HomeMy Public PortalAbout1995.09.15 Sewer Lift StationAGREEMENT FOR MUNICIPAL
ACCEPTANCE OF UTILITIES 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
1. BI and City entered into a Subdivision Agreement dated June 8, 1992, respecting
Payette Lakes Commercial Center, which called for the construction of a sewer lift
station at the southerly end of that Center, and of a gravity sewer line serving the
Center flowing to the lift station, and of a pressure line from the lift station back
north to the City sewer line in Deinhard Lane. 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.
3. 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.
5. 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 `Bast 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.
Agreements
6. 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 LID
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
appropriate in the opinion of the City. The City is thus free to connect other users
as City sees fit.
AGREEMENT TO TAKE OVER SEWER page 1
FACILITIES, CITY, SCOTT, BROWN'S INDUSTRIES printed October 11, 1995
7. City has contracted with Payette Lakes Water and Sewer District for the
maintenance of all of the City sewer system.
8. BI and Scott are released from their joint and several liability to the City to
reimburse the City all amounts not yet accrued billed to City by, such District.
9. 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.
10. 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.
11. 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 at the McCall Municipal Airport.
12. 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.
13. This Agreement is governed by the law of Idaho; and Valley County, Idaho is the
proper venue.
14. Time is of the essence with respect to the obligations of the parties under this
Agreement.
15. Any rights and remedies stated in this Agreement are cumulative.
16. 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.
17. This Agreement shall bind and inure to the benefit of the parties and their
respective heirs, successors and assigns.
18. 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
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.
AGREEMENT TO TAKE OVER SEWER page 2
FACILITIES, CITY, SCOTT, BROWN'S INDUSTRIES printed October 11, 1995
24. 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:.
City of McCall
attn.: City Manager
216 East Park Street
P O. Box 1065
McCall, ID 83638
Malcolm H. Scott
P. O. Box 230
McCall, ID 83638
Dated:
Attest:
James H. Henderson,
City Clerk
State of Idaho
) ss.
County of Valley
Brown's Industries, Inc.
attn.: Judd DeBoer
P. O. Box 1007
McCall, ID 83638
City of McCall
by:
Dean A. Martens,
Mayor
Brown's Industries, Inc.
by:
Judd DeBoer, President
Malcolm H. Scott
On this day of , in the year 1995, before me,
notary public, personally appeared Dean A. Martens,
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:
AGREEMENT TO TAKE OVER SEWER page 3
FACILITIES, CITY, SCOTT, BROWN'S INDUSTRIES printed October 11, 1995
State of Idaho )
) ss.
County of Valley )
On this _ of , in the year 1995, before me,
, notary public, personally appeared Malcolm H. Scott, known or
identified to me to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same.
Notary Public for Idaho
My commission expires:
State of Idaho )
) ss.
County of Valley )
On this day of , in the year 1995, before me,
, notary public, personally appeared Judd DeBoer, known or identified to
me to be the President of Brown's Industries, Inc., the corporation that executed the said
instrument or the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
Notary Public for Idaho
My commission expires:
AGREEMENT TO TAKE OVER SEWER page 4
FACILITIES, CITY, SCOTT, BROWN'S INDUSTRIES printed October 11, 1995
AGREEMENT FOR MUNICIPAL
ACCEPTANCE OF UTILI 1'IBS AND
FOR GRANT OF RELATED EASEMENTS
is Agreement is made effective September 15, 1995 by and betwee e City of
McCall, . Idaho municipal corporation ("City"), Brown's Industries, Inc., . Idaho
business c• •oration ("BI"), and Malcolm Scott, of McCall, Idaho ("Scot ' , for and in
considerate• of the mutual promises in this Agreement.
Background
1. BI and ity entered into a Subdivision Agreement dated ."une 8, 1992, respecting
Payette , akes Commercial Center, which called for th; construction of a sewer lift
station at e southerly end of that Center, and of a a" . vity sewer line serving the
Center flo ing to the lift station, and of a pressure me from the lift station back
north to the , ity sewer line in Deinhard Lane. S • sequently BI and Scott entered
into an AGRE . MENT REGARDING SEWER HOO effective October 19, 1992 which
provided for th it mutual construction of tha ift station, to be relocated at the
southerly end o Scott's property which lie across Jacob Street to the south of the
Center, with atte dant lengthening of the wo sewer lines. City consented to that
relocation of the h t station. City then •ontemplated the construction of an airport
basin sewer interce v tor, to which the avity sewer line would ultimately be
connected. The desi.n for such int ceptor was approved by the City Council in
November, 1992; but : timetable or its construction and a plan for its financing
have yet to be adopted, . d its completion thus cannot be guaranteed.
2. BI and Scott granted eac
use, repair and maintenan
November 23, 1992.
oth< reciprocal easements to provide for the location,
e • f the sewer lines under an Easement Agreement of
3. On October 19, 1992 th- • . •es entered into a LIFT STATION AGREEMENT to
provide for the owners, ip, o ••- ration and maintenance of the lift station and of the
related gravity and p ssure se er lines, and of the easements necessary to protect
the location, use, re air and m. ' tenance of the lines. That Agreement also
contemplated the onstruction o an airport basin sewer interceptor. Under that
Agreement the e: sements describ; d in paragraph 2 above were assigned to City.
The Agreeme contemplated the • nnection to the airport basin sewer
interceptor, d connection of utiliti- s into systems to the west.
4. In the zon' g approvals for Scott's m•bile/manufactured home park, Jacob's
Manor, ovision was made for water stem extensions.
5. Altho h the airport basin sewer interce
the f ancial capacity of the City at this ti
oc • rring within the `Bast Highway 55 L
i terceptor inappropriate as a time for the C
acilities (other than individual connections) o
Agreements
BI and Scott dedicate to the City, and the City acce • ts, the water distribution and
gravity sewer collection and pressure transmission s tems on the subject
property between the boundary of Jacob's Manor wit the East Highway 55 LID
on the southwest, and Deinhard Lane on the north. De• •..cation of the water and
sewer lines includes grant of an easement 20 feet wide, - ntered over each pipe,
for its use, repair and maintenance, including replacemen in whole or part, all as
appropriate in the opinion of the City. The City is thus free t• connect other users
as City sees fit. / fr�
tor construction project remains beyond
e, intermediate construction is
" which makes awaiting the
to take over all the collection
the Scott and BI properties.
lti
LIFT STATION AGREEMENTv;.
page 1
7. City has contracted with Payette Lakes Water and Sewer District for the
maintenance of all of the City sewer system.
8. BI and Scott are released from their joint and several liability to the City to
reimburse the City all amounts billed to City by such District under past contracts
as to future times.
9. Scott grants to City an easement 20 feet wide centered over the centerline of each
pipe, for the water and sewer extensions connecting water systems in Jacob's
Manor 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. Upon 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.
10. 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.
11. BI and Scott may remove the lift station equipment and facilities within Jacob's
Manor not required for the gravity and pressure connections according to the City
design under the East Highway 55 LID.
12. 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.
13. This Agreement is governed by the law of Idaho; and Valley County, Idaho is the
proper venue.
14. Time is of the essence with respect to the obligations of the parties under this
Agreement.
15. Any rights and remedies stated in this Agreement are cumulative.
16. 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.
17. This Agreement shall bind and inure to the benefit of the parties and their
respective heirs, successors and assigns.
18. 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
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.
24. 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:
LIFT STATION AGREEMENT page 2
City of McCall
attn.: City Manager
216 East Park Street
P O. Box 1065
McCall, ID 83638
Malcolm H. Scott
P. O. Box 230
McCall, ID 83638
Dated:
• Attest:
James H. Henderson,
City Clerk
Brown's Industries, Inc.
attn.: Judd DeBoer
P. O. Box 1007
McCall, ID 83638
City of McCall
by:
Dean A. Martens,
Mayor
Brown's Industries, Inc.
by:
Judd DeBoer, President
Malcolm H. Scott
State of Idaho )
) ss.
County of Valley )
On this day of , in the year 1995, before me,
, notary public, personally appeared Dean A. Martens,
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:
LIFT STATION AGREEMENT page 3
State of Idaho )
) ss.
County of Valley )
On this of , in the year 1995, before me,
, notary public, personally appeared Malcolm H. Scott, known or
identified to me to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same.
Notary Public for Idaho
My commission expires:
State of Idaho )
) ss.
