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Home My WebLink AboutCity Clerk ChecklistCITY CLERK FILE CHECKLIST Project Name: Emerson Park Subdivision Contact Name: Richard Kinder Date Received from Planning and Zoning Department: Planning and Zoning Level: ❑ Transmittals to agencies and others: ❑ Notice to newspaper with publish dates: ❑ Certifieds to property owners: ❑ Planning and Zoning Commission Recommendation Notes: File No. FP 08-016 Phone: 323-2288 September 17, 2008 Hearing Date: and ❑ Approve ❑ Deny City Council Level: Hearing Date: October 7, 2008 x❑ Transmittals to agencies and others: September 23, 2008 ❑ Notice to newspaper with publish dates: N/A and N/A ❑ Certifieds to property owners: ❑ City Council Action: Approve ❑ Findings / Conclusions / Order received from attorney on: Findings / Conclusions Orde . ❑ Approved by Council: ❑ Copies Disbursed: fj , ❑ Findings Recorded Development Agreement: O ❑ Sent for signatures: ❑ Signed by all parties: ❑❑ Approved od: Recorded: ❑ Copies DisbOrdinance No.❑ Approved ❑ Recorded: Deadline: 10 days ❑ Published in newspaper: ❑ Copies Disbursed: Notes: A) " ❑ Deny Rasoludons: Onginal Res/Copy CeIt Minutebook Copy Res/copy Cerc Day clerk Ciy Engineer city Planner City Atlomey Sredng Cod am Project File Depuy Clark Copy Res / Original Cart Ada County (CPAs) AppNcant(,-n RAs) Recorded Orana— C,lglnal Mn-book copies to City Clerk Stare TaK0— State Traasxe,,Adtor,A r Sterling Cocifiem Ciy Alromey Ciy Engineer Ciry Planner Project file Applicant (if appl.) Deputy Clerk Flnd,, a / Orders: Original. Minutebook Copies to Ppplicant Project file City Engineer Ciy Planner Ci y Attorney Deputy Clerk Record Vacadon Flntlnpa" Recorded Development Agraemanta: 0,glna1 Fireproof File Copies Appkc.1 Project file Ciy Einar Ciy Planner Ciy Attomey Deputy cie k �ENty TRANSMITTALS TO AGENCIES FOR COMMENTS ON DEVELOPMENT PROJECTS WITH THE CITY OF MERIDIAN Mayor Tammy de Weerd City Council Members: Keith Bird Joe Borton Charles Rountree David Zaremba To insure that your comments and recommendations will be considered by the Meridian City Council please submit your comments and recommendations to Meridian City Hall Attn: Jaycee Holman, City Clerk, by: September 30, 2008 Transmittal Date: September 23, 2008 File No.: FP 08-016 Hearing Date: October 7, 2008 Request: Final Plat approval for 5 building lots and 1 common lot on 4.80 acres in a C-G zone for Emerson Park Subdivision By: Kuna Victory, LLC Location of Property or Project: 130 E. Victory Road (Lot 4, Block 1, Mussell Corner) Joe Marshall (No FP) David Moe (No FP) Wendy Newton-Huckabay (No FP) Michael Rohm (No FP) Tom O'Brien (No FP) Tammy de Weerd, Mayor Charlie Rountree, C/C Brad Hoaglun, C/C Keith Bird, C/C David Zaremba C/C Water Department Sewer Department Sanitary Services (No VAR, vac, FP) Building Department / Rich Greene Fire Department Police Department City Attorney City Engineer City Planner Parks Department Economic Dev. (CUP only) Your Concise Remarks: Meridian School District (No FP) Meridian Post Office (FP/PP/SHP only) Ada County Highway District Ada County Development Services Central District Health Nampa Meridian Irrig. District Settlers Irrig. District Idaho Power Co. (FP,PP,CUP/SHP only) Qwest (FP/PP/SHP only) Intermountain Gas (FP/PP/SHP only) Bureau of Reclamation (FP/PP/SHP only) Idaho Transportation Dept. (No FP) Ada County Ass. Land Records Downtown Projects: Meridian Development Corp. Historical Preservation Comm. South of RR / SW Meridian: NW Pipeline New York Irrigation District Boise-Kuna Irrigation District City Clerk's Office • 33 E. Idaho Avenue, Meridian, ID 83642 Phone 208-888-4433 • Fax 208-888-4218 • www.meridiancity.org CITY OF .4 Y IDAHO 1� C � 4'fnhnx,a V.�VT` IM of Review Requested (check all that M Alternative Compliance ❑ Annexation and Zoning ❑ Comprehensive Plan Map Amendment ❑ Comprehensive Plan Text Amendment ❑ Conditional Use Permit ❑ Conditional Use Permit Modification ❑ Design Review X Final Plat ❑ Final Plat Modification ❑ Planned Unit Development ❑ Preliminary Plat ❑ Private Street ❑ Rezone ❑ Time Extension (Commission or Council) ❑ UDC Text Amendment ❑ Vacation (Council) ❑ Variance ❑ Other Applicant Information Planning Department COMMISSION & COUNCIL REVIEW APPLICATION City or meridian Planning Department STAFF USE ONLY: File number(s): F d ' U �(r' ALL Project name: C; i+zy scy, iG1:✓ ' Date filed: FS L 69'Date complete: r Assigned Planner: ,Tee• y Related files: (� C-4 ' ( _4 7 - (j�j�� Hearing date: ' ❑ Commission X Council Applicant name: Kuna Victory, LCC Phone: 429-9596 Applicant address: P.O. Box 2020 Boise, ID Zip: 83701 Applicant's interest in property: X Own ❑ Rent ❑ Optioned ❑ Other Owner name: Kuna Victory, LLC Owner address: P.O. Box 2020, Boise, ID Zip: 83701 and 83642 Agent name (e.g., architect, engineer, developer, representative): Richard Kinder Firm name: Toothman-Orton En ineering Co. Phone: 323-2288 Address: 9777 W. Chinden Boulevard Boise, ID Zip: 83714 Primary contact is: ❑ Applicant ❑ Owner X Agent ❑ Other Contact name: Richard Kinder Phone: 323-2288 E-mail: rkinderktoengrco.com Fax: 323-2399 Subject Property Information Location/street address: 130 E. Victory