Easement Agreement--Ingress and Egress Camel s Back Park City of Boise/Alistair and Connie Macmillan

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1 TO: FROM: RE: Mayor David H. Bieter Members of the City Council J. Patrick Riceci Assistant City Attorney R Easement Agreement--Ingress and Egress Camel s Back Park City of Boise/Alistair and Connie Macmillan DATE: March 27, 2012 ACTION REQUIRED: Approval of R and Easement Agreement RECOMMENDATION: That the City Council adopt and the Mayor approve R and the Easement Agreement. FISCAL IMPACT/BUDGET IMPLICATIONS: None known. BACKGROUND: The Macmillans own real property immediately adjacent to the far western edge of Camel s Back Preserve (Park) addressed as 1300 and 1350 Hill Road. The th Macmillans access their property using a dirt driveway at the end of 13 Street as it turns west and becomes Hill Road. (See attached GIS view.) Based on information provided to staff, the driveway has been in continuous use, in one form or another, since 1939, but encroaches slightly onto City-owned Camel s Back Preserve, which the City acquired in The Macmillans approached the City seeking a lot line adjustment to move the Preserve s property line eastward and providing the Macmillans fee simple ownership of the existing driveway. While the Department of Parks and Recreation is reluctant to seek a formal lot line adjustment because of the difficulty in conveying real property to individuals without an auction or exchange, under the circumstances the Department is willing to grant the Macmillans a non-exclusive easement for ingress and egress allowing the driveway to remain in its historic location.. The easement includes a very narrow strip of Camel s Back Preserve. This solution is in the best interests of the Macmillans, does not harm Camel s Back Preserve and allows continued and unimpeded access to the Preserve at the far western edge of the Preserve. ATTACHMENTS: R Easement Agreement Site Map (GIS)

2 Macmillan/Camel's Back Preserve Legend Addresses RoadsLevel1 Interstate Major Roads Minor Roads Preliminary Lots Parcels Idaho Counties Ada County Impact Areas Boise City Impact Area Eagle City Impact Area Garden City Impact Area Kuna City Impact Area Meridian City Impact Area Star City Impact Area 4n2e.sid Red: Band_1 Green: Band_2 Blue: Band_3 1: 934 Notes 0.0 Powered by Boise GIS: /27/ Miles This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable.

3 RESOLUTION NO. BY THE COUNCIL: CLEGG, EBERLE, JORDAN, MCLEAN, QUINTANA AND THOMSON A RESOLUTION APPROVING AN EASEMENT AGREEMENT FOR INGRESS AND EGRESS BY AND BETWEEN THE CITY OF BOISE CITY, BY AND THROUGH ITS DEPARTMENT OF PARKS AND RECREATION (GRANTOR) AND ALISTAIR MACMILLAN AND CONNIE MACMILLAN, HUSBAND AND WIFE (GRANTEES); PROVIDING GRANTEES THE RIGHT OF INGRESS AND EGRESS ON, OVER AND ACROSS A PORTION OF REAL PROPERTY OWNED BY THE CITY OF BOISE LOCATED IN THE SE1/4 OF SECTION 34, TOWNSHIP 4 NORTH, RANGE 2 EAST, BOISE MERIDIAN, IN THE CITY OF BOISE, ADA COUNTY, IDAHO (CAMEL S BACK PRESERVE); AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST SAID EASEMENT ON BEHHALF OF THE CITY; AND PROVIDING AN EFFECTIVE DATE. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Easement Agreement by and between the City of Boise City and Alistair Macmillan and Connie Macmillan, husband and wife, a copy of which is attached hereto as Exhibit A and incorporated herein by reference, be, and the same is hereby, approved both as to form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Easement Agreement for and on behalf of the City of Boise City. Section 3. That this resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise City, Idaho, this day of April APPROVED by the Mayor of the City of Boise City, Idaho this day of April APPROVED: ATTEST: David H. Bieter Mayor Debbie Broughton Ex-Officio City Clerk R