County of Valley )
On this day of , in the year 1995, before me,
, notary public, personally appeared Judd DeBoer, known or identified to
me to be the President of Brown's Industries, Inc., the corporation that executed the said
instrument or the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
Notary Public for Idaho
My commission expires:
LIFT STATION AGREEMENT page 4
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S A
LIFT STATION AGREEMENT
This Agreement is made effective October 19, 1992 by and
between the City of McCall, an Idaho municipal corporation
("City"), Brown's Industries, Inc., an Idaho business
corporation ("BI"), and Malcolm Scott, of McCall, Idaho
("Scott"), for and in consideration of the mutual promises in
this Agreement.
Background
1. BI and City entered into a Subdivision Agreement dated
June 8, 1992, respecting Payette Lakes Commercial
Center, which called for the construction of a sewer
lift station at the southerly end of that Center, and of
a gravity sewer line serving the Center flowing to the
lift station, and of a pressure line from the lift
station back north to the City sewer line in Deinhard
Lane. A copy of this Subdivision Agreement is annexed
as Attachment A.
2. Subsequently BI and Scott entered into an Agreement
Regarding Sewer Hookup effective October 19, 1992 which
provided for their mutual construction of that lift
station, to be relocated at the southerly end of Scott's
property which lies across Jacob Street to the south of
the Center, with attendant lengthening of the two sewer
lines.. A copy of this lift station agreement is annexed
as Attachment B.
3. City consented to that relocation of the lift station.
[C"ity contemplates the construction .of dh a fpor"t ba-sln7
sewer_ iht:erceptor; - to which -the -gravity:-sewer 1tne ,would;
�ultimatel_y_.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.
. 4. anal Scott have granted :each- other_ -reciprocal= ____
e-asemerus "to `provide- for -the location,_, use,__ repair ,_and?
maintenance of the' sewer _lines under an Easement
Agreement of November 23, 1992, a copy of which is
annexed as Attachment C.
5. This Agreement is intended to provide for the ownership,
operation and maintenance of the lift station and of the
related gravity and pressure sewer lines, and of the
easements necessary to protect the location, use, repair
and maintenance of the lines.
LIFT STATION AGREEMENT page 1
Agreements
6. vCity=w-i1.1 assuma,as- aga=inst--the-.State -of. Idaho; the -�
United St at=es, and-- the, regu-l-.ato:ry agencies of bothT the
obligationT=to operate_ and _maintain.. the sewer lift-_ _ _
station BI and Scott in turn shall each have the duty
to inform the City promptly of any known or suspected
malfunction in any part of the sewer facilities
addressed by this Agreement.
7. City will contract with Payette Lakes Water and Sewer
District for the maintenance of the lift station, in that
such District's office and maintenance headquarters is on
Jacob Street. A copy of such contract is attached as an
Attachment D to this Agreement.
8. BI and Scott will be jointly and severally liable to the
City to reimburse the City all amounts billed to City -by
such District under the contract a copy of which is
attached as Attachment D, plus an overhead, service and
handling charge. Such charge shall be 15% of the flat
rate monthly charge, and 5% of any other amounts billed
by the District to City in respect of this lift station
and pressure line. City shall render its statements to
BI and Scott care of BI at its address for notice below.
9. In the event of any default by the District under its
agreement with the City, Attachment D, such that the
lift station requires operation, maintenance or repair
which it is not receiving, City may undertake to perform
the operation, maintenance or repair. In such event,
City will bill BI and Scott, as above stated, its
charges for performance of these services. Such charges
shall be in the amount of the flat rate agreed in
Attachment D, plus the costs of repair. Such costs of
repair shall be computed as follows: actual out of
pocket payroll, commercial rates for equipment used, and
an allowance for fuel, oil and overhead.
10 . CBI aiid Scott will-de.dicate to th:e City, .upon acceptance
by thye City,_. all= gravity flow sewer roes _i.nvolved i ni7
their mutual project, and snap real—owne-rsh:.p of�all
7- �••-- elects
p=ress�urea=line(-s) - and o-� the pu-mom (�s-)_, housin�q, a
controls; andall other es�ulpment _needed neither _forte
;gr av%t y--'f:l-ow - t o the �%f t =s-t at so n�nYoSr,fro►r,�f�u�t�urr`ze�gi�`a�vxi+�t�y�
f-o1-o�w beyo:no tehe`o1'tikft s^twin ;, D,:edicat •on -=of —the -sewer
'1-`ine="s'ha-ll include. grant of an --easement fo_r its use_,,
repair an:d ma ntenanee; includ ng_repl:acement in whole--
or part-, all as appropriate-.in_the opinion -of the City;
11. BI and Scott remain responsible for the maintenance and
repair of the pressure line. In the event of any
default by them such that the pressure line requires
LIFT STATION AGREEMENT
page 2
maintenance or repair which it is not receiving, City
may undertake to perform the maintenance or repair. In
such event, City will bill BI and Scott, as above
stated, its charges for performance of these services.
Such charges shall be computed as follows: actual out of
pocket payroll, commercial rates for equipment used, and
an allowance for fuel, oil and overhead.
12. Connections to the gravity flow lines by individual land
users shall be by application to the City. i IITT-the event__°
(that. -City__ connects users_to t_he ravt line,, City" - `�
pay (or credit) BI and Scott 0:50 per month, per
customer, for use of the lift station and pressure line.
No connections of any kind shall be made into the
pressure line by or with the permission or acquiescence
of any party.
l 13. -BI" and—Scott assign to7City; the=easements ..created by the
Easement -Agreement =as ldescribed= on._Exhibits- C and D
i thereto 7 BI and Scott warrant that the gravity sewer ----
`line is located on the centerline of such easement. BI
and Scott retain, however, the right to maintain,
repair, and replace the pressure line built or to be
built within the same easement until__use _ of__ such
pressure _line is ,discontinued_,.,_rBI „and_ -.Scott- wi11
-execute such :sadditionai ;form rof grant of •easement as
•will:"be, recordab•1'e__and -af ford., the: City ;no -less rights
than are: afforded _by BI and Scott to each othe 67under__,
the Easement; Agreement . t Addrtionally, �such-,ea _ement in
,the City willbe_permanent, or until such -time as use of^
:a -gravity--flow' sewer line ,Y-ocat;ed within: the easeme-nt r
abandonec1 14thout; replacement .
--~
14. It is understood by the parties that BI and Scott have
as provided in their agreements the proprietary interest
in the lift station pump'and pressure lines. The City,
however, has the proprietary interest in the direct or
indirect connection of properties to any part of the
municipal sewer system. Thus an owner of property will
be obliged to deal with BI and Scott as to the use of
the lift station pump(s) and the pressure line, but will
be obliged to meet the engineering and financial
requirements of the City as to the direct or indirect
connection of sewer service for their properties to the
City sewer line or to the pump station for delivery to
the City sewer line.
15. In -the—event-t-hat -the `City provides a connection for the.
,•gravity line to aYr.City-- sewer %n such fashion,that the,
lift s.t.aton �i� no- •1•onger:-'-necessa=r-y, to:`the furnishing of
sewer —service to the BI-�-and�-Scott--properties affected by
the Easement Agreement, BI and Scott may remove the lift
station equipment and facilities not required for the
gravity connection according to the City design, and
LIFT STATION AGREEMENT page 3
this Agreement will become of no further force and
effect, except as to then accrued and unpaid financial
obligations arising under it. In the alternative, in
the event that the parties conclude that the
construction of the airport basin sewer interceptor is
unlikely within the foreseeable future, the parties
shall discuss the possibility that BI and Scott would
choose to dedicate the lift station, pressure line, and
associated equipment to the City, and to be relieved of
future operation and maintenance costs. In the event of
such an accepted dedication, this Agreement will become
of no further force and effect, without prejudice to
then accrued and then unpaid financial obligations.
16. In the event that BI and Scott both fail or refuse to
pay in full any statement rendered them by the City
pursuant to this Agreement, City shall have a lien upon
the property described (as of the date of this
Agreement) in Exhibits A and B to the Easement
Agreement, which. lien may be foreclosed as set out in
Idaho Code 50-1813, or in like fashion as a mortgage of
real property, as the City may choose.
17. If any legal action or proceeding related to this
Agreement is begun by any party to this Agreement, the
prevailing party shall be entitled to recover its
commercially reasonable attorneys fees and witness and
expert witness fees, incurred in prosecuting or
defending the same. The City shall be entitled to such
fees, if the prevailing party, notwithstanding the fact
that the City Attorney is salaried.
