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HomeMy Public PortalAbout2009.08.27 Utility Easement - Alpine VillageUNDERGROUND UTILITY EASEMENT AGREEMENT This Underground Utility Easem nt Agreement (the "Agreement") is entered into effective this , day of. .. I , 2009, by and between the CITY OF MCCALL ( the "City") and the AINE VILLAGE COMPANY, an Idaho corporation ( "Alpine Village"). RECITALS The Alpine Village Company is the owner and developer of that certain condominium known as "the Alpine Village Condominium, Phase 1", which is filed with the Office of Recorder of Valley County Idaho in Book 12, page 17, of Plats, as Instrument No. 329169 ( the "Final Plat"). The Final Plat identifies certain Utility Easements which contain utilities which are owned and maintained by the City (hereinafter the "Easements" or the "Easement Premises"). The Final Plat fails to contain language which dedicates the Easements to the City, which dedication the parties desire to memorialize. The Alpine Village Phase 1 Condominium, as constructed, contains certain encroachments into the Easements (the "Encroachments"). The Encroachments are identified as the "Parking Lot Carport Easement Encroachment" and the "Fire Tower Easement Encroachment" and any other structure or feature with an expected life exceeding twenty (20) years, on the attached Exhibit "A". The Encroachments do not prevent access by the City to the utilities which are located within the Easements; but, may impact the cost to the City of the City's maintenance, repair or replacement of the utilities. The parties have reached agreement regarding the Encroachments and desire to memorialize their agreement. AGREEMENT WHEREFORE, for mutual consideration the adequacy of which is hereby confirmed by the parties, the parties do AGREE, PROMISE and COVENANT as follows: l . Alpine Village does hereby grant and convey a permanent easement to the City to the area described in the Easements for the construction, maintenance, repair and replacement of underground utilities which may include storm water, potable water and Instrument # 344901 VALLEY COUNTY, CASCADE, IDAHO 8-31-2009 12:08:29 No. of Pages: 5 Under round Utilit Easement A reement I Recorded for: CITY OF MCCALL g y g ARCHIE N. BANBURY Fee: 0.00 Ex-Officio Recorder Deputy Index to: EASEMENT """ sewer facilities, for the use and benefit of the owners of Alpine Village Condominium Units and the general public. 2. The City shall not, without the prior written consent of Alpine Village, expand the limited use for which this easement is granted as described above. 3. The City shall be entitled to enter the Easement Premises for the purpose of operating, maintaining and repairing the said utilities from time to time as the City deems necessary; provided, however, that prior to entering the Easement Premises (or in the event of emergencies making prior notice impractical, at the earliest possible time after such entry), the City shall provide Alpine Village, or Alpine Village's successors, notice of the City's intent to enter the Easement Premises for the purposes of making repairs or performing maintenance and the City shall, within 48 hours after making any such repairs or performing such maintenance, restore the surface of the Easement Premises to the condition in which it existed prior to making such repairs or performing such maintenance; provided, the City shall only be required to restore the surface of the disturbed area to a backfilled, compacted gravel surface. 4. The City does hereby agree to hold harmless, defend and indemnify Alpine Village and Alpine Village's successors against any and all claims, actions, causes of action, damages or liabilities of any description whatsoever arising out of or in any manner connected with the use of the Easement Premises as described herein. 5. Alpine Village does hereby covenant and agree that, except as is provided herein, it will not place or allow to be placed any permanent structures on the Easement Premises which would interfere with the use of this easement for the purposes stated herein; provided, however, that Alpine Village may improve the surface of the Easement Premises with asphalt or concrete walkways, install landscaping improvements, and make such other uses of and improvements to the Easement Premises which do not interfere with the rights granted to the City in this Agreement. Alpine Village shall be solely responsible for maintaining and restoring said improvements , including restoration after maintenance or repairs by the City as provided in Paragraph 3 above. 