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Home My Public Portal AboutBox 502 - Stip for return of propertyWilliam A. McCurdy BRASSEY, WETHERELL, CRAWFORD & McCURDY Washington Federal Plaza 1001 West Idaho, Third Floor P.O. Box 1009 Boise, ID 83701-1009 Telephone: (208) 344-7300 Facsimilie: (208) 344-7077 Idaho State Bar No. 1686 Susan E. Buxton MOORE & McFADDEN, CHARTERED One Capital Center, Suite 910 999 Main Street Boise, ID 83702 Telephone: (208) 331-1800 Facsimilie: (208) 331-1202 Attorneys for Plaintiff TN THE DISTRICT COURT OIL OF THE STATE OF IDAI IO, IN CITY OF McCALL, IDAHO, a municipal corporation, Plaintiff, VS. BEZATES LAND & CATTLE CO., an Idaho corporation, Defendant. THE FOURTH JUDICIAL DISTRICT ANI) FOR THE COUNTY OF VALLEY CASE NO. CV-98-332C STIPULATION FOR RETURN OF PROPERTY COME NOW the above named parties, by and through their respective counsel of record, and stipulate and agree to the following: STIPULATION FOR RETURN OF PROPERTY - 1 cnPy 1. That Plaintiff, City of McCall, Idaho, was previously engaged in the construction of the sewer project designated as the J Ditch Sewer Project Phase II, which project necessitated the taking of the property belonging to the Defendant, which property is hereinafter described. 2. That due to a change in circumstances, the above Plaintiff -is willing to return, and the above Defendant is willing to accept, under the conditions and provisions hereinafter set forth, possession of said property hereinafter described. 3. That property covered Hereby is designated as Parcel No. 1 and is more fully described in Exhibit "A" attached hereto and made a part Hereof, the same being One Hundred Fifty -Seven and 72/ 100ths (157.72) acre portion of Defendant's property. 4. That the Plaintiff took possession of the subject property specifically described in Exhibit "A" as of the 19th day of February, 1999, upon payments of the agreed amount as hereinafter set forth. 5. That the Plaintiff had the right of eminent domain and that the use to which the property was to be applied is a use authorized by iaw, and that the taking of said property was necessary to sueh use, and that the Plaintiff sought in good faith to purchase the land sought to be taken. 6. That the Plaintiff agreed to pay to the Defendant a sum certain on February 19, 1999, which sum included the principal of One Million Two Hundred Fifteen Thousand Five Hundred Seventy Four and 55/100 the Dollars ($1,215,574.55), together with interest thereon of Sixty -Four Thousand Four Hundred Twenty -Five and 451100ths Dollars (S64,425.45), accruing from the date of filing to February 19, 1999, for a total of One Million Two Hundred Eighty Thousand and no/100ths Dollars ($1,280,000.00); that said sum was deposited with the Court as STIPULATION FOR RETURN OF PROPERTY - 2 required by Idaho Code § 7-721(5); and that Plaintiff's Tender of the said sum was without prejudiee to the position of either party and relating to the dispute surrounding just compensation in this condemnation action. 7. That, pursuant to agreement with the Plaintiff, Defendant withdrew ninety percent (90%) of the amount deposited with the Court by Plaintiff, without a written undertaking executed by two (2) or more sufficient sureties as required by Idaho Code § 7-721(7); that said amount was remitted by the Court by draft or warrant payable to the Davison, Copple, Copple Sc Copple Trust Account, that the Clerk of the Court then deposited the remaining ten percent (10%) of the deposit in a certificate of deposit or other interest -bearing account at Farmers and Merchants State Bank in Boise, Idaho, bearing interest at current rates, pending a resolution of this matter. 8. That Defendant may now withdraw the remaining ten percent (10%), plus any accrued interest, of the amount deposited by Plaintiff to the Court without a written undertaking. 