18. This Agreement is governed by the law of Idaho; and
Valley County, Idaho is the proper venue.
19. Time is of the essence with respect to the obligations
of the parties under this Agreement.
20. Any rights and remedies stated in this Agreement are
cumulative.
21. The neglect of any party to enforce its rights at any
particular times or upon any particular occurrences
shall not preclude resort to those rights at any other
time or with respect to any other occurrences. Any
waiver of any right must be done in a writing executed
by the party to be charged with such waiver, and
executed with no fewer or different formalities and
approvals than were attendant upon execution of this
Agreement.
22. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, successors and
assigns.
LIFT STATION AGREEMENT page 4
23. 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, correspon-
dence, and communications are merged into and
extinguished by this Agreement; provided, however, that
nothing in this Agreement shall be held to merge into
this Agreement any Subdivision or Development Agreement
among any of the parties unless this Agreement expressly
both identifies such subdivision or development
agreement, and states that this Agreement supersedes
such subdivision or development agreement.
24. 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:
City of McCall Brown's Industries, Inc.
attn.: City Administratorattn.: Judd DeBoer
216 East Park Street P. 0. Box 1007
P O. Box 1065 McCall, ID 83638
McCall, ID 83638
Dated:
Attest:
Malcolm H. Scott
P. O. Box 230
McCall, ID 83638
Arthur . Schmidt,
City Clerk
City of McCall
by:
Mayor
Brown's Industries, Inc.
by:
Judd OeBoer, President
LIFT STATION AGREEMENT
page 5
. ah
Malco m H. 'f�'
Scott
State of Idaho )
) ss.
County of Valley )
On this A day of �, in the year 1993,
before me, Su5a.1 A. Narleu notary public, personally
appeared Laurance A. Smith Jr., 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.
e/44/4-4/ ///
Notary Public or
My commission expires:
State of Idaho )
) ss.
County of Valley )
On this //th of in the year 1991, before me,
SiaRn )(449/�-/ , notary public, personally
appeared Malco m H.Scott, known or identified to me to be
the person whose name is subscribed to the within instrument,
and acknowledged to me that he executed the same.
AY/100
Not ry Public
My commission expires: gy( rn
State of Idaho )
) ss.
County of Valley )
On this //6 day of F�, in the year 1993,
before me, S/45.40 k 4jrity , notary public, personally
appeared Judd DeBoer, nown r identified to me to be the
President of Brown's Industries, Inc., the corporation that
executed the said instrument or the person who executed the
instrument on behalf of said corporation, and acknowledged to
me that such corporation executed the same.
No ary Publ c o
My commission expires:
LIFT STATION AGREEMENT page 6
R
SUBDIVISION AGREEMENT
This Agreement is made June 8, 1992, by and between the
City of McCall, an Idaho municipal corporation, tailed
"McCall" in the rest of this Agreement, and Brown's
Industries, Inc., an Idaho corporation, called "Developer"
in the rest of this Agreement, pursuant to the power of
McCall to approve with or without conditions, or disaoorove,
subdivision plats; the power of McCall to regulate and
control its water and sewer utilities; and the mutual desire
of the parties to record their understandings.
Judd DeBoer executes this Agreement on behalf of the
Developer. It is understood that the Developer is a
corporation, and that the person who executes this Agreement
on behalf of the corporation does so in the capacity of
President. Judd DeBoer warrants that he has the authority
to execute this Agreement on behalf of the Developer. The
parties to this Agreement shall accept notices at the
following addresses and telephone numbers:
Developer
Mr. Judd DeBoer, President
Brown's Industries, Inc.
P . 0. Box 1007
McCall, ID 83638
McCall
City of Mr -Call
Attn. City Administrator
P. O. Box 1065
McCall, ID 83638
The real property which is the subject of this
Agreement, called "Property" in the rest of this Agreement,
;s located in the City of McCall (and Valley County) and is
described as:
Lots 1 through 32, inclusive,
Payette Lakes Commercial Center
The Property is so described on the preliminary Plat, and
this description may be subject to chance after the
recording of the Final Plat. A copy of the preliminary
is attached to this Agreement as Exhibit
"A."
Plat
�
The Developer Seeks �•�cCall' s approval of the •Fi n:al _
for the subdivision pursuant to the McCall City Code. In
consideration of McCall's aoproval of a Final Plat for the
subdivision, and its agreement to extend water and sewer
service, the Developer agrees to construct and install the
ithisr:�,orovements described i n __ - � rl a IV of Agreement in
accordance with all the terms, covenants and conditions of
this Agreement.
SUBDIVISION AGREEMENT page 1
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
�n
i
ARTICLE I
SUMMARY OF REOUIREMENTS
1.01 Tmprovement Type Required.
The Developer shall construct and install the following
improvements (check those applicable; cross out those
inapplicable) :
X Street; aido alk; curb and
guttcr; _X_ storm drain; _X_ drainage;
_X_ sanitary sewer; _X_ water
system; _X_ telephone; _X_ electrical;
X monumentation; X street lighting;
X traffic control devices; X street signs;
_X_ landscaping; and _X_ snow storage
1.02 Improv-ment CCStS Anticipated
The Developer estimates the cost of these improvements
to be made by Developer to be $282,000.
In the event that either party believes that the
construction cost of improvements not yet accepted is
appreciably more or appreciably less than the figure in the
immediately proceeding paragraph, they shall meet, discuss
the matter, and agree upon a revised figure for work not yet
accepted; and record their understanding below; the revise:
figure set out below shall then become the applicable figure
for bonding or letter of credit:
Rai..Sad =S-_matte= of `ost n_ all Tmorovements_
7 C- mat-P
Date.
In the event there is a disagreement which is not resolved
by the parties, the matter shall be arbitrated under the
Construction Industry Arbitration Rules of the American
Arbitration Association.
SUBDIVISION AGREEMENT page 2
PAYETTE LAKES COMMERCIAL CENTER June 8, 1992
i
ARTICLE II
SECURITY FOR PERFORMANCE OF REOUIREMENTS
2.01 Security Required
The Developer shall provide to McCall one of the
following to secure performance of the obligations of
Developer under this Agreement, in an amount not less than
that'set out in Section 1.02 above: a performance bond with
corporate sureties; or an irrevocable letter of credit from
a national bank conducting business in the Fourth Judicial
District of Idaho, and having a net worth not less than 100
times the amount set out in Section 1.02; such bond or
letter to be acceptable to the City Attorney as to form and
substance. The amount may be increased or reduced from time
to time as provided in Section 1.02.
2.02 When Reauired
Developer shall provide such security to McCall prior
to the recording of the Final Plat, and prior to the grant
or lease of any interest in any lot in the subdivision other
than for than construction money financing.
ARTICLE, T T T
LAND USF CONTROL REOUTR7m7NTs
3.01 Covenants and Other Documentation P quired
The Developer shall deliver to the City Administrator
the executed Final Plat in correct form for recording; with
a note on the face of the Final Plat that the lands within
it are subject to the Covenants, Conditions and
Restrictions; the fully executed Covenants, Conditions and
Restrictions in the form submitted to and approved by the
Council, cr in such form as is agreed with the City Attorney
based upon direction furnished by the Council upon the
occasion of the approval of the Final Plat; an executed
Notice of [_his] Subdivision Agreement; security as provided
above; and a check in an amount adequate to ^ay the costs of
recording by a Title Company of the Final Plat, the
Covenants, and the Notice.
3.02 Ceram i ficate to Plat
The Developer shall provide with the Final Plat a
certificate of a title company licensed to do business in
and maintaining an office in Valley County, setting out the
identity of all persons owning an interest in the lands
within the Plat, other than the owner of a severed mineral
estate; and all such persons must have executed the Plat.
SUBDIVISION AGREEMENT
PAYETTE LAKES COMMERCIAL CENTER
page 3
June 8, 1992
ARTICLE IV
IMPROVEMENT REQUIREMENTS
4.01 Improvements Reauired
The Developer shall design, construct, and install the
improvements specified above. The Developer shall bear the
cost of all the improvements, and is entitled to
reimbursement for the same only if and to the extent so
stated in this Article. It is agreed that this development
is governed by Standard "D" within the Subdivision
Regulations, except as otherwise provided below.
a n2 a_lleywey, Monumentation, Traffic Control.
