Temporary Construction License and Sewer Easement Agreement with Griffin, James F. for Griffin Propertyx~A ecsuNTY RECflRgER
~. ~'~~~? NAV,~RRO
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~~99 MR ! 9 P~ 1 ~ 3 6
TEMPO CONSTRUCTION LICENSE
AND
SEWER EASEMENT AGREEMENT
c~`~,:.
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, James F. Griffin, a single man dealing with his separate property, whose
address is 705 North 9th Street, Boise, Idaho 83702, herein referred to as Grantor, does
hereby grant, bargain, sell, transfer and convey unto the City of Meridian, an Idaho
municipal corporation, whose address is 33 East Idaho Avenue, Meridian, Idaho 83642,
herein referred to as Grantee, its successors and assigns, the following:
1) Anon-exclusive, temporary construction license on the real property
graphically depicted and legally described on Exhibit A, attached hereto and
incorporated herein by this reference ("License Premises"), for the construction
and installation of an eight-inch (8") sewer stub line underneath Five Mile
Creek ("Stub Line") running westerly from the base of manhole 22 for a
distance of one hundred and twenty feet (120') and the right of ingress and
egress to and from Locust Grove Road over the License Premises and the right
to stage and store construction equipment and building materials on that
portion of the License Premises designated as the "Staging Area" on Exhibit
B (referred to collectively herein as the "Construction License"); and
2) Anon-exclusive permanent easement across and under the real property
legally described on Exhibit C, attached hereto and incorporated herein by this
reference, and graphically depicted on Exhibit C-1, attached hereto and
incorporated herein by this reference ("Easement Premises") for construction,
operation, inspection and maintenance of the Stub Line ("Repair and
Operation") ("Permanent Easement").
Grantor covenants that Grantor is possessed of a fee simple estate in the License
Premises and the Easement Premises and has all authority necessary to grant the
Construction License and the Permanent Easement and that Grantor will construct no
permanent structure(s) on, under or over the License Premises and Easement Premises
except as provided herein or as provided in that certain Sewer Easement Agreement between
Grantor anc~ Grantee executed Apri121, 1995, and recorded May 17, 1995, as Instrument No.
95033514, records of Ada County, if any;
Grantee shall complete the Work no later than three (3) months from the date this
Temporary Construction License and Sewer Easement Agreement ("Agreement") is executed.
If the Work is not completed within three (3) months from the date of execution hereof, all
rights of Grantee under this Agreement shall terminate. The Construction License shall
terminate, under all circumstances, upon the earlier of three (3) months from the date of
execution hereof or Grantee's completion of the Stub Line.
Grantee covenants that Grantee, its agents, contractors and subcontractors shall
diligently complete the Stub Line and diligently perform any Repair and Operation in a good
RE~QRQ~D•RE~U~ OF
FEE p~PUTY
~~~ ~~4~
TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 1
2515\15\SEW-XC2.CL2
and workmanlike manner, in compliance with all applicable federal, state and local laws,
rules and regulations and obtain any and all permits and approvals required in connection
with completion of the Stub Line and performance of the Repair and Operation, including
without limitation those related to the Clean Water Act and/or relating to hazardous
substances (as hereinafter defined) and will take all precautions reasonably necessary to
avoid the risk of harm to person or property.
Grantee covenants that after termination of the Construction License, and within
fourteen (14) days thereof, Grantee shall remove all of Grantee's personnel and property from
the License Premises, including, without limitation, all rubbish, waste, debris or other similar
materials or byproducts of Grantee's use of the License Premises for the purposes set forth
herein ("Removal"). If Grantee does not complete the Removal within fourteen (14) days,
Grantor shall have the right, without notice to Grantee, to complete the Removal in a
reasonable manner as necessary in the sole discretion of Grantor and Grantee shall
reimburse Grantor for the reasonable costs and expenses incurred by Grantor in completing
the Removal.
