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HomeMy Public PortalAbout1993.01.28 Sewer Easement Supko, Rio Vista, Court SettlementEDWARD G. BURTON, Esq. City Attorney and City Prosecutor CITY of McCALL DEPARTMENT OF LAW POST OFFICE BOX 1065 McCALL, IDAHO 83638-1065 August 20, 1992 E. Don Copple, Esq. Davison, Copple, Copple, Copple & Ludwig Empire Building, Suite 530 205 North loth Street Boise, ID 83701 Re: Geoffrey V. Supko v. City of McCall Case No. CV-92-178 Dear Mr. Copple: 208-634-7142 (voice) 208-634-3038 (fax) We are in receipt of your complaint which was filed July 30, 1992. It is our expectation that at least some of this suit will be defended by counsel retained by a liability insurer, and notice is being provided to the relevant agent. Additionally, our Public Works Director has been hospitalized and may be out of circulation for a number of weeks. Therefore, I am requesting the courtesy that you not attempt to take the default of the City without ten days notice to us. cc: City Clerk Mr. Kirk Very truly yours, Edward G. Burton City Attorney and Prosecutor flit COPY W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LU D W IG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SURE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 January 28, 1993 Q 1 1993 CITY OF McCALL DEM OF LAW Re: Supko v. City of McCall Dear Mr. Burton: Enclosed herewith please find the Easement Agreement which we have prepared pursuant to our settlement negotiations. Please review the same and advise. Also enclosed are copies of Motion for Retention on Court Calendar and Affidavit in support thereof, together with a proposed Order, which we have filed with the Court. If you have any questions or concerns, please do not hesitate to contact this office. Yours truly, DAVISON, COPPLE, By EDC:baf Enclosures / COPPLE, COPPLE & LUIG I- E Don Copple LE! AND C, IyftICH, CLERK Sy Deputy JUN 2 1993 Case No. Inst. No. Filed A.M. P.M. IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) ) Plaintiff, ) Case No. CV-92-178 ) -vs- ) NOTICE OF INTENT ) TO DISMISS CITY OF MCCALL, ) ) Defendant. ) ) Pursuant to Bartlett v. Peak 107 Idaho 284, 688 P.2d 1189 (1984), you are hereby notified that the above -entitled case will be dismissed as to all unresolved claims for failure to prosecute with due diligence, unless within 15 days after mailing of the Notice, you show in writing sufficient cause for retention of this action, specifying what immediate action will be taken to resolve the case promptly. DATED this c''` day of Hon. Geq ge D. Carey District Judge McCALL CITY ATTORNEY Edward G. Burton, Esq. Internet: tedbrtn@cyberhiphway.net October 31, 1995 Re: Survey marking Dear Mr. Supko: The surveyors advise me that the pipeline the lot. I would have called you with this information or to coordinate the timing, but you do not have a listed phone number and I had no record of it otherwise. There is still time to do some work, but we need to know soon. Very truly yours, CITY OF McCALL Edward G. Burton City Attorney and Prosecutor cc: Council Manager (please note that our Post Office box number has changed to P. O. Box 986) 216 East Park Street • P.O. Box 1065 • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-3038 October 11, 1995 P. O. Box 16427 Boise, Idaho 83715 Edward G. Burton, Esq. McCall City Attorney and Prosecutor P. O. Box 1065 McCall, ID 83638 RE: Supko v. City of McCall - Lot 15, Rio Vista Sub No. 2 Dear Mr. Burton: It has been almost 3 months since I wrote to you requesting your help in resolving this issue in an expeditious and mutually agreeable manner. (I only hope at this point our letters will cross in the mail). It is now unlikely that I will be able to begin construction on my property given the lateness of the season - we have already had a dusting of snow on Bogus Basin. However, I would still like to resolve this issue, i.e., review the proposed easement "on the ground", sign appropriate documents and have the driveway in place before winter sets in. This would allow me to begin construction in the spring of 1996, albeit several years later than I had originally planned. My concern is that if we can not get this matter resolved this fall, you and the City will be overwhelmed with the "chores of spring" when it arrives and another year may pass before we can get this matter behind us. Please let me know how quickly you believe you can get survey markers in place on the property to allow me to view the actual location of the proposed easement. Sincerely, '414 Geoffrey Supko cc Council Manager CITY of McCALL OFFICE OF THE CITY ATTORNEY POST OFFICE BOX 1065 McCALL, IDAHO 83638-1065 EDWARD G. BURTON, Esq. City Attorney and City Prosecutor • April 9, 1993 E. Don Copple, Esq. Davison, Copple, et al. P. 0. Box 1583 Boise, ID 83701 Re: Supko v. City of McCall Dear Don: 208-634-7142 (voice) 208-634-3038 (fax) This letter will confirm our telephone conversation that we still have a settlement of this matter according to your March 1, 1993 letter and its enclosure, subject to final ratification by the City Council when it is finalized. We are awaiting the melting of the snow, at which time a survey of the right of way across Mr. Supko's lot can be made and a legal description of it created. As soon as the resulting Exhibit A is available for attachment, we will be all set. We simply await this mechanical chore. The City Council does approve contracts prior to their execution, but it is their custom to authorize the Mayor to sign after the other party has signed. cc: Mayor Administrator Very truly yours, CITY OF McC'L Ed ar. �a Gf .,Burton City Attorney and Prosecutor i Uuri OFFICE OF THE CITY ATTORNEY MEMORANDUM Date: April 8, 1993 To: Supko file File No: From: Ted Burton Re: spoke to Don Copple about not having survey; we decided to stall judge until have survey to attach, when snow melts >t W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LU D W IG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO October 18, 1993 Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 Re: Supko v. City of McCall Dear Mr. Burton: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 We have received another inquiry from Mr. Supko relative to the status of determining the legal descriptions for the surveys. As you might imagine, Mr. Supko is becoming somewhat impatient because of the lengthof time involved in resolving this matter. We would appreciate anything you can do to have this matter reach its conclusion. Yours truly, DAVISON, CO OPPLE, COPP & L WIG By EDC:baf E Donopple W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C.COPPLE SCOT M. LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO December 13, 1993 Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 Re: Supko v. City of McCall Dear Mr. Burton: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO83701 We have received yet another inquiry from Mr. Supko relative to the status of determining the legal descriptions for the surveys. When you and I dicussed this matter in October, 1993, you indicated that the survey would be forthcoming in the near future. Another snowfall has commenced and there is no sign of the survey. Mr. Supko is considering re -opening the court case due to the setlement not being fulfilled. We would appreciate your assistance in concluding this matter before the necessity of refiling. Yours truly, DAVISON, COPPLE,/COPPLE, COPPLE & DWIG By EDC:baf E Don ()pile McCALL CITY ATTORNEY' Edward G. Burton, Esq. August 5, 1994 E. Don Copple, Esq. Davison, Copple, et al. P. O. Box 1583 Boise, ID 83701 Re: Supko v. City of McCall Dear Don: Some time ago we furnished you for your client a legal description for an easement as well as a drawing of the location of the same. It was our understanding that your suit or threat of suit would be dismissed/released in exchange for our construction of a driveway access to your client's property and incidentally to our easement which would be expressly granted. As it is now August, and the number of chores for Public Works to perform prior to snow fly is mounting up, I am hoping we can bring the documen- tation of this matter to a close. Please let me know what is going on. cc: Council Manager Very truly yours, CITY OF McCALL Edward G. Burton City Attorney and Prosecutor '`‘0+144' 216 East Park Street • P. O. Box 1065 • McCall, Idaho 83638-1065 • Tel.: (208) 634-7142 • Fax: (208) 634-3038 E.mail, Internet: tedburtn@halcyon.com July 24, 1995 P. O. Box 16427 Boise, ID 83715 Edward G. Burton, Esq. City Attorney and Prosecutor City of McCall P. O. Box 1065 McCall, ID 83638 Re: Sewer Line on Lot 15, Rio Vista Subdivision No. 2 Dear Mr. Burton: Thank you for your response to my letter. I can appreciate that you have a number of high priority projects at this time; and would only ask that you try to fit this matter into your (and the surveyors') schedule at your earliest convenience. As you know, I am anxious to get this matter resolved. I will wait to hear from you as to when the survey points are in place on the property. Following that, I expect we will be able to finalize remaining issues quickly. Sincerely, ) Geoffrey V. Supko July 17, 1995 P. O. Box 16427 Boise, Idaho 83715 Edward G. Burton, Esq. McCall City Attorney and Prosecutor P. O. Box 1065 McCall, ID 83638 RE: Supko v. City of McCall Dear Mr. Burton: Firstly, let me apologize for being remiss in following up on this matter until now. I moved out of state last year for business reasons and was unable to physically inspect the subject property to approve the proposed easement for the City's sewer line. In May of this year I visited the lot in Rio Vista Subdivision No. 2 and realized that your survey group had inadvertently forgotten to set "survey pins/markers" per our agreement so as to allow me to assess the impact of the proposed easement on the property. I simply do not have the skill or ability to visualize the actual location of the proposed easement from the legal description that you provided. As such, I can not "sign off" on said easement without having the appropriate, relevant survey markers in place physically on the property. As I had communicated to you before, given the steep topography of the lot and the placement of the existing sewer line (i.e., across the middle of the property) the exact location of the proposed easement is critical for an evaluation and determination of the potential to construct a building on the site. Specifically, there may not be a sufficient "building pad" left on the flat portion of the lot to build the home I have planned given the existing sewer line's proximity to the extreme drop off at the "rim" on the land. Therefore, in this regard, please direct your surveyors to set pins/markers as indicated on the plat map attached as Exhibit III as soon as possible, and advise me when completed. This will allow me to determine what portion of the lot I have been left "to work with." Also, the "Easement Agreement" provided to you (and approved by you) by Mr. Copple needs to be updated (see highlighted areas on Exhibit II) as to dates and, could now, concurrently, include the legal description of the proposed