Street lighting. Street Name Signing, any? DYaLnaaa
Tmp-ovemen t s
A. Street improvements (Commerce Street and alleys
shown on the plat) shall be provided in accord
with Title 3 of the McCall City Cede and the
"Construction Specifications and Standards for
Roads and Streets in Valley County, Idaho"
applicable to streets to be paved with asphalt.
Streets and alleys may be left constructed without
paving for one year, to permit settling of the
roadbed, but must be paved during the second
summer.
The estimated cost of street and alley
improvements, for which the Developer is not
entitle: to reimbursement, is $55, 900.
B. Drainage improvements shall be provided in accord
with Title 3 of the McCall City Code and the
"Construction Specifications and Standards for
Roads and Streets in Valley County, Idaho" for
paved roads; an adequate storm drainage system,
which may include necessary storm drainage
facilities, is required. The system shall
accommodate lateral and upstream contribution, as
well as subsurface drainage exposed during
construction, and an approved drainage outfall
shall be provided. `
The cost of the drainage system, for which the
Developer is not entitled to reimbursement, is
included in the above street budget.
C. Traffic control devices shall be installed in
accord with Title 3 of the McCall City Code and
the uniform state standards as follows: stop signs
on'Commerce Street at its intersections with
Deinhard Lane and with Jacob Street, and on each
alleyway at its intersection with a street. The
cost of these improvements, for which the
SUBDIVISION AGREEMENT
PAYETTE LAKES COMMERCIAL CENTER
page 4
June 8, 1992
Developer is not entitled to reimbursement, is
estimated to be $375.
D. Street lighting shall be provided in accord with
Title 3 of the McCall City Code and ayplicable
state standards at the intersection of streets and
alleys with Deinhard Lane and with Jacob Street;
design shall be submitted for approval. The cost
of these improvements, for which the Developer is
not entitled to reimbursement, is included in the
street budget.
E. Monumentation shall be provided in accord with
Title 3 of the McCall City Code and Idaho Code 50-
1303. The cost of these improvements, for which
the Developer is not entitled to reimbursement, is
estimated to be $4,000.
F. Street name signs shall be provided in accord with
Title 3 of the McCall City Code and Valley County
standards at all intersections. The cost of these
improvements, for which the Developer is not
entitled to reimbursement, is estimated to be
$375
4.03 Sanitary Sewer Improvement a
A. McCall agrees at its expense to secure a final
design for the airport basin sewer services. This
design will be of sufficient detail that the arade
is set and identified for a gravity -flow sewer
line along Jacob St. flowing westerly to the
planned lift station on the airport.
B. The Developer agrees to install a gravity line to
its planned private lift station which can be
converted to a gravity service line connecting to
the proposed City line in Jacob Street. The
Developer will install a gravity line to his lift
station., and a pressure line from the lift station
back to the Deinhard Lane line. The cost of these
improvements, for which the Developer is not
entitled to reimbursement, is estimated to be
$121,500. When the Jacob St.• gravity line is
installed in the future, the private lift station
will be removed at'Developer's expense, the
pressure line abandoned and capped at Developer's
expense, and the gravity line connected to the
Jacob St. line at City expense, provided the
design of the pump station was approved by the
City. The service from that time forward will be
gravity service and at that time, the lines within
the subdivision will be accepted by McCall for
permanent maintenance.
SUBDIVISION AGREEMENT
PAYETTE LAKES COMMERCIAL CENTER
page 5
June 8, 1992
C. This arrangement will meet the Developer's need to
proceed with development and McCall's long term
needs for a coordinated and integrated sewer
service for the Airport basin.
D. McCall and Developer agree' to assist one another
in any way possible to secure grant funding,
particularly an ICDBG, Economic Development Grant,
the availability of which is related to the
creation of jobs, for all or part of the Airport
Basin Sewer System.
E. it is expected by both parties that the line in
Jacob Street will be an interceptor line and that
such line will be constructed by McCall, at City
or other developers' expense (i.e. that this
subdivision will have no obligation for
construction of that lire).
4.04 rater System improvements
A. The Developer agrees to install water mains to
sizes approved by McCall, North -South through the
development from Deinhar: Lane to Jacob St., then
West along Jacob St. to the centerline of Highway
E5 at the Jacob St. intersection. This line will
be installed solely at the Developer's expense,
except as the cost may be shared among benefited
parties; McCall assumes no obligation to identify
or secure cooperation from other benefited
parties. The cost of these improvements, for
which the Developer is not entitled to
reimbursement, ;s estimated to be $71,500.
B. McCall agrees to install a water line, at City
expense, from the centerline of Highway 55 at
Jacob St., where the Developer's line ends,
westerly,' to connect to the Airport water line,
i^stalled in 1991. McCall will secure easements
for this section of the line.
4.05
C McCall and Developer agree to coordinate this work
in every way to ensure the most economical
installation for both parties.
D. McCall will be the applicant for the right to
cross the State Highway, since the acquired
rights will ultimately belong to McCall.
EIACtri cal Facilities
A. The Developer shall execute an agreement with
Idaho Power Company, which shall provide in
SUBDIVISION AGREEMENT
PAYETTE LAKES COMMERCIAL CENTER
1
page 6
June 8, 1992
pertinent part for installation and acceptance of
an underground electrical system to serve all
lots, parcels and tracts which are a part of this
subdivision. The cost of these improvements, for
which the Developer is not entitled to'reimburse-
ment, is estimated to be $32,000.
4.06 Telephone Facilities
A. The Developer shall execute an agreement with GTE,
which shall provide in pertinent part for
installation and acceptance of an underground
telephone system to serve all lots, parcels and
tracts which are a part of this subdivision. The
cost of these improvements, for which the
Developer is not entitled to reimbursement, is
estimated to be at the expense of GTE.
4.07 Attachments
The following documents whether or not physically
attached to this Agreement, are integral parts of this
Agreement:
Preliminary Plat (for land identification 'purposes) , as
Exhibit "A"
4.08
Final Plat, as Exhibit "B"
Covenants, Conditions and Restrictions, as exhibit "C"
Bond or Letter of Credit, as Exhibit "D"
Acceptance and Exoneration of Bond
A. Developer shall submit a written request for
acceptance to the City Administrator when
Developer concludes that construction of the above
improvements is complete and ready for acceptance.
Imn rovements other than streets may be submitted
separately from streets. Imnrovements done under
contract With Idaho Power or GTE are subject to
approval by them, and their approval shall be
submitted to the City Administrator with the
request for acceptance.
B. Street subgrade shall be not deemed ready for
acceptance until it has, at finish grade, gone
throuah a winter and a spring thaw.
C. Base course and paving shall likewise not be
deemed ready for acceptance until they have gone
through a winter and a spring thaw.
SUBDIVISION AGREEMENT
PAYETTE LADES COMMERCIAL CENTER
page 7
June 8, 1992
D. Acceptance shall be evidenced by a certificate of
acceptance executed by the City Administrator,
approved on the consent calendar by the City
Council, and delivered to Developer.
E. During the two years following acceptance,
Developer will warrant the road surface against
settlement, bird baths, cracking, and other
subgrade/base course problems.
F. From and after the date of acceptance, maintenance
and repair of streets, snow removal, street
lighting, traffic control devices, drainage within
rights of way, and street signs, becomes the
obligation of McCall. Electricity for street
lights will be paid for by McCall from and after.
acceptance.
4.09 De=cult and Riaht of Eni-ry
In the event that Developer fails and refuses to
complete any improvements required under this Agreement, or
in the event that such improvements are not completed by
September 1, 1995, then McCall may resort to the security,
enter on the property, and make such improvements employing
the bond or credit funds.
Dated: June 8, 1992
City of McCall
by: -(„,/
Laurance A. Smith, Jr
Mayor
Attest
7/,
Arthur•J. Schmidt,
Clerk. Brown's Industries, Inc.
by:
Judd "eBoer
Preslita nt
SUBDIVISION AGREEMENT
PAYETTE LAKES COMMERCIAL CENTER
page 8
June 8, 1992
AGREEMENT REGARDING SEWER HOOKUP
Agreement effective October 19, 1992, between BROWN'S INDUSTRIES, INC., an Idaho
corporation ('BI') and MALCOLM SCOTT of McCall, Idaho ('Scott').