Grantee covenants that upon completion of the Stub Line and any Repair and
Operation (from time to time), Grantee will restore the surface of the ground to a condition
which is as near as practicable to the condition in which the surface of the real property
existed prior to the commencement of the construction of the Stub Line and/or Repair and
Operation. Grantee further covenants that neither it, its agents or contractors will prevent
access to any home or business affected by the Construction License or the Permanent
Easement and Grantee shall make all reasonable efforts to minimize interference with the
operation of any business or the use and peaceful enjoyment of any homes affected by the
Construction License or the Permanent Easement.
Grantee shall, at Grantee's sole cost and expense, construct the Stub Line running
westerly from the base of manhole 22 for a distance of one hundred and twenty feet (120') in
the location indicated on Exhibit C-1. The Stub Line will be capped and the end point will
be marked with a two inch by four inch (2" by 4") wooden post vertically buried at the end
of the Stub Line to ground surface with wire wrapped around the wood post for metal
detection. Grantee will provide Grantor with a drawing showing the field location and
elevation of the Stub Line.
Grantee covenants that the Stub Line shall be accessible from all of Grantor's property
depicted on Exhibit C-1 ("Grantor's Property"), from the west side of Five Mile Creek, and
Grantee shall continuously and uninterruptedly provide sewer service to the Grantor's
Property through the Stub Line, subject to Grantor's compliance with all applicable city or
county ordinances. Grantee will at all times keep and maintain adequate equipment and
personnel to service the usual and ordinary demands and requirements of sewer service for
the residents of the Grantor's Property.
Grantee will defend, indemnify and hold Grantor and Grantor's successors and
assigns, harmless from any losses, claims, allegations, actions, damages, costs, expenses,
liability or judgments, including attorneys fees, for damages or injuries to persons or
TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 2
2515\15\SEW-XC2.CL2
property, and/or loss of use to any tenant of Grantor caused by, arising out of, or associated
with the construction of the Stub Line and performance of Repair and Operation or use by
Grantee, its assigns, contractors and/or subcontractors, of the License Premises and
Easement Premises granted hereby.
Grantee covenants that no hazardous substance (as hereinafter defined) shall
contaminate or be stored, released or disposed of in, on or under the License Premises or the
Easement Premises. Grantee will defend, indemnify and hold Grantor and Grantor's
successors and assigns harmless from any losses, claims, allegations, actions, damages, costs,
expenses, liability or judgments, including attorneys' fees, that Grantor or Grantor's
successors and assigns may suffer as a result of any and all claims, allegations, demands,
costs or judgments made against Grantor, his successors and assigns, by any third party,
including, without limitation, a government authority, arising from the deposit, storage,
disposal, burial, dumping, injecting, spilling, leaking or other placement or release in, on, or
under the License Premises or the Easement Premises, and any property of Grantor
contiguous thereto, of any "hazardous substance." For the purpose of this Agreement,
"hazardous substance" shall include, but not be limited to, substances that are: toxic,
corrosive, inflammable, ignitable, or explosive; sewage, asbestos, radioactive materials,
petroleum or petroleum based products, hazardous wastes, toxic substances or related
injurious materials, whether injurious by themselves or in combination with other materials,
and substances which are or may be defined as "hazardous substances", "hazardous
materials" or "toxic substances" in any applicable federal or state statute or county or
municipal law or ordinance, as may be amended from time to time.
Grantee shall provide Grantor with seven (7) days prior written notice of Grantee's
construction of the Stub Line and performance of any Repair and Operation and shall
cooperate and coordinate with Grantor closely to insure that the construction of the Stub Line
and the performance of any Repair and Operation are conducted in a way which are not
unreasonably disruptive to Grantor and Grantor's licensees, invitees or guests on the License
Premises or the Easement Premises. No advance notification shall be required of Grantee
in the event of an actual emergency presenting an unreasonable risk of harm to person or
property.
Grantee covenants that existing trees along or on the License Premises and Easement
Premises be retained and protected during the construction of the Stub Line and performance
of the Repair and Operation.
Grantor reserves the right to, and Grantee agrees that, the License Premises,
Easement Premises and Stub Line may be relocated at Grantor's sole cost and expense,
subject to Grantee's approval, such approval not to be unreasonably withheld or delayed;
provided, however, that Grantor's relocation of the License Premises, Easement Premises and
the Stub Line will not reduce the size of, or limit the scope of the Construction License and/or
the Permanent Easement.
