HomeMy Public PortalAboutLift Station Agreement 10.19.1992I
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LIFT STATION AGREEMENT
This Agreement is made effective October 19, 1992 by and
between the City of McCall, an Idaho municipal corporation
("City"), Brown's Industries, Inc., an Idaho business
corporation ("BI"), and Malcolm Scott, of McCall, Idaho
("Scott"), for and in consideration of the mutual promises in
this Agreement.
Background
1. BI and City entered into a Subdivision Agreement dated
June 8, 1992, respecting Payette Lakes Commercial
Center, which called for the construction of a sewer
lift station at the southerly end of that Center, and of
a gravity sewer line serving the Center flowing to the
lift station, and of a pressure line from the lift
station back north to the City sewer line in Deinhard
Lane. A copy of this Subdivision Agreement is annexed
as Attachment A.
2. Subsequently BI and Scott entered into an Agreement
Regarding Sewer Hookup effective October 19, 1992 which
provided for their mutual construction of that lift
station, to be relocated at the southerly end of Scott's
property which lies across Jacob Street to the south of
the Center, with attendant lengthening of the two sewer
lines. A copy of this lift station agreement is annexed
as Attachment B.
3. City consented to that relocation of the lift station.
City contemplates the construction of an airport basin
sewer interceptor, to which the gravity sewer line would
ultimately be connected. The d~sign for such
interceptor was approved by the City Council in
November, 1992; but a timetable for its construction and
a plan for its financing have yet to be adopted, and its
completion thus cannot be guaranteed.
4. BI and Scott have granted each other reciprocal
easements to provide for the location, use, repair and
maintenance of the sewer lines under an Easement
Agreement of November 23, 1992, a copy of which is
annexed as Attachment C.
5. This Agreement is intended to provide for the ownership,
operation and maintenance of the lift station and of the
related gravity and pressure sewer lines, and of the
easements necessary to protect the location, use, repair
and maintenance of the lines.
LIFT STATION AGREEMENT page 1
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Agreements
6. City will assume as against the State of Idaho, the
United States, and the regulatory agencies of both, the
obligation to operate and maintain the sewer lift
station. BI and Scott in turn shall each have the duty
to inform the City promptly of any known or suspected
malfunction in any part of the sewer facilities
addressed by this Agreement.
7 • City will contract with Payette Lakes Water and Sewer
District for the maintenance of the lift station, in that
such District's office and maintenance headquarters is on
Jacob Street. A copy of such contract is attached as an
Attachment D to this Agreement.
8. BI and Scott will be jointly and severally liable to the
City to reimburse the City all amounts billed to City by
such District under the contract a copy of which is
attached as Attachment D, plus an overhead, service and
handling charge. Such charge shall be 15% of the flat
rate monthly charge, and 5% of any other amounts billed
by the District to City in respect of this lift station
and pressure line. City shall render its statements to
BI and Scott care of BI at its address for notice below.
9. In the event of any default by the District under its
agreement with the City, Attachment D, such that the
lift station requires operation, maintenance or repair
which it is not receiving, City may undertake to perform
the operation, maintenance or repair. In such event,
City will bill BI and Scott, as above stated, its
charges for performance of these services. Such charges
shall be in the amount of the flat rat~ agreed in
Attachment D, plus the costs of repair. Such costs of
repair shall be computed as follows: actual out of
pocket payroll, commercial rates for equipment used, and
an allowance for fuel, oil and overhead.
10. BI and Scott will dedicate to the City, upon acceptance
by the City, all gravity flow sewer lines involved in
their mutual project, and shall retain ownership of all
pressure line(s) and of the pump(s), housing, electrical
controls, and all other equipment needed neither for
gravity flow to the lift station, nor for future gravity
flow beyond the lift station. Dedication of the sewer
line shall include grant of an easement for its use,
repair and maintenance, including replacement in whole
or part, all as appropriate in the opinion of the City.
11. BI and Scott remain responsible for the maintenance and
repair of the pressure line. In the event of any
default by them such that the pressure line requires
LIFT STATION AGREEMENT page 2
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maintenance or repair which it is not receiving, City
may undertake to perform the maintenance or repair. In
such event, City will bill BI and Scott, as above
stated, its charges for performance of these services.
Such charges shall be computed as follows: actual out of
pocket payroll, commercial rates for equipment used, and
an allowance for fuel, oil and overhead.
12. Connections to the gravity flow lines by individual land
users shall be by application to the City. In the event
that City connects users to the gravity line, City will
pay (or credit) BI and Scott $3.50 per month, per
customer, for use of the lift station and pressure line.
No connections of any kind shall be made into the
pressure line by or with the permission or acquiescence
of any party.
13. BI and Scott assign to City the easements created by the
Easement Agreement as described on Exhibits C and D
thereto. BI and Scott warrant that the gravity sewer
line is located on the centerline of such easement. BI
and Scott ret n, however, the right to maintain,
repair, and replace the pressure line built or to be
built within the same easement until use of such
pressure line is discontinued. BI and Scott will
execute such additional form of grant of easement as
will be recordable and afford the City no less rights
than are afforded by BI and Scott to each other under
the Easement Agreement. Additionally, such easement in
the City will be permanent, or until such time as use of
a gravity-flow sewer line located within the easement is
abandoned without replacement.
14. It is understood by the parties that BI and Scott have
as provided in their agreements the proprietary interest
in the lift station pump and pressure lines~ The City,
however, has the proprietary interest in the direct or
indirect connection of properties to any part of the
municipal sewer system. Thus an owner of property wiil
be obliged to deal with BI and Scott as to the use of
the lift station pump(s) and the pressure line, but will
be obliged to meet the engineering and financial
requirements of the City as to the direct or indirect
connection of sewer service for their properties to the
City sewer line or to the pump station for delivery to
the City sewer line.
15. In the event that the City provides a connection for the
gravity line to a City sewer in such fashion that the
lift station is no longer necessary to the furnishing of
sewer service to the BI and Scott properties affected by
the Easement Agreement, BI and Scott may remove the lift
station equipment and facilities not required for ,the
gravity connection according to the City design, and
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LIFT STATION AGREEMENT page 3
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this Agreement will become of no further force and
effect, except as to then accrued and unpaid financial
obligations arising under it. In the alternative, in
the event that the parties conclude that the
construction of the airport basin sewer interceptor is
unlikely within the foreseeable future, the parties
shall discuss the possibility that BI and Scott wouid
choose to dedicate the lift station, pressure line, and
associated equipment to the City, and to be relieved of
future operation and maintenance costs. In the event of
such an accepted dedication, this Agreement will become
of no further force and effect, without prejudice to
then accrued and then unpaid financial obligations.
16. In the event that BI and Scott both fail or refuse to
pay in full any statement rendered them by the City
pursuant to this Agreement, City shall have a lien upon
the property described (as of the date of this
Agreement) in Exhibits A and B to the Easement
Agreement, which lien may be foreclosed as set out in
Idaho Code 50-1813, or in like fashion as a mortgage of
real property, as the City may choose.
17. If any legal action or proceeding related to this
Agreement is begun by any party to this Agreement, the
prevailing party shall be entitled to recover its
commercially reasonable attorneys fees and witness and
expert witness fees, incurred in prosecuting or
defending the same. The City shall be entitled to such
fees, if the prevailing party, notwithstanding the fact
that the City Attorney is salaried.
18. This Agreement is governed by the law of Idaho; and
Valley County, Idaho is the proper venue.
19. Time is of the essence with respect to the obligations
of the parties under this Agreement.
20. Any rights and remedies stated in this Agreement are
cumulative.
21. The neglect of any party to enforce its rights at any
particular times or upon any particular occurrences
shall not preclude resort to those rights at any other
time or with respect to any other occurrences. Any
waiver of any right must be done in a writing executed
by the party to be charged with such waiver, and
executed with no fewer or different formalities and
approvals than were attendant upon execution of this
Agreement.
22. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, successors and
assigns.