1. BACKGROUND.
1.1 BI Property. BI is the owner of the real property described on Exhibit A attached CBI
Property'). BI is subdividing and developing the BI Property for commercial purposes. As part of the
development process, BI will be installing the following improvements for use by the purchasers and users
of the BI Property: () a gravity fed sewer line; (ii) a lift station; and (ii) a pressurized return sewer line that
wiii hookup to the municipal sewer system.
1.2 Scott Property. Scott is the owner of the real property described on Exhibit B attached
('Scott Property'). Scott is developina the Scott Property for residential purposes and will be required by
the various permitting agencies to hookup to the municipal sewer system.
1.3 Request for Hookup to the BI System Improvements. Scott has requested that BI (i) move
the lift station from the BI Property to the Scott Property, and (i) allow the Scott Property to hookup to the
sewer improvements. Based on the assumption that the It station would be moved from the proposed
location on the Bi Property to the Scott Property, JUB Engineers prepared plans and specifications ('JUB
Plans') which detail the required sewer improvements on the BI and Scott Properties.
1.4 Purposes of Agreement. The purposes of this Agreement are as follows:
a To evidence BI's agreement to allow a redesign of the sewer
improvements in accordance with the JUB Plans, subject to compliance
by Scott with certain covenants and agreements set forth in this
Agreement;
b. To evidence BI's agreement to allow Scott to hookup to the sewer
improvements, subject to compliance by Scott with certain covenants and
agreements set forth in this Agreement; and
c. To evidence the intent of the parties to prepare and record a sewer
easement in accordance with the terms and conditions of this Agreement.
AGREEMENT REGARDING SEWER HOOKUP - 1
///7/ _Ayli,4r
2. COVENANTS AND AGREEMENTS REGARDING THE SEWER IMPROVEMENTS.
2.1 Payment by Scott. In consideration of BI's execution of this Agreement, Scott has deposited
into an escrow account approved by BI and Scott the sum of $22,000 to be withdrawn by BI as BI incurs
costs for the construction to be completed by BI as set forth below. The escrow instruction shall provide
that funds shall be disbursed in full to BI on the earlier of (i) November 15, 1992, or (ii) the date that costs
for the construction of the lift station and pressure line equal or exceed $44,000 (evidence of which shall
be in the form of an affidavit signed by Bp. In addition, Scott shall pay to BI 1/2 of the cost relating to the
additional costs associated with the improvements required by the Payette Lakes Water and Sewer
District.
2.2 Construction of Sewer Improvements.
2.2.1 By BI. BI, at its sole cost and expense (other than the Scott payment referenced
in Section 2.1), shall promptly construct the improvements identified as follows:
a. The work detailed on plans identified as 'Construction Set 8-12-92', dated
July, 1992, Drawing B920705-01 to B920705-05.
b. The work shall comply with the Technical Specifications for a Sewage
Pumping Facility dated July, 1992 and prepared by JUB Engineers.
c. It is understood that the lift station identified on the plans shall be located
on the Scott property as detailed on plans identified as 'Review Set - Not
for Construction' dated Sept. 1992, Drawing No. B920912-01 to B920912-
03.
2.2.2 By Scott. Scott, at his sole cost and expense, shall promptly construct the
improvements identified as follows:
a. The work detailed on plans identified as 'Review Set - Not for
Construction' dated Sept. 1992, Drawing No. B920912-01 to B920912-03,
excluding only the lift station and equipment to be constructed by BI.
b. The work shall comply with the applicable provisions of the Technical
Specifications for a Sewage Dumping Facility dated July, 1992 and
prepared by JUB Engineers.
In addition, Scott, at his sole cost and expense, shall promptly pays such fees and construct such
improvements as are necessary to provide electrical power to the lift station.
AGREEMENT REGARDING SEWER HOOKUP - 2
2.2.3 Completion of improvements. The parties shall use their best efforts to complete
the improvements described in this Section 2.2 on or before November 30, 1992.
2.3 Easement Agreement. Upon determination by a licensed surveyor of the legal description
for a sewer easement, BI and Scott shall promptly execute and record with the Valley County Recorder's
office, an Easement Agreement in the form attached as Exhibit C.
3. GENERAL PROVISIONS.
3.1 Representation and Document Preparation Costs. BI has informed Scott that (i) this
Agreement and the Easement Agreement have been prepared by the attorney for BI, (ii) such attorney
does not represent Scott in any manner, and (iii) Scott should consult his own attorney. Notwithstanding
the preceding, Scott covenants aria agrees to promptly reimburse BI directly for 1 /2 of the legal costs
associated with the preparation of this Aareement and the Easement Agreement.
3.2 Attorney Fees and Costs. If a suit, action, or other proceeding arising out of or related to
this Agreement is instituted by any party to this Aareement, the prevailing parry shall be entitled to recover
its reasonable attorney fees, expert witness fees, and costs n incurred in any settlement negotiations. (ii)
incurred in preparing for, prosecuting or defending any suit, actior:, or other proceeding, and (iii) incurred
in preparing for, prosecuting or defending any appeal of any sun., action, or other proceeding. For the
purpose of this section, 'attorney fees' shall mean and include (i) attorney fees and (ii) paralegal fees.
This section shall survive and remain enforceable notwithstanding any rescission of this Agreement or a
determination by a court of competent jurisdiction that all or any portion of the remainder of this
Agreement is void, illegal, or against public policy.
3.3 Governing Law. Jurisdiction, and Venue. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho
shall have exclusive jurisdiction and agree that Valley County is the proper venue.
3.4 Time of the Essence. Time is of the essence with respect to the obligations to be performed
under this Agreement.
AGREEMENT REGARDING SEWER HOOKUP - 3
3.5 Rights Cumulative. Except as expressly provided in this Agreement, and to the extent
permitted by law, any remedies described in this Agreement are cumulative and not alternative to any
other remedies available at law or in equity.
3.6 Nonwaiver of Remedies. The failure or neglect of a party to enforce any remedy available
by reason of the failure of the other party to observe or perform a term or condition set forth in this
Agreement shall not constitute a waiver of such term or condition. A waiver by a party (i) shall not affect
any term or condition other than the one specified in such waiver, and (i7 shall waive a specified term or
condition only for the time and in a manner specifically stated in the waiver.
3.7 Successors and Assigns. Subject to any express provisions in this Agreement regarding
restriction:- on transfers or assignments, this Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or
transferees of any kind.
3.8 Entire Agreement. Al! Schedules and Exhibits to this Agreement constitute a part of this
Agreement. This Agreement, together with the accompanying Schedules and Exhibits. constitutes the
entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations
and negotiations.
4. SIGNATURES.
Dated: October ► 9 , 1992
Dated: October AG , 1992
AGREEMENT REGARDING SEWER HOOKUP - 4
BROWN'S INDUSTRIES, INC.
By:
Ovi.S-J LOPa-r-
J)6(dd DeBoer, Its President
ij
MALCOLM SCOTT
W,0,6,--4, 244/
STATE OF 1DAHO
) ss
County of Ada
On this % `f day of October, 1992, before me, a notary public in and for the State of Idaho,
personally appeared Judd DeBoer, known or identified to me to be the President of Brown's Industries.
Inc., the .corporation that executed the instrument or the person who executed the instrument on behalf
of said corporation, and acknowledged to me that such corporation executed the same.
P-\
Notar4 ublic for Idaho .
Residing at Boise, Idaho r
Commission Expires: J ( I �'
STATE OF IDAHO )
) ss
County of% )
, ff
On this :' day of October. 1992, before me, a notary public in and for the State of Idaho,
personally appeared Malcolm Scott known or identified to me to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same.
AGREEMENT REGARDING SEWER HOOKUP - 5
No�iary Public for Idaho., .