Road Assessor's parcel number(s): R5915720040 Township, range, section: T3N, RIE, Sec 19 Total acreage: 4.80 Current land use: landscapingnursery, ursery, supply business Current zoning district: C-G 660 E. Watertower Lane, Suite 202 • Meridian, Idaho 83642 Phone: (208) 884-5533 • Facsimile: (208) 888-6854 • Website: www.meridiancity.org 1 9NA Project Description Project/subdivision name: Emerson Park Subdivision — Phase 1 General description of proposed project/request: _Re -subdivision of portion of Lot 4 of Block 1 of the Mussell Corner Subdivision into 5 building lots and 1 common lot with internal roads and landscaping. Proposed zoning district(s): C-G (no chance) Acres of each zone proposed: 4.80 Type of use proposed (check all that apply): ❑ Residential X Commercial X Office X Industrial X Other Retail, Service Amenities provided with this development (if applicable): "nark -like" setting consisting of pond sitting area trees Who will own & maintain the pressurized irrigation system in this development? Mussel] Corner Business Assoc Which irrigation district does this property lie within? _Nampa - Meridian Irrigation Primary irrigation source: _Kennedy Lateral Secondary: Domestic Water Square footage of landscaped areas to be irrigated (if primary or secondary point of connection is City water): +/- 45,000 s.f. Residential Project Summary (if applicable) Number of residential units: Number of common and/or other lots: Number of building lots: Proposed number of dwelling units (for multi -family developments only): 1 Bedroom: Minimum square footage of structure(s) (excl. garage): Minimum property size (s.f): Gross density (DU/acre-total land): Percentage of open space provided: Percentage of useable open space: 2 or more Bedrooms: Proposed building height: _ Average property size (s.f.): Net density (DU/acre-excluding roads & alleys): Acreage of open space: (See Chapter 3, Article G, for qualified open space) Type of open space provided in acres (i.e., landscaping, public, common, etc): Type of dwelling(s) proposed: ❑ Single-family ❑ Townhomes ❑ Duplexes ❑ Multi -family Non-residential Project Summary (if applicable) Number of building lots: 5 Other lots: 1 Gross floor area proposed: n/a Existing (if applicable): 20,600sf Hours of operation (days and hours): no restrictions (per Development Agmt) Building height: max 65' (per code) Percentage of site/project devoted to the following: n/a (no buildings are proposed in Phase Landscaping: Building: Paving: Total number of employees: N/A Maximum number of employees at any one time: N/A Number and ages of students/children (if applicable): N/A Seating capacity: N/A Total number of parking spaces provided: N/A Number of compact spaces provided: N/A Authorization Print applicant name: _ Applicant signature: Date: ' 660 E. Watef�towe—i-Lane, Suite 202 • Meridian, Idaho 83642 Phone: 8) 884-5533 . Facsimile: (208) 888-6854 . Website: www.meridiancity.org 2 (Rev. 9121106) TOOTHMAN-ORTON ENGINEERING COMPANY CONSULTING ENGINEERS, SURVEYORS AND PLANNERS 9777 CHINDEN BOULEVARD BOISE, IDAHO 83714-2008 208-323-2288 9 FAX 208-323-2399 August 20, 2008 boise@toengrco.com City of Meridian Planning Department 660 E. Watertower Street, Suite 202 Meridian, Idaho 83642 RE: Elverson Park Subdivision— Phase 1 Dear Planning Department: Attached please find the Final Plat Application and Final Construction Plans for Phase 1 of the Emerson Park Subdivision. The submittal package includes the following: 1. Completed and signed Commission & Council Review Application 2. Project narrative letter 3. Legal Description 4. Recorded warranty deed 5. Scaled Vicinity Map 6. Check in the amount of $1,458.00 for Final Plat fee 7. Copy of the approved Preliminary Plat 8. Copy of the Ada County Street Name Evaluation letter 9. Final Construction Plans and Landscape Plans (3 copies) 10. Storm Drainage Report 11. Erosion and Sediment Control Report 12. Statement certifying street finish centerline elevations. 13. Final Plat including signature sheet (32 copies) 14. Reduction of the Final Plat (8-1/2" x 11") 15. Reduction of the Landscape Plan (8-1 /2" x 11 ") 16. Sewer and Water Easement Legal Description and Exhibit 17. Disk with CAD files and .pdfs of the approved preliminary plat, final plat, and landscape plan. Please note that Meridian Standard Drawings and Details referenced in the Construction Plans are not the most current version. Bruce Freckleton, Development Services Manager, approved the use of these standards on July 31, 2008 based on the progress of design plans. BOISE • COEUR WALENE • CALDWELL TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase I Cover Letter — Page 2 of 2 August 20, 2008 Thank you for considering Phase I of the Emerson Park Subdivision. If you have any questions please call me. Sincerely, TOOTHMAN-ORTON ENGINEERING COMPANY Richard Kinder, PE Prqject Manager cc. Chris Tverdy, Oaas Laney TOOTHMAN-ORTON ENGINEERING COMPANY CONSULTING ENGINEERS, SURVEYORS AND PLANNERS 9777 CHINDEN BOULEVARD BOISE, IDAHO 83714-2008 208-323-2288 • FAX 208-323-2399 August 20, 2008 boise@toengrco.com City of Meridian Planning Department 660 E. Watertower Street, Suite 202 Meridian, Idaho 83642 RE: Emerson Park Subdivision — Phase 1 Subject: Narrative Dear Planning Department: At this time, we are requesting Final Plat approval for Phase 1 of Emerson Park Subdivision. Project Description The Elverson Park Subdivision, comprising of 17.85 acres, is a re -subdivision of Lots 1 and 4, Block 1 of the Mussell Corner Subdivision, located at the northeast corner of Kuna-Meridian Road (SH69) and Victory Road. The intent of the development is to divide the subject property into reasonable sized lots for individual or multiple sales, to facilitate light industrial, commercial, retail and service markets. Phase 1 of the Emerson Park Subdivision comprises of 4.80 acres located primarily along the East Victory Road frontage. The intent of Phase 1 is to plat 5 commercial lots and 1 common lot; construct the initial 200 feet of a new public road and temporary turnaround, including landscape buffer; public utilities, and domestic water, sewer and irrigation service to each lot. Background The property was annexed into the City of Meridian (AZ-03-038) with a C-G zoning in 2003. A Development Agreement was approved with annexation (Instrument No. 104153422) and amended in 2006 (Instrument No. 106155843). The property was platted (PFP-03-007) in 2004 as Lots 1, 2, and 4, Block 1 of Mussell Corner Subdivision. A Conditional Use Permit/Planned Development (CUP-03-071) was approved in 2004 for a combination feed stor and gas/convenience station (which are not a part of the subject plat) and to allow the existing commercial and residential uses to remain. The City of Meridian City Council approved the Findings of Fact, Conclusion of Law and Decision & Order for the Emerson Park Subdivision preliminary plat on December 18, 2007 (case no. PP-07-014). The development is submitting a Miscellaneous application to amend the existing Development Agreement for this site to reflect the conditions of approval of the preliminary plat. Zoning The current C-G (General Retail and Service Commercial) zoning will remain the same. . BOISE - COEUR d'ALENE - CALDWELL TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase 1 Narrative — Page 2 of 6 August 20, 2008 Variance The development is submitting an application for a Alternative Compliance for reduced buffer width along Victory Road. The development will meet all other current zoning codes and preliminary plat conditions of approval. Building and Common Lots Phase 1 of the Emerson Park Subdivision consists of 5 building lots and 1 common lot. The existing buildings located on Block 1, Lot 2 and Block 2, Lot 2 will remain. The common lot located on Block 1, Lot 3 consists of an existing pond, sitting area, and mature trees located in the interior of the development. Planned Use The planned use for the development will conform to the permitted uses of the C-G Zoning, with the market tailored to light industrial, commercial, retail, and service. The development of future building and associated parking on individual or multiple lots will be submitted to the City of Meridian staff for review as appropriate. Access and Roadway System South Holleran Place, an internal public street meeting the requirements of ACHD, will be the primary access into the development from Victory Road. South Holleran Place will be constructed to the phase boundary. A temporary cul-de-sac will be placed at the terminus of the road in accordance with ACHD standards. A blanket cross access agreement has been created to allow access to all proposed lots within the proposed development area. Sewer The City of Meridian Public Works has recently constructed a 27" diameter sewer trunk line, commonly referred to the Black Cat Trunk Line, from Overland to the intersection of Kuna- Meridian Road and Victory Road. Emerson Park Subdivision Phase 1, through a Reimbursement Agreement, will extend the 27" diameter sewer trunk line along Victory Road from the intersection with Kuna-Meridian Road to the eastern property boundary. Emerson Park Subdivision Phase 1 will provide a sewer line within South Holleran Place and services to individual lots within the development. The sewer line will connect to the 27" diameter sewer trunk line in Victory Road. Water Water service will be provided by the City of Meridian from existing 12" waterline located within Victory Road. Emerson Park Subdivision Phase 1 will provide a water line within South Holleran Place and services to individual lots with the development, including fire protection. \•/ u TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase 1 Narrative — Page 3 of 6 August 20, 2008 Storm Drain Ultimately at full build -out, a central storm drainage system will handle storm drainage from a majority of the proposed lots and the internal streets. Emerson Park Subdivision Phase 1 will retain roadway storm drainage from South Holleran Place in a temporary retention ditch at the end of the cul-de-sac. Each lot in Phase 1 will be required to provide individual storm drain systems to retain all storm drain on their respective lot. Pressurized Irrigation Irrigation waters are provided from the Kennedy Lateral. The Mussell Corner Subdivision provided a pressurized irrigation system consisting of pump station