4 After recording, return to: Brian F. McColl Wilson & McColl P.O. Box 1544 Boise, ID EASEMENT AGREEMENT This Easement Agreement ( Agreement ) is made this day of, 2012, by and between: The CITY OF BOISE CITY, an Idaho municipal corporation ( Grantor ) and ALISTAIR MACMILLAN and CONNIE MACMILLAN, husband and wife ( Grantees ). Grantor and Grantees are sometimes individually referred to herein as a Party and are collectively referred to herein as the Parties. RECITALS A. Grantor is the owner of that certain real property commonly known as the Camel s Back Preserve, Boise City, Ada County, Idaho, ( Grantor s Property ), as more particularly described on Exhibit A attached hereto. B. Grantor came into title of Grantor s Property pursuant to that certain Ada County Quitclaim recorded the 10 th day of January, 1933 (the Quitclaim ). C. Grantees are the owners of those certain real properties located at 1300 and 1350 W. Hill Road, Boise City, Ada County, Idaho, ( Grantees Properties ), as more particularly described on Exhibit B attached hereto. D. Grantees Properties and Grantor s Property are located adjacent to each other. E. On information and belief ingress and egress to Grantees Properties has at all times herein, including prior to the Quitclaim, been over that certain unpaved driveway across a portion of the Grantor s Property that is adjacent to the Grantees Properties, as generally and continuously depicted on the Ada County Assessor s aerial images going back to 1939, the earliest such image available. F. Grantor agrees to grant to Grantees a non-exclusive access easement on, over, across, and under that portion of Grantor s Property located adjacent to Grantees Properties as specifically described in Exhibit C ( Easement Area ), subject to the terms and conditions set forth herein. EASEMENT AGREEMENT - 1

5 AGREEMENT 1. Grant of Easement. Grantor hereby grants to Grantee, successor fee holders of Grantees Property, and their successors, assigns, agents, guests and invitees, a perpetual, nonexclusive easement on, over, across, under, and through the Easement Area for the purposes described herein (the Easement ). 2. Purpose of Easement. The Easement shall be used for ingress and egress reasonably necessary for the use of Grantees Property for residential purposes. 3. Non-exclusivity. Grantees right to use the Easement is not exclusive. Grantor and its successors, assigns, agents, guests, and invitees shall have the right to use the Easement Area for all purposes that do not unreasonably interfere with the use of the Easement Area by Grantees, pursuant to the terms of this Agreement. 4. Perpetual Easement. This Easement shall be perpetual. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the benefit, obligation, and use of the successors and assigns of the parties hereto. 5. Property Taxes; Insurance. Grantor shall be responsible for all property taxes applicable to the Easement Area. Grantor shall include the Easement Area within its liability insurance coverage for Grantor s Property. 6. Indemnification. Grantees agree to defend, indemnify and hold harmless Grantor and its partners, agents, employees, successors, and assigns, from any and all claims, demands, liabilities, causes of action, costs or expenses (including reasonable attorneys fees which shall be paid as incurred) of whatever nature lodged or prosecuted by Grantees and their agents, guests and invitees with respect to any injuries, damages, losses or expenses resulting from the exercise of the rights herein granted or from the use of the Easement Area by Grantees, except to the extent caused by Grantor or Grantor s agents, employees, contractors, or licensees. 7. Not a Public Dedication. Nothing contained in this Agreement shall, or shall be deemed to, constitute a gift or dedication of any portion of the Easement Area or the use thereof to the general public, for the benefit of the general public, or for any public purpose whatsoever. Grantor and/or Grantees shall be permitted, from time to time, to take whatever reasonable action one or both deems necessary to prevent any portion of the Easement Area or the use thereof from being dedicated or taken for public use or benefit. 8. Warranty of Title. Grantor covenants to Grantees that (a) Grantees shall enjoy the quiet and peaceful possession of the Easement Area throughout the term hereof; and (b) Grantor is lawfully seized and possessed of the Easement Area and has the right and authority to grant this Easement to Grantee. 9. Miscellaneous. a. Remedies. In the event of a breach hereunder by either Party, the nonbreaching Party shall have all remedies available at law or in equity, including the availability of injunctive relief and the enforcement of specific performance of this EASEMENT AGREEMENT - 2