Residing at /% '
Commission Expires:
, Idaho
DENN;S
1,1Y COP MI:11:-.:CN E),P RES
2-5-s3
EX}i1B[T A
BI PROPERTY
The following described real property in Valley County, State of Idaho, more panic:Warty described
as follows to wit:
A parcel nr - n,' s i `_ua! e : n the NW14 of the 3E1/4 of Section 16, T. 18
N . , R . 3 ;.. . D . M . , .) f McCall, Valley County, Idaho, more
particularly r'es,::.: bed as follows:
Commencing at. a br:Iss cap marking the Center 1/4 corner of
Sect ion T. 18 N., R. 3 E., B.M. , City of McCall, valley
County, Idahf); thence, S. 89° 48' 50" E., 559.71 feet along
the nori.her i y bmind:lry of said NW% SE'/.; thence, S. 0" 38' 10"
14: , 30.00 feet to the southerly right —if -way of Deinhard Lane,
the PFAU Pu1NT OF BEGINNING:
T1wnce, rontin!ling S. 0" 38' 10" W., 785.00 feet to a IA"
rebar,
thence, S. 16° 55' 15 E., 486.05 feet to the northerly right-
of-way of Jncob Street,
thence, S. 89' 37' 29" E., 288.71 feet along said northerly
right-of-way to a 5/8" rebar,
thence. N. 0° 37' 19" E., 1250.49 feet to a 5/8" rebar on the
southerly right-of-way of Deinhard Lane,
thrlIcn, N. 89° 48' fill" t.'., 435.03 feet to the Point of
Bog i nn i n„
Bearings based on Stntp P] ane Grid .Azimuth.
1
L
W 7IBR B
SCOT " PROPERTY
The following described real property in Valley County, State of Idaho, more particularly described
as follows to wit:
A portion of 5W1/4 c•i SE1 4 Section 1E,. Township 18 North, Pange
East. E4. t'1.. Va 1 ey Count,. Idahc,. more particularly described as
T Gl lows:
Commencing at the S /1E ::'ner = the 5E1/4. Section le,. Township
18 North, F;ande 3 East. E.M.. which corner is N. ..89•54' lU" u.
1 :;34. U feet t r om -the SE corner of said Section /41 thence N.
0°11' 10" East alcind the E_a=t boundary of said SW1/4, Southeast 1./4
611.0 feet tc. the true point of beginning; thence continuing N.
0°11' 10" E i!►E•.« feet tc. the center of the said SE1/4; thence S.
8•�'b.4 • ��., W. 2l ong the t•icir th boundary line of said SW1 /4 SE /4
737.78 feet to a boint ; thence S 16'54' 25" East parallel to and 343
feet Easterly of th.e East boundary of Idaho State Highway 15:
7:35.1r-► tmet to a print: thence S. 29.48'50" East 521.70 feet ba=k
to the true t _.int becinr.inc3.
R=.=ervina t here i r� �m an easement for a public road right
r,f :, / across the entire north portion of this property extending
,-,south 0' from the nortn r=_,ind4ry of said SW1/4 SE1/4.
EXHIE7
i
EASEMENT AGREEMENT
Easement Agreement effective November.2;• "1992, between BROWN'S INDUSTRIES, INC., an
Idaho corporation whose current address is 101 South Capitol Boulevard, Suite 1203, Boise, Idaho 83702
CBI') and MALCOLM H. SCOTT whose current address is P.O. Box 230, McCall, Idaho 83638 ('Scott').
1. BACKGROUND.
1.1 BI Property. BI is the owner of the real property described on Exhibit A attached CBI
Property'). BI is subdividing and developing the BI Property for commercial purposes.
1.2 Scott Property. Scott is a married man who is the owner of the real property described on
Exhibit B attached ('Scott Property'). The Scott Property is owned by Scott as his sole and separate
property.
1.3 Construction of Sewer Improvements. JUB Engineers has prepared plans and
specifications ('JUB Plans') which detail required sewer improvements on the BI and Scott Properties,
including, without limitation, (i) a gravity fed sewer line, (ii) a lift station, and (iii) a pressurized return sewer
line that will hookup to the municipal sewer system. In accordance with the terms of the JUB Plans and
an 'Agreement Regarding Sewer Hookup' between the parties effective October 19, 1992, BI and Scott
are in the process of constructing the sewer improvements.
1.4 Request for Mutual Easements.
1.4.1 Request. Each party to this Agreement has requested a nonexclusive easement
on the property of the other party for the purposes of repairing and maintaining the sewer improvements
in accordance with the terms of this Easement Agreement.
1.4.2 Easement on BI Property. The portion of the BI Property that has been requested
for the easement is described on Exhibit C attached.
1.4.3 Easement on Scott Property. The portion of the Scott Property that has been
requested for the easement is described on Exhibit D attached.
EASEMENT AGREEMENT - 1
/-2-7%(-4/41,7L ije
1.5 Purpose of Agreement. The purposes of this Agreement are (i) to describe the easements
granted, and (ii) to establish the relative rights and obligations of the parties regarding the easement
granted under this Agreement.
2. GRANT OF EASEMENTS.
2.1 Mutual Grant. For value received, (i) BI hereby GRANTS AND CONVEYS to Scott a
nonexclusive easement on the BI Property, to be located in the area described on Exhibit C attached, and
(ii) Scott hereby GRANTS AND CONVEYS to BI a nonexclusive easement on the Scott Property, to be
located in the area described on Exhibit D attached.
2.2 Purposes of Easements. The easements are granted solely for the purpose of constructing,
maintaining and repairing the sewer improvements.
2.3 Easement on Scott Property Appurtenant to BI Property. Scott, on behalf of Scott and
Scott's heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with BI
and BI's heirs, successors, assigns, purchasers, or transferee of any kind, that the provisions of this
Easement Agreement (i) shall run with and bind the Scott Property, and (ii) shall inure to the benefit of,
and be enforceable (at law or in equity) by any owner of all or part of, the BI Property.
2.4 Easement on BI Property Appurtenant to Scott Property. BI, on behalf of BI and BI's heirs,
successors, assigns, purchasers, or transferee of any kind, covenants and agrees with Scott and Scott's
heirs, successors, assigns, purchasers, or transferee of any kind, that the provisions of this Easement
Agreement (i) shall run with and bind the BI Property, and (ii) shall inure to the benefit of, and be
enforceable (at law or in equity) by any owner of all or part of, the Scott Property.
2.5 Repairs, Maintenance, and Power Costs. The parties to this Agreement, on behalf of such
party and the party's heirs, successors, assigns, purchasers, or transferee of any kind, covenants and
agrees with the other party and the other party's heirs, successors, assigns, purchasers, or transferee of
any kind, as follows:
a. The sewer improvements located on either the Scott Property or the BI
property shall be maintained in good and sufficient repair, and all
EASEMENT AGREEMENT - 2
damage to any sewer improvements shall be repaired as promptly as is
reasonably possible.
b. If such repairs or maintenance are not made, then an owner of all or any
portion of the BI or Scott Property, upon fifteen (15) days prior written
notice delivered to the other owners of the BI and Scott Properties, shall
have the right to correct such condition.
c. All costs for maintenance and repairs of the sewer improvements shall be
allocated 50% to the BI Property and 50% to the Scott Property.
d. All costs for inspections of the sewer improvements and electrical power
for the lift station shall be allocated 50% to the BI Property and 50% to
the Scott Property.,
e. Each owner within the BI Property shall be jointly, severally, and
personally liable for all of the costs allocated to the BI Property under this
Agreement, and the BI Property shall be subject to a lien for such costs,
plus all costs (including attorney fees) incurred in collecting the amounts
due.
f. Each owner within the Scott Property shall be jointly, severally, and
personally liable for all costs allocated to the Scott Property under this
Agreement, and the Scott Property shall be subject to a lien for such
costs, plus all costs (including attorney fees) incurred in collecting the
amounts due.
2.6 Additional Hookups. The parties to this Agreement, on behalf of such party and the party's
heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with the other
party and the other party's heirs, successors, assigns, purchasers, or transferee of any kind, that no
additional properties or users (other than users located on either the BI or Scott Properties) shall be
permitted to hookup or use in any fashion the sewer improvements (including the lift station) unless the
following conditions are satisfied:
a. The consent of BI shall be required if BI is the owner of all or any portion
of the BI Property. If BI does not own any portion of the BI Property, then
the consent of the owners of a majority of the lots within the BI Property
shall be required.
EASEMENT AGREEMENT - 3
b. The consent of Scott shall be required if Scott is the owner of all or any
portion of the Scott Property. If Scott does not own any portion of the
Scott Property, then the consent of the owners of a majority of the lots
within the Scott Property shall be required.
c. 50% of all consideration received in accordance with the required
consents, if any, shall be paid (i) to BI if BI is the owner of all or any
portion of the BI Property, or (ii) to the owners of the BI Property in
proportion to the number of lots owned by each owner within the BI
Property, only if BI does not own any portion of the BI Property.
d. 50% of all consideration received in accordance with the required
consents, if any, shall be paid (i) to Scott if Scott is the owner of all or
any portion of the Scott Property, or (ii) to the owners of the Scott
Property in proportion to the number of lots owned by each owner within
the Scott Property, only if Scott does not own any portion of the Scott
Property.
3. TERMINATION OF EASEMENT.
3.1 Term. The term of the easements provided by this Agreement shall commence on the
effective date of this Agreement and shall continue until such time that the BI Property secures an
alternative hookup site for its sewer needs and is no longer using the lift station detailed in the JUB Plans
to deliver wastes to the municipal sewer system.
3.2 Payment upon Termination.
3.2.1 If Scott Property Continues Use. Upon termination of the easements as described
in Section 3.1, and if the Scott Property continues to use the lift station detailed in the JUB Plans to deliver
wastes to the municipal sewer system, then Scott shall promptly pay an amount equal to 50% of the then
fair market value of the lift station and related improvements (i) to BI if BI is the owner of all or any portion
of the BI Property, or (ii) to the owners of the BI Property in proportion to the number of lots owned by
each owner within the BI Property, only if BI does not own any portion of the BI Property. The Scott
EASEMENT AGREEMENT - 4
Property shall be subject to a lien for such amount. If the parties cannot agree on the fair market value
of the lift station and related improvements, then the parties shall submit the amount to the American
Arbitration Association for determination. Such determination shall be binding on the parties.
3.2.2 If the Scott Property Has Terminated Use. Upon termination of the easements
as described in Section 3.1, and if the Scott Property is not using the lift station detailed in the JUB Plans
to deliver wastes to the municipal sewer system, then the lift station and related improvements shall be
sold as follows:
a. The consent of BI shall be required if BI is the owner of all or any portion
of the BI Property. If BI does not own any portion of the BI Property, then
the consent of the owners of a majority of the lots within the BI Property
shall be required.
b. The consent of Scott shall be required if Scott is the owner of all or any
portion of the Scott Property. If Scott does not own any portion of the
Scott Property, then the consent of the owners of a majority of the lots
within the Scott Property shall be required.
c. 50% of all consideration received in accordance with the required
consents, if any, shall be paid (i) to BI if BI is the owner of all or any
portion of the BI Property, or (ii) to the owners of the BI Property in
proportion to the number of lots owned by each owner within the BI
Property, only if BI does not own any portion of the BI Property.
d. 50% of all consideration received in accordance with the required
consents, if any, shall be paid (i) to Scott if Scott is the owner of all or
any portion of the Scott Property, or (ii) to the owners of the Scott
Property in proportion to the number of lots owned by each owner within
the Scott Property, only if Scott does not own any portion of the Scott
Property.
4. GENERAL PROVISIONS.
4.1 Attorney Fees and Costs. If a suit, action, or other proceeding arising out of or related to
this Agreement is instituted by any party to this Agreement, the prevailing party shall be entitled to recover
EASEMENT AGREEMENT-5
' 1' r 4
its reasonable attorney fees, expert witness fees, and costs (i) incurred in any settlement negotiations, (ii)
prosecuting or defending any suit, action, or other proceeding, and (iii) incurred
incurred in preparing for, p 9 p g
in preparing for, prosecuting or 3r.ILin4 any appeal of any suit, action, or other proceeding. For the
purpose of this section, 'attorney fees' shall mean and include (i) attorney fees and (ii) paralegal fees.
This section shall survive and remain enforceable notwithstanding any rescission of this Agreement or a
determination by a court of competent jurisdiction that all or any portion of the remainder of this
Agreement is void, illegal, or against public policy.
4.2 Governing Law, Jurisdiction, and Venue. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho
shall have exclusive jurisdiction and agree that Ada County is the proper venue.
4.3 Time of the Essence. Time is of the essence with respect to the obligations to be performed
under this Agreement.
4.4 Rights Cumulative. Except as expressly provided in this Agreement, and to the extent
permitted by law, any remedies described in this Agreement are cumulative and not alternative to any
other remedies available at law or in equity.
4.5 Nonwalver of Remedies. The failure or neglect of a party to enforce any remedy available
by reason of the failure of the other party to observe or perform a term or condition set forth in this
Agreement shall not constitute a waiver of such term or condition. A waiver by a party (i) shall not affect
any term or condition other than the one specified in such waiver, and (ii) shall waive a specified term or
condition only for the time and in a manner specifically stated in the waiver.
4.6 Successors and Assigns. Subject to any express provisions in this Agreement regarding
restrictions on transfers or assignments, this Agreement shall be binding upon and Inure to the benefit
of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or
transferees of any kind.
4.7 Entire Agreement. All Schedules and Exhibits to this Agreement constitute a part of this
Agreement. This Agreement, together with the accompanying Schedules and Exhibits, constitutes the
EASEMENT AGREEMENT - 6
1
1
entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations
and negotiations.
5. SIGNATURES.
BROWN'S INDUSTRIES, INC.
Dated: November '. , 1992 By:
Dated: November `t , 1992
STATE OF IDAHO
) ss
County of Ada
Judd DeBoer, Its President
MALCOLM H. SCOTT
/ / 1 - <etk4
On this -= day of November, 1992, before me, a notary public in and for the State of Idaho,
personally appeared Judd DeBoer, known or identified to me to be the President of Brown's Industries,
Inc., the corporation that executed the instrument or the person who executed the instrument on behalf
of said corporation, and acknowledged to me that such corporation executed the same.
EASEMENT AGREEMENT-7
. ) I I
f
Notary Public for Idaho /
Residing at Boise, Idaho
Commission Expires: ��
STATE OF IDAHO )
) ss
County of Valley )
On this jlf day of November, 1992, before me, a notary public in and for the State of Idaho,
personally appeared Malcolm H. Scott known or identified to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same.
Notary Public for Idaho
Residing at McCall, Idaho
Commission Expires:
DENNIS C. CARLSON
MY COMMISSION EXPIRES
2-5-96
EASEMENT AGREEMENT - 8
EXHIBIT A
BI PROPERTY
The following described real property in Valley County. State of Idaho, more particularly described
as follows to wit:
A parcel of land situate in the NW% of the SEY4 of Section 16, T. 18
N . , R . 3 F . , B . M . , City o F McCa11 , Valley County, Idaho, more
particularly Oesoribed as follows:
Commencing at a brass cap marking the Center 1/4 corner of
Section 1C, T. 18 N., R. 3 E., BM., City of McCall, Valley
Counts, Idaho; thence, S. 89' 48' 50" E., 559.71 feet along
thN northerly boundary of said NWY4 SE/4; thence, S. 0' 38' 10"
W. , 30.00 feet to the southerly right-l)f-way of Deinhard Lane,
the REAL Pu[NT OF BEGINNING:
Thonce, continuing S. 0' 38' 10" W. , 785.00 feet to a 1/2"
rebar,
thence, S. 16. 55' 15 E., 486.05 feet to the northerly right-
of-way of Jacob Street,
thence, S. 89' 37' 39" E., 288.71 feet along said northerly
right-of-way to a 5/8" rebar, _
thence, N. 0' 37' 19" E., 1250.49 feet to a 5/8" rebar on the
southerly right -of -wad- of Deinhard Lane,
tli ncr., N. 89' 48' 50" W., 435.03 feet to the Point of
Beginning,
Bearing3 based on State Plane Grid Azimuth.
C '.
EXHIBi, v
SCOTT PROPERTY
The following described real property in Valley County. State of Idaho, more particularly described
as follows to wit:
A pr‘rtion of SW1/4 of 5E1 /4 Section 1E. Township 1B North. Range
3 East. E+. M. , valley Count,. Idaho. more particularly described as
fol lowss
Commencing at the S 1 / 1 S •: :•r ner ol the 5E1 /4. Section 16, Township
18 North, Range 3 East. r.M.. which corner is N. B3'54' 10" W.
1334.0 feet from the SE corner of said Section 1 thence N.
0.11' 10" East along .the East boundary of said SW1/4, heast 1/4
611.V feet to the true point of beginning; thence continuing N.
0'11' 10" E iti6.2 feet to the center of the said SE1/4; thence S.
Ere54.35" W. along the Horth boundary line of said SW1/4 SE1/4
7= 1. 7d feet to a point; thence S 15'54' 25" East parallel to and 343
feet Easterly of th.? East boundary of Idaho State Highway 15;
7".r.5. 10 1 get to a point:
•, thence S. 65.48' 50" East 5� 1 70 feet back
to the tree point of becinhiha.