LIFT STATION AGREEMENT page 4
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2 3 . A l l A t t a c h m e n t s a n d o t h e r a t t a c h m e n t s , i f a n y , t o t h i s
A g r e e m e n t a r e a p a r t o f t h i s A g r e e m e n t . T h i s A g r e e m e n t
c o n s t i t u t e s t h e e n t i r e A g r e e m e n t b e t w e e n a n d a m o n g t h e
p a r t i e s a s t o t h e m a t t e r s e t o u t ' i n i t , a n d a l l p r i o r
n e g o t i a t i o n s a n d d i s c u s s i o n s , m e m o r a n d a , c o r r e s p o n �
d e n c e , a n d c o m m u n i c a t i o n s a r e m e r g e d i n t o a n d
e x t i n g u i s h e d b y t h i s A g r e e m e n t ; ~ r o v i d e d , h o w e v e r , t h a t
n o t h i n g i n t h i s A g r e e m e n t s h a l l b e h e l d t o m e r g e i n t o
t h i s A g r e e m e n t a n y S u b d i v i s i o n o r D e v e l o p m e n t A g r e e m e n t
a m o n g a n y o f t h e p a r t i e s u n l e s s t h i s A g r e e m e n t e x p r e s s l y
b o t h i d e n t i f i e s s u c h s u b d i v i s i o n ' o r d e v e l o p m e n t
a g r e e m e n t , a n d s t a t e s t h a t t h i s A g r e e m e n t s u p e r s e d e s
s u c h s u b d i v i s i o n o r d e v e l o p m e n t a g r e e m e n t .
2 4 . A n y n o t i c e w h i c h a p a r t y t o t h i s A g r e e m e n t d e s i r e s t o
g i v e a n o t h e r r e s p e c t i n g a m a t t e r c o v e r e d b y t h i s
A g r e e m e n t s h a l l b e h a n d - d e l i v e r e d ( w i t h s i g n e d r e c e i p t
f o r d e l i v e r y o b t a i n e d ) t o o r m a i l e d t o t h a t p a r t y a t i t s
( h i s ) a d d r e s s s e t o u t b e l o w :
C i t y o f M c C a l l B r o w n ' s I n d u s t r i e s , I n c .
a t t n . : C i t y A d m i n i s t r a t o r a t t n . : J u d d D e B o e r
2 1 6 E a s t P a r k S t r e e t P . O . B o x 1 0 0 7
P O . B o x 1 0 6 5 M c C a l l , I D 8 3 6 3 8
M c C a l l , I D 8 3 6 3 8
M a l c o l m H . S c o t t
P . O . B o x 2 3 0
M c C a l l , I D 8 3 6 3 8
D a t e d : ~ / 1 , 1 1 ' 1 3 c r
C i t y o f M c C a l l
b y : L ~ . '
M a y o r ~ +
B r o w n ' s I n d u s t r i e s , I n c .
b y : ( , ~ ~
J u d d / , e B o e r , P r e s i d e n t , .
A t t e s t :
L I F T S T A T I O N A G R E E M E N T p a g e 5
----~~~~~~44~~~~~-~ notary publicI
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]l/~1I.MMalco~m H. Scott
State of Idaho )
) ss.
County of Valley )
On this Ui1 day of R:lu-c."zrd__ in the year 1993 1I
before mel ~~ci"n A. Harl'-'f l notary publicI personally
appeared Laurance A. Smith Jr' l known or identified to me to
be the Mayor of the City of McCall that executed the said
instrument l and acknowledged to me that such City of McCall
executed the same.
State of Idaho
ss.
of rehrU7~ in the year 199i l before me,
personally
Scott, known or identified to me to be
is subscribed to the within instrument,
to me that he ~XO~:,K?f"
Not~Ubl~C~ ,I
My commission expires: ~!~7
State of Idaho )
) ss.
County of Valley )
On this 1/11 day of £e/JaJiirtf, in the year 1993 1
before mel SIJ~1f) A. tizc/t"tr ; notary public, personally
appeared Judd DeBoer, knownlr identified to me to be the
President of Brown's Industries, Inc., the corporation that
executed the said instrument or the person who executed the
instrument on behalf of said corporation l and acknowledged to
me that such corporation executed the same. 0//. _
NO~~~O
LIFT STATION AGREEMENT page 6
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S U B D I V I S I O N A G R E E M E N T
T h i s A g r e e m e n t i s m a d e J u n e 8 " 1 9 9 2 , b y a n d b e t w e e n t h e
C i t y o f M c C a l l , a n I d a h o m u n i c i p a l c o r p o r a t i o n , t a I l e d
" M c C a l l " i n t h e r e s t o f t h i s A g r e e m e n t , a n d B r o w n ' s
I n d u s t r i e s , I n c . , a n I d a h o c o r p o r a t i o n , c a l l e d " D e v e l o p e r "
i n t h e r e s t o f t h i s A g r e e m e n t , p u r s u a n t t o t h e p o w e r o f
M c C a l l t o a p p r o v e w i t h o r w i t h o u t c o n d i t i o n s , o r d i s a p p r o v e ,
s u b d i v i s i o n p l a t s i t h e p o w e r o f M c C a l l t o r e g u l a t e a n d
c o n t r o l i t s w a t e r a n d s e w e r u t i l i t i e s i a n d t h e m u t u a l d e s i r e
o f t h e p a r t i e s t o r e c o r d t h e i r u n d e r s t a n d i n g s .
J u d d D e B o e r e x e c u t e s t h i s A g r e e m e n t o n b e h a l f o f t h e
D e v e l o p e r . I t i s u n d e r s t o o d t h a t t h e D e v e l o p e r i s a
c o r p o r a t i o n , a n d t h a t t h e p e r s o n w h o e x e c u t e s t h i s A g r e e m e n t
o n b e h a l f o f t h e c o r p o r a t i o n d o e s s o i n t h e c a p a c i t y o f
P r e s i d e n t . J u d d D e B o e r w a r r a n t s t h a t h e h a s t h e a u t h o r i t y
t o e x e c u t e t h i s A g r e e m e n t o n b e h a l f o f t h e D e v e l o p e r . T h e
p a r t i e s t o t h i s A g r e e m e n t s h a l l a c c e p t n o t i c e s a t , t h e
f o l l o w i n g a d d r e s s e s a n d t e l e p h o n e n u m b e r s :
D e y e l o o e r M c C a l l .
M r . J u d d D e B o e r , P r e s i d e n t C i t y o f M c C a l l
B r o w n ' s I n d u s t r i e s , I n c . A t t n . C i t y A d m i n i s t r a t o r
P . O . B o x 1 0 0 7 P . O . B o x 1 0 6 5
M c C a l l , I D 8 3 6 3 8 M c C a l l , I D 8 3 6 3 8
T h e r e a l p r o p e r t y w h i c h i s t h e s u b j e c t o f t h i s
A g r e e m e n t , c a l l e d " P r o p e r t y " i n t h e r e s t o f t h i s A g r e e m e n t ,
i s l o c a t e d i n t h e C i t y o f M c C a l l ( a n d V a l l e y C o u n t y ) a n d i s
d e s c r i b e d a s :
L o t s 1 t h r o u g h 3 2 , i n c l u s i v e ,
P a y e t t e L a k e s C o m m e r c i a l C e n t e r
T h e P r o p e r t y i s s o d e s c r i b e d o n t h e p r e l i m i n a r y p l a t , a n d
t h i s d e s c r i p t i o n m a y b e s u b j e c t t o c h a n g e a f t e r t h e
r e c o r d i n g o f t h e F i n a l P l a t . A c o p y o f t h e p r e l i m i n a r y p l a t
i s a t t a c h e d t o t h i s A g r e e m e n t a s E x h i b i t " A . "
T h e D e v e l o p e r s e e k s M c C a l l ' s a p p r o v a l o f t h e F i n a l P l a t
f o r t h e s u b d i v i s i o n p u r s u a n t t o t h e M c C a l l C i t y C o d e . I n
c o n s i d e r a t i o n o f M c C a l l ' s a p p r o v a l o f a F i n a l P l a t f o r t h e
s u b d i v i s i o n , a n d i t s a g r e e m e n t i o e x t e n d w a t e r a n d s e w e r
s e r v i c e , t h e D e v e l o p e r a g r e e s t o c o n s t r u c t a n d i n s t a l l t h e
i m p r o v e m e n t s d e s c r i b e d i n A r t i c l e I V o f t h i s A g r e e m e n ~ i n
a c c o r d a n c e w i t h a l l t h e t e r m s , c o v e n a n t s a n d c o n d i t i o n s o f
t h i s A g r e e m e n t ; . .