easement developed by your surveyors. I would appreciate your office making these changes and preparing the final documents. Finally, I would like your commitment as to the timing of the clearing and installation of the 20 foot wide driveway, and incorporation of this date into the Easement Agreement. Clearly, given the years that have passed since we began these negotiations, I will plan to mark the driveway boundaries again before you have the City proceed. As you may understand, I am very anxious to finally settle this matter with the City of McCall. I truly enjoy the area and have viewed this matter as distressful but necessary to protect my interests. As you are aware, I had planned to begin construction of a home on the lot in 1993 and would like to resolve this easement issue quickly and begin building in the fall of this year. As such, I would greatly appreciate your expeditious handling of this matter. I am prepared to sign a revised Easement Agreement once I have seen that the lot is "buildable" given the constraints the City must impose. Importantly, I am no longer retaining Davison, Copple, et al as legal representation as I have assumed we were at the point of finalizing this matter. I have already incurred substantial legal and professional expenses and, unless the City of McCall requires otherwise, I would ask that you correspond directly to me to achieve a timely completion of the necessary paperwork and official recording of this easement. My current mailing address is: Geoffrey V. Supko P. O. Box 16427 Boise, ID 83715 Please forward the enclosed copy of this letter and Exhibits to the Council Manager for his/her file. I look forward to hearing from you at your earliest convenience and to getting this matter resolved, and behind us. Sincerely, (4_ cc: Council Manager Exhibits (3 ) W.N. DAVISON (1878-1964) FRANK DAVISON (1907-1984) E yme IT .� TELEPHONE (208) 342-3658 FAX (208) 386-9428 R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 1 Oth Street BOISE, IDAHO March 1, 1993 Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 Re: Supko v. City of McCall Dear Mr. Burton: MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 4ak•s•k:iv ti " . N RECEIVED MAR 21993 G. V. SUPKO Enclosed herewith please find the Easement Agreement which we have revised pursuant to our recent settlement negotiations. If you concur, please execute the agreement, attach the drawing as Exhibit A, and return it to this office so that we can obtain Mr. Supko's signature and record the agreement with the Valley County Recorder. If you have any questions or concerns, please do not hesitate to contact this office. Yours truly, DAVISON, COPPLE, COPPLE COPPLE 1LRDiG By EDC:baf Enclosure E Don Cripple W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE &. LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 101h Sheet BOISE, IDAHO March 11, 1993 Mr. Geoffrey V. Supko 300 Cashmere Drive Boise, ID 83702 Re: Supko v. City of McCall Dear Mr. Supko: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 RECEIVED MAR 1. 21993 G. V. SUPKO We write to advise that we received a telephone call from Ted Burton, McCall City Attorney, advising that he has approved the Easement Agreement and will be submitting the same to the McCall City Council for approval. Yours truly, DAVISON, COP OPPLE, COPP DWIG By EDC:baf E Don Copple EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made this day of , 1993, by and between GEOFFREY V. SUPKO, a single man, of Boise, Idaho, hereinafter sometimes referred to as "Supko," and THE CITY OF McCALL, IDAHO, hereinafter sometimes referred to as "the City." W I T N E S S E T H: Geoffrey V. Supko is the owner in fee of that certain real property situate in Valley County, Idaho, more particularly described as follows: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. Prior to Supko's ownership of the above -described real property, the City of McCall installed a sewer line across the same, the location of which is depicted on the plat of the lot which is attached hereto as Exhibit A and incorporated herein for all proper purposes. The City's employees and agents have subsequently crossed Supko's property primarily by foot to gain access to its sewer lift station. The parties hereto desire to enter into a written agreement under the terms of which the City will be granted an easement for the existing sewer line and to cross Supko's property, and which will provide for the duties and respon- sibilities of the City of McCall. NOW, THEREFORE, based upon the foregoing recitation of it is agreed as follows: facts, convey to following 1. Geoffrey V. Supko does hereby give, grant and the City of McCall a sewer easement in and under the described real property, to -wit: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. The purpose of the easement is to provide ingress and egress to the described property for the installation, maintenance, repair and/or replacement of the sewer pipeline presently located on said property as more particularly shown on Exhibit A which is attached hereto; provided, however, that no lines, wires, pipes, EASEMENT AGREEMENT - 1 conduits, sewers, drainage lines, or other utility apparatus (other than the existing manhole cover) shall be placed upon the surface of the lot without the prior written consent of Supko or his successors and assigns as the owner of said property. The sewer easement being granted shall extend ten (10') feet from the center of the existing sewer pipe to either side of the pipe. The City of McCall shall within a reasonable time, but no later than July 1, 1993, place survey pins in the sewer easement area which depicts the center of the existing sewer line to the end that both parties may visibly view the location of the easement on the ground. In the event the City determines at its discretion that it is necessary to repair, replace and/or remove the exist- ing sewer pipe, it shall provide written notice to Supko of its intention to do so at least thirty (30) days prior to commence- ment of on -site work and include therewith a description of the work and that portion of the lot that will be effected. If Supko has any objections thereto, he shall notify the City at least ten (10) days prior to the date scheduled for commencement of the work and the parties will then resolve any questions relating thereto. It is understood by the parties that the existing sewer line is buried at an approximate depth of twenty (20') feet below the surface and that excavation if required would require temporary use of areas beyond the sewer easement. If such excavation becomes necessary, the parties will cooperate to minimize the geographic extent of the work. The City acknow- ledges that Supko may construct a building or structure on the lot to the area north and east of a line parallel to and ten (10') feet distant from the center line of the pipe and south and west of the line parallel to and twenty (20') feet distant from the center line of the pipe, and that such area shall not under any circumstances be used as a temporary easement area for excavation purposes. The City shall be solely and exclusively respon- sible for all costs and expenses of whatever kind and nature incurred in connection with or related to the repair, maintenance or replacement of the sewer line located in the sewer easement area. In no event shall Supko be required to pay or be liable for any of said costs or expenses, nor shall the property be subject to any lien securing the payment of all or any portion of said costs and expenses. Supko shall have the right to use the surface of the sewer easement in connection with his use, occupation and enjoyment of the property; provided, however, that the use of the EASEMENT AGREEMENT - 2 surface by Supko shall not unreasonably interfere with the maintenance of said sewer line. The City and their agents shall have the right to disturb the surface of the sewer easement for the purpose of repairing and maintaining the same, provided the City will restore the surface of the ground within the sewer easement and other area as hereinbefore provide in as good a condition as when entered upon by the City or their agents. 2. Geoffrey V. Supko does hereby give, grant and convey to the City of McCall an access easement across the hereinbefore described real property. The City shall within a reasonable time, but no later than July 1, 1993, prepare a legal description of said access at which time this Easement Agreement will be supplemented to include that description. The purpose of this easement is to provide access across the described property to permit the City to connect with an existing rough trailway down a bluff toward the City's sewer lift station. The bluff containing the trail is adjacent to Supko's lot on its easterly boundary. The access easement will be ten (10') feet in width and located generally on the southern portion of the property, angling generally east as more particularly set forth on Exhibit A. Upon the execution of this agreement, the City will within a reasonable time clear all trees, brush, vegetation, etc., and improve the access easement for a driveway, depositing on the same pit run gravel suitable for overlay with a driveway mix to a width of twenty (20') feet. The location of the drive- way has been marked on the ground by the parties and shall extend from Rio Vista Blvd. to the existing bluff roadway. Five (5) days prior to doing the above described work, the City shall notify Supko in order that he may have an opportunity to be present when the work is performed. If Supko is not present, he shall have ten (10) days after completion to present any objec- tions that the driveway was installed other than as agreed. The City's use of the access easement shall primarily consist of foot traffic by city personnel walking into the City's lift station; provided, however, that in the event the City determines it is necessary to take a vehicle or other equipment to the lift station to replace or remove a pump, or for other maintenance, repair or replacement of equipment that requires the use of a vehicle, the City shall be permitted to do so. It is the parties' stated intention that the use of a vehicle by City personnel or its agents on the access easement will be the exception to the foot use of the easement and uti- lized only if there is no other commercially reasonable method of performing the repair. EASEMENT AGREEMENT - 3 3. Upon the City obtaining the legal description and the supplemental agreement being entered, the parties shall dismiss the litigation presently pending in the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Valley, and record this Agreement, along with the supplemental agreement, with the Valley County Recorder's Office. IN WITNESS WHEREOF, the parties have hereunto set they hands and seals the day and year in this instrument first above written. ATTEST: By STATE OF IDAHO ) ) County of Ada ) ss GEOFFREY V. SUPKO CITY OF McCALL By ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared GEOFFREY V. SUPKO, known or identi- fied to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at Boise, Idaho My Commission Expires: EASEMENT AGREEMENT - 4 STATE OF IDAHO County of Valley ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared and , known or identified to me to be the and of The City of McCall, Idaho, that executed the instrument or the persons who executed the instrument on behalf of said City of McCall, Idaho, and acknowledged to me that they executed the same on behalf of the City of McCall, Idaho. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at: My Commission Expires: EASEMENT AGREEMENT - 5 EXH/131T TIC \• Q LOT NO. 15 RIVER N 47 45' 35' W 99.52' LOT NO. 14 25 00, I i 1 E DON COPPLE DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG Attorneys at Law Empire Building, Suite 530 205 North loth Street P. O. Box 1583 Boise, ID 83701 Telephone: 208-342-3658 Attorneys for Plaintiff IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) ) Plaintiff, ) ) CASE NO. CV-92-178 vs. ) AFFIDAVIT IN SUPPORT OF ) MOTION FOR RETENTION CITY OF McCALL, ) ON COURT CALENDAR ) Defendant. ) ) STATE OF IDAHO ) ) ss County of Ada ) E DON COPPLE, being first duly sworn, deposes and says: I am one of the attorneys for the Plaintiff in the above -entitled matter and make this Affidavit based on my own personal knowledge in support of the Plaintiff's Motion For Retention on Court Calendar. AFFIDAVIT IN SUPPORT OF MOTION FOR RETENTION ON COURT CALENDAR - 1 a. The Plaintiff, Geoffrey V. Supko, has a good cause of action against the Defendant in this matter as is more fully set out in his Complaint on file herein. The Defendant was served with Summons and Complaint on August 18, 1992, and the parties have since that time been negotiating a possible settlement of the action. A settlement has not yet been reached and I therefore reques that the Court retain the same on the calendar so that Plaintiff may continue to i prosecute his claim. / /t E DON COPPLE s) SUBSCRIBED AND SWORN TO before me this (0 day of January, 1993. ry Public fo Idaho Residing at Bo' e, Idaho My Commission Expires:__7- f77 CERTIFICATE OF MAILING�j I hereby certify that on the C2 day of January, 1993, a true and correct copy of the foregoing was mailed, postage pre- paid, to the following: Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 E DON COPPLE AFFIDAVIT IN SUPPORT OF MOTION FOR RETENTION ON COURT CALENDAR - 2 E DON COPPLE DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG Attorneys at Law Empire Building, Suite 530 205 North loth Street P. O. Box 1583 Boise, ID 83701 Telephone: 208-342-3658 Attorneys for Plaintiff IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) CASE NO. CV-92-178 ) ) ) vs. ) ORDER TO RETAIN ) ON COURT CALENDAR CITY OF McCALL, Plaintiff, Defendant. Upon the reading and filing of Plaintiff's Motion for Retention on Court Calendar and the Affidavit in support of said Motion, and good cause appearing, IT IS HEREBY ORDERED that the above entitled matter may be retained on this Court's calendar. DATED This day of , 1992. Judge ORDER TO RETAIN ON COURT CALENDAR - 1 CERTIFICATE OF MAILING I hereby certify that on the 0J day of January, 1993, a true and correct copy of the foregoing was mailed, postage pre- paid, to the following: Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 ORDER TO RETAIN ON COURT CALENDAR - 2 either side. It is understood by the parties that the depth of bury of the pipe, believed to be on the order of 20 feet below the surface, means that excavation of the pipe would require temporary use of areas beyond the easement. If such excavation becomes necessary, the parties will cooperate to minimize the geographic extent of the work, and to restore the surface of the land afterwards. Defendant will not contend that Plaintiff has interfered with such right to a temporary easement if defendant confines the constructon of structures on the lot to the area north and east of a line parallel to and ten feet distant from the centerline of the pipe, and south and west of a line parallel to and twenty feet distant from the centerline of the pipe. 3. City will clear trees and brush from the location of the proposed driveway, and improve that location for driveway with pit run gravel, suitable for overlay with driveway mix, and to a width of approximately ten feet. a a The location of such a driveway has been marked on the ground by the parties. The driveway shall extend from Rio Vista Boulevard to the existing access road across the lot to the lift station. Five days prior to doing any work, notify Plaintiff in order that Plaintiff may have opportunity to be present when the work is done. City an If shall Plaintiff was not present, Plaintiff shall have five days after completion to present any assertion that the driveway was installed other than as agreed, or forever to hold his peace. 4. The real property affected by this case and by this Stipulation is: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. 5. This action may be dismissed, each party to bear its own costs and attorney's fees. This dismissal shall act as res judicata as to the Plaintiff's complaint and any counterclaim which would have been a manditory counterclaim CITY of McCALL POST OFFICE BOX 1065 McCALL, IDAHO 83638-1065 LAURENCE A. SMITH, Mayor ARTHUR J. SCHMIDT, City Clerk and Administrator EDWARD G. BURTON, City Attorney and Prosecutor 208-634-7142 (voice) 208-634-3038 (fax) FACSIMILE TRANSMISSION T0: Don Copple Via fax #: 1 (208) 386-9428 From: Ted Burton Date: 92 / 10 /2 9 Re: Geoffrey Supko This facsimile transmission consists of this page and 3 additional page(s). If you experience any difficulty in receiving this transmission, please call (208) 634-7142, and ask for Sheryl Brewer. Please Note: The information contained in this facsimile message is confidential and privileged. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this facsimile communication by mistake, please immediately notify us by phone and return the original message to us at the above address via the U. S. Postal Service. Thank you for your cooperation. MESSAGE Don: I hope this Stipulation reflects our agreements, and please accept my apologies for how long it has taken to get this out. If this is acceptable, I will start preparing ease- ment documents and authorize the DPW to start work. It has actually rained today, which offers hope that the ground will be soft enough to work. Very truly yours, Ted B. EDWARD G. BURTON, ESQ. City Attorney City of McCall P. 0. Box 1065 McCall, ID 83638-1065 (208) 634-7142 Attorney for Plaintiff IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY MAGISTRATE DIVISION GEOFFREY V. SUPKO ) ) Plaintiff, ) -vs- ) ) CITY OF McCALL ) ) Defendant. ) ) Case No. CV-92-178 SETTLEMENT STIPULATION Plaintiff and Defendant stipulate: 1. Plaintiff will grant Defendant a permanent, written easement across the below -described land for access down a driveway of Plaintiff's and along the existing primitive road down the bluff toward the City sewer lift station. The driveway will be located as described in paragraph 3, and the balance of the access road will be located where is. The access will be by City personnel on foot, unless in the City's judgment it is necessary to take a vehicle or equipment down to the lift station to pull a pump or for other maintenance, repair and replacement of equipment. 2. Plaintiff will grant Defendant a written easement across the below described lands for an existing sewer line and for its maintenance, repair, and replacement as necessary in the opinion of the City. Such easement shall be centered directly over the existing pipe, ten feet to of the City. This Stipulation, and the documentation required by it, shall have the same force and effect as a judgment of this Court. Dated: October 29, 1992 City of McCall by: Davison, Copple, Copple, Copple & Ludwig by: E. Don Copple, Plaintiff's Attorney Geoffrey Supko Edward G. Burton, City Attorney prepared by: KERR SURVE53N PO Box 8 McCall, ID 8363 634-2686 S S'• F -AV s5‘.)� �\ 4°/ CO, \ / 1.) P06,4 14.56%/ s v \ 14 /7 5 12.00 FOOT .,)"/ .�. •\ S �. SO// ,� AINTENANCE �/4 1/4 . �'E , SEMENTTh �� \ • \ 4 /9 �?g\ 41�. ,• � , - 13 �. Y � �� / / .-7,,,6 \ ,6 -14 12 �\ 8 CURVE TABLE Rad Delta Chd Chd Br, CI 306.00 06'22'50' 33.95' N 36'39'25' r7 305.00' 16'51 23' 69.411' N 46'16;32' r3 305.00 04'2947' 23.9 N 56' 7 36' ;y 220 00 10'01'00' 36.41 LELAND G. HEiNRICH, CLERI By Depui JUL 3 0 1992 cnoo No. Rod A.M. f E DON COPPLE DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG Attorneys at Law Empire Building, Suite 530 205 North loth Street P. O. Box 1583 Boise, ID 83701 Telephone: 208-342-3658 Attorneys for Plaintiff IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) CASE NO. CA) (4) 17g ) Plaintiff, ) ) vs. ) COMPLAINT ) CITY OF McCALL, ) ) Defendant. ) ) COMES NOW the Plaintiff, and for cause of action against the Defendant, complains and alleges as follows: I. On or about October 18, 1988, Plaintiff acquired ownership of the following described real property situate in the City of McCall, County of Valley, State of Idaho, to -wit: Lot 15, RIO VISTA SUBDIVISION NO. 2, a Plat of which is recorded in the office of the Recorder of Valley County, Idaho. COMPLAINT - 1 II. Prior to Plaintiff's acquiring ownership of the herein - before described real property, Defendant City of McCall in- stalled a sewer line across said property and Defendant's employees and agents subsequently crossed Plaintiff's property by foot to gain access to the City's lift station located on Lot 12, Rio Vista Subdivision No. 2. III. Defendant City of McCall had no written easement or other written authorization from the Plaintiff or his predeces- sors in interest to install the sewer line on said property or to go upon the same for the purpose of gaining access to its lift station. IV. In August, 1990, Toothman-Orton Engineering Company, acting as the City of McCall Engineer, contacted Plaintiff for the purpose of obtaining a temporary easement for the City of McCall to cross Plaintiff's property to enable the City to construct improvements on nearby property. V. On August 31, 1990, Plaintiff granted the City of McCall temporary access across his property to construct improve- ments subject to the following conditions: a. Entry to Lot 15 was to be limited from Rio Vista Blvd. at a point that approximates the location of a future COMPLAINT - 2 planned driveway which Plaintiff indicated on the ground by placing marker stakes; and b. The City of McCall would use its best efforts to minimize disruption of the lots topography and destruction of trees and foliage. VI. In June, 1992, Plaintiff discovered that the Defendant had not placed the temporary easement where Plaintiff had placed the stakes and had constructed an access road in violation of the parties' limited access agreement. VII. On June 24, 1992, Plaintiff notified Toothman-Orton Engineering Company and Defendant City of McCall that the temporary access previously granted was canceled, revoked, and terminated by virtue of the Defendant's violation of the parties' agreement, and that Plaintiff would view any future access across the property as an illegal trespass. A copy of the letter canceling the temporary access