and pressurized irrigation lines around the perimeter of the property to serve the development. Emerson Park Subdivision Phase 1 will extend the pressurized irrigation lines to the individual lots and landscape areas. Landscaping and Open Space Phase 1 will preserve the existing landscaped buffer zone located along Victory Road frontage. Likewise, a common area consisting of existing of a pond, sitting area, and mature trees will remain. This common area is centrally located within the proposed development. Phase 1 will provide a 10' wide landscape strip behind the sidewalk along the internal roads. An application for Alternative Compliance to reduce the width of landscape buffer along Victory Road has been submitted concurrently with this application. Conditions of Approval — Preliminary Plat Phase 1 of the Emerson Park Subdivision conforms with the approved Preliminary Plat for Emerson Park Subdivision and meets all the requirements and conditions thereof. The proposed street layout in Phase 1 has been modified slightly but still meets the intent of the original approved development. The development is in conformance with all the requirements and provisions of the UDC. The development complies with acceptable engineering, architectural and surveying practices and local standards. The following comments address the specific Conditions of Approval as stated in the City of Meridian Planning Department Staff Report for the Hearing Date of October 23, 2007, "Exhibit C." Planning Department — Site Specific 1.1.1 A Miscellaneous application to amend the existing Development Agreement has been concurrently with this application. 1.1.2 Complied. See note on Final Plat. 1.1.3 Complied. See note on Final Plat. 1.1.4 Condition has been striked through. 1.1.5 Will be addressed in future phases; not applicable for Phase 1. 1.1.6 a. Completed with development of Mussell Corner Subdivision. b. Application for Alternative Compliance has been submitted concurrently with this application. TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase 1 Narrative — Page 4 of 6 August 20, 2008 C. Complied. See Landscaping Plan. d. Will be addressed in future phases, not applicable for Phase 1. e. Will be addressed in future phases, not applicable for Phase 1. f. Condition has been striked through. g. Complied. See Landscaping Plan notes. h. Complied. See Landscaping Plan. 1.1.7 Landscaping buffer along Kuna-Meridian Road was completed with development of Mussell Corner Subdivision; Application for Alternative Compliance has been submitted concurrently with this application for reduced landscape buffer along Victory Road; Complied with landscape buffer along South Holleran Place, see Landscaping Plans. 1.1.8 Complied. See Development Agreement modification. 1.1.9 Complied. See Instrument No. 1.1.10 Complied. 1.1.11 Not applicable. No fill is proposed for building pads on Phase 1. 1.1.12 Will be addressed in future phases; not applicable for Phase 1. 1.1.13 Will be addressed in future phases; not applicable for Phase 1. 1.1.14 Phase 1 will provide re -circulating water and be maintained by the Business Owner's Association. Planning Department — General Requirements 1.2.1 There is an existing concrete sidewalk along the Victory Road frontage. Phase 1 will provide a 5' concrete sidewalk adjacent to curb along South Holleran Place. 1.2.2 Detailed fencing plans are contingent on the development plans of individual lot owners. Fencing plans will be submitted for individual lots during the CZC application process. 1.2.3 Complied. Phase 1 does not proposed to remove any trees over 4" caliper. 1.2.4 So noted. 1.2.5 So noted. Public Works Department 2.1 Complied. Through a reimbursement agreement, Phase 1 will construct the 27" diameter sewer trunk line along Victory Road from intersection with Kuna-Meridian Road to the eastern boundary line. Phase 1 sewer will connect to the 27" sewer trunk line in Victory Road. 2.2 Complied. Phase 1 will provide an 8" water main and will connect to the existing 12" water main in Victory Road. 2.3 Complied. A twenty -foot wide easement is proposed for public water/sewer mains located along the north property line of Block 2, Lots 1 and 2. 2.4 Complied. There is an existing pressurized irrigation system within the development utilizing surface water from the Kennedy Lateral. Phase 1 will extend the pressurized irrigation system to each individual lot and landscaping. The backup source is City water. There is an existing single point connection and R.P.B.A. located on Block 2, Lot 2. 2.5 Complied. The existing well located on Block 1, Lot 2 will be abandoned per IDEQ guidelines. TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase 1 Narrative - Page 5 of 6 August 20, 2008 2.6 Complied. There are no open irrigation ditches, laterals or canals within the development. 2.7 Complied. A site drainage report has been provided. All storm drainage will be retained on the site. 2.8 Will comply if elect to post surety. 2.9 So noted. 2.10 So noted. 2.11 Complied. A Storm Water Pollution Prevention Plan and Erosion and Sediment Control Report have been submitted along with Final Construction Plans. 2.12 COE 404 permit is not required. 