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HomeMy Public PortalAbout1995.09.15 Agreement for Municipal Acceptance of Utilities and for Grant oORIGINAL AGREEMENT FOR MUNICIPAL ACCEPTANCE OF UTILITIhS AND FOR GRANT OF RELATED EASEMENTS This Agreement is made effective September 15, 1995 by and between the City of McCall, an Idaho municipal corporation ("City"), Brown's Industries, Inc., an Idaho business corporation ("BI"), and Malcolm Scott, of McCall, Idaho ("Scott"), for and in consideration of the mutual promises in this Agreement. Background BI and City entered into a Subdivision Agreement dated June 8, 1992, respecting Payette Lakes Commercial Center, which called for the construction of a sewer lift station at the southerly end of that Center, and of a gravity sewer line serving the Center flowing to the lift station, and of a pressure line from the lift station back north to the City sewer line in Deinhard Lane. Subsequently BI and Scott entered into an AGREEMENT REGARDING SEWER HOOKUP effective October 19, 1992 which provided for their mutual construction of that lift station, to be relocated at the southerly end of Scott's property which lies across Jacob Street to the south of the Center, with attendant lengthening of the two sewer lines. City consented to that relocation of the lift station. City then contemplated the construction of an airport basin sewer interceptor, to which the gravity sewer line would ultimately be connected. The design for such interceptor was approved by the City Council in November, 1992; but a timetable for its construction and a plan for its financing have yet to be adopted, and its completion thus cannot be guaranteed. 2. BI and Scott granted each other reciprocal easements to provide for the location, use, repair and maintenance of the sewer lines under an Easement Agreement of November 23, 1992. On October 19, 1992 the parties entered into a LIFT STATION AGREEMENT to provide for the ownership, operation and maintenance of the lift station and of the related gravity and pressure sewer lines, and of the easements necessary to protect the location, use, repair and maintenance of the lines. That Agreement also contemplated the construction of an airport basin sewer interceptor. Under that Agreement the easements described in paragraph 2 above were assigned to City. The Agreement contemplated the connection to the airport basin sewer interceptor, and connection of utilities into systems to the west. 4. In the zoning approvals for Scott's mobile/manufactured home park, Jacob's Manor, provision was made for water system extensions. Although the airport basin sewer interceptor construction project remains beyond the financial capacity of the City at this time, intermediate construction is occurring within the "East Highway 55 LID" which makes awaiting the interceptor inappropriate as a time for the City to take over all the collection facilities (other than individual connections) on the Scott and BI properties. 6. When constructing Jacob's Manor, Scott did not install water meter pits on the property for each homesite. Agreements 7. BI and Scott dedicate to the City, and the City accepts, the water distribution and gravity sewer collection and pressure transmission systems on the subject property between the boundary of Jacob's Manor with the East Highway 55 LIT) on the southwest, and Deinhard Lane on the north. Dedication of the water and sewer lines includes grant of an easement 20 feet wide, centered over each pipe, for its use, repair and maintenance, including replacement in whole or part, all as AGREEMENT TO TAKE OVER SEWER page 1 FACILITIES, CITY, SC01-1, 13A,OWN'S INDUSTRIES printed January 18, 1996 appropriate in the opinion of the City. The City is thus free to connect other users as City sees fit. Scott agrees that upon installation of a mobile/manufactured home on a lot in Jacob's Manor, Scott will provide at his expense an approved water meter installation with respect to each such home using equipment furnished by or approved by City at the time and in a configuration approved by City at the time. 8. City has contracted with Payette Lakes Water and Sewer District for the maintenance of all of the City sewer system. 9. BI and Scott are released from their joint and several liability to the City to reimburse the City amounts billed to City by such District for such maintenance, except for amounts already billed to BI and/or Scott and remaining unpaid, if any. 10. Scott grants to City an easement 20 feet wide centered over the centerline of each pipe, for the water and sewer extensions connecting water and sewer systems in Jacob's Manor to water and sewer systems to the west, as are presently constructed or under construction by Bezates Construction as part of the East Highway 55 LID. If Scott so desires, and after receipt of as -built drawings, the descriptions of these easements shall be refined and a more formal grant of easement entered into without further consideration. 