is attached hereto as Exhibit A and incorporated herein by reference. VIII. In response to the notice terminating the temporary access, the Defendant claimed that the easement for the sewer pipe had been granted by the subdivider of the Rio Vista Sub- division and that the City had been openly, notoriously, and continuously using the road and sewer system under claim of right COMPLAINT - 3 to do so several times each week since 1967. Defendant City of McCall further advised that City crews would make use of this road for access to the facilities under and down by the river when and as needed. A copy of said notification is attached hereto, marked Exhibit B and incorporated herein for all proper purposes. IX. Defendant City of McCall claims some interest in Plaintiff's real property adverse to the ownership of Plaintiff, which claim may be without any right, title or interest. X. Plaintiff has retained the firm of Davison, Copple, Copple, Copple & Ludwig to represent him and prosecute this action, and has agreed to pay his attorneys a reasonable fee. The sum of $5,000.00 is a reasonable fee to be allowed Plaintiff for attorney's fees in the event judgment is obtained against Defendant by default, and such greater sum in the event this action is litigated. WHEREFORE, Plaintiff prays that Defendant City of McCall be required to set forth the nature of their claims, and that all adverse claims of said Defendant be determined by a decree of this Court. In the event it be determined that the Defendant has easements across Plaintiff's property, that such easements, their location and the extent of their use be deter- mined, with a judgment based thereon entered prohibiting COMPLAINT - 4 Defendant from utilizing any such easement in excess of the rights granted in said judgment, that Plaintiff be awarded his costs and attorneys' fees of $5,000.00, and for such other and further relief as to the Court may seem just and proper. c� DATED This � 1 day of July, 1992. DAVISON, COPP COPP By E DON COPPL, of the Attorneys for Plaintif COMPLAINT - 5 June 24, 1992 300 Cashmere Drive Boise, ID 83702 (208) 383-0307 Mr. Timothy A. Burgess, P.E. Mr. Michael S. Maffey, P.E. TOOTHMAN-ORTON ENGINEERING COMPANY 1802 North 33rd Street Boise, ID 83703 RE: City of McCall Sewer Project - Access across Lot No. 15 of Rio Vista Subdivision No. 2 Dear Sirs: This is to notify you that the "temporary" access across my property (Lot 15 of Rio Vista Subdivision No. 2) which I granted to you in August, 1990 is hereby canceled, revoked and terminated effective with the receipt of this letter. This revokes access across this property by any person for any reason whatsoever for any current or future projects or activities. Since you have represented yourselves to me as the agents for the City of McCall in this matter, please Immediately notify all effected parties (contractors, sub -contractors, etc.) that any and all egress or ingress on the subject property should cease at once. Given this notice, I will view any future access across my property as an illegal trespass. I am sure you understand that I am only protecting the integrity of my property. Thank you for your prompt attention to this matter. Sincerely, Geoff ey V. Supko CC. Mr. E. Don Copple : Davison, Copple, Copple & Copple City of McCall - Public Works Dept. McCall Police Dept. Valley County Sheriff Jim & Judy Slaton CYHIRIT � CITY of McCALL DEPARTMENT OF LAW POST OFFICE PDX 1065 McCALL, IDAt IO 8363E-1065 EDWARD O. BURTON, Esq. City Attorney and City Prosecutor July 6, 1992 Mr. Geoffrey V. Supko 300 Cashmere Drive Boise, ID 83702 208-634-7142 (voice) 208-634-3038 (lax) Re: Your letter to Toothman-Orton of June 24, 1992 Dear Mr. Supko: Your letter was referred to me for reply. The subdivider of Rio Vista Subdivision, being interested in facilitating sewer service to the subdivision, granted to the City of McCall a permanent easement for a lift station and associated trunks, mains, lines, and manholes, and for access to the same for construction and maintenance along the now existing road. He granted such an easement for the sewer pipe that is underneath the access road. The City has been openly, notoriously, and continuously using this road and sewer system under claim of right to do so, several times each week since 1967. Disruption of this access would threaten severe damage to the ongoing activities of the utility, not to mention to the water quality of the North Fork of the Payette River. We are confident that if you had been aware of the above facts and risks, you would not have written as you did. The City crews will make use of this road for access to the facilities under it and dowh by the River when and as needed in their opinion. If you desire to build over the pipe, a replacement road will have to be created along a suitable alignment, and the segment of the pipe underneath the improvements will have to be encased in a utilidor in a fashion permitting access to its entire length under the home from some point outside the home. We apologize if the tone of the engineer's inquiry in August of 1990 led you to believe that the City needed your permission to do what it was doing. They were asking if you had a copy of a written grant, and were trying to inform you of the activities planned. They were not in a position to give away a City interest which already existed, and had then existed for 23 years. FXNIRIT Fl It is my belief that, before too many years pass, the City will have a program of dressing up the apfearance of public streets and facilities, and you can be hell? in suggesting ways to improve the integration of these facilities into the landscape. Very truly yours, Edward `e;. -Burton City Attorney and Prosecutor cc: Mayor Administrator Public Works/Sewer Utility MPD/VCSO Tim Burgess E. Don Copple, Esq. Jim & Judy Slayton s ITT HARTFORD September 9, 1992 Mr. Bud Schmidt City Administrator City of McCall PO Box 1065 McCall, ID 83638 RE: Our File: 901 LP/WI Insured: City of McCall D/I: Unknown Claimant: Jeoffrey Supko Dear Mr. Schmidt: Boise Office 5405 Kendall P.O. Box 8265 Boise, ID 83707 Telephone 1208) 375-7883 We have received and reviewed the complaint filed by Jeoffrey Supko alleging improper use of his property by the City. It appears his complaint is saying that these improper usages began in June, 1992. Review of your policy 34 CES QK9077 effective 5/10/92-93 indicates that we provide general liability coverage to the City of McCall. The allegations in this complaint do not fall within the definitions of bodily injury, property damage, personal injury, advertising injury, or employee benefit injury as outlined in your policy form SG 0002(6/86). Based on the above, we must respectfully advise we are unable to provide a defence to the City of McCall for the complaint filed by Mr. Supko. If you find policy wording which you believe provides coverage for this complaint and its allegations, please provide us with your findings so that we may review this matter again for you. Very truly yours, Phyllis Sanderson Claim Manager PS/kv CC: William Kirk Agency Edward G. Burton City Attorney ITT Hartford Insurance Group Hartford Fire Insurance Company and its Affiliates Hartford Plaza, Hartford, Connecticut 06115 NATIONAL CASUALTY COMPANY PROPERTY/CASUALTY DIVISION Claims Department Q�e'(Il 8877 North Gainey Center Drive U Scottsdale, Arizona 85258 I I r Reply to: Post Office Box 4120 Scottsdale, AZ 85261-4120 September 1, 1992 Edward G. Burton City Attorney and Prosecutor City of McCall Department of Law P.O. Box 1065 McCall, ID 83638-1065 RE: Claim No: 228974-117 Policy No: POO 320692 Insured: City of McCall Claimant: Geoffrey V. Sutko Dear Mr. Burton: Telephone 602-948-0505 FAX 602-483-6752 We acknowledge receipt of the Complaint entitled Geoffrey V. Sutko vs. City of McCall, which was forwarded to us by the William A. Kirk Agency, Inc. We have reviewed the Complaint and note that there are no compensatory damages being sought at this time. In this regard, there is no coverage for this matter under National Casualty Company's Public Officials Liability Policy, POO 320692, because of Exclusion (9) of that policy, which reads as follows: EXCLUSIONS The Company shall not be obligated to make any payment or defend any lawsuit in connection with any claim made against the INSURED: 9. For claims, demands, or actions seeking relief or redress in any form other than monetary damages, or for any fees, costs or expenses which the INSURED may become obligated to pay as a result of any adverse judgment for declaratory relief or injunctive relief; however, the Company will afford defense to the INSURED for such actions, claims, suits or demands in which monetary damages are requested if not otherwise excluded; Home Office • Southfield, Michigan Edward G. Burton City Attorney and Prosecutor City of McCall September 1, 1992 page Two Because the claim is for injunctive relief only, it is excluded from coverage under the above provision of the policy. In these circumstances, at this time, National Casualty Company respectfully disclaims coverage for this matter. We will not participate in the defense or indemnification for this claim. We reserve the right to review any additional lawsuits or amendments to this lawsuit to make a separate determination as to whether either a defense, or indemnity, might be provided by the company. It is possible that we might provide a defense and/or indemnity on a new or amended complaint. Our decision on coverage is based only on the facts as presented to us to date and should not be construed as applicable to a new suit or an amendment to this suit. Our right to have notice of either situation is reserved, as are the notice conditions of the policy. Should you have any information that is contrary to that expressed above, or if you ave any questions, comments or objections, please contact the undersigned. truly Brian Parr'=h Sr. Claims Examiner cc: William A. Kirk Agency, Inc. 1005 North Third Street P.O. Box M McCall, ID 83683 AON/Governmental Programs Inc. BP/cmm P16/28 JUL-01-1992 15:13 FROM, � OOTHMHN ORTON ENG. TO 163430390099 P.04 August 31, 1990 Mr. Timothy A. Burgess, P.E. TOOTHMAN-ORTON ENGINEERING COMPANY 1802 North 33rd Street Boise, Idaho 83703 RE; City of McCall Sewer Project - Impact on Lot 15 of Rio Vista Subdivision No. 2 Dear Mr. Burgess; This in response to your letter of August 17, 1990 and our recent telephone conversation during which we discussed the subject sewer project your firm is undertaking for the City of McCall. As discussed, I believe there are a number of significant issues that must be settled, and I am quite concerned over the possible negative impacts that could result to my property value and ability to construct a vacation home on this land. I apologize for the delayed response, but I felt it necessary to go to McCall, visit the lot and review alternatives. Importantly, when I purchased this property in October of 1988, I obviously nuLiLed the sewer manhole on the property and was concerned there might be some type of easement or right-of-way attached to the land which could impact its market value or ability to suitably situate a home. As you did, I researched the issue and found no recorders easement or right-of-way. As a result of this investigation, I proceeded to purchase the land at a premium price. Following the purchase, the Title Company also issued its policy with no discovery of an easement or right-of-way. Clearly, my gyerrid�Qncern is that the City might mandate an easement or right-of-way which could substantially reduce my property's value and/or severely impact the placement of my future home. Obviously, I realize the City must have some assured access to the sewer system, and I would be hapLy Lu work with them to reach an equitable solution; i would appreciate our advice on how this could be accomplished. On visiting the Lot, with the copy of the unrecorded sewer easement you provided, it "appears" it would be guile difficult to situate a home on the riverside of the top, flat portion of the Lot without building over the sewer line; I would need more analysis to determine this, including exact location of the line across my Lot. Relative to your immediate need for temporary access across my property for purposes of your current construction project, I have no problem and. as the undersigned owner of Lot 15 of Rio Vista Subdivision No. 2, do hereby grant the City of McCall temporary access across this property and pern'isslon to wnstruct the improvements as outlined in ynur August 17. 