9. That Defendant shall return Nine Hundred Thousand and No/100ths Dollars ($900,000.00) to the Plaintiff, with payment of Two Hundred and Thirty Thousand and No/100ths Dollars ($230,000,00) on February 15, 2000, and payment of Six Hundred and Seventy Thousand and No/100ths ($670,000.00) on or before March 1, 2000, with the retained principal amount and interest satisfying and extinguishing any claims the Defendant or its successors and assigns may assert for the rent, costs, attorney fees, or any other type of claim arising or to arise from the possession of the property by the Plaintiff 10. That upon payment of Nine Hundred Thousand and No/100ths Dollars ($900,000.00) by Defendant to Plaintiff, the parties will execute, file and record all necessary and STIPULATION FOR RETURN OF PROPERTY - 3 appropriate documents to return possession and ownership of the said property to the Defendants. 11. That upon the occurrence of the above recited events, the parties will stipulate to dismiss the pending action with prejudice. 12. The Plaintiff in this matter has determined that it does not, in fact, need Defendant's property for the 1 Ditch Sewer Project Phase II, or for any other sewer or public purposes at this time. The condemnation action is therefore being abandoned and Plaintiff will cease and desist all use of Defendant's property upon execution of this Stipulation. Plaintiff will retain no property right or interest in Defendant's property and may not enter upon the same in the future without Defendant's express written permission. 13. Plaintiff will provide to Defendant a full and complete copy of all environmental studies, appraisal reports and other data relating to Defendant's property During the pendency of this action, Plaintiff conducted a number attests on the property, including geological studies, hydraulic studies, topographic surveys, and various investigations of other types. As a condition to the execution of this agreement, Plaintiffagrees to provide Defendant with all information relating to the Property which was obtained. 14. Plaintiff has not removed and will not remove from the property any fixtures, including fencing or scales, The fencing and scales are in the original condition that they appeared on February 19, 1999, when Plaintiff took possession. Defendant retains all right, title and interest in said improvements and fixtures. STIPULATION FOR RETURN OF PROPERTY - 4 DATED this � — day of February, 2000. BRASSEY, WETHERELL, CRAWFORD & McCURDY By William A. Mc _.urdy, Of the Firm Attorneys for Plaintiff DATED this r day of February, 2000. DAVISON, COPPLE, CO J LE & COPPLE By E Don Copple, Of the Firm Attorneys for Defendant STIPULATION FOR RETURN OF PROPERTY - 5 - LEGAL DESCRIPTION 1 r • 1.7,.I111 311 .11..3 39,4111 - .60.0•3 Z,".91•9.7' 0)..91-20.GO N. 12131. N 1-r (•(1-3 11. . 9.2S.0)92 A 20q0.00 N (WI? A 611.00 N 1. I.:1 COUNTY RECORDER'S CERTIFICATE 111 Li. C.b 44 44 J j R U C7 I n • 11 I Tr. r,1 L•101.-10.4 1 t 1 • 1r,v1 c _ 1'71,3 2 l'Areci 1 CIVii EngIrwers and Land Stineyora EXHIBIT MOORE SMITH BUXTON & TURCKE, CHARTERED A I-IORNFYS A I LAW NINCII & II)AI11) CFNCI•R, Sul I I- 420 223 NOR-1[19r1[ SrR1Er, Bolsr, ID 83702 TI;LLI'IIurL: (208) 331-1800 FAA: (208) 331-1202 DAVID H. 811•1114 MONA DOBARAN MACk SU ,AN E. Bux I ON • of counsel )O51.1'11 D. MA111,1• )OIIN J. MCFADDLN •# M. JEROMF MArI' MR IIM T. ( MOOR!: t [,and Use Consultant BRIA.1 M. Shill!! F. i 1 A. 1•uR( ki *Also Admitted in Orrgun t Also .Admitted in Washington February 15, 2000 VIA IIAND DELIVERY Lindley Kirkpatrick Acting City Manager City of McCall 216 E. Park St. P.O. Box 986 McCall, Idaho 83638 Dear Lindley: Enclosed please find a copy of the Stipulation for Return of Property in Citv of McCall v. Bczatcs Land & Cattle Co. condemnation case filed in the Fourth Judicial District of Valley County, Idaho. Pursuant to paragraph 9 of the Stipulation, a check from John Bezates in the amount of S230,000.00 is also enclosed. We appreciate you picking the check up this afternoon. If)ou have any further questions or need additional information, please do not hesitate to contact me. Very Truly Yours, MOOR MITH X`I C)N & 1'URCKE, CHARTERED Susan E. Buxton