6 Agreement. If either Party seeks to enforce any of the provisions of this Agreement, then the prevailing Party shall be entitled to recover the prevailing Party s costs incurred thereon, including reasonable attorneys fees and costs, both as to trial and on appeal, and regardless of whether such enforcement proceeds to trial. b. Recordation. This Agreement shall be recorded in the records of Ada County, Idaho. c. Notices. Any notice or demand from Grantor to Grantees or from Grantees to Grantor, including notice of change in address, shall be personally delivered by special courier or mailed by First Class U.S. Mail, postage pre-paid, to the address on file with the Ada County Assessor s Office for purposes of property tax assessments for the fee holders of Grantees Property and Grantor s Property, or such other address as the Parties (or either one of them) shall have last designated by notice in writing to the other Party as provided herein. Notice shall be deemed delivered on the date actually received or two (2) days after mailing, whichever is first. d. Authority. The persons executing this Agreement on behalf of Grantor do hereby certify, by execution hereof, that said persons have been duly authorized to sign this Agreement on behalf of Grantor. e. Counterparts. This Agreement may be executed in counterparts, each part being considered an original document, all parts being but one document. f. Headings. The headings of the several paragraphs contained herein are for convenience only and do not explain, define, limit, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement. g. Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and no warranties, agreements, or representations have been made or shall be binding upon either Party unless herein set forth. [Signatures on following page] EASEMENT AGREEMENT - 3

7 IN WITNESS WHEREOF, this Agreement was executed as of the date first above written. GRANTOR, CITY OF BOISE CITY: ATTEST: David H. Bieter Mayor Debbie Broughton Ex-Officio City Clerk GRANTEES: Alistair MacMillan Connie MacMillan STATE OF IDAHO ) ) ss. County of Ada ) On this day of, 2012, before me, a Notary Public in and for said state, personally appeared David H. Bieter and Debbie Broughton, known to me to be the Mayor and Ex-Officio City Clerk of Boise City, Idaho, respectively, who executed the within instrument, and acknowledged to me that Boise City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) Notary Public for Idaho Residing at My Commission Expires: EASEMENT AGREEMENT - 4

8 STATE OF IDAHO ) ) ss. County of Ada ) On this day of April 2012, before me, a Notary Public in and for said state, personally appeared Alistair MacMillan and Connie MacMillan, known or identified to me, who executed the within instrument, and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) Notary Public for Idaho Residing at My Commission Expires: Schedule of Exhibits: Exhibit A Legal Description of Camel s Back Preserve Exhibit B Legal Description of Grantees Properties Exhibit C Legal Description of Easement Area EASEMENT AGREEMENT - 5

9 EXHIBIT A LEGAL DESCRIPTION FOR CAMEL S BACK PRESERVE EASEMENT AGREEMENT - 6

10 EXHIBIT B PAGE 1 Legal Description for 1300 W. Hill Road, Boise, Idaho: EASEMENT AGREEMENT - 7

11 EXHIBIT B PAGE 2 Legal Description for 1350 W. Hill Road, Boise, Idaho: EASEMENT AGREEMENT - 8

12 EXHIBIT C LEGAL DESCRIPTION CITY OF BOISE/MACMILLAN ACCESS EASEMENT A parcel of land lying in the SE1/4 of Section 34, Township 4 North, Range 2 East, Boise Meridian, in the City of Boise, Ada County, Idaho, said parcel being more particularly described as follows: Commencing at an Aluminum Cap marking the Center of Said Section 34; thence S E feet along the center line of said Section 34 to a point, said point Being the POINT OF BEGINNING; Thence S E feet to a point; Thence S E feet to a point; Thence S W feet to a point on the westerly boundary of said SE1/4; Thence N W along said westerly boundary to the POINT OF BEGINNING; Said parcel contains acres, more or less. EASEMENT AGREEMENT - 9