Both Grantee and Grantor acknowledge that the Easement Premises may become an
amenity for a future development and as such will include various architectural surface
TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 3
2515\15\SEW-XC2.CL2
treatments and plantings. Those treatments and plantings, which may include fences, shall
not unreasonably hinder the Grantee's ability to construct the Stub Line or perform the
Repair and Operation, and may be removed at Grantee's discretion and reinstalled at
Grantee's sole cost and expense.
Grantor reserves the right to make any use of the License Premises and Easement
Premises, including the right to landscape the License Premises and Easement Premises,
which will not substantially interfere with Grantee's use of the License Premises and the
Easement Premises.
In the event of a breach hereunder by Grantor or Grantee, the non-breaching party
shall have all remedies available at law or in equity, including injunctive or other equitable
relief. In any suit, action or appeal therefrom to enforce or interpret the terms and
conditions of this Agreement, the prevailing party shall be entitled to recover its costs
incurred therein, including reasonable attorneys' fees and costs, and also including reasonable
attorneys' fees and costs associated with any appeal of a judgment. The prevailing party will
be that party who was awarded judgment as a result of trial or arbitration, or who receives
a payment of money from the other party in settlement of claims asserted by that party.
Grantee and Grantor agree that this Agreement shall not be modified unless expressly
agreed to in writing by each of them.
Nothing herein contained shall be deemed to be a grant or dedication of any portion
of the License Premises or Easement Premises to the general public, it being the intention
of the Grantor and Grantee that this Agreement shall be strictly limited to and for the
purposes herein.
This Agreement shall be binding upon and shall inure to the benefit of Grantor and
Grantee, and their respective heirs, personal representatives, successors and assigns and
shall constitute a covenant running with the land.
Grantee shall not assign its rights and obligations hereunder to any third party,
without Grantor's written approval.
TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 4
2515\15\SEW-XC2.CL2
IN WITNESS WHEREOF, the parties have executed this Temporary Construction
License and Sewer Easement Agreement effective as of ~~~.~ ~/~~_, 1999.
GRANTOR:
ames F. Gri n, a sing ividual
GRANTEE: CITY OF MERIDIAN, an Idaho municipal corporation
By:.
City of Meridian
~~~~y.~ t13't k i'!'t ~#f ~i~ $ ~ «
*ti,+'~,,~~ ~ ~'~~`~.~'~~'.~,r it iam G. Berg, Jr., City er ,City of Meridian
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TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 5
2515~15~SEW-XC2.CL2
STATE OF IDAHO
County of Ada
On this ! ~~ day of 1999, before me, L~/i~ ~, ~Cew+B~H~ /
personally appeared JAMES F. GR FIN, known to me to be the person whose name is
subscribed to the within instrument nd acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto se y hand and a d my official seal
the day in this certificate first above writt
4.~-plrl8,~~y,~
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0 {O~:Y ~ ~ NOTARY PUBLIC FOR IDAHO
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STATE OF IDAHO
County of Ada
On this ~ day of 1999, before me, ~ S
personally appeared ROBERT CORRIE and WILLIAM G. BER , JR. own to me to be the
Mayor and City Clerk of the City of Meridian, Idaho, and who executed the within
instrument and acknowledged to me that the City of Meridian executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate f}rst above written.