11. BI and Scott confirm their 1992 assignment to City of the easements created by the above -recited Easement Agreement as described on Exhibits C and D thereto. BI and Scott warrant that the gravity sewer line is located on the centerline of such easement. 12. City will pay BI and Scott as their interests may appear $3,000 for the lift station equipment and facilities within Jacob's Manor, primarily concrete and pipes, which the City will use for the gravity and pressure connections according to the City design under the East Highway 55 LID. The balance of the lift station equipment not so required, primarily pumps and controls, will be packaged by City and delivered to BI's property west of the McCall Municipal Airport. 13. If any legal action or proceeding related to this Agreement is begun by any party to this Agreement, the prevailing party shall be entitled to recover its commercially reasonable attorneys fees and witness and expert witness fees, incurred in prosecuting or defending the same. The City shall be entitled to such fees, if the prevailing party, notwithstanding the fact that the City Attorney is salaried. 14. This Agreement is governed by the law of Idaho; and Valley County, Idaho is the proper venue. 15. Time is of the essence with respect to the obligations of the parties under this Agreement. 16. Any rights and remedies stated in this Agreement are cumulative. 17. The neglect of any party to enforce its rights at any particular times or upon any particular occurrences shall not preclude resort to those rights at any other time or with respect to any other occurrences. Any waiver of any right must be done in a writing executed by the party to be charged with such waiver, and executed with no fewer or different formalities and approvals than were attendant upon execution of this Agreement. 18. This Agreement shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns. 19. All Attachments and other attachments, if any, to this Agreement are a part of this Agreement. This Agreement constitutes the entire Agreement between and among the parties as to the matter set out in it, and all prior negotiations and discussions, memoranda, correspondence, and communications are merged into and extinguished by this Agreement, including also the AGREEMENT REGARDING AGREEMENT TO TAKE OVER SEWER page 2 FACILITIES, CITY, SCOTF, BROWN'S INDUSTRIES printed January 18, 1996 SEWER HOOKUP, and the LIFT STATION AGREEMENT recited above under the recitations in the section entitled Background; provided, however, that nothing in this Agreement shall be held to merge into this Agreement any unsatisfied obligation under a Subdivision or Development Agreement, or the conditions of the approval of any zoning use. 20. Any notice which a party to this Agreement desires to give another respecting a matter covered by this Agreement shall be hand -delivered (with signed receipt for delivery obtained) to or mailed to that party at its (his) address set out below: Dated: Att City of McCall attn.: City Manager 216 East Park Street P O. Box 1065 McCall, ID 83638 ames H. Henderson, City Clerk State of Idaho County of Valley O ) ss. Brown's Industries, Inc. attn.: Judd DeBoer P. O. Box 1007 McCall, ID 83638 Malcolm H. Scott P. O. Box 230 McCall, ID 83638 City of McCall by: Mayor Brown's Industries, Inc. by: JudfeBoer, President Malcolm H. Scott day of , in the year 1996, before me, , not. public, personally appeared William M. Killen, known or identified to me to be the Mayor of the City of McCall that executed the said instrument, and acknowledged to me that such City of McCall executed the same. Notary Public for Idaho My commission expires: Bi iejacoa- AGRi-T-Elv2ENT TO TAKE OVER SEWER FACILITIES, CITY, SC011, BROWN'S INDUSTRIES printed January 18, 1996 page 3 State of Idaho ) ss. County of Valley On this of , in the year 1996, before me,q-kf f i.067( , notary public, personally ap Malcolm H. Scott, known or identified to me to be the person whose n s sub cribed to the 'thin instnimen acknowledged to me that he executed the diary Public for Idaho My commission expires: State of Idaho ) ss. County of Valley On this /(i day o , in the year 1996, before me, notary publics onally -ppeared Judd DeBoer, known or identified to me to be the President of Brolkpi's Industries, Inc., the corporation that executed the said instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same.-- -/ Notary Public for Idaho , My commission expires: v// /_200 / AGREEMENT TO TAKE OVER SEWER page 4 FACILITIES, CITY, SCOTT, BROWN'S INDUSTRIES printed January 18, 1996