1990 letter to me with the following conditions: JUL-n1-1992 15:11 FROM IOOTHMAN ORTON ENG. TO 16047n7F0 n99 DAVIS C. TOOTNMAN (RoNrotlj Posbir t5rand fax transmittal memo 7.671 Ta d4(f .SCki Fr°r" /e%Cir Cant/ r of pages ► Hr. Geoffrey V. Supko 300 Cashmere Drive Boise, ID 83702 Dear Mr. Supko: RICkARD F. ORTON, JR„ PULS PAUL S. kUNZ, PEILS TIMV I MT A !SU}iC:ty3, F't CHAPLES P. SUNDSY, PE DAVID G POWELL, PE GLENN I( SENNETT, L� must 17, 1990 The City of McCall has hired Toothman-Orton Engineering Company to design a sanitary sewer main replacement project for an existing sewer main located along and across the Payette River. The main to be replaced is located on the east bank of the Payette River and runs from the River's Bend Condominiums south to the Fish Hatchery, then turns west, crosses the Payette River and connects to an existing pump station located on the west side of the river in Lot 12 of Rio Vista Subdivision No. 2. County records show that you are the owner of lot 15 of Rio Vista Subdivision No. 2. This line is scheduled for replacement due to the fact that it is a source of groundwater infiltration. The river crossing is being replaced as a precautionary measure since it was damaged during construction of the pipeline which supplies water to the Fish Hatchery. The goal of this project is to reduce groundwater infiltration and provide a more reliable and environmentally safe Payette River Crossing. Construction of the new river crossing will include dual pipes crossing the river running to two separate manholes located approximately fifteen feet south of the existing lift station and new pipes from the manholes to the lift station. The new manholes will be approximately one foot higher than the existing ground surface. Construction will require removal of the surface vegetation and brush, excavation, installation of the piping and manholes, backfill and surface restoration. Surface restoration will consist of grading the area to conform to the surrounding contours. Construction of the pipes and manholes will require access for men and equipment from the west bank of the river. I have researched the records at the County and City to determine where easements or access right-of-way are located. Unfortunately I have found no recorded documents. The original sewer mains were constructed in 1967. From the records available it appears easements were obtained at that time. They probably were not recorded. Since then the easements have been misplaced or lost. I am requesting your assistance in resolving this matter. If you have any records regarding sewer line easements or right-of-way which have been granted please furnish me with copies. If you have no copies it is likely that none exist. If this is the case McCALL CITY ATTORNEY Edward G. Burton, Esq. Internet: tedtwrtn@halcyon.com July 21, 1995 Mr. Geoffrey V. Supko P. O. Box 16427 Boise, ID 83715 Re: Sewer Line affecting Lot 15. Rio Vista Subdivision No. 2 Dear Mr. Supko: Thank you for your letter of July 17, 1995 received by me yesterday, July 20, 1995. Your request that the survey points be marked on the ground in a readily visible manner is reasonable, and I will be in touch with the surveyors to explore their timetable for doing this. Unfortunately, your letter arrived in the middle of our `crazy' season here in McCall, when the burdens on my time are greatest, and when the surveyors are backlogged with their clients' requests as well, with many of their resources committed to the `field' in Idaho and other nearby states. A priority project of our own involving preparation of a single drawing, without field work, is projected to take two weeks. In view of the time it has taken us to come to grips with this matter, we are sure you will understand if there are some practical delays at this end. However, I do believe we can all look forward to concluding this matter yet this season. Your stating that Mr. Copple no longer represents you is acknowledged. Very truly yours, CITY OF Edward G. Burton City Attorney and Prosecutor cc: Council Manager 216 East Park Street • P.O. Box 1065 • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-3038 7' 'AI July 17, 1995 P. O. Box 16427 Boise, Idaho 83715 Edward G. Burton, Esq. McCall City Attorney and Prosecutor P. O. Box 1065 McCall, ID 83638 RE: Supko v. City of McCall Dear Mr. Burton: Firstly, let me apologize for being remiss in following up on this matter until now. I moved out of state last year for business reasons and was unable to physically inspect the subject property to approve the proposed easement for the City's sewer line. In May of this year I visited the lot in Rio Vista Subdivision No. 2 and realized that your survey group had inadvertently forgotten to set "survey pins/markers" per our agreement so as to allow me to assess the impact of the proposed easement on the property. I simply do not have the skill or ability to visualize the actual location of the proposed easement from the legal description that you provided. As such, I can not "sign off" on said easement without having the appropriate, relevant survey markers in place physically on the property. As I had communicated to you before, given the steep topography of the lot and the placement of the existing sewer line (i.e., across the middle of the property) the exact location of the proposed easement is critical for an evaluation and determination of the potential to construct a building on the site. Specifically, there may not be a sufficient "building pad" left on the flat portion of the lot to build the home I have planned given the existing sewer line's proximity to the extreme drop off at the "rim" on the land. Therefore, in this regard, please direct your surveyors to set pins/markers as indicated on the plat map attached as Exhibit III as soon as possible, and advise me when completed. This will allow me to determine what portion of the lot I have been left "to work with." Also, the "Easement Agreement" provided to you (and approved by you) by Mr. Copple needs to be updated (see highlighted areas on Exhibit II) as to dates and, could now, concurrently, include the legal description of the proposed easement developed by your surveyors. I would appreciate your office making these changes and preparing the final documents. Finally, I would like your commitment as to the timing of the clearing and installation of the 20 foot wide driveway, and incorporation of this date into the Easement Agreement. Clearly, given the years that have passed since we began these negotiations, I will plan to mark the driveway boundaries again before you have the City proceed. As you may understand, I am very anxious to finally settle this matter with the City of McCall. I truly enjoy the area and have viewed this matter as distressful but necessary to protect my interests. As you are aware, I had planned to begin construction of a home on the lot in 1993 and would like to resolve this easement issue quickly and begin building in the fall of this year. As such, I would greatly appreciate your expeditious handling of this matter. I am prepared to sign a revised Easement Agreement once I have seen that the lot is "buildable" given the constraints the City must impose. Importantly, I am no longer retaining Davison, Copple, et al as legal representation as I have assumed we were at the point of finalizing this matter. I have already incurred substantial legal and professional expenses and, unless the City of McCall requires otherwise, I would ask that you correspond directly to me to achieve a timely completion of the necessary paperwork and official recording of this easement. My current mailing address is: Geoffrey V. Supko P. O. Box 16427 Boise, ID 83715 Please forward the enclosed copy of this letter and Exhibits to the Council Manager for his/her file. I look forward to hearing from you at your earliest convenience and to getting this matter resolved, and behind us. Sincerely, cc: Council Manager Exhibits (3 ) EX MO /T 7- W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO March 11, 1993 Mr. Geoffrey V. Supko 300 Cashmere Drive Boise, ID 83702 Re: Supko v. City of McCall Dear Mr. Supko: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 RErEIvED MAR 1. 21993 G. V. SUPKO We write to advise that we received a telephone call from Ted Burton, McCall City Attorney, advising that he has approved the Easement Agreement and will be submitting the same to the McCall City Council for approval. Yours truly, DAVISON, COP COPP By EDC:baf E Don Copple EX/---i/e W H DAVISON (1878 1964) FRANK DAVISON (1907-1984) R H. COPPLE E DON COPPLE TERRY C.COPPLE SCOT LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO March 1, 1993 Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 Re: Supko v. City of McCall Dear Mr. Burton: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 RECEIVED ." 1993 G. V. SUPKO Enclosed herewith please find the Easement Agreement which we have revised pursuant to our recent settlement negotiations. If you concur, please execute the agreement, attach the drawing as Exhibit A, and return it to this office so that we can obtain Mr. Supko's signature and record the agreement with the Valley County Recorder. If you have any questions or concerns, please do not hesitate to contact this office. Yours truly, DAVISON, COPPLE, COPPLE, COPPLE &,,LID iG By EDC:baf Enclosure E Don Cpple 7C� EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made this day of , 1993, by and between GEOFFREY V. SUPKO, a single man, of Boise, Idaho, hereinafter sometimes referred to as "Supko," and THE CITY OF McCALL, IDAHO, hereinafter sometimes referred to as "the City." W I T N E S S E T H: Geoffrey V. Supko is the owner in fee of that certain real property situate in Valley County, Idaho, more particularly described as follows: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. Prior to Supko's ownership of the above -described real property, the City of McCall installed a sewer line across the same, the location of which is depicted on the plat of the lot which is attached hereto as Exhibit A and incorporated herein for all proper purposes. The City's employees and agents have subsequently crossed Supko's property primarily by foot to gain access to its sewer lift station. The parties hereto desire to enter into a written agreement under the terms of which the City will be granted an easement for the existing sewer line and to cross Supko's property, and which will provide for the duties and respon- sibilities of the City of McCall. facts, it convey to following NOW, THEREFORE, based upon the foregoing recitation of is agreed as follows: 1. Geoffrey V. Supko does hereby give, grant and the City of McCall a sewer easement in and under the described real property, to -wit: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. The purpose of the easement is to provide ingress and egress to the described property for the installation, maintenance, repair and/or replacement of the sewer pipeline presently located on said property as more particularly shown on Exhibit A which is attached hereto; provided, however, that no lines, wires, pipes, EASEMENT AGREEMENT - 1 conduits, sewers, drainage lines, or other utility apparatus (other than the existing manhole cover) shall be placed upon the surface of the lot without the prior written consent of Supko or his successors and assigns as the owner of said property. The sewer easement being granted shall extend ten (10') feet from the center of the existing sewer pipe to either side of the pipe. The City of McCall shall within a reasonable time, but no later than July 1, 1993, place survey pins in the sewer easement area which depicts the center of the existing sewer line to the end that both parties may visibly view the location of the easement on the ground. In the event the City determines at its discretion that it is necessary to repair, replace and/or remove the exist- ing sewer pipe, it shall provide written notice to Supko of its intention to do so at least thirty (30) days prior to commence- ment of on -site work and include therewith a description of the work and that portion of the lot that will be effected. If Supko has any objections thereto, he shall notify the City at least ten (10) days prior to the date scheduled for commencement of the work and the parties will then resolve any questions relating thereto. It is understood by the parties that the existing sewer line is buried at an approximate depth of twenty (20') feet below the surface and that excavation if required would require temporary use of areas beyond the sewer easement. If such excavation becomes necessary, the parties will cooperate to minimize the geographic extent of the work. The City acknow- ledges that Supko may construct a building or structure on the lot to the area north and east of a line parallel to and ten (10') feet distant from the center line of the pipe and south and west of the line parallel to and twenty (20') feet distant from the center line of the pipe, and that such area shall not under any circumstances be used as a temporary easement area for excavation purposes. The City shall be solely and exclusively respon- sible for all costs and expenses of whatever kind and nature incurred in connection with or related to the repair, maintenance or replacement of the sewer line located in the sewer easement area. In no event shall Supko be required to pay or be liable for any of said costs or expenses, nor shall the property be subject to any lien securing the payment of all or any portion of said costs and expenses. Supko shall have the right to use the surface of the sewer easement in connection with his use, occupation and enjoyment of the property; provided, however, that the use of the EASEMENT AGREEMENT - 2 surface by Supko shall not unreasonably interfere with the maintenance of said sewer line. The City and their agents shall have the right to disturb the surface of the sewer easement for the purpose of repairing and maintaining the same, provided the City will restore the surface of the ground within the sewer easement and other area as hereinbefore provide in as good a condition as when entered upon by the City or their agents. 2. Geoffrey V. Supko does hereby give, grant and convey to the City of McCall an access easement across the hereinbefore described real property. The City shall within a reasonable time, but no later than July 1, 1993, prepare a legal description of said access at which time this Easement Agreement will be supplemented to include that description. The purpose of this easement is to provide access across the described property to permit the City to connect with an existing rough trailway down a bluff toward the City's sewer lift station. The bluff containing the trail is adjacent to Supko's lot on its easterly boundary. The access easement will be ten (10') feet in width and located generally on the southern portion of the property, angling generally east as more particularly set forth on Exhibit A. Upon the execution of this agreement, the City will within a reasonable time clear all trees, brush, vegetation, etc., and improve the access easement for a driveway, depositing on the same pit run gravel suitable for overlay with a driveway mix to a width of twenty (20') feet. The location of the drive- way has been marked on the ground by the parties and shall extend from Rio Vista Blvd. to the existing bluff roadway. Five (5) days prior to doing the above described work, the City shall notify Supko in order that he may have an opportunity to be present when the work is performed. If Supko is not present, he shall have ten (10) days after completion to present any objec- tions that the driveway was installed other than as agreed. The City's use of the access easement shall primarily consist of foot traffic by city personnel walking into the City's lift station; provided, however, that in the event the City determines it is necessary to take a vehicle or other equipment to the lift station to replace or remove a pump, or for other maintenance, repair or replacement of equipment that requires the use of a vehicle, the City shall be permitted to do so. It is the parties' stated intention that the use of a vehicle by City personnel or its agents on the access easement will be the exception to the foot use of the easement and uti- lized only if there is no other commercially reasonable method of performing the repair. EASEMENT AGREEMENT - 3 3. Upon the City obtaining the legal description and the supplemental agreement being entered, the parties shall dismiss the litigation presently pending in the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Valley, and record this Agreement, along with the supplemental agreement, with the Valley County Recorder's Office. IN WITNESS WHEREOF, the parties have hereunto set they hands and seals the day and year in this instrument first above written. GEOFFREY V. SUPKO CITY OF McCALL By ATTEST: By STATE OF IDAHO ) ss County of Ada ) ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared GEOFFREY V. SUPKO, known or identi- fied to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at Boise, Idaho My Commission Expires: EASEMENT AGREEMENT - 4 STATE OF IDAHO County of Valley ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared and , known or identified to me to be the and of The City of McCall, Idaho, that executed the instrument or the persons who executed the instrument on behalf of said City of McCall, Idaho, and acknowledged to me that they executed the same on behalf of. the City of McCall, Idaho. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at: My Commission Expires: EASEMENT AGREEMENT - 5 ;. ram, CL i 00 rr, 0 rr ‘-r rri tit 0 H 0 LL J SJlE TCI-1 4F ��� �, �.ru� EASE ACROSS � RlD V{S'T" SU� �° E XHIB i r TIE i i i Q RIVER -Ew 1447 45' 33' 11 gg.52' 18.00' LOT NO, 14 4). r O LOT NO. 15 5 k 21/4= \ 1 I w 144 CD CO 1 _ ?R' PDSED h� �ERMA1.1E'Ni q � chd; [- SeMEi,,FT 4 (D LYrv1r) 25. 0 p' m N V' CV CO I mow. 1 7 / /li/iz l l ice/ �r�/ / / 74.80 Z I / / / / j� // ---,.I_ / BOULEVARD / / 8( ' s- 1g.0 DP n y6 • �. LOT NO. 15 w '64J ri I1J1 ti io M z rn cD i E% RIVER N4745'31'1 89.52' LOT NO. 14 15f�SS Ps -c. / 25 0 p' ZO ' CV cv 0 c0 of zzzz >POSED / j/z� Zr / RNwANCNT ✓/ /i z/� / / RK 1-040 �// rz l l z/ // I % / / z 74.80 j/ /- I /j ( 9 BOULEVARD / / N City of McCall OFFICE OF THE CLERK BOX 1065 MCCALL, IDAHO 83638 July 1, 1992 TO: CITY ATTORNEY FROM: CITY ADMINISTRATOR RE: URGENT, SUPKO LETTER The attached letter has been received by Mr. Chalfant. We have had access to our sewer station for 27 years and will continue to need access to that station through this property. I am requesting that you assert all rights which the city has in this matter and advise all parties. We still have work to complete on a sewer project in this area which delays the completion of that project. Your immediate attention and action on this matter is requested. cc Mayor Smith June 24, 1992 300 Cashmere Drive Boise, ID 83702 (208) 383-0307 Mr. Timothy A. Burgess, P.E. Mr. Michael S. Maffey, P.E. TOOTHMAN-ORTON ENGINEERING COMPANY 1802 North 33rd Street Boise, ID 83703 RE: City of McCall Sewer Project - Access across Lot No. 15 of Rio Vista Subdivision No. 2 Dear Sirs: This is to notify you that the "temporary" access across my property (Lot 15 of Rio Vista Subdivision No. 2) which I granted to you in August, 1990 is hereby canceled, revoked and terminated effective with the receipt of this letter. This revokes access across this property by any person for any reason whatsoever for any current or future projects or activities. Since you have represented yourselves to me as the agents for the City of McCall in this matter, please immediately notify all effected parties (contractors, sub -contractors, etc.) that any and all egress or ingress on the subject property should cease at once. Given this notice, I will view any future access across my property as an illegal trespass. I am sure you understand that I am only protecting the integrity of my property. '\(1�Q Thank you for your prompt attention to this matter. (Z, u• Sincerely, 6")\- van 0. 1 �e Geoffrey V. Supko ��GG� y� �y �i e 7S ` S ,, 7� �O CC: Y'n P 1- `' Mr. E. Don Copple - Davison, Copple, Copple & Copple G 9` e a ��� G o City of McCall -Public Works Dept. �,�� s B At'k Li oN McCall Police Dept. W Ci ,, • 110A-e +� S.1 va"C Valley County Sheriff WI i- 1 Jim & Judy Slaton L N<i �o � , r.� 6 ' Att/5 S t�4 Iz - G� 1 A 1 SG 5G� JUL-U1-1992 15:11 FRO' 7OTHMAN IRTON ENG. TO 16343038Ann99 P.02 TOOTHMAN-ORTON ENGINEERING COMPANY Supko August 17, 1990 Page 2 of 2 we need to work out a resolution to the easement situation and obtain a permanent right-of-way or easement to operate and maintain these facilities. We would like to construct this project in late September and October of this year. Tt is doubtful that final resolution of the easement situation can be accomplished within this time frame. Therefore, I am requesting your permission allow access required construct the project across portions of your property this fall while the details of a permanent easement are settled. I am enclosing a copy of the plan and profile sheet showing the planned improvements. I am also enclosing a copy of a sketch prepared in 1967 showing how the sewer mains and lift station are situated in relation to your property. The only existing access is a crude trail across your property from Rio Vista Boulevard down to the lift station. During construction we will need access for the equipment required for this project. Some modifications to the existing access will probably he ne,lessary during construction. These modifications will include grading, and importation of gravel to stabilize soft areas and flatten some steep grades. Upon completion of the project we propose to leave the access road as modified_ Please call me at (208)342-5511 as soon as you receive this letter so that we may discuss this project and the easement situation. If allowing the City of McCall acceV3 to conotruct these improvements under the terms outlined in this letter is acceptable to you please sign and return one copy of this letter to me as soon as possible. Your cooperation in this matter is greatly appreciated. Sincerely, Timothy A. Burgess, P.E. TOOTHMAN-ORTON EIWINNERING COMPANY enc. cc City of HeCall bob Hemaklus I the undersigned owner of Lot 15 of Rio Vista Subdivision No. 2 do hereby grant the City of McCall permission to construct the improvements as outlined in this letter. Date: iqb J-PAC-e �S1(.12,&7;(6YL, 110 c CTr� /)L 4, qqz ►(T6 �5 4/- st cXt Ce- 2 c.urri4Q.L4 c 14-1- 3D ydit, yoN41- r "il°d 5 uric-LW-1e- SQL0e/L —o Gou,!$ 11,064 "Pe CNA/vt, (14.‘2 *** Receive Confirmation RePort *** Receiver DAVISON COPPLE COPPLE Transmitter : city of McCall Date Oct.29,92 10:02 Mode NORM Pa9e 4 Result OK W.H. DAVISON (1878-1964) FRANK DAVISON (1907-1984) R.H. COPPLE E DON COPPLE TERRY C. COPPLE SCOT M. LUDWIG JON R. COX DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG ATTORNEYS AT LAW SUITE 530, EMPIRE BUILDING 205 N. 10th Street BOISE, IDAHO March 1, 1993 Mr. Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 Re: Supko v. City of McCall Dear Mr. Burton: TELEPHONE (208) 342-3658 FAX (208) 386-9428 MAILING ADDRESS P.O. BOX 1583 BOISE, IDAHO 83701 Enclosed herewith please find the Easement Agreement which we have revised pursuant to our recent settlement negotiations. If you concur, please execute the agreement, attach the drawing as Exhibit A, and return it to this office so that we can obtain Mr. Supko's signature and record the agreement with the Valley County Recorder. If you have any questions or concerns, please do not hesitate to contact this office. Yours truly, DAVISON, COPPLE, C PLE COPPLE E Don Cripple EDC:baf Enclosure EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made this day of , 1993, by and between GEOFFREY V. SUPKO, a single man, of Boise, Idaho, hereinafter sometimes referred to as "Supko," and THE CITY OF McCALL, IDAHO, hereinafter sometimes referred to as "the City." W I T N E S S E T H: Geoffrey V. Supko is the owner in fee of that certain real property situate in Valley County, Idaho, more particularly described as follows: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. Prior to Supko's ownership of the above -described real property, the City of McCall installed a sewer line across the same without obtaining a written easement from Supko's predeces- sors in interest, the location of which is depicted on the plat of the lot which is attached hereto as Exhibit A and incorporated herein for all proper purposes. The City's employees and agents have subsequently crossed Supko's property primarily by foot to gain access to its sewer lift station. The parties hereto desire to enter into a written agreement under the terms of which the City will be granted an easement for the existing sewer line and to cross Supko's property, and which will provide for the duties and respon- sibilities of the City of McCall. NOW, THEREFORE, based upon the foregoing recitation of facts, it is agreed as follows: convey to following 1. Geoffrey V. Supko does hereby give, grant and the City of McCall a sewer easement in and under the described real property, to -wit: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. The purpose of the easement is to provide ingress and egress to the described property for the installation, maintenance, repair and/or replacement of the sewer pipeline presently located on said property as more particularly shown on Exhibit A which is EASEMENT AGREEMENT - 1 attached hereto; provided, however, that no lines, wires, pipes, conduits, sewers, drainage lines, or other utility apparatus (other than the existing manhole cover) shall be placed upon the surface of the lot without the prior written consent of Supko or his successors and assigns as the owner of said property. The sewer easement being granted shall extend ten (10') feet from the center of the existing sewer pipe to either side of the pipe. The City of McCall shall within a reasonable time, but no later than July 1, 1993, place survey pins in the sewer easement area which depicts the center of the existing sewer line to the end that both parties may visibly view the location of the easement on the ground. In the event the City determines at its discretion that it is necessary to repair, replace and/or remove the exist- ing sewer pipe, it shall provide written notice to Supko of its intention to do so at least thirty (30) days prior to commence- ment of on -site work and include therewith a description of the work and that portion of the lot that will be effected. If Supko has any objections thereto, he shall notify the City at least ten (10) days prior to the date scheduled for commencement of the work and the parties will then resolve any questions relating thereto. It is understood by the parties that the existing sewer line is buried at an approximate depth of twenty (20') feet below the surface and that excavation if required would require temporary use of areas beyond the sewer easement. If such excavation becomes necessary, the parties will cooperate to minimize the geographic extent of the work. The City acknow- ledges that Supko may construct a building or structure on the lot to the area north and east of a line parallel to and ten (10') feet distant from the center line of the pipe and south and west of the line parallel to and twenty (20') feet distant from the center line of the pipe, and that such area shall not under any circumstances be used as a temporary easement area for excavation purposes. The City shall be solely and exclusively respon- sible for all costs and expenses of whatever kind and nature incurred in connection with or related to the repair, maintenance or replacement of the sewer line located in the sewer easement area. In no event shall Supko be required to pay or be liable for any of said costs or expenses, nor shall the property be subject to any lien securing the payment of all or any portion of said costs and expenses. Supko shall have the right to use the surface of the sewer easement in connection with his use, occupation and EASEMENT AGREEMENT - 2 enjoyment of the property; provided, however, that the use of the surface by Supko shall not unreasonably interfere with the maintenance of said sewer line. The City and their agents shall have the right to disturb the surface of the sewer easement for the purpose of repairing and maintaining the same, provided the City will restore the surface of the ground within the sewer easement and other area as hereinbefore provide in as good a condition as when entered upon by the City or their agents. 2. Geoffrey V. Supko does hereby give, grant and convey to the City of McCall an access easement across the hereinbefore described real property. The City shall within a reasonable time, but no later than July 1, 1993, prepare a legal description of said access at which time this Easement Agreement will be supplemented to include that description. The purpose of this easement is to provide access across the described property to permit the City to connect with an existing rough trailway down a bluff toward the City's sewer lift station. The bluff containing the trail is adjacent to Supko's lot on its easterly boundary. The access easement will be ten (10') feet in width and located generally on the southern portion of the property, angling generally east as more particularly set forth on Exhibit A. Upon the execution of this agreement, the City will within a reasonable time clear all trees, brush, vegetation, etc., and improve the access easement for a driveway, depositing on the same pit run gravel suitable for overlay with a driveway mix to a width of twenty (20') feet. The location of the drive- way has been marked on the ground by the parties and shall extend from Rio Vista Blvd. to the existing bluff roadway. Five (5) days prior to doing the above described work, the City shall notify Supko in order that he may have an opportunity to be present when the work is performed. If Supko is not present, he shall have ten (10) days after completion to present any objec- tions that the driveway was installed other than as agreed. The City's use of the access easement shall primarily consist of foot traffic by city personnel walking into the City's lift station; provided, however, that in the event the City determines it is necessary to take a vehicle or other equipment to the lift station to replace or remove a pump, or for other maintenance, repair or replacement of equipment that requires the use of a vehicle, the City shall be permitted to do so. It is the parties' stated intention that the use of a vehicle by City personnel or its agents on the access easement will be the exception to the foot use of the easement and uti- lized only if there is no other commercially reasonable method of performing the repair. EASEMENT AGREEMENT - 3 3. Upon the City obtaining the legal description and the supplemental agreement being entered, the parties shall dismiss the litigation presently pending in the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Valley, and record this Agreement, along with the supplemental agreement, with the Valley County Recorder's Office. IN WITNESS WHEREOF, the parties have hereunto set they hands and seals the day and year in this instrument first above written. GEOFFREY V. SUPKO CITY OF McCALL By ATTEST: By STATE OF IDAHO ) ) ss County of Ada ) ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared GEOFFREY V. SUPKO, known or identi- fied to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at Boise, Idaho My Commission Expires: EASEMENT AGREEMENT - 4 STATE OF IDAHO County of Valley ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared and , known or identified to me to be the and of The City of McCall, Idaho, that executed the instrument or the persons who executed the instrument on behalf of said City of McCall, Idaho, and acknowledged to me that they executed the same on behalf of the City of McCall, Idaho. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at: My Commission Expires: EASEMENT AGREEMENT - 5 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made this day of , 1993, by and between GEOFFREY V. SUPKO, a single man, of Boise, Idaho, hereinafter sometimes referred to as "Supko," and THE CITY OF McCALL, IDAHO, hereinafter sometimes referred to as "the City." W I T N E S S E T H: Geoffrey V. Supko is the owner in fee of that certain real property situate in Valley County, Idaho, more particularly described as follows: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. Prior to Supko's ownership of the above -described real property, the City of McCall installed a sewer line across the same, the location of which is depicted on the plat of the lot which is attached hereto as Exhibit A and incorporated herein for all proper purposes. The City's employees and agents have subsequently crossed Supko's property primarily by foot to gain access to its sewer lift station. The parties hereto desire to enter into a written agreement under the terms of which the City will be granted an easement for the existing sewer line and to cross Supko's property, and which will provide for the duties and respon- sibilities of the City of McCall. NOW, THEREFORE, based upon the foregoing recitation of facts, it is agreed as follows: 1. Geoffrey V. Supko does hereby give, grant and convey to the City of McCall a sewer easement in and under the following described real property, to -wit: Lot 15, RIO VISTA SUBDIVISION NO. 2, according to the official plat thereof recorded in the office of the Recorder for Valley County, Idaho. The purpose of the easement is to provide ingress and egress to the described property for the installation, maintenance, repair and/or replacement of the sewer pipeline presently located on said property as more particularly shown on Exhibit A which is attached hereto; provided, however, that no lines, wires, pipes, EASEMENT AGREEMENT - 1 conduits, sewers, drainage lines, or other utility apparatus (other than the existing manhole cover) shall be placed upon the surface of the lot without the prior written consent of Supko or his successors and assigns as the owner of said property. The sewer easement being granted shall extend ten (10') feet from the center of the existing sewer pipe to either side of the pipe. The City of McCall shall within a reasonable time, but no later than July 1, 1993, place survey pins in the sewer easement area which depicts the center of the existing sewer line to the end that both parties may visibly view the location of the easement on the ground. In the event the City determines at its discretion that it is necessary to repair, replace and/or remove the exist- ing sewer pipe, it shall provide written notice to Supko of its intention to do so at least thirty (30) days prior to commence- ment of on -site work and include therewith a description of the work and that portion of the lot that will be effected. If Supko has any objections thereto, he shall notify the City at least ten (10) days prior to the date scheduled for commencement of the work and the parties will then resolve any questions relating thereto. It is understood by the parties that the existing sewer line is buried at an approximate depth of twenty (20') feet below the surface and that excavation if required would require temporary use of areas beyond the sewer easement. If such excavation becomes necessary, the parties will cooperate to minimize the geographic extent of the work. The City acknow- ledges that Supko may construct a building or structure on the lot to the area north and east of a line parallel to and ten (10') feet distant from the center line of the pipe and south and west of the line parallel to and twenty (20') feet distant from the center line of the pipe, and that such area shall not under any circumstances be used as a temporary easement area for excavation purposes. The City shall be solely and exclusively respon- sible for all costs and expenses of whatever kind and nature incurred in connection with or related to the repair, maintenance or replacement of the sewer line located in the sewer easement area. In no event shall Supko be required to pay or be liable for any of said costs or expenses, nor shall the property be subject to any lien securing the payment of all or any portion of said costs and expenses. Supko shall have the right to use the surface of the sewer easement in connection with his use, occupation and enjoyment of the property; provided, however, that the use of the EASEMENT AGREEMENT - 2 surface by Supko shall not unreasonably interfere with the maintenance of said sewer line. The City and their agents shall have the right to disturb the surface of the sewer easement for the purpose of repairing and maintaining the same, provided the City will restore the surface of the ground within the sewer easement and other area as hereinbefore provide in as good a condition as when entered upon by the City or their agents. 2. Geoffrey V. Supko does hereby give, grant and convey to the City of McCall an access easement across the hereinbefore described real property. The City shall within a reasonable time, but no later than July 1, 1993, prepare a legal description of said access at which time this Easement Agreement will be supplemented to include that description. The purpose of this easement is to provide access across the described property to permit the City to connect with an existing rough trailway down a bluff toward the City's sewer lift station. The bluff containing the trail is adjacent to Supko's lot on its easterly boundary. The access easement will be ten (10') feet in width and located generally on the southern portion of the property, angling generally east as more particularly set forth on Exhibit A. Upon the execution of this agreement, the City will within a reasonable time clear all trees, brush, vegetation, etc., and improve the access easement for a driveway, depositing on the same pit run gravel suitable for overlay with a driveway mix to a width of twenty (20') feet. The location of the drive- way has been marked on the ground by the parties and shall extend from Rio Vista Blvd. to the existing bluff roadway. Five (5) days prior to doing the above described work, the City shall notify Supko in order that he may have an opportunity to be present when the work is performed. If Supko is not present, he shall have ten (10) days after completion to present any objec- tions that the driveway was installed other than as agreed. The City's use of the access easement shall primarily consist of foot traffic by city personnel walking into the City's lift station; provided, however, that in the event the City determines it is necessary to take a vehicle or other equipment to the lift station to replace or remove a pump, or for other maintenance, repair or replacement of equipment that requires the use of a vehicle, the City shall be permitted to do so. It is the parties' stated intention that the use of a vehicle by City personnel or its agents on the access easement will be the exception to the foot use of the easement and uti- lized only if there is no other commercially reasonable method of performing the repair. EASEMENT AGREEMENT - 3 3. Upon the City obtaining the legal description and the supplemental agreement being entered, the parties shall dismiss the litigation presently pending in the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Valley, and record this Agreement, along with the supplemental agreement, with the Valley County Recorder's Office. IN WITNESS WHEREOF, the parties have hereunto set they hands and seals the day and year in this instrument first above written. GEOFFREY V. SUPKO CITY OF McCALL ATTEST: By STATE OF IDAHO ) ) ss County of Ada ) ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared GEOFFREY V. SUPKO, known or identi- fied to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at Boise, Idaho My Commission Expires: EASEMENT AGREEMENT - 4 STATE OF IDAHO )ss. County of Valley ON THIS day of , in the year of 1993, before me, the undersigned, a Notary Public in and for the State of Idaho, personally appeared and , known or identified to me to be the and of The City of McCall, Idaho, that executed the instrument or the persons who executed the instrument on behalf of said City of McCall, Idaho, and acknowledged to me that they executed the same on behalf of the City of McCall, Idaho. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year of this certificate first above written. Notary Public for Idaho Residing at: My Commission Expires: EASEMENT AGREEMENT - 5 E DON COPPLE DAVISON, COPPLE, COPPLE, COPPLE & LUDWIG Attorneys at Law Empire Building, Suite 530 205 North loth Street P. O. Box 1583 Boise, ID 83701 Telephone: 208-342-3658 Attorneys for Plaintiff IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) ) Plaintiff, ) ) vs. ) ) CITY OF McCALL, ) ) Defendant. ) ) CASE NO. CV-92-178 MOTION FOR RETENTION ON COURT CALENDAR COMES NOW the Plaintiff, by and through his attorneys, Davison, Copple, Copple, Copple & Ludwig, and moves this Court to issue its order retaining this matter on the calendar on the grounds and for the reasons that a good cause of action exists against the Defendant as is set out in the Complaint on file herein, and that the parties have been negotiating a settlement as to the issues raised in the Complaint. MOTION FOR RETENTION ON COURT CALENDAR - 1 1. This Motion is made and based on the records and files herein and the Affidavit filed concurrently herewith. DATED this day of January, 1993 ./ DAVISON, COPPpE, 6OPPLE; — ' COPPLE /&' LU WIG B � . E DON COFfPLE, of t13Firm Attorneys for Plaintiff CERTIFICATE OF MAILING I hereby certify that on the day of January, 1993, a true and correct copy of the foregoing was mailed, postage prepaid, to the following: Ted Burton McCall City Attorney P.O. Box 1065 McCall, ID 83638-1065 E DON COPPLE )‘ MOTION FOR RETENTION ON COURT CALENDAR - 2 1 • LELAND�HEINRICH, CLERI BY o Deput: FEB 2 5 1993 Case No. Inst. No IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTniGy OF THFA M STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY GEOFFREY V. SUPKO, ) ) Plaintiff, ) ) -vs- ) ) CITY OF McCALL, ) ) Defendant. ) ) Case No. CV-92-178 ORDER The captioned case will be retained and reviewed in 90 days to ascertain whether it is being prosecuted with due diligence. Bartlett v. Peak, 107 Idaho 284, 688 P.2d 1189 (1984). IT IS SO ORDERED. Dated this �� day of February, 1993. GEO• E �. �f •EY, District Judge P.M CLERK'S CERTIFICATE OF MAILING I HEREBY CERTIFY that on this day of E%r�c.r , 19�3 , I mailed true and correct copies of the foregoi�g Order by placing the same in an envelope and depositing it in the United States Mail, postage prepaid, addressed to the following: E. Don Copple Davison, Copple, Copple, Copple & Ludwig P. 0. Box 1583 Boise, Id. 83701 Ted Burton McCall City Attorney P. O. Box 1065 McCall, Id. 83638 a ELAND G. 14EINRiCh CLERK CLERK OF THE DISTRICT COURT By: ..� Depd y Clerk