2.13 So noted. 2.14 Complied. No fill is proposed for building pads on Phase 1. 2.15 Complied. An engineer's certification is included with this application. 2.16 No streetlights are proposed. Meridian Fire Department 3.1 Fire protection supply requirements will be by Meridian Fire Department and water quality by Meridian Public Works during construction. 3.2 Fire hydrant locations are shown on the construction plans and will be reviewed by the Meridian Fire Department. 3.3 Complied. A temporary turnaround with 55' radius (to edge of pavement) is proposed for South Holleran Place. 3.4 Complied. 3.5 Complied. 3.6 No combustible construction is proposed as part of Phase 1. 3.7 So noted. See construction plans for placement of fire hydrants. 3.8 No signalization is proposed in Phase 1. 3.9 So noted. Not applicable for development of Phase 1. 3.10 So noted. Not applicable for development of Phase 1. 3.11 So noted. Not applicable for development of Phase 1. 3.12 In a phone conversation with City of Meridian staff (Karie Glenn) on Aug. 04, 2008 it was determined that lots fronting Victory will continue to have a Victory Road address. 3.13 Complied. 3.14 So noted. Not applicable for development of Phase 1. 3.15 See construction plans for location of fire hydrants. 3.16 So noted. Not applicable for development of Phase 1. No buildings proposed. 3.17 Will be addressed in future phases; not applicable for Phase 1. 3.18 Complied. No speed bumps are proposed. 3.19 So noted. Not applicable for development of Phase 1. No buildings proposed. Police Department 4.1 No concerns. 111 / u TOOTHMAN-ORTON ENGINEERING COMPANY City of Meridian Emerson Park Subdivision - Phase 1 Narrative — Page 6 of 6 August 20, 2008 Parks Department 5.1 No concerns. Sanitary Service Company 6.1 No modification is proposed at this time. Ada County Highway District 7.1.1 Complied. 7.1.2 Not applicable for development of Phase 1. 7.1.3 Not applicable for development of Phase 1. 7.1.4 Not applicable for development of Phase 1. 7.1.5 Complied. 7.2.1 Complied. 7.2.2 Complied. No private sewer/water systems are proposed. 7.2.3 So noted. 7.2.4 So noted. All existing damaged curb, gutter and sidewalk at the intersection of East Victory Road and South Holleran Place will be replaced during construction 7.2.5 The development is in compliance with the District's Tree Planter Width Interim Policy. 7.2.6 So noted. 7.2.7 Complied. 7.2.8 So noted. 7.2.9 So noted. 7.2.10 So noted. 7.2.11 So noted. 7.2.12 So noted. 7.2.13 So noted. Thank you for your consideration of this project. Please don't hesitate to contact us if you have any questions regarding this submittal. Sincerely, TOOTHMAN-ORTON ENGINEERING COMPANY Richard C. 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I I Is s N ar15'30" s ar15WE teem' f i $j r• & „y�i& / a 1------- sSAt Wtp, / /; t 4Q�;` A 8� / ?�. •r . rr 5 art5mi ys�. -- %ar' WAO' - ALmppn 5 oT--- � b r x,-m'gva¢xow 12 n - R � �« YR � � •g's$ d / I F90 ' AJ y0 e7.m' 94W w W.w "-64. C57 `' $b «� erJ L5� $ to 6 5 15,30, E AMl 90W6Y 5 co u. L�1 n 8 L2y 751ar 166.68' L10 IlJ �' /. 33YY tmm a � lmm' �1.�' `^., tza z .[[•zs A 00 Y n aR ID $8 N q oar i �= $= M9019-t A I _ bonzr - - W a r 14ELCI 3 •6f8Zpp N -asfs m'x, 0 0� e u' J y w a311V7dN11 UU0 O m W U) $ & QrOtl IMCI163N 'g 'WH "NC'1 Aj` OZz Ak "NC'1 Y n 0 A N N wsu Hearing Date: October 7, 2008 File No.: FP-08-016 Project Name: Emerson Park Subdivision Request: Final Plat approval for 5 building lots and 1 common lot on 4.80 acres in a C-G zone by Kuna Victory, LLC. Location: 130 E. Victory Road, east of S. Kuna-Meridian Road and north of E. Victory Road, a resubdivision of a portion of Lot 4, Block 1, of Mussell Corner Subdivision located in Gov't Lot 4, of T. 3N., R. 1 E., Section 19. SEp 1 7 2008 `� ► , L) Cl� P P. K IDSOS Viewing Business Entitv Page 1 of 1 `IDAHO SECRETARY OF STATE Viewing Business Entity Ben Ysursa, Secretary of State [ New _Search ] [ Back to Summary ] [ Get a certificate of existence for KUNA VICTORY LLC ] KUNA VICTORY, LLC PO BOX 2020 BOISE, ID 83701 Type of Business: LIMITED LIABILITY COMPANY Status: EXISTING, ANREPT SENT 01 Feb 2008 State of Origin: IDAHO Date of 08 Apr 2004 Origination/Authorization: Current Registered Agent: STEVEN H LANEY 519 W FRONT ST BOISE, ID 83702 File Number: W29800 Date of Last Annual Report: 10 Apr 2008 Original Filing: Filed 08 Apr 2004 ARTICLES OF ORGANIZATION Amendments: Annual Reports: Report for year 2008 ANNUAL REPORT Report for year 2007 ANNUAL REPORT Report for year 2006 ANNUAL REPORT Report for year 2005 ANNUAL REPORT Idaho Secretary of State's Main Page [ Help Me Print/View TIFF ] View Image (PDF formaQ View Image (TIFF forma [ Help Me Print/View TIFF ] [ Helg.__Me Print]View TIFF ] View Image (PDF ._format) View Image (TIFF format] View Image (PDF format) View Image (TIFF format) View Image (PDF formats View Image (TIFF format] View Image (PDF format) View Image (TIFF format) State of Idaho Home Page Comments, questions or suggestions can be emailed to: sosinfo@sos.idaho.gov http://www.accessidaho.org/public/sos/corp/search.html?ScriptForm. startstep=viewentity... 