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TEMPORARY CONSTRUCTION LICENSE
AND SEWER EASEMENT AGREEMENT - 6
2515~15~SEW-XC2.CL2
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PROJECT: 93047
DATE: February 27, 1998
PAGE: 1 of 1
GRIFFIN PROPERTY
20 FOOT WIDE SEWER EASEMENT
FOR
THE CITY OF MERIDIAN
A 20 foot wide permanent sanitary sewer easement being 10 feet on each side of the following
described centerline, being situated in the S'h of the NW'/a of Section 17, T.3N., R.lE., B.M.,
City of Meridian, Ada County, Idaho, described as follows:
CONIlVIENCING at a brass cap monument in S. Locust Grove marking the northwesterly corner
of said Section 17 as shown on Record-Of--Survey No. 1199 recorded in Ada County as Index
No. 311-17-4-0-0-0-0, said corner being located N.00°00'00"E., 2658.94 feet from an iron pin
marking the west '/a corner of said Section 17; thence,
A) 5.00°0'00"W., 1329.47 feet along the westerly boundary line of said Section 17 to a
point marking the northwesterly property corner of the James F. Griffin parcel per said
Record-Of-Survey; thence leaving the westerly boundary line of said section 17, and
running along the northerly boundary line of said James F. Griffin parcel,
B) N.89°30'51"E., 1341.12 feet to a point; thence leaving the said northerly boundary line
of said parcel,
C) S.17°39'54"E., 35.56 feet to an existing sewer manhole which is the sixth turning point
of the Sewer Easement Agreement as recorded in Instrument No. 95033514 dated April
21, 1995 ;thence,
D) S.17°39'54"E., 232.42 feet to an existing manhole which is the fifth turning point of the
Sewer Easement Agreement as recorded in Instrument No. 95033514 dated April 21,
1995 to the POINT OF BEGINNING; thence,
1.) S .76 °24' S3 "W . , 120.00 feet to the POINT OF TERMINUS,
SUBJECT TO all Covenants, Rights, Rights-Of--Way and Easements of Record.
Sketch attached, and by this reference made a part hereof.
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EXHIBIT C-1
RESOLUTION NO.
BY: /~~ifh ,~~,~r~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MERIDIAN, SETTING FORTH CERTAIN FINDINGS AND
PURPOSES; AUTHORIZING THE MAYOR TO ENTER INTO,
ON BEHALF OF SAID MUNICIPALITY, AN AGREEMENT
ENTITLED "TEMPORARY CONSTRUCTION LICENSE AND
SEWER EASEMENT AGREEMENT", DATED THE DAY
OF _ ~`~ ,1999, BY AND BETWEEN THE CITY OF
MERIDIAN AND JAMES F. GRIFFIN.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
CITY OF MERIDIAN, IDAHO:
WHEREAS, it is in the best interests of the City of Meridian to
enter into an agreement with JAMES F. GRIFFIN, denoted as
"TEMPORARY CONSTRUCTION LICENSE AND SEWER
EASEMENT AGREEMENT" a copy of which is attached hereto
marked as Exhibit "A" to this Resolution, the reasons and authority for
which are as set forth in said Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR
AND CITY COUNCIL as follows:
1. The Mayor and Clerk are hereby authorized to enter into on
behalf of the City of Meridian that certain agreement with JAIVIES F.
GRIFFIN, entitled "TEMPORARY CONSTRUCTION LICENSE AND
SEWER EASEMENT AGREEMENT" a copy of which is attached
RESOLUTION OF THE CITY OF MERIDIAN, AUTHORIZING
CERTAIN FINDINGS AND PURPOSES, AUTHORIZING THE MAYOR
TO ENTER INTO A SEWER EASEMENT AGREEMENT WITH
JAMES F. GRIFFIN
hereto marked as Exhibit "A" to this Resolution and to bind this City to
its terms and conditions.
PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN,
IDAHO, this ~ day of _~~,~,cG~ , 1999.
APPROVED BY THE MAYOR OF TI-~ CITY OF MERIDIAN,
IDAHO, this ~ day of /~~, e%~ , 1999.
ATTEST:
~~~
CITY CLERK
PREPARED BY ANGEL SIMS, CITY CLERK'S OFFICE
~~ .~~ `~~;',.* 'ter
r
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Qj :.
RESOLUTION OF THE CITY OF MERIDIAN, AUTHORIZING 2
CERTAIN FINDINGS AND PURPOSES, AUTHORIZING THE MAYOR
TO ENTER INTO A SEWER EASEMENT AGREEMENT WITH
JAMES F. GRIFFIN
Office
of the
City Attorney
Gary Smith and Bruce Freckelton
cc Mayor
City Clerk
Bill Gigray, City Attorney ~/
R,~CE~D
To
From:
Re:
Date
Temporary Construction
James F. Griffin Grantor
March 9, 1999
200 E. Carlton Ave. Suite 31
PO Box 1150
Meridian ID 83680-1150
Phone: 288-2499 Fax: 288-2501
E-mail: wfg@wppmg.com
:ulA~ 1 1 1999
EITY OF :MERIDIAN
License and Sewer Easement Agreement
Enclosure: Draft copy of Temporary Construction License and Sewer Easement
Agreement James F. Griffin Grantor
Information: I reviewed at the request of the Mayor this proposed agreement. It
appears to be in proper form. Please review to determine that the easement right that is
provided is as it should be and due to the fact that this is a non exclusive easement that
the other development that is allowed is compatible with the City's intended use and
needs. I am also of the opinion that this agreement should be recorded. The signature
provisions are acknowledged so it can be recorded.
