�1�C�'1o►n_(under
z personally appeared,
Name (printed) proven to me to be the person who executed the said
•�•�••��� instrument, and acknowledged to me that he executed die
•• l�. •o same.
��� �,`. "•• IN WITNESS WHEREOF.I have hereunto set my hand
• OTA* 0 and affixed my official seal,die day and year in this
• • certificate first above written.
5:OOMUNNON
No. X2M13 ;
J�jBt,�G,. O -
�► • otary Public fir Idaho
'•9 - t,)W:
Owosso Residing at g� , A Q&::� , Idaho
My Commission Expires: 12- Zq ZjC:)Ze
CITY OF MERIDIAN: Attest:
Robert E. Simison, Mayor 3-26-2024 Chris Johnson, City Clerk 3-26-2024
SPATE OF IDAI IO )
):ss
County of Ada )
On this 26th day of March 2024,before me,a Notary Public,personally appeared Robert E. Simison
and Chris Johnson,know or identified to me to be the Mayor and Clerk,respectively,of the City of Meridian,
who executed the instrument or the person that executed the instrument of behalf of said City,and acknowledged
to me that such City executed die 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 Idaho
Residing at Meridian Idaho
My Commission Expires: 3-28-2028