Loading...
Sewer Easement Agreement with Woodbridge Community, LLC for Lot 83, Block 6'~ A CU~tI~ Y RECdR .~. OAylt? NAVARRQ n ~. When Recorded Return to L. Edward Miller Givens Pursley LLP Suite 200, Park Place 277 North Sixth Street P.O. Box 2720 Boise, Idaho 83701 ~DOU ~C - 2 PPS ~ ~ p ~ SEWER EASEMENT AGREEMENT (Proposed Lot 83, Block 6) ~ECORDEp - R~ U ST OF F'FEL~_.L.._D ~ooo~sss6 This Sewer Easement Agreement (the "Agreement") is made this 29th day of September, 2000, by Woodbridge Community LLC, an Idaho limited liability company, whose address is 100 North 9th Street, Suite 300, Boise, Idaho 83702 ("Woodbridge"), and the CITY OF MERIDIAN, an Idaho municipal corporation, whose address is 33 East Idaho Avenue, Meridian, Idaho 83642 ("Meridian"). Woodbridge and Meridian may be referred to as the "Party" or the "Parties" as appropriate under the circumstances. RECITALS A. Woodbridge is the owner of that certain real property located in Meridian, Ada County, Idaho, legally described on Exhibit A, attached hereto and incorporated herein by this reference (the "Property"), which is a portion of a larger parcel upon which Woodbridge intends to develop a residential subdivision to be known as Woodbridge Subdivision -Phase 1. B. Woodbridge desires to install a sewer line (the "Sewer Line")under certain portions of the Property. C. Meridian desires to obtain, and Woodbridge is willing to grant, a perpetual, non- exclusive, twenty foot (20') wide easement to maintain, replace or repair the Sewer Line on, over, under and across that portion of the Property, as graphically depicted on Exhibit B, attached hereto and incorporated herein by this reference and more particularly described on Exhibit C, attached hereto and incorporated herein by this reference (the "Easement Premises"). NOW, THEREFORE, in consideration of the above recitals which are incorporated below, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. GRANT OF EASEMENT. Woodbridge hereby grants to Meridian, subject to the terms contained herein, a perpetual, non-exclusive, twenty foot (20') wide easement on, over, under and across the Easement Premises (the "Easement"). Woodbridge hereby agrees to provide notice to Meridian prior to granting any additional easements on, over, under or across any portion of the Easement Premises. Meridian shall have thirty (30) days from its receipt of written notice from Woodbridge to provide written comments to Woodbridge regarding any interference which the additional easement may cause to the Easement granted herein. 2. USE OF EASEMENT. The Easement shall be used forthe purposes of maintaining, repairing and replacing the Sewer Line. Meridian shall take all reasonable efforts to provide written SEWER EASEMENT AGREEMENT -1 S:\CLIENTS\5267\13\Sewer Easement2 - Clean2.wpd notice to the owners of the Easement Premises at least forty-eight (48) hours prior to Meridian's use of the Easement for the purposes herein, except in the case of emergency maintenance, repair or replacement. 3. EASEMENT IMPROVEMENTS AND MAINTENANCE. 3.1 The owners of the Property (individually, an "Owner" and collectively the "Owners") shall not install, construct, remove, maintain or repair any improvements (including, without limitation, any structure, landscaping or other similar improvements) upon the Easement Premises, which would materially interfere with or prevent the Easement from being used for the purposes identified in Section 2. Notwithstanding the foregoing, the Owners may install, construct, remove, maintain or repair the following improvements: lawn, fencing, low-growing shrubs with shallow root systems, flower or vegetable gardens and driveways. However, the Owners understand that any improvements installed by an Owner on the Easement Premises may be removed by Meridian in its exercise of its rights under Section 2 herein, and any repair or replacement of such improvements shall be at such Owner's sole cost and expense. 3.2 Except as provided in Section 3.1 above, Meridian, at its sole cost and expense, shall restore (or cause to be restored) any displacement, damage or disfigurement to the ground, as necessary to leave the Easement Premises in a level, compacted and graded condition following the use of the Easement by Meridian. Meridian shall not otherwise be responsible for maintaining the Easement or repairing or replacing any improvements placed on the Easement Premises by the Owners. In the event Meridian fails to restore the Easement Premises to a level, compacted and graded condition following the use of the Easement by Meridian ("Default"), Woodbridge, the Owners or any homeowners' association governing the Property, as appropriate, after thirty (30) days prior notice to Meridian, shall have the right to take or complete any action it deems appropriate to cure or remedy the Default. Meridian shall reimburse Woodbridge, the Owners or any homeowners' association governing the Property, for the reasonable value of all costs and expenses incurred in remedying the Default. 4. COMPLIANCE WITH LAW. Meridian hereby agrees to comply in all respects with any and all, federal, state and local statutes, law, ordinances, codes, regulations and rules and obtain any and all permits and approvals in connection with its use of the Easement, including, without limitation, those relating to the Clean Water Act and/or relating to Hazardous Materials, as hereinafter defined. Meridian covenants that no Hazardous Materials shall contaminate or be stored, released or disposed of on the Property. Meridian agrees to indemnify and hold Woodbridge harmless from and against any and all claims, demands, damages, liens, liabilities and expenses (including without limitation, reasonable attorneys' fees), arising directly or indirectly from or in any way connected with the breach of the foregoing covenant. The term "Hazardous Materials" shall mean any substance or material defined or designated as hazardous or toxic waste, material or substance, or other similar term, by any federal, state or local environmental statute, regulation or ordinance presently in effect or that may be promulgated in the future. 5. INDEMNIFICATION. Meridian will be solely liable for any and all damage to persons or property caused by or resulting from any negligent act or omission or the willful misconduct on the part of Meridian, its agents, officers, or employees arising out of or during Meridian's use of the Easement. Meridian shall indemnify, defend and hold Woodbridge harmless from any and all SEWER EASEMENT AGREEMENT - 2 S:\CLIENTS\526T13\Sewer Easement2 - Clean2.wpd costs and expenses (including reasonable attorneys' fees) incurred or sustained by Woodbridge as a result of any negligent act or omission or the willful misconduct on the part of Meridian, its agents, officers, or employees arising out of or during Meridian's use of the Easement. 6. NOTICE. Any notice under this Agreement shall be in writing and be delivered in person or by public or private overnight courier service (so long as such service provides written confirmation of delivery) (including U.S. Postal Service Express Mail) or by confirmed facsimile. Any notice given by facsimile shall be verified by electronic confirmation. All notices shall be addressed to the Parties at the addresses contained herein or at such other addresses as the Parties may from time to time direct in writing. With regard to notice to the Owners, notice shall be directed to the respective Owner's address identified in the tax records for Ada County, Idaho. Any notice shall be deemed to have been given on (a) actual delivery or refusal to accept delivery, (b) the day of delivery to the courier, or (c) the day facsimile delivery is electronically confirmed. If to Woodbridge: Woodbridge Community LLC 100 North 9th Street, Suite 300 Boise, Idaho 83702 Attn: Derick O'Neill with a copy to: Givens Pursley LLP 277 North 6th Street, Suite 200 P.O. Box 2720 Boise, Idaho 83701 Attn: Ed Miller If to Meridian: City of Meridian 33 East Idaho Avenue Meridian, Idaho 83642 Attn: City Engineer 7. MODIFICATION. This Agreement shall not be modified unless expressly agreed to by both Parties in writing. Provided, however, the Parties acknowledge and agree that the legal descriptions for the Property and the Easement Premises are based upon the proposed plat for Woodbridge Subdivision -Phase 1 ("Plat") which has not been recorded. In the event the legal descriptions contained in the Plat and the location of the Property and/or the Easement Premises in relation thereto are modified prior to recordation of the Plat, the Parties shall execute an amendment to this Agreement modifying the legal description for the Property and/or the Easement Premises to correspond with the legal descriptions contained in the Plat and file the same in the real property records of Ada County. 8. NOT A PUBLIC DEDICATION. Nothing herein contained shall be deemed to be a grant or dedication of any portion of the Easement Premises to the general public, it being the intention of the Parties to this Agreement that this Agreement shall be strictly limited to and for the purposes herein expressed. 9. HEADINGS. The headings of the several sections contained herein are for convenience only and do not explain, define, limit, amplify, or aid in the interpretation, construction or meaning of the provisions of this Agreement. SEWER EASEMENT AGREEMENT - 3 S:\CLIENTSW26T13\Sewer Easement2 - Clean2.wpd 10. EXHIBITS AND RECITALS. All exhibits attached hereto and the recitals contained herein are incorporated herein as though set forth in full herein. However, in the event of any conflict between such exhibits and/or recitals and the text of this Agreement, the text of the Agreement shall control. 11. TIME OF THE ESSENCE. All times provided for in this Agreement, or in any other document executed hereunder, for the performance of any act will be strictly construed, time being of the essence. 12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Idaho, and be performed in the State of Idaho. 13. BINDING EFFECT. All of the easements, covenants, conditions and declarations contained herein shall be a burden on the Property, and shall be for the benefit of Meridian, and shall run with the land. 14. REMEDIES. In the event of a breach hereunder by any party, the nonbreaching parties 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 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 which was awarded judgment as a result of trial or arbitration, or which receives a payment of money from the other party in settlement of claims asserted by that party. 15. ASSIGNMENT. The parties shall not assign their rights and obligations hereunder to any third party, except with the prior written approval of the other party. [End of Text] SEWER EASEMENT AGREEMENT-4 S:\CLIENTS\526T13\Sewer Easement2 - Clean2.wpd IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day and year first above written. WOODBRIDGE: Woodbridge Community LLC, an Idaho limited liability company By: O'Neill Ent rprises, Inc., an Idaho corporation, its Manager By: Derick O'Neill, President MERIDIAN: ATTEST: CITY OF MERIDIAN, an Idaho municipal corporation By William G. Berg, Jr., City CI rk ~`~``~ J`,t~~tJttr/{f~c Jv`rTlrr r K ~~1~,L - ~. watt ttu SEWER EASEMENTAGREEMENT- 5 S:\CLIENTS\526T13\Sewer Easement2 - Clean2.wpd STATE OF IDAHO ) ss. County of Ada ) ti~ On this ~ day of QCIO , in the year 2000, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared Derick O'Neill, known or identified to me to be the President of O'Neill Enterprises, Inc., an Idaho corporation, the corporation that executed this instrument and the person who executed the instrument on behalf of said corporation, said corporation known to me to be the Manager of Woodbridge Community LLC, the Idaho limited liability company that executed the instrument and acknowledged to me that such. corporation executed the same on behalf of said limited liability company and that said limited liability company executed it. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ~„u p6i111111, ~'~ ~~e'.•'"'•••~l ''. • :*_ ~.~ pUBLIG ~ .,~,~,,9rF 0 ~Z~ ~~~'' 0.- F --•~ l ,~' Notary Public for I aho Residing at: l~ My commission expires: SEWER EASEMENT AGREEMENT - 6 S:\CLIENTS\526T13\Sewer Easement2 - Clean2.wpd Fiug 16 00 02:31p Too~hman-Orton Engrg. Co. 208-323-2399 p,2 PROJECT: 98048 DATE: Aujust lb, 2000 P~,GE: 1 of 2 EX~IIBIT "A" Leval Description of The Property A parcel of land situated in the SE1/< of the NW % of Section 17, T.3N., R.IE., B.M., City of l~leridian, Ada County, Idaho, more particularly described as follows: COitiIl1~NCI~TG at the ~/ corner common to Sections 17 and 18, from which comer, the N1/16 corner common to said Sections bears North, 1329.23 feet; thence, along the south line of said NW 1,~, A) N.89°29'S3"E., 1554.73 feet to the POl1i 1T OF BEG11~vG; thence, 1} N.50°43'22"W., 54.63 feet; thence, 2) N.39°15'38"E., 168.82 feet; thence, 3) 5.54°32'12"E., 3.56 feet to the beginning of a tangent curve; thence, 4) southeasterly along said curve to the risht having a radius of 21.00 feet, an arc length of 18.19 feet, through a central angle of 49°37'03°, and a chord bearing and distance of S.29°43'40"E., 17.62 feet to a point of reverse curvature; thence, 5) Southeasterly along said curve to the left having a radius of 50.00 feet, an arc length of 63.14, through a central angle of 72°21'07", and a chord bearing and distance of 5.41°~'43"E., 59.03 feet; thence, non-tangent from said curve, b) S.00°I7'42"E., 102.40 feet to a point on the south line of said N~V'/a of Section 17; thence, alon¢ said south line 7) S.89°29'S3"~V., 115.55 feet to the POIi iT OF BEGL~~TG. CONT:~~i 1TNG 0.37 Aces, more or less. SUBJECT TO alI Covenants, Rights, Right-of--u%ay and Easements of Record or in use. EDIT "B" attached, and b}• this reference, lnade a part hereof. ~ Eilt H:`.93C~Slw~hlestE.~ch-TheP:op-83-5.dec ~r ~ •<.~ ~~ O cl)~ 8~..nQ ~~ 9l ;~ \``l. ~„£ 0 F ~~ err ~ ~ CJ Gl m O ~ $ ~ ,. j N _ ry Z ^. ~ J N r ' ~ Z 1 ~r.~ ~ ~ ~ C t ~ SJ ~ ~ ms's ~ ~ ~ ~ 4 acv •~Npp'~ Z - °- g ~ i .-. p ~ ~ ~ a v ~• _ ~ ;~., o ~ ~ ., d r.. O ~ Z C C3 ~ . : Z ° (n0 fi Nap H ~ N ~ . r ~+ C ~ W U ~ ~ }.: ~ o 2 Z V 'r1~ O o .-. Z ~ 2n, W G1 r. Z ° _ w U Z __ ~ 0 e O . Q ` O C a ~~ ~~ ~ ~,., c .:. .: ,. :-` : ~ ::s ~ ~~ ° ;;r ` H z '~i \ i ~ p o ~ ~ ~- H H ~' ° '' o w z ~~ rr~ o T C 5` ~ ~.~) .: N ~~ O Z ~ ~ o F _.. u _ .... _ == y ~ ~ „ '- U Q f a ~~~ ct r O ~ > ` r ~ ~ ~i ) ~~ )) CJ p O . r C O N ~~ 0 c.~c.-~ iccc~. , p QYOH fiA0~7 !SG7C'I F:!'1C5 p "EXHIBIT C " co~~,~~; 1199 cL~G at the 1/- corer cor;:non to Sections li and 18 as show fron which corner t_he iti 1/16 corer connon to s::id Sections bear- non Record of Sur/e•; Rio. c~`Ie;ICe, along c,ie south line o[ the NL~II/4 of slid Section ' N•00 GO GO E., 1329.7 fee:; B} `1.59°29'J3"E., 1660.29 feet to t1e POLti'T OF BEGLtiitiZl°G; G1enCe 5} i`1'00° 17'`2^1y., I 12.17 feet to a point on a non-trnSznt curve; 4`1ence, 6} soutl'~e:sterly alons said cilr/e to the Ie ~ having a radio of ~O.C~ fe~ t'IrouQ' ,.:, an arc Ie::S* ' 22 ~ 1 fee., :Z a Ce•^•t"cl arI?le Of ~'-~.-I'C4^, a:-:d a CIIOrO beriinQ aP.d d~ 'r-r a .A Oi ,< f2"; Lie^C~, 110i2-t„ncp~ , -Si....Ce Ot 5.~=°7j'~"E•~ 7'7.7 j :C fi 01i1 SnId CLI-/e, i) S.CO° i i'<2^E, IG2.S0 fee: to the south line of said `+~~Il/~; the::ce, alor.Q ~-; ..~ d s;;uth line, S} S'Sg°29'S;^W., 20.C~ fee: to the POi,I'T OFBEGL`+~1,,'G. S~~L7 P:~-RCELS cOti~~,Zy'G x,333 sgLare fee: or 0.1? A.cr:s, riore or 12ss. SU~CT TO all Covencs, Ri~zts, Rig^~s-of-1~%av and Ease~en~s of RecorQ. ' . ~V,•`.L La1 ~p , c~ .i ~ ~ . ~EGr. 22 ..