EACEr ; Reservina thererr•_m en easement or a public road right
c.f wav across the entire north portion of this property extending
c'.outh 50' from the north D_•l.indAev of said SW1/4 SE1/4.
EXHIBIT C
EASEMENT ON BI PROPERTY
The following described real property in Valley County, State of Idaho, more particularly described
as follows to wit:
;um DEBOER_PROPP_RTY
SEWER LINE MAINTENANCE AND REPAIR EASEMENT
A 20.00 foot aide aewor line maintenance and repair easement
situate In the NWS4 of the SE% of Section 16, T. 111 N. , R. 3 E. ,
E.M.. Valley County. Idaho. lying 10.00 feet on each aide of the
following described center line:
Commencing at a brass cap marking the C 1/4 Corner of Section
16. T. 18 N.. R.:3 E. , 8.M. , Valley County, Idaho; thence, S.
89° 37' 53" E., 771.48 feet along the northerly boundary of
said NWVA SEV0 thence, S. 0' 37' 20" W., 33.00 feet to the
southerly right-of-way of Dclnhard Lane, the REAL POINT OF
BEGINNING:
Thence. continuing S. 0' 37' 20" m., 1,249.75 feet to the
northerly right-of-way of Jacob Street, the Point of,
Ending.
Bearings based on State Plane Grid Azimuth.
EXHIBIT D
EASEMENT ON SCOTT PROPERTY
The following described real property in Valley County, State of Idaho, more particularly described
as follows to wit:
MALCOM SCOTT PROPERTY
SEWER LINE MAINTENANCE AND REPAIR EASEMENT
A 20.00 foot aide sewer line maintenance and rerair easement
sltuate In theAofthe ldaho SEW
lyi ofSection
IOc 00 feet on 18 P3chNsldR, of the
B.M., Valley County,
following described center line:
Commencing at a 5/ " rebel- marring the SF 1 /16 (2,.)rner of
Section 16, T. 13 N., R. 3 E., B.M.. Valley County, Idaho;
thence, N. 39° 37' 39" W., 567.77 feet along the northerly
boundary of said SW1/4 SEYi, to the REAL POINT OF BEGINNING:
Thence, S. 5' 50' 00" W., 172.78 feet,
thence, S. le 15' 00" E.,
.hence, S. 35° 55' 30" W., 101 .0.0 feet to the Point of Ending.
Also, an ceas.ement `oc T.ma ht.enan e7 ar47_ r6:5`aPr : bf asap. -sewer 1 i-net;
sltuate In —the SW1/4Mof the SE1/4of Section 16, T. 1�3 N•' follows:
B.M., Valley County, Idaho, more parti,:ularly described 3s
Commencing at a 5/3" rebar marking the SE 1/16 Corner of
Section 16, T. 13 N., R. 3 E., B.M., Valley County, Idaho;
thence, N. 89° 37' 39" w., 737.73 feet along the northerly
boundary of said SW1 SE A; thence, S. 16 26 29' E., 685.10
feet gloss atoline
theparallel
P0I�JT OFand
BEGINNING:easterly of State
Highway
Thence, continuing S. 16° 26:__,29_
-
thence, S. 89° 20' 54" E. ,4_5:0,4WRfeet,
thence, N. 16° 26' 29" w . feet ,
thence, N. 89° 20' 54" W., 5_)::7D4 feet to the Point of
Beginning, containing 2,390 square feet, more or less.
Bearings based on State Plane Grid Azimuth.
/e-a6
J 5-Q °•%
?
0
fa 7o
cSs2 ; `? 50
Grua^
/50
",1,1-46:dezrs55-
oLp-6, dol
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,
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67' L.' -
_ 1 12_
CITY OF McCALL
PLANNING AND ZONING COMMISSION
FINDINGS AND CONCLUSIONS IN SUPPORT
OF RECOMMENDATIONS UPON CONCEPT REVIEW OF A SPECIAL USE
The Commission finds that:
1. A petition for approval of a mobile home park (a
special use) was presented on December 15, 1992 by
Malcolm Scott, as owner of a metes and bounds
description fronting on Jacob Street. Annexation of
this property has been approved by the City Council and
awaits survey for preparation of an ordinance. The
land is across Jacob Street immediately south of
Payette Lakes Commercial Center, and north of the
McCall Campground (commonly known as the KOA
campground) .
2. The necessary notice was given.
3. The land in question is approved by the City Council
for Zone C - Commercial, although the preparation of
the necessary ordinance awaits the survey and
annexation.
4. Manufactured, modular and mobile home housing is not a
permitted use in Zone C. Dwelling units are a
permitted use, but the MCC 3-15-3 specifies that mobile
home parks are regulated by the Commission, and the
Commission has elected to use the special use process.
5. There are aspects of the proposal which do not conform
to the ordinance and which should be addressed in
conditions below.
The Commission concludes that:
6. The proposed use cannot meet the standards of MCC 3-15-
1, et seq., as a matter of law, unless certain
conditions are met. It is also necessary for the
annexation to be complete before the Commission may
finally recommend approval or denial to the Council.
7. The following are conditions which should be agreed to
by the applicant and presented to staff in a revised
plan which can be forwarded to the Commission with
recommendations of staff for approval and conditions of
approval:
a. the developer should demonstrate that each mobile
home unit will have 6,000 square feet of land
associated exclusively with that unit;
FINDINGS AND CONCLUSIONS IN SUPPORT December 15, 1992
OF RECOMMENDATIONS UPON CONCEPT REVIEW page 1
b. the form of rental agreement should be submitted
for approval;
c. parking at the rate of 2.5 spaces per mobile home
unit should be shown;
d. the clubhouse required by the regulations should
be shown;
e. additional snow storage should be shown;
f. the developer should be assessed $1,000 per unit
for a contribution to the water utility, less a
credit for water connection charges in fact paid;
---g
--the- developer should -dedicate a permanent easement-;__'
for ---the sewer --lines -which cross this -property; ,
_ _ _
h. the conditions of the development agreement upon
annexation (whether or not already reduced to
writing) that Jacob Street be acquired and built,
should be met before occupancy;
i. streets when constructed should not, even as a
matter of phasing, be dead -ended, but must be
continuous;
j
fire hydrants must be shown at intervals of not
greater than 300 feet, or as required by the Fire
Chief; fire hydrants must be served by 8-inch
mains;
k. the use of wood decks, as opposed to concrete
patios, should be and is approved.
1. street lights should be shown at both entrances
onto Jacob Street;
m. a certificate should be obtained from the U. S.
Army Corps of Engineers to the effect that there
are no regulatory wetlands on the property, or, in
the alternative, approval of the plans must be
conditioned upon receipt of a permit from the
Corps with respect to all utilization of wetlands
implied by the plan; mitigation measures must be
approved by the City as to the location of
mitigation;
n. a landscaping master plan for the berms and for
the interior of the park, and a plan for the
implementation of the master plan and maintenance
of plantings should be submitted; the berms should
as a minimum be along the western perimeter and
the adjacent 100 feet of the southern perimeter;
FINDINGS AND CONCLUSIONS IN SUPPORT December 15, 1992
OF RECOMMENDATIONS UPON CONCEPT REVIEW page 2
o. NFPA standards are to be met for all separations
between mobile homes, and the plan should reflect
approval that such standards can be met if the
plan is implemented;
p•
q•
No external TV antennas or satellite dishes should
be permitted;
Reflective roofing should be expressly prohibited;
r. A drainage plan stamped by an Idaho registered
professional engineer should be submitted,
demonstrating that construction and snow storage
can occur without affecting offsite flows other
than through an approved disposal plan; and snow
storage other than in accord with the plan should
be expressly prohibited;
s. Installation of a sanitary sewer dump station is
waived, as all transient uses are to be expressly
prohibited; and
t. a development agreement will be required for all
improvements and providing collateral for its
performance.
8. The matter should be continued to such time as the
petitioner has the additional submittals ready.
Dated: December 17, 1992
Attest:
Lance Eckhart, Actingir
e Ha -y,
Planning & Zon ng Clerk
FINDINGS AND CONCLUSIONS IN SUPPORT December 15, 1992
OF RECOMMENDATIONS UPON CONCEPT REVIEW page 3