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
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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
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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
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*** 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