Requested Action: Please advise the Mayor whether this matter should be
considered in the consent agenda or during the Public Works Director's report. The City
Clerk after a resolution authorizing the signature of the Agreement should cause the
same to be recorded.
GIVENS PURSLEY LLP
LAW OFFICES
277 North 6th Street, Suite 200
PO Box 2720,~fnBoise, Idaho 83701
TELEPHONE: 208 3nHH-120O
FACSIMILE: 2O8 3p8'1201
February 24, 1999
Bruce Freckleton
City of Meridian
33 East Idaho Avenue
Meridian, ID 83642
Re:
Our file
Dear Bruce:
Five Mile Creek
2515-15
Gary G. Allen Kimberly D. Maloney Conley Ward
Christopher J. Beeson Kenneth R. McClure Stevan R. Weeks
Michael C. Creamer Cynthia A. Melilla Stephanie C. Westermeier
Thomas E. Dvorak Christopher H. Meyer Robert B. White
Roy Lewis Eiguren L. Edward Miller
Jeffrey C. Faraday Petrick J. Miller Raymond D. Givens
L. W. Grant III Judson B. Montgomery James A. McClure
Richard W Jankowski Aaron H. Nemec of counsE~
Karl T Klein W. Hugh O'Riordan
David R. Lombardi Kenneth L. Pursley
lIA~! CITY ENGIHEEIi
JUDSON B. MONTGOMERY
DIRECT DIAL
(208) 388-1202
Pursuant to your request, enclosed please find an execution original and a
redlined copy of the Temporary Construction License and Sewer Easement
Agreement, for your review. Jim Griffin has already signed the execution original of
the Agreement.
We have incorporated all of the agreed upon changes into the Agreement, and
all of the substantive additions and deletions are indicated on the enclosed redlined
document. Per your request, we have also reviewed the distance calls in the legal
descriptions on the exhibits to the Agreement, and we believe that they are accurate.
If you have any continuing concerns about the distance calls, please feel free to
contact Richard Orton at Toothman-Orton concerning that issue.
If the revised Agreement meets with your approval, please insert the effective
date of the Agreement on page 5 of the execution original, and have the City's
authorized signatories sign that document in the indicated spaces before a notary.
Please let us know when the City has executed the Agreement, and we will send a
runner to pick it up, and record it with Ada County Recorder. After recordation, we
will return the recorded original of the Agreement to you for your files.
Further, when the City is ready to install the sewer stub line, we would
appreciate you providing Jim Griffin and us with 7 days prior written notice before
commencing construction. We would appreciate you providing similar notice when
Bruce Freckleton
February 24, 1999.
Page 2
the City is performing any subsequent operation, maintenance or repair activities to
the sewer stub line. After the City completes the initial installation, please let us
know and we will forward you the money in our possession for the cost of
construction, exclusive of our client's out of pocket engineering and legal .fees.
On a related note, you had previously indicated your belief that the City had
constructed stub lines from Manhole Nos. 21 and 23 pursuant to the original Sewer
Easement Agreement. We would appreciate you confirming that those stub lines
were actually constructed via written letter before the City begins construction on the
new sewer stub line from Manhole No. 22.
Thank you for your attention to these matters. If you have any questions or
comments regarding the enclosed materials, please do not hesitate to call David
Lombardi or me.
Very truly yours,
~'
J dson B. Montgomery
JBM:slc
Enclosure
cc: Jim Griffin
David Lombardi
Richard Orton
2515\15\CORR\FRECKL0I.JBM