S U B D I V I S I O N A G R E E M E N T p a g e 1 .
P A Y E T T E L A ~ E S C O M M E R C I A L C E N T E R J u n e 8 , 1 9 9 2
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ARTICLE I
SUM~;RY OF REOUIREMENTS
Improyement Types Required.
The Developer shall construct and install the following
improvements (check those applicable; cross out those
inapplicable) :
X Street; curb and
guttc=: X storm drain; X drainage;
__X__ sanitary sewer; __X__ water
system; X telephone: X electrical;
X monumentation; X st!"eet lighting:
X traffic control devices; X street signs:
X landscaping; and X snow storage
~Improvement Costs Anticioated
The Developer estimates the cost of these improvements
to be made by Developer to be $282,000.
In the event that either party believes that the
construction cost of improvements not yet accepted is
appreciably more or appreciably less than the figure in the
immediately proceeding paragraph, they shall meet, discuss
the matter, and agree upon a revised figure for work not yet
accepted: and record their understanding below: the revised
figure set out below shall then become the applicable figure
for bonding or letter of credit:
Revised Estimates of Cost of 8 1 1 Tmorovements
Date:
$---------------
$--------------
$---------------
$---------------
In the event there is a disagreement which is not resolved
by the partie&, the matter shall be arbitrated under the
Construction Industry Arbitration Rules of the American
, Arbitration Association.
SUBDIVISION AGREEMENT page 2
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
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A R T T C L E I I
S E C U R I T Y F O R P E R F O R M A N C E O F R E O U T R t : ' M E N T S
S e c u r i t y R e q u i r e d
T h e D e v e l o p e r s h a l l p r o v i d e t o M c C a l l o n e o f t h e
f o l l o w i n g t o s e c u r e p e r f o r m a n c e o f t h e o b l i g a t i o n s o f
D e v e l o p e r u n d e r t h i s A g r e e m e n t , i n a n a m o u n t n o t l e s s t h a n
t h a t ' s e t o u t i n S e c t i o n 1 . 0 2 a b o v e : a p e r f o r m a n c e b o n d w i t h
c o r p o r a t e s u r e t i e s ; o r a n i r r e v o c a b l e l e t t e r o f c r e d i t f r o m
a n a t i o n a l b a n k c o n d u c t i n g b u s i n e s s i n t h e F o u r t h J u d i c i a l
D i s t r i c t o f I d a h o , a n d h a v i n g a n e t w o r t h n o t l e s s t h a n 1 0 0
t i m e s t h e a m o u n t s e t o u t i n S e c t i o n 1 . 0 2 ; s u c h b o n d o r
l e t t e r t o b e a c c e p t a b l e t o t h e C i t y A t t o r n e y a s t o f o r m a n d
s u b s t a n c e . T h e a m o u n t m a y b e i n c r e a s e d o r r e d u c e d f r o m t i m e
t o t i m e a s p r o v i d e d i n S e c t i o n 1 . 0 2 .
W h e n R e q u i r e d
D e v e l o p e r s h a l l p r o v i d e s u c h s e c u r i t y t o M c C a l l p r i o r
t o t h e r e c o r d i n g o f t h e F i n a l P l a t , a n d p r i o r t o t h e g r a n t
o r l e a s e o f a n y i p t e r e s t i n a n y l o t i n t h e s u b d i v i s i o n o t h e r
t h a n f o r t h a n c o n s t r u c t i o n m o n e y f i n a n c i n g .
A R T I C L E I I I
L A N D U S E C O N T R O L R E O U T R E M E N T S
C o v e n a n t s a n d O t h e r D o c u m e n t a t i o n R e a u i r e d
T h e D e v e l o p e r s h a l l d e l i v e r t o t h e C i t y A d m i n i s t r a t o r
t h e e x e c u t e d F i n a l P l a t i n c o r r e c t f o r m f o r r e c o r d i n g : w i t h
a n o t e o n t h e f a c e o f t h e F i n a l P l a t t h a t t h e l a n d s w i t h i n
i t a r e s u b j e c t t o t h e C o v e n a n t s , C o n d i t i o n s a n d
R e s t r i c t i o n s ; t h e f u l l y e x e c u t e d C o v e n a n t s , C o n d i t i o n s a n d
R e s t r i c t i o n s i n t h e f o r m s u b m i t t e d t o a n d a p p r o v e d b y t h e
C o u n c i l , o r i n s u c h f o r m a s i s a g r e e d w i t h t h e C i t y A t t o r n e y
b a s e d u p o n d i r e c t i o n f u r n i s h e d b y t h e C o u n c i l u p o n t h e
o c c a s i o n o f t h e a p p r o v a l o f t h e F i n a l P l a t ; a n e x e c u t e d
N o t i c e o f [ t h i s ] S u b d i v i s i o n A g r e e m e n t ; s e c u r i t y a s p r o v i d e d
a b o v e ; a n d a c h e c k i n a n a m o u n t a d e q u a t e t o p a y t h e c o s t s o f
r e c o r d i n g b y a T i t l e C o m p a n y o f t h e F i n a l P l a t , t h e
C o v e n a n t s , a n d t h e N o t i c e .
C e r r i f i c a t e t o P l a t
T h e D e v e l o p e r s h a l l p r o v i d e w i t h t h e F i n a l P l a t a
c e r t i f i c a t e o f a t i t l e c o m p a n y l i c e n s e d t o d o b u s i n e s s i n
a n d m a i n t a i n i n g a n o f f i c e i n V a l l e y C o u n t y , s e t t i n g o u t t h e
i d e n t i t y o f a l l p e r s o n s o w n i n g a n i n t e r e s t i n t h e l a n d s
w i t h i n t h e P ~ a t , o t h e r t h a n t h e o w n e r o f a s e v e r e d m i n e r a l
/ e s t a t e ; a n d a l l s u c h p e r s o n s m u s t h a v e e x e c u t e d t h e P l a t .
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S U B D I V I S I O N A G R E E M E N T p a g e 3
P A Y E T T E L A K ? S C O M M E R C I A L C E N T E R J u n e 8 , 1 9 9 2
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2\RTICLE IV
IMPROVEMENT REOUIREMENTS
~ ImorQvements Required
The Developer shall design, construct, and install the
improvements specified above. The-Developer shall bear the
cost of all the improvements, and is entitled to
reimbursement for the same only if and to the extent so
stated in this Article. It is agreed that this development
is governed by Standard "D" within the SubdivisiQn
Regulations, except as otherwise provided below.
Street, Alleyway, Monumentation. Traffic QQntrQl,
Street Lighting, St~eet Name Signina, and Drainaae •
ImorQvements
A. Street improvements (Commerce Street and alleys
shown on the plat) shall be provided in accord
with Title 3 of the McCall City Code and the
"Construction Specifications and Standards for
Roads and Streets in Valley County, Idaho"
applicable to streets to be paved with asphalt.
Streets and alleys may be left constructed without
paving for one year, to permit settling of the
roadbed, but must be paved during the second
summer.
The estimated cost of street and alley
improvements, for which the Developer is not
entitled to reimbursement, is $55,900.
B. Drainage improvements shall be provided in accord
with Title 3 of the McCall City Code and the
"Construction Specifications and Standards for
Roads and Streets in Valley County, Idaho" for
paved roads; an adequate storm drainage system,
which may include necessary storm drainage
facilities, is required. The system shall
accommodate lateral and upstream contribution, as
well as subsurface drainage exposed during
construction, and an approved drainage outfall
shall be provided.