8/26/2008 TOOTHMAN-ORTON ENGINEERING COMPANY CONSULTING ENOINEERS, SURVEYORS AND PLANNERS 9777 CHINDEN BOULEVARD BOISE, IDAHO 83714-2008 208-323-2288 • FAX 208-323-2399 boiseOtoengrco.com EXHIBIT "A" Plat Description for Emerson Park Subdivision -Phase 1 A re -subdivision of a portion of Lot 4, Block 1 of MUSSELL CORNER SUBDIVISION, filed in Book 95 of Plats, at Pages 11624-11626, Records of Ada County, Idaho, located in Government Lot 4 of Section 19, Township 3 North, Range 1 East, Boise Meridian, City of Meridian, Ada County, Idaho, being more particularly described as follows: COMMENCING at a found Aluminum monument, marking the Southwest corner of Section 19, Township 3 North, Range 1 East, Boise Meridian, from which a found Aluminum monument, marking the West Quarter corner of said Section 19, bears N.00938'28"E., 2660.89 feet; thence, along the South line of said Section 19, A) N.89°42'22"E., 1130.31 feet to a found 5/8-inch iron pin, marking the Southeast corner of Government Lot 3; thence, along the East line of said Government Lot 3, B) N.00°29' 16"E., 48.00 feet to point on the North right-of-way line of East Victory Road, marking the POINT OF BEGINNING, thence, along said right-of-way line, 1) S.89°42'20"W., 880.12 feet to the Southeast corner of Lot 3, Block 1 of said MUSSELL CORNER SUBDIVISION; thence, along the easterly line of said Lot 3, the following courses: 2) N.00038'28"E., 192.03 feet; thence, 3) N.89°42'22"E., 90.01 feet; thence, 4) N.00°38'28"E., 80.51 feet; thence, leaving said easterly line, 5) S.89°04'23"E., 247.81 feet to the beginning of a tangent curve; thence, 6) Southeasterly along said curve to the right, having a radius of 73.00 feet, an arc length of 107.86 feet, through a central angle of 84°39'25", of which the long chord bears S.46°44'40"E., 98.31 feet; thence, along a line non -tangent from said curve, 7) N.85°35'01"E., 54.00 feet; thence, 8) N.04°24'57"W., 28.77 feet; thence, 9) N.89°59'31"E., 418.00 feet to the East line of said Government Lot 3; thence, along said East line, 10) S.00°29' 16"W., 230.00 feet to the POINT OF BEGINNING, CONTAINING: 4.80 Acres, more or less. G:\07068\%VPlilcs\SURVEY DESCRIPTIONS\ExhA-Plat Description.doc BOISE - COEUR d'ALBIVB - CAL DWELL ADA COUNTY RECORDER J, DA., ,4AVARRO AMOUNT 300 BOISE IDAHO 12126106 04:40 PM R"UTY Lisa Irby RECORDED-REOUEST OF III IIIIIIAf IIIIII�IIIIIlI111I11l 1111 Alliance TWO 106199772 WARRANTY DEED FOR VALUE RECEIVED Tim J. Mussell and Carol M. Mussell, husband and wife, the grantors, do hereby grant, bargain, sell and convoy unto Kuria Victory, LLC, an Idaho limited liability company, whose current address is P,O. Ilox 2020,1toisc, ID 83701 the grantee, the following described premises, In Ada County, Idaho, TO WIT: Any and all Interest In Lot 4 in Block 1 of Mussell Corner Subdivision, according to the official plat thereof, flied in Book 95 of flats at Page(s)11624 through 11626, Official Records of Ada County, Jdabo. TO HAVE AND TO HOLD the said promises, with their appurtenances tmto the said Grantee, beirs and assigns forever. And the said Grantors do hereby covenant to and with the said Grantee, that they are the owners in fee simple of said premises: that they am free from all encumbrances Except; Current Year Taxes, conditions, covenants, restrictions, reservations, easements, rights and rights of way, apparent or of record. And that they will warrant and defend the same from all lawful claims whatsoever. Dated: December 21, 2006 Tim 1. Mu9sell Carol M. Mussell State of Idaho j �dci� }ss County of } On this 11_ef day of -. _ _ 2006, before me, a Notary Public in and for said state, personally appeared Tim J. Mussoll mid Carol M. Mussell, known or identified to me to be the persons whose names are subscribed to the within Instrument and acknowledged to me that they ex9cutcd same, 1N WITNESS WIIBRE017, I have hereunto set my band and affixed my oofficiallsse)al the day and year in lids certificate first above written, W444i ��sstuuhtQif�12P.eJ ,•` t' ,..i Notary Public for the Stale ofldaho � -- °�,pl"�..ra. Rcsidiog at ::� . :ji •. CommissionHxAommisslon EXpires 05.01-2009 y r �p1 AR p A. Re®Iding In Merldlan, Idaho ...�• 3 :, f'uoV,G o ►„.►►Pella" FINAL revised _ 8/'14/2008 ADA COUNTY STREET NAME EVALUATION SUBDIVISION NAME: EMERSON PARK SUB NO 1 AGENCY and AGENCY FILE NO: Meridian: PP 07-014 SECTION/ TOWNSHIP/ RANGE: 3N 1 E 19 DEVELOPER: TOOTHMAN-ORTON ENGINEERING COMPANY The street name comments listed below are made by the members of the ADA COUNTY STREET NAME COMMITTEE (Under the direction of the Ada County Engineer) regarding this development in accordance with the Ada County Street Name Ordinance. Overall final street names are subject to change at Final Plat phase levels due to design changes, time restraints and/or previous recorded plat street alignments. THE FOLLOWING EXISTING STREET NAMES SHALL APPEAR ON THE PLAT: S. KUNA MERIDIAN RD • E. VICTORY RD -- THE FOLLOWING PROPOSED STREET NAMES ARE APPROVED: S. HOLLERAN PL THE FOLLOWING PROPOSED STREET NAMES ARE DENIED: THE FOLLOWING CHANGES OR CORRECTIONS NEED TO BE MADE: NOTE: IF THERE ARE CORRECTIONS AND CHANGES RECOMMENDED, PLEASE MAKE THESE CHANGES ON THE SUBDIVISION PLAT AND RESUBMIT TO THE COMMITTEE. A FINAL REVIEW WITH NO CHANGES REQUIRED