6. Alpine Village shall be entitled to maintain, repair and replace the Encroachments; provided: a. the Encroachments shall not be enlarged in any manner which materially impairs the City's exercise of its rights under this Agreement; b. in the event that the Encroachments directly result in an increase of the City's cost of maintenance, repair, or replacement of its said underground utilities, then Alpine Village shall be responsible for the said incremental cost which is directly caused by the Encroachments, provided: (i) Except in the case of emergency (or in the event of emergencies making prior notice impractical, at the earliest possible time after such emergency), the City shall provide Alpine Village with advance notice of any such Underground Utility Easement Agreement 2 anticipated increased cost, at least five (5) working days prior to actually incurring such additional cost; and, (ii) Alpine Village shall be entitled to propose and the City shall consider in good faith reasonable alternatives which would eliminate or mitigate such anticipated increased cost. 7. This Underground Utility Easement and the covenants contained herein shall run with the land which is included in the Final Plat and shall be binding upon and shall inure to the benefit of the parties to this instrument and their respective heirs, successors or assigns; provided, however that the rights granted The City hereunder shall not be assigned, conveyed or in any fashion alienated, except to a successor to The City's aforesaid utility facilities. 8. If either party shall fail to perform such party's obligation(s) under this Agreement, the other party may pursue any and all remedies at law or equity; provided, however, the parties agree to meet and confer and attempt to negotiate a settlement in good faith prior to initiating litigation. 9. In the event either party initiates or defends any legal action or proceeding involving the enforcement, interpretation, or breach of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover from the losing party in any such action or proceeding, its reasonable costs and attorney's fees incurred (including, without limitation, its reasonable costs and attorney's fees on any appeal). 10. Alpine Village may assign its responsibilities under this Agreement to the Alpine Village Property Owners' Association, without the prior consent of the City. IN WITNESS WHEREOF, the parties have executed this Agreement effective the date first hereinabove indicated. ALPI �, 'I PANY By:� Michael Hormaechea, its President CITY O CA By: Norbert Kul esza, Mayor ATTEST: _ lip ity Clerk Underground Utility Easement Agreement 3 STATE OF IDAHO ) ) ss. County of Valley ) On this day o AW, before me, a Notary Public in and f said St9te, personally appeared Michael B. Hormaechea, known or identified to me to be the President of Alpine Village Company, the Idaho Corporation that executed this Agreement or the person who executed this Agreement on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set and and affixed my official seal, the day and year in this certificate first above w tt <' < 00 P NOTARY PUB FO D O / = g �,, • . ` Residing at: My Commission Expires: STATE OF IDAHO, . ss. County of Valley, On this day of in the year 2009, before me, /144., L . r7vn-flyl a Notary Public, personally appeared hERT KULESZA and BESSIE JO WAGNER, Mayor and City Clerk, respectively, of the CITY OF McCALL, known or identified to me to be the persons who executed the instrument on behalf of the City of McCall, and acknowledged to me that the City of McCall executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and yea&jE tkis certificate first above written. �eeeee•RTO �sair :• y •e K AR Y ••,� �. (SEAL) i •' `G r Notary Pub is for Idaho *'% PUBS�r,i Commission Expires: /-ZI -ZOLY ,TA TE U� ♦,�•. '•••••••.6•.•••`' Underground Utility Easement Agreement 4 \ I m Z m e ti C ( \ \ v vo ❑ ❑ b \ \ \ . ; __J W I --o I I f z IA I \ II y m ;Z / C m i I ZO mo I i 'I I\ I I I y p �J / W a � I Z W C) I I ICI '*t C l o 0 I+ N m 1 m ' I i m m -- o A I -------- -- _._ m* � o ❑ z - is•so oc� O - A _ yYl-------------- -� O 00 I SECESH ENGINEERING INC. ALPINE VILLAGE - PHASE 1 © IDAHO 335 DE[NHARD LANE, SUITE 1 McCALL, McCALL,IDAHO 83638 EASEMENT ENCROACHMENT LOCATIONS 208.634.6336 - FAX 208.634.6322 EXHIBIT I phi,roim