The cost of the drainage system, for which the
Developer is not entitled to reimbursement, is
included in the above street budget.
C. Traffic control devices shall be installed in
accord with Title 3 of the McCall City Code and
the uniform state standards as follows: stop signs
on 'Commerce Street at its intersections with
Deinhard Lane and with Jacob Street, and on each
alleyway at its intersection with a street. The
cost of these improvements, for which the
SUBDIVISION AGREEMENT page 4
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
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Developer is not entitled to reimbursement, is
estimated to be $375.
D. Street lighting shall be provided in accord with
Title 3 of the McCall City Code and applicable
state standards at the intersection of streets and
alleys with Deinhard Lane and with Jacob Street;
design shall be submitted for approval. The cos~
of these improvements~ for which the Developer is
not entitled to reimbursement, is included in the
street budget.
E. Monumentation shall be provided in accord with
Title 3 of the McCall City Code and Idaho Code 50
1303. The cost of these improvements, for which
the Developer is not entitled to reimbursement, is
estimated to be $4,000.
F. Street name signs shall be provided in accord with
Title 3 of the McCall City Code and Valley County
standards at all intersections. The cost of these
improvements, for which the Developer is not
entitled to reimbursement, is estimated to be
$375.
Sanitary Sewer ImDrovements
A. McCall agrees at its expense to secure a final
design for the airport basin sewer services. This
design will be of sufficient detail that the grade
is set and identified for a gravity-flow sewer
line along Jacob St. flowing westerly to the
planned lift station on the airport.
B. The Developer agrees to install a gravity line to
its planned private lift station which can be
converted to a gravity service line connecting to
the proposed City line in Jacob Street. The
Developer will install a gravity line to his lift
station, and a pressure line from the lift station
back to the Deinhard Lane line. The cost of these
improvements, for which the Developer is not
entitled to reimbursement, is estimated to be
$121,500. When the Jacob St. gravity line is
installed in the future, the private lift station
will be removed at Developer's expense, the
pressure line abandoned and capped at Developer's
expense, and the gravity line connected to the
Jacob St. line at City expense, provided the
design of the pump station was approved by the
City. The service from that time forward will be
gravity service and at that time, the lines within
l ' the subdivision will be accepted by McCall for
permanent maintenance.
SUBDIVISION AGREEMENT page 5
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
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C.
D.
E.
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A.
B.
C.
D.
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A.
This arrangement will meet the Developer's need to
proceed with development and McCall's long term
needs for a coordinated and integrated sewer
service for the Airport basin. .
McCall and Developer agree to assist one another
in any way possible to secure grant funding,
particularly an ICDBG, Economic Development Grant,
the availability of which is related to the
creation of jobs, for all or part of the Airport
Basin Sewer System.
It is expected by both parties that the line in
Jacob Street will be an interceptor line and that
such line will be cons~ructed by McCall, at City
or other developers' expense (i.e. that this
subdivision will have no obligation for
construction of that line).
Wa~er System Improvements
The Developer agrees to install water mains to
sizes approved by McCall, North-South through the
development from Deinhard Lane to Jacob St., then
West along Jacob St. to the centerline of Highway
55 at the Jacob St. intersection. This line will
be installed solely at the Developer's expense,
except as the cost may be shared among benefited
par~ies; McCall assumes no obligation to identify
or secure cooperation from other benefited
parties. The cost of these improvements, for
which the Developer is not entitled to
reimbursement~ is estimated to be $71,500.
McCall agrees to install a waterline, at City
expense, from the centerline of Highway 55 at
Jacob St., where the Developer's line ends,
westerly to connect to the Airport water line,
installed in 1991. McCall will secure easements
for this section of the line.
McCall and Developer agree to coordinate this work
in every way to ensure the most economical
installa~ion for both parties.
McCall will be the applicant for the right to
cross the State Highway, since the acquired
rights will ultimately belong to McCall.
Electrical Facilities
The Developer shall execute an agreement with
Idaho Power Company, which shall provide in
SUBDIVISION AGREEMENT page 6
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
1-1,
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pertinent part for installation and acceptance of
an underground electrical system to serve all
lots, parcels and tracts which are a part of this
subdivision. The cost of these improvements, for
which the Developer is not entitled to' reimburse
ment, is estimated to be'$32,OOO.
Telephone Facilities
A. The Developer shall,execute an agreement with GTE,
which shall provide in pertinent part for
installation and acceptance of an underground
telephone system to serve all lots, parcels and
tracts which are a part of this subdivision. The
cost of these improvements, for which the
Developer is not entitled to reimbursement, is
estimated to be at the expense of GTE.
P.t t-achmenr s
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The following documents whether or not physically
attached to this Agreement, are integral parts of this
Agreement:
Preliminary Plat (for land identification purposes), as
Exhibit "A"
Final Plat, as Exhibit liB"
Covenants, Conditions and Restrictions, as Exhibit "C"
Bond or Letter of Credit, as Exhibit "0"
Acceotance and Exoneration of Bond
A. Developer shall submit a written request for
acceptance to the City Administrator when
Developer concludes that construction of the above
improvements is complete and ready for acceptance.
Improvements other than streets may be submitted
separately from streets. Improvements done under
contract with Idaho Power or GTE are subject to
approval by them, and their approval shall be
submitted to the City Administrator with the
request for acceptance.
B. Street subgrade shall be not deemed ready for
acceptance until it has, at finish grade, gone
through a winter and a spring thaw.
C. Base course and paving shall likewise not be
deemed ready for acceptance until they have gone
through a winter and a spring thaw.
SUBDIVISION AGREEMENT page 7
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
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D. Acceptance shall be evidenced by a certificate of
acceptance executed by the City Administrator,
approved on the consent calendar by the City
Council, and delivered to Developer.
E. During the two years following acceptance,
Developer will warrant the road surface against
settlement, bird baths, cracking, and other
subgrade/base course problems.
F. From and after the date of acceptance, maintenance
and repair of streets, snow removal, street
lighting, traffic control devices, drainage within
rights of way, and street signs, becomes the
obligation of McCall. Electricity for street
lights will be paid for by McCall from and after
acceptance.
De~ault and Riaht of Entry
In the event that Developer fails and refuses to
complete any improvements required under this Agreement, or
in the event that such improvements are not completed by
September 1, 1995, then McCall may resort to the security,
enter on the property, and make such improvements employing
the bond or credit funds.
Dated: June 8, 1992
City of McCall
Lauranc'e
Mayor
Brown's Industries, Inc.
(
SUBDIVISION AGREEMENT page 8
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
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AGREEMENT REGARDING SEWER HOOKUP
Agreement effective October 19. 1992, between BROWN'S INDUSTRIES, INC., an . Idaho .
corporation ("BI') and MALCOLM SCOTT of McCall, Idaho ('SCOW).
1. BACKGROUND.
1.1 BI Property. BI is the owner of the real property described on Exhibit A attached ('SI
Property'). BI is subdividing and developing the BI Property for Commercial purposes. As pan of the
development process, BI will be installing the following improvemems for use by the purchasers and users
of the BI Property: (Q a gravity fed sewer line; (ii) a lift station; and (iii) a pressurized return sewer line that
wiil hookup to the municipal sewer system.
1.2 Scott Property. Scott is the owner of the real property described on Exhibit B anached
('Scan Property'). Scott is developing the Scott Property for residential purposes and will be required by
the various permitting agencies to hookup to the municipal sewer system.
1.3 Request for Hookup to the 81 System Improvements. Scott has requested that BI (i) move
the lift station from the BI Property to the Scott Property, and OQ allow the Scan Property to hookup to the
sewer improvements. Based on the assumption that the lif, station would be moved from the proposed
location on the SI Propeny to the Scott Property, JUS Engineers prepared plans and specifications ('JUS
Plans') which detail the required sewer improvements on the SI and Scott Propenies.
1.4 Purposes of Agreement. The purposes of this Agreement are as follows:
a To evidence Bl's agreement to allow a redesign of tile sewer
improvements in accordance with the JUB Plans, subject to compliance
by Scon with certain covenants and agreements set fonh in this
Agreement;
b. To evidence BI's agreement to allow Scott to hookup to the sewer
improvements, subject to compliance by Scan with certain covenants and ,
agreements set fonh in this Agreement; and
c. To evidence the intent of the p~nies to prepare and record a sewer
easement in accordance with the terms and conditions of this Agreement.
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AGREEMENT REGARDING SEWER HOOKUp· 1
2. COVENANTS AND AGREEMENTS REGARDING THE SEWER IMPROVEMENTS.
2.1 Pavmem bV Scott. In consideration of 61's execution of this Agree"!ent, Scott has deposited
into an escrow account approved by 61 and Scott the sum of $22.000 to be withdrawn by 61 as 6\ incurs
costs for the construction to be completed by 61 as set forth below. The escrow instruction shall provide
that funds shall be disbursed in full to 61 on the earlier of (0 November 15, 1992. or (iO the date that costs
fer the construction of the lift station and pressure line equal or exceed $44,000 (evidence of which shall
be in the form of an affidavit signed by 61). In addition, Scott shall pay to 61 1/2 of the cost relating to the
additional costs associated with the· improvements required by the Payette Lakes Water and Sewer
District.
2.2 Constr..:ction of Sewer Improvements.
2.2.1 By BI. 61. at its sole cost and expense (other than the Scott payment referenced
in Section 2.1). s;"\all promptly construct the improvements identified as follows:
a. The work detailed on plans identified as 'Construction Set 8-12-92', dated
July, 1992. Drawing 6920705-01 to 6920705-05.
b. The work shall comply with the Technical SpecificatiQns for a Sewage
Pumping Facility dated July, 1992 and prepared by JU6 Engineers.
c. It is understood that the lift station identified on the plans shall be located·
on the Scott property as detailed on plans identified as 'Review Set -Not
for Construction' dated Sept. 1992, Drawing No. 6920912-01 to 6920912
03.
2.2.2 By Scott. Scott, at his sole cost and expense, shall promptly construct the
improvements identified as follows:
a. The work detailed on plans identified as "Review Set -Not for
Construction' dated Sept. 1992, Drawing No. 6920912-01 to 6920912-03.
excluding only the lift station and equipment to be constructed by 61.
b. The work shall comply with the applicable provisions of the Technical
Specifications for a Sewage Dumping Facility dated July, 1992 and
prepared by JUS Engineers . .
In additio:1, Scott. at his sole cost and expense, shall promptly pays such fees and construct such
improvements as are necessary to provide electrical power to the lift station.
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AGREEMENT REGARDING SEWER HOOKUP - 2
2.2.3 Completion of Improvements. The parties shall use their best efforts to complete
the improvements described in this Section 2.2 on or before November 30, 1992.
2.3 Easement Agreement. Upon determination by a licensed surveyor of the legal description
for a sewer easement, 61 and Scott shall promptly execute and record with the Valley County Recorder's
office, an Easement Agreement in the form attached as Exhibit C.
3. GENERAL PROVISIONS.
3.1 Representatton and Document Preparation Costl. BI has informed Scott that (0 this
Agreement and the Easement AgreBment have been prepared by the attorney for 61, (ii) such attorney
does not represent Scott in any manner, and (iii) Scott should consult his own attorney. Notwithstanding
the preceding, Scott covenar>ts and agrees to promptly reimburse BI directly for 1/2 of the legal costs
associated with the preparation of this Agreement and the Easement Agreemer:t.
3.2 Attorney Fees and Costs. If a suit, actior., or other proceeding arising out of or related to
this Agreement is instituted by any cartY to this Agreement, the prevailing party shall be entitled to recover
its reasonable attorney fees, expert witness fees, and costs (i) incurred in any settlement negotiations, (iQ
incurred in preparing for, prosecuting or defending any suit, action, or other proceeding, and (iii) incurred
in pr'3paring for, prosecuting o~ defending any appeal of any suh, action, or other proceeding. For the
purpose of this section, "attorney fees' shall mean and include (~ attorney fees and (ii) paralegal fees.
T;,is section shall survive and remain enforceable notwithstanding any rescission of this Agreement or a
determination by a court of competent jurisdiction that all or any portion of the remainder of this
Agreement is void, illegal, or against public policy.
3.3 Governing Law. Jurisdiction, and Venue. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho
shall have exclusive jurisdiction and agree that Valley County is the proper venue.
3.4 Time of the Essence. Time is of the essence with respect to the obligations to be pertormed
under this Agreement.
AGREEMENT REGARDING SEWER HOOKUP -3
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3.5 Rights Cumulative. Except as expressly provided in this Agreement, and to the extent
permitted by law. any remedies described in this Agreement are cumulative and not altemative to any
other remedies available at law or in equity.
3.6 Nonwaiver of Remedies. The failure or neglect of a party to enforce any remecty available
by reason of the failure of the other party to observe or perform a term or condition set forth in this
Agreement shall not constitute a waiver of such term or condition. A waiver by a party (Q shall not affect
any term or condition other than the one specified in such waiver, and (iQ shall waive a specified term or
condition only for the time and in a manner specifically stated in the waiver.
3.7 Successors and ASSigns. Subject to any express proviSions in this Agreement regarding
restriction:~ on transfers or assignments, this Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or
transferees of any kind.
3.B Entire Agreement. All Schedules and Exhibits to this Agreement constitute a part of this
Agreement. This Agreement, together with the accompanying Schedules and Exhibits. constitutes the
entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations
and negotiations,
4. SIGNATURES.
BROWN'S INDUSTRIES, INC.
Dated: October li, 1992
MALCOLM SCOTT PL
Dated: October :"'0, 1992
AGREEMENT REGARDING SEWER HOOKUP - 4
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STATE OF IDAHO }
)ss
County Of Ada )
...
On this ;1.1 day of October, 1992, before me: a notary public in and for the State of Idaho,
personally appearetJ Judd DeBoer, known or identified to me to be the President of Brown's Industries.
Inc .. the .corporation that executed the instrument or the person who executed the instrument on behalf
of said corporation, and acknowledged to me that such corporation executed the same.
Notl.'!r9 ubiic for Idaho
Residing at Boise. Idaho C ~II J I,.L ,.
Commission Expires: __-.:..-----':,.-_.:......;7._"--_
STATE OF IDAHO
ss
Count)' of /4.1 /I~~
. ,5 ' On this .i/) day 01 October, 1992, before me, a notary public in and for the State of Idaho,
perscnally appeared Malcolm Scott known or identified to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same.
.;
y • .l.)... ~~~.. 1 (] ~ . /,J//..-;..f~
No ry Ptrblicf for Istaho.) .
Residing at ,/:'1" / ,./.' ,I , Idaho
Commission Expires: .; -::. ~J (~
PI.El·
AGREEMENT REGARDING SEWER HOOKUP - 5
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EXHIBIT A
Bl PROPERTY
The following desCribed real property in Valley County. State of Idaho. m:xe particularty described
as toUows to wit:
A pnl'c~l r:: :;;:1~~ c;i":.ua\", jn th~ HWVcof the SEVcof Section 16, T. 13
N., n. :3 1, .• 15."1 .• I_'i',',' :.>f 1-1cCa11, \:a11ey Count;\', Idaho. more
pnrt.ir.:ularl:: l:e!=-I::'lbet~:'l~ rollows:
Comtnp.l1r.: ~ng al, a brass cap marlring the Center 1/4 corner of
Sec t ion 1 fi. T. 1 8 N., R. 3 E., lL M., Cit y 0 f ,.1 c C a 11, V e 11 p. y
Count:-', {dnho; t..lI"'rlce, S. 89· 48' 50" E" :;59.71 feet along
thO" nl)rl.herj:-' lUHlrldar:v of snid HWY, SElh; th~nce, S. O· 38' 10"
hr., 30.00 f~p.1. to th~ :southerly right-·.r-wa:1 of Deinhard Lane,
t. heR F ;\ L Pu I NT 0 F U E GIN N I N G :
Thf~nce, ('on ti I\llj rli?: S. O· 3S I 10" W., 7 S:'. 00 feet to a ',l"
,'ebal',
thp.nr.c, S. 16-5:.' 15 E., 486.05 feet to the northerly right
n f -h' 0 ,\' 0 f J :; cob S l r e e t ,
thence, f). ag D 3i' :19" E., 28S.71 feet atong said northerly
rlS!ht-of-lmy to a 5/S" reba.r,
thence. N. O· 37' 19" E., 1250.49 feet to a 5/g" rebar on the
~olJthp.rJy right-or-lola;.' of Deinhard Lane,
t. h F' \1 C r., N. A 9 • -I R ' :; 0 .. h' • t 4 3 5 . 0 3 fee t tot h ePa i n t 0 f
Bcglllllin!:t.
Be:'l r i n g ::; b:'ll'l p rl 0 II S l;'1. t. r·· P] aile eLi d A z i m u t h •
, .
EXHIBIT B
scon PROPERTY
The following described real property in Valley County, State of Idaho. more particularly described
as follows to wit:
~ portion of SWl/4 of 5El/4 Section lE. To~nshic 18 North, Range
::: East. B. M.. v .... l 1 ey (':'LIn t : • Idaho. more par~icularly descrIbed as
1,:.11,,·1,0161
(c.mmenclng .a.t the S 1 /jf., ·::.!'nlJ!r .:.~ the 5E1/4, Section 1£, TC.WTHihip
18 North. F~ange 3 East • .c.r-l.. ·,./hlCh <:orn£1'r is N. ,a'3~' 10" w.
1334.0 feet 1rcom,the SE. CCllner cd said :E'ction 1t1 thence N.
0-11 f 10· ~ast &\lorlQ -the La!=t b·:;)undar Y CJf said SWl/4, Southe.u.t 1./4
Gl1.l) feet tc· the t'"ue p·:dnt ,=,1 beginning; thence c.ontinuin9 N.
0°11' :0" E::: -,()t.. :':'::: teet t·:· the center c·f the said SEl/4; thence S.
8·:J°~.4·::5" W. i:d<:.ng the r·It:.rth bOL1ndary line-of said SWl/4 SEl/4
73-/.78 feet 1:...:.. a t:.<:.int; t!"".en·:e 5 le:.OS..P25" Ea!!t parallel te. and 343
feet; Easterly •.;01 ttl":? Eao::t boundary c·f Id"h.:. State Hi9hway 15:
73::'.11) i eet t·:· it P·:'lf.~: tt",~n·:e S. 83 0 48' 50" East 5'::::1. 7e) feet ba·:k
te. thE::' true p.:·ir,t ·:01 c:-cln'"..t.nQ.
E.l. CEf-' f : F:e5 eo 1-v i nQ t h E::or '.? 1r' ':'"11 C' r. ~.?semen t fQr a public road right
c.f "".;,'., C\·:rc·:: the e-ntil~ r,·:·.... th p,:,·,"ti·:·n cof this property ext~nding
S':'L.ttl SO' frc·,n th~ ,',·":.rti'o c:,,_·'.\r,d"!\l"Y of said 51,11/4 SEl 14.
"
'j
EXH!ClT ___....:..,./_'.;...·___
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EASEMENT AGREEMENT
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Easement Agreement effective November .J..:.', ·~'.l1992, between BROWN'S INDUSTRIES, INC~, an
Idaho corporation whose current address is 101 South Capitol Boulevard, Suite 1203, Boise,ldaho 63702
('BI") and MALCOLM H. SCOTT whose current address is P.O. Box 230, McCall, Idaho 63636 ("Scotti),
1. BACKGROUND.
1.1 BI Property. BI is the owner of the real property described on Exhibit A attached ("BI
Property'). BI is subdividing and developing the B\ Property for commercial purposes.
1.2 Scott Property. Scott is a married man who is the owner of the real property described on
Exhibit B attached (,Scott Property"). The Scott Property is owned by Scott as his sale and separate
property.
1.3 Construction of Sewer Improvements. JUB Engineers has prepared plans and
specifications ('JUB Plans') which detail required sewer improvements on the BI and Scott Properties,
including. without limitation. (i) a gravity fed sewer line, (ii) a lift station. and (iii) a pressurized return sewer
line that will hookup to the municipal sewer system. In accordance with the terms of the JUB Plans and
an 'Agreement Regarding Sewer Hookup' between the parties effective October 19, 1992. BI and Scott
are in the process of constructing the sewer improvements.
1.4 Request for Mutual Easements.
1.4.1 Request. Each party to this Agreement has requested a nonexclusive easement
on the property of the other party for the purposes of repairing and maintaining the sewer improvements
in accordance with the terms of this Easement Agreement.
1.4.2 Easement on BI Property. The portion of the BI Property that has been requested
for the easement is described on Exhibit C attached.
1.4.3 Easement on Scott Property. The portion of the Scott Property that has been
requested for the easement is described on Exhibit D attaChed.
"
EASEMENT AGREEMENT· 1
t •• ' "
1.5 Purpose of Agreement. The purposes of this Agreement are (Q to describe the easements
granted, and {iQ to establish the relative rights and obligations of the parties regarding the easement
granted under this Agreement.
2. GRANT OF EASEMENTS.
2.1 Mutual Grant. For value received, (Q BI hereby GRANTS AND CONVEYS to Scott a
nonexclusive easement on the BI Property, to be located in the area described on Exhibit C attached, and
(ii) Scott hereby GRANTS AND CONVEYS to BI a nonexclusive easement on the Scott Property, to be
located in the area described on Exhibit 0 attached.
2.2 Purposes of Easements. The easements are granted solely for the purpose of constructing,
maintaining and repairing the sewer improvements.
2.3 Easement on Scott Property Appurtenant to 81 Property. Scott, on behalf of Scott and
Scott's heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with BI
and Bl's heirs, successors, assigns, purchasers, or transferee of any kind, that the provisions of this
Easement Agreement (i) shall run with and bind the Scott Property, and (ii) shall inure to the benefit of,
and be enforceable (at law or in equity) by any owner of all or part of, the BI Property.
2.4 Easement on 81 Property Appurtenant to Scott Property. BI, on behalf of BI and Bl's heirs.
successors, assigns, purchasers, or transferee of any kind, covenants and agrees with Scott and Scott's
heirs, successors, assigns, purchasers, or transferee of any kind, that the provisions of this Easement
Agreement (i) shall run with and bind the BI Property. and (ii) shall inure to the benefit of, and be
enforceable (at law or in equity) by any owner of all or part of, the Scott Property.
2.5 Repairs. Maintenance, and Power Costs. The parties to this Agreement. on behalf of such
party and the party's heirs, successors, assigns. purchasers, or transferee of any kind, covenants and
agrees with the other party and the other party's heirs, successors, assigns, purchasers, or transferee of
any kind, as follows:
a. The sewer improvements located on either the Scott Property or the BI
property shall be maintained in good and sufficient repair, and all
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EASEMENT AGREEMENT - 2
damage to any sewer improvements shall be repaired as promptly as is
reasonably possible.
b. It such repairs or maintenance are not made, then an owner of all or any
ponion of the 91 or Scott Propeny, upon fifteen (15) days prior written
notice delivered to the other owners of the 91 and Scott Propenies, shall
have the right to correct such condition.
c. All costs for maintenance and repairs of the sewer improvements shall be
allocated 50% to the 91 Propeny and 50% to the Scott Propeny.
d. All costs tor inspections of the sewer improvements and electrical power
for the lift station shall be allocated 50% to the 91 Propeny and 50% to
the Scott Propeny.,
e. Each owner within the 91 Propeny shall be jointly. severally. and
personally liable for all of the costs allocated to the 91 Propeny under this
Agreement, and the 91 Propeny shall be subject to a lien tor such costs,
plus all costs (including attorney fees) incurred in collecting the amounts
due.
t. Each owner within the Scott Propeny shall be jointly. severally. and
personally liable for all costs allocated to the Scott Propeny under. this
Agreement. and the Scott Propeny shall be subject to a lien for such
costs, plus all costs (including attorney fees) incurred in collecting the
amounts due.
2.6 Additional Hookups. The parties to this Agreement, on behalf of such pany and the pany's
heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with the other
pany and the other pany's heirs, successors, assigns, purchasers, or transferee of any kind. that no
additional properties or users (other than users located on either the BI or Scott Properties) shall be
permitted to hookup or use in any fashion the sewer improvements (including the lift station) unless the
following conditions are satisfied:
a. The consent of 91 shall be required if BI is the owner of all or any portion
of the 91 Propeny. If 91 does not own any portion of the 91 Propeny, then
the consent of the owners of a majority of the lots within the BI Propeny
shall be required.
EASEMENT AGREEMENT - 3
b. The consent of Scott shall be required if Scott is the owner of all or any
portion of the Scott Property. If Scott does not own any portion of the
Scott Property, then the consent of the owners of a majority of the lots
within the Scott Property. shall be required.
c. 50% of all consideration received in accordance with the required
consents, if any, shall be paid (~ to BI if BI is the owner of all or any
portion of the BI Property. or (ii) to the owners of the BI Property in
proportion to the number of lots owned by each owner within the BI
Property, only if BI does not own any portion of the BI Property.
d. 50% of all consideration received in accordance with the required
consents, if any. shall be paid (i) to Scott if Scott is the owner of all or
any portion of the Scott Property, or (ii) to the owners of the Scott
Property in proportion to the number of lots owned by each owner within
the Scott Property, only if Scott does not own any portion of the Scott
Property.
3, TERMINATION OF EASEMENT.
3.1 Term. The term of the easements provided by this Agreement shall commence on the
effective date of this Agreement and shall continue until such time that the BI Property secures an
alternative hookup site for its sewer needs and is no longer using the lift station detailed in the JUB Plans
to deliver wastes to the municipal sewer system.
3.2 Payment upon Termination.
3.2.1 If Scott Property Continues Use. Upon termination of the easements as described
in Section 3.1, and if the Scott Property continues to use the lift station detailed in the JUB Plans to deliver
wastes to the municipal sewer system. then Scott shall promptly pay an amount equal to 50% of the then
fair market value of the lift station and related improvements (i) to BI if BI is the owner of all or any portion
of the BI Property, or (ii) to the owners of the BI Property in proportion to the number of lots owned by
each owner within the 81 Property, only if BI does not own any portion of the BI Property. The Scott
EASEMENT AGREEMENT - 4
, .
.'
Property shall be subject to a lien for such amount. It the parties cannot agree on the fair market value
/~.-
of the lift station and related improvements, then the parties shall submit the amount to the American
Arbitration Association for determination. Such determination shall be binding on the parties.
3.2.2 If the Scott Property Has Terminated Use. Upon termination of the easements
as described in Section 3.1. and if the Scott Property is not using the lift station detailed in the JU8 Plans
to deliver wastes to the municipal sewer system. then the lift station and related improvements shall be
sold as follows:
a. The consent ot 81 shall be required if 81 is the owner of all or any portion
of the 81 Property. If 81 does not own any portion of the 81 Property. then
the consent of the owners of a majority of the lots within the BI Property
shall be required.
b. The consent of Scott shall be required if Scott is the owner of all or any
portion of the Scott Property. If Scott does not own any portion of the
Scott Property. then the consent of the owners of a majority of the lots
within the Scott Property shall be required.
c, 50% of all consideration received in accordance with the required
consents, if any. shall be paid (i) to BI if 81 is the owner of all or any'
portion ot the BI Property. or (ii) to the owners of the BI Property in
proportion to the number ot lots owned by each owner within the BI
Property, only if BI does not own any portion of the BI Property.
d. 50% of all consideration received in accordance with the required
consents, if any. shall be paid (i) to Scott if Scott is the owner of all or
any portion of the Scott Property, or (iQ to the owners of the Scott
Property in proportion to the number of lots owned by each owner within
the Scott Property. only if Scott does not own any portion at the Scott
Property.
4. GENERAL PROVISIONS.
4.1 Attorney Fees and Costs. If a suit. action, or other proceeding arising out of or related to
this Agreement is instituted by any party to this Agreement, the prevailing party shall be entitled to recover
EASEMENT AGREEMENT· 5
, , . , .
its reasonable attorney fees. expert witness fees, and costs (i) incurred in any settlement negotiations. (iQ
;," .
incurred in preparing for. prosecuting or defending any suit, action, or other proceeding, and (iiQ incurred
in preparing for, prosecuting or defending any appeal of any suit. action, or other proceeding. For the
purpose of this section, "attorney fees' shall mean and include (Q attorney fees and (iQ paral'egal fees.
This section shall survive and remain enforceable notwithstanding any rescission of this Agreement or a
determination by a court of competent jurisdiction that all or any portion of the remainder of this
Agreement is void, illegal, or against public policy.
4.2 Governing Law, Jurisdiction, and Venue. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho
shall have exclusive jurisdiction and agree that Ada County is the proper venue.
4.3 Time of the Essence. Time is of the essence with respect to the obligations to be performed
under this Agreement.
4.4 Rights Cumulative. Except as expressly provided in this Agreement, and to the extent
permitted by law, any remedies described in this Agreement are cumulative and not alternative to any
other remedies available at law or in equity.
4.5 Nonwaiver of Remedies. The failure or neglect of a party to enforce any remedy available
by reason of the failure of the other party to observe or perform a term or condition set forth in this
Agreement shall not constitute a waiver of such term or condition. A waiver by a party (i) shall not affect
any term or condition other than the one specified in such waiver, and (ii) shall waive a specified term or
condition only for the time and in a manner specifically stated in the waiver.
4.6 Successors and Assigns. Subject to any express provisions in this Agreement regarding
restrictions on transfers or assignments. this Agreement shall t;>e binding upon and Inure to the benefit
of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or
transferees of any kind.
4.7 Entire Agreement. All Schedules and Exhibits to this Agreement constitute a part of this
Agreement. This Agreement, together with the accompanying Schedules and Exhibits, constitutes the
EASEMENT AGREEMENT - 6
,', " (
(
entire agreement among the parties and supersedes aU prior memoranda. correspondence. conversations
and negotiations.
5. SIGNATURES:
BROWN'S INDUSTRIES, INC.
Dated: November _i_'J _, 1992 By:
,,-,f') ,',I') ./
"1..,.:--:" t \,.;, " r"~'~
Judd ~JBoer, Its President
MALCOLM H. SCOTT
Dated: November 1(J. 1992
STATE OF IDAHO )
) ss
County of Ada )
l
On this ~day of November, 1992. before me, a notary public in and for the State of Idaho,
personally appeared Judd DeBoer, known or identified to me to be the President of Brown's Industries,
Inc., the corporation that executed the instrument or the person who execU1ed the instrument on behalf
of said corporation, and acknowledged to me that such corporation executed the same.
" "J 1 .: j, )! (J I I, ( l. ' ,s "~." "-..
• h ... # '.
Notary PubliO"foHdaho ..:/
Residing at Boise. Idaho
"',\ .Commission Expires: .\ ' I (' , J
f
EASEMENT AGREEMENT· 7
i
f
STATE OF IDAHO )
) ss
County of Valley )
~,-\,LOn this ~day of November, 1992, before me. a notary public in and for the State of Idaho,
personally appeared Malcolm H. Scott known or identified to me to be the person whose name Is
subscribed to the within instrument and acknowledged to me that he executed the same.
<;{L~__Nota~ldaho
Residing at McCall, Idaho
CommissionExpires: _________
DENNIS C. CARLSON
MY COMMISSION EXPIRES
2-5-96
..
EASEMENT AGREEMENT· B
(,--.,
,
EXHIBIT A
BIPROPERTY
The following deSCribed real propeny in Valley County, Stale of Idaho, more panicuiaJ1y deSCribed
as follows to wit:
A parcel or land situat.e in the NWV.of the SElUof Section 16, T. 18
N., n. J E., O.r-I., Ci toy of ~1cCall. Valley County. Idaho, more
pnrticularly f.le~f;ribed as follows:
Commp.llcing at. a brass cap marlting the Center 1/4 corner of
Sect.ion lr., T. 18 N., R. 3 E., n.M" City of McCall, Valley
Ct)unty, Idnho; thence, S. 89-48' 50" E., 559.71 feet along
th~ n.")rl.herJ-:.' hflllfidary of snid NWV, SE%; thence, S. O· 38'10"
'L, 30.00 f~et to the southerly right-llf-way of Deinhard Lane,
t.he nEAI~ Po[NT OF BEGINNING:
Thnnce, continuing S. O· 38' 10" W., 785.00 feet to a \1"
re b~\ I" ,
t.l,,':!nr.c, S. 16-5;" 15 E., 486.05 feet to the northerly right
()f-\·al~· of Jacon Street t
thence, S. 89-37' :19" E., 288.71 feet along said northerly
ri~ht-or-uay to a 5/8" rebar,
thence, N. O· 37' HI" E., 1250.49 feet to a 5/8" rebar o'n the
S 0 IIIh ~ r J y rig h t -0 r -\-1 a ~. 0 f Dei n h a r d La n e I
t. II /':, ncr: • N . 11 9 • -1 R ' !) 0 .. \v. t 4 3 5 • 03 fee t loth e Poi n t 0 f
Beg 1 III I i ntt ,
EXHIBIT B
SCOTT PROPERlY
The foilolNing described reaJ property in Valley County. State of Idaho. more particulaJ1y described
as folloWs to w1t:
~ portion of S~1/4 of SE1!4 Se~tion lE. Township 18 North. ~ange
3 East. E:.c.M •• Valley (.:·\.mt , . ldahc.. m·:,re p.arti.:ul",,.ly des·:rlbed as
f .:.11 C·Wti I
C.c.mmencinQ ..t the 5 1 Il€. .: :.I"ner .:.'! the SEl/4, Sect ion leo., TClWTlship
18 North, F~ange 3 Eoaiit. c.N •• ...,hlCh corner is N. Et3-s4' 10" W.
1334.0 feet ;rocn -the SE. cor'ner of said Section 11:'" thence N.
0-11' 10· East .10nq "the E.a!;t boundar y of said SW1/4, ~hea.t 1/4
fo1l.1) feet tc· th2 true p.:dnt '7'f beginnin~;a; thence continuing H.
':'-11' 10" £ i,-'E:,.22 feet tc· the center c·f the said SE1/4; thence S.
8':J-~4'::5" w. ",ic·ng the (.I.:.rth boundary line of said SWl/4 SEl/4
73-1.78 feet t~. '" r"c.int: trlen·:e 5 1£'~4' 2'5" Ea!::t parallel to and 343
feet Easterly •.:,.f tho.! Ea'Et bOl..lndary"c.f Id",h.:. State Hi9hway 15;
73~~. 11,1 t est to:· .a p.:.lrIt : +;t"lel"l,:e S. 83-48' '5(1" East '5'::1. it) feet ba.:k
te. th~ trl.le p.:.ir,t ·:·1 beClnnlnQ.
E}.CEI-'J: F:e5el"vinQ t hE::i'r'iH ,..:.,11 con ~asement: ,fc'r .a publ io: rc.ad r i.gb.t
of ...'i\Y ",·:ross 1..he e-nt ir e rl.:.rth p·:."..-t 10:·n c.f this prO:'perty e:(tending
S':'Lltr15(1' frc'in t:-.~ r .. .:.rth b,_,'.mo.,\,,'1 or said 51,.11/4 SEl/4 • .'
" ."
:
EXHIBIT C
EASEMENT ON BI PROPERTY
The following described real property in Valley County, State of Idaho. more particularly described
as follows to wit:
JUDD nenOER PRopeRIX
SEWER LINE MAINTENANCE AND REPAIR EASEMP-NT
A 20.00 loot wIde aewar IlnA m,dntenanee and repelr f!AsC!ment
situate 1n the ~~v. of the SE~ of Section 16, T. II N., R. 3 E.,
B.M •• Valiajl County. Idaho, lying to.OO feet on each _lde of the:
!ollowJn, de3crlb~d center line:
Ccmmencing ~t a brass cap m~rklng the C 1/4 Corner o! Section
I 6. T. 1 g N.. R. • 3 E., B. M., Va il • Y Co un t y • I d 3. h 0; t h Q n eo, S.
8~ 31' 53~ E., 771.48 feet alone the northerly boundary of
8& I d NW1le SF-V'i thence r S. O· 37' 20" VI. t 3'.00 f<!ct to tho
,. 0 u ther i)' r 1 & h t -of-way 01 Dc Inhard Lane, t hI'! REAL PO, NT OF
BECINNINC:
Thenc~. continu;nc S. O· 37· 20" w •• 1,2"9.15 feet to the
northerly
Ending.
right-ot-way 01 Jacob Street, tho PoInt ~C
Bearings ba~~d on State Plane Grid A%imuth.
., .. . , ....
,
EXHIBrr 0
EASEMENT ON SCOTT PROPERTY
:The following described real property in VaJley County. State of Idaho, more particularly described
as follows to wit: .
MALCOM SCOTT PROPERTY
SEWER LfNE MA[NTENANCE N~D REPAIR EASEMENT
A 20.00 "foot wide sC!wer 1 ine maintenance and ("er.air easement
:i 1 t u ate 1 nth e SWV. 0 f the S E V. 0 f Sec t ion 1 6 t T. 1 8 N. t R. • 3 E.,
S.M., Valley County, Idaho, lying 10.00 feet on each sld~ of the
followjng described c~nter line:
Ccmmcncin3 :)1, a 5/Z" rl!~:lr marki.n!J thti' SF. 1/16 r:'Hner ()f
S c ": t 1 0 11 I 6, T. l:l N. R • J E. t B .• \1 •• V;) lie'I Co u n t Y f , Ca h 0 ; t
thence, N. 89-37' 39" w., 567.77 Iet!t along the northerly
boundary of ~aid Sw~ SE~. to the REAL POINT OF eECINNfNC~
T 1-. e n c P., S. 5· .s O· 00 .. w. ) 7 2 . 7 S f ~e t • t
the n c e, S. 1 8-) 5' a0 .. e... ~ 4 5 • 6 0 f '! P. t t
thence, S. 35-sst 30" W. 101.00 fe.,t to the ?oint of Ending.
t
At~o, ali easement !or maintC:'I31'1":.t; ar.d r~pajr of a sew~r llne
·sttu;)t.e in the 51,,'1, of the 5EI/.'0[ S2ction 16, T. J~ N., R. 3 E.,
P.. ••'..", V a 1 ley Co un t y, I d a hOt m0 :-epa j' t i '= ld 3 r 1 y des c.. j b e r.i 3 ~ f 0 11 0 \Ii S :
Co:::mencing at a 5/3" rebar markint:t the SE 1/16 Corn/u 01
Scc.tlon 10, T. 13 N. t R. 3 E .• B.M., V'.)l1~}' COllnty, Idaho;
t.hence, N. 89· 37' 39" w., 737.73 f~et alonlJ the northt!rly
boundary of said swV. SE'l.; thence, S. 10-26' 29" E., 68.5.10
f~ct alone a llne paratlel to and 343 feet easterly of State
Hj~hway 55, to the REAL POINT OF BECINNINC:
Thence, continuin&; S. Luo 26' 29" E.., .50.00 feet,
the n c e, s. g 9° 20 I 54" E.. :; 0 • 00 fee t , t
t Ii e n c: e, N. 16· 2 6' 2 '3" w., 5 0 . 00 fee t ,
th~ncc, N. 89· 20' 54" W. 50.00 fc:et to the Point of
t
Bar-lnning. containing 2,390 square feet, more or less,
Bearings b8~cd on Stnta Plane Grid Azimuth.