AND THE MATCHING PLAT MUST BE PRESENTED TO THE ADA COUNTY ENGINEER AT TIME OF RECORDING. ADA COUNTY ENGINEER MERIDIAN FIRE DEPARTMENT ADA COUNTY HIGHWAY DIS ADA COUNTY SHERIFF Street Approval Sent: Jim Farrens Representati Representati Representative Representative DATE 9 _, y - Z)g DATE" DATES l �f-D6 DATE 4 - DATE I s: Page 1 of 2 Kinder, Rich From: Taylor, Ben Sent: Thursday, July 12, 2007 2:15 PM To: Kinder, Rich; Emerson, Lindsay Subject: FW: Subdivision Name Reservation Yay!! From: David Couch [mailto:dscouch@adaweb.net] Sent: Thursday, July 12, 2007 2:14 PM To: Taylor, Ben Subject: RE: Subdivision Name Reservation July 12, 2007 Ben Taylor Toothman-Orton Engineering RE: Subdivision Name Reservation: "EMERSON PARK SUBDIVISION" Dear Applicant, At your request, I will reserve the name "EMERSON PARK SUBDIVISION" for your project. I can honor this reservation only as long as your project is in the approval process. Final approval can only take place when the final plat is recorded. Sincerely, David J. Couch, PLS Ada County Surveyor For procedure on reserving subdivision names go to: littp;//www_adaweb.net/devserv/survey,/Rsubname.htm Check out the list of subdivision names at: http://xvww.Adavvgb.net/devserv/stirvev/subnaiiies.htm From: Taylor, Ben [mailto:BTaylor@toengrco.com] Sent: Thursday, July 12, 2007 11:20 AM To: David Couch Subject: RE: Subdivision Name Reservation The parcel is located in a portion of Gov't Lot 4, Section 19, Township 3 North, Range I East, Boise Meridian. City of Meridian, Ada County, Idaho. Thanks, Ben Taylor, C.A.D. Technician, Toothman-Orton Engineering Co. tel.: 208-323-2288 fax: 208-323-2399 email: Way lor@,toengrco,coin Q TOOTHMAN-ORTON ENGINEERING COMPANY CONSULTING ENGINEERS, SURVEYORS AND PLANNERS August 20, 2008 City of Meridian Planning Department 660 E. Watertower Street, Suite 202 Meridian, Idaho 83642 9777 CHINDEN BOULEVARD BOISE, IDAHO 83714-2008 208-323-2288 • FAX 208-323-2399 boise@toengrco.com Reference: Emerson Park Subdivision Phase 1 Subject: Street Finish Centerline Elevation Certification To whom It May Concern: I hereby certify that all street finish centerline elevations within Emerson Park Subdivision Phase 1 are set a minimum of three feet above the highest established normal groundwater elevation. A Geotechnical Engineering Report, dated August 24, 2006, prepared by Materials Testing and Inspection (MTI File Number 861230g) reports groundwater to remain at depths greater than 16 feet below ground surface throughout the year. Please contact me if you have any questions on this matter. Sincerely, TOOTHMAN-ORTON ENGINEERING COMPANY Richard Kinder, PE Project Manager BOISE • COEUR d'ALENE • CALDNVELL TOOTHMAN-ORTON ENGINEERING COMPANY CONSULTING ENGINEERS, SURVEYORS AND PLANNERS Project No: 07068 Date: July 30, 2008 Page: 1 of I 9777 CHINDEN BOULEVARD BOISE, IDAHO 83714-2008 208-323-2288 • FAX 208-323-2399 boise@toengrco.com EXHIBIT "A" Sewer & Water Easement Description A 20-foot wide strip of land being a portion of Lot 4, Block 1 of MUSSELL CORNER SUBDIVISION, filed in Book 95 of Plats at Pages 11624-11626, Records of Ada County, Idaho, located in Government Lot 4 of Section 19, Township 3 North, Range 1 East, Boise Meridian, City of Meridian, Ada County, Idaho, being more particularly described as follows: COMMENCING at the Southeast corner of Government Lot 4 of Section 19, from which the Southwest corner of said Section 19, bears S.89°42'22"W., 1130.31 feet; thence, along the East line of said Government Lot 4, A) N.00°29' 16"E., 48.00 feet to the Southeast corner of said Lot 4, Block 1 of MUSSELL CORNER SUBDIVISION; thence, along the East line of said Lot 4, also the East line of said Government Lot 1, B) N.00.29' 16"E., 229.99 feet to the POINT OF BEGINNING; thence, 1) S.89°59'31"W., 418.00 feet; thence, 2) N. 04°24'57"W., 20.06 feet; thence, 3) N.89°59'31"E., 419.71 feet to the East line of said Lot 4, Block 1; thence, along said East line. 4) S.00°29' 16"W., 20.00 feet to the POINT OF BEGINNING. CONTAINING: 8,377 square feet, more or less. SUBJECT TO: All Covenants, Rights, Rights -of -Way and Easements of Record. Reference is made to a map entitled, "Exhibit B-City of Meridian Sewer/Water Easement, which is hereby made a part of this description. G:'\07068\\\Tf Ies\SI'RVFY DESCRIPTIONSTAIiA-Sewer K Water Esint.doc BOISE • GOEUR d'ALFINE • CALDWELL Page 1 of 1 Jennifer Veatch From: Kinder, Rich [rkinder@toengrco.com] Sent: Friday, September 05, 2008 11:02 AM To: Jennifer Veatch Cc: Chris Tverdy Subject: Emerson Park Cross Access and Landscape Attachments: Mussel Corner Cross Access Agreement.pdf; Observation Point Final Plat.pdf; Lot 2 Block 2 Observation Point.pdf Jenny, attached is copy of existing Mussel Corner Cross Access Agreement for your records. Note we will be preparing an additional cross access agreement that allows access through each lot via drive isles. Note this easement has not been formalized as of this date. I understand the Meridian code requires a 25' wide landscape buffer adjacent to residential use, and we will have to comply with this condition specifically along the eastern boundary (Observation Point) even though it was not included in the site specific conditions for approval. We will either provide grasses within the existing 18' wide public utility easement and trees outside the utility easement, or provide a fence/barrier and apply for an Alternative Compliance. I'll get back with you and provide revised site plan and landscape drawings as necessary. I also attached the Observation Point final plat and aerial photo of lot 2 block 2 for your reference. Regarding a License Agreement with ACHD for landscaping along Victory Rd, I can't find the requirement under the Mussel Corner conditions. Please direct me to this requirement. Additionally, I have not been able to locate an agreement and would assume one has not been been executed. We will discuss with ACHD and obtain the necessary agreements. Lastly, to confirm our discussion a week ago, Lot 3, Block 1 will be a common lot for the pond. Thanks and call with any questions. Richard C. Kinder, PE Toothman-Orton Engineering Company 9777 Chinden Blvd. Boise, ID 83714 (208) 323-2288 www.toengrco.com "This message is confidential, engineer-client/work product protected, and is intended only for use by the intended recipient. Any other use is expressly prohibited and any violation will result in prosecution to the fullest extent of the law. If you receive this message by mistake please destroy it immediately. Thank you." 9/5/2008 Lot 2, Block 2 Observation Point SCALE 1 : 1,451 100 0 100 200 300 FEET A, ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 33.00 it BOISE IDAHO 111ING 03:40 PM DEPUTY BonillaObtfrbillip After Recording, RECORDED —REQUEST OF 165175654 Return to Wink Buller Lauren Maiers Reynoldson Spink Butler, LLP P.O. Box 639 Boise, ID 83701 NATURAL POND EASEMENT AGREEMENT This Natural Pond Easement Agreement ("Agreement") is made this Ao—Nay of November, 2005, by Kuna Victory, LLC, an Idaho limited liability company ("Declarant"). RECITALS A. The Mussel] Corner Subdivision is that certain parcel of real estate located at the northeast corner of Kuna-Meridian Road and Victory Road in the City of Meridian, County of Ada, State of Idaho, as more particularly described on Exhibit A attached hereto and made a part hereof (hereafter "Property"). The Property is divided into four (4) separate lots (each, a "Lot'), as depicted on that certain final subdivision plat for Mussell Corner Subdivision, attached hereto as Exhibit B, and made a part hereof (the "Plat"), which Plat shalt be recorded in the Ada County, Idaho Recorder's office. Declarant owns fee simple title to Lots 1 and 4; Timothy J. and Carol Mussell, husband and wife (collectively, "Mussell") own fee simple title to Lot 2; and R.R. Davis Properties, Inc., an Idaho corporation ("Davis") owns fee simple title to Lot 3. Declarant, Mussell and Davis, and their respective successors and assigns, may be collectively referred to herein as the "Owners". B. There is a pond amenity located on Lot 4 (the "Pond"). Declarant desires to declare, create and provide for the use and benefit of the Lots, subject to the limitations hereinafter provided, a reciprocal, perpetual and non-exclusive easement for maintenance and repair of the Pond. C. Declarant also desires and Jntends that the singular or several Owners of the Lots and such other persons as from time to time shall possess or acquire an interest in the Lots or any portion thereof, and all customers, employees, licensees, tenants and business invitees of such occupants and their respective successors and assigns (the "Permitees") shall at all times enjoy the benefits of the Pond, and the Owners shall at all times hold their interests subject to, the rights, easements, privileges and restrictions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the terms of this Agreement, and in consideration of the recitals above which are incorporated below as if set forth in full herein, and the premises and the mutual undertakings and agreements hereinafter contained, Declarant hereby declares and grants as follows. ARTICLE I Use, Access, Relocation and Reconfiguration 1.1 Pond Easement. Declarant hereby declares, creates and grants for its own use and the use of the Owners and the Permittees, subject to all existing easements, encumbrances and restrictions of record, and subject to such reasonable rules and regulations as Declarant may establish or impose, as an easement appurtenant to and for the benefit of the Property and the Lots, a perpetual, non-exclusive easement upon, over and across the Pond Easement Parcel, as defined below, solely for the limited purposes of use, maintenance and repair of the Pond (the 'Natural Pond Easement"). The Natural Pond Easement shall be located over, upon and across the "Natural Pond Easement Parcel," as depicted on Exhibit B, and more particularly described on Exhibit C attached hereto and made a part hereof. NATURAL POND EASEMENT AGREEMENT — Page 1 S:1DocslOaas Laney, LLCIVlctory Corner Sale1AGWNatural Pond Easement Agreement (FINAL 114-05),DOC 1.2 Use. Use of the Natural Pond Easement Parcel is not hereby exclusively granted but shall be in common with the use thereof by Declarant, the Owners, and the Permittees of those portions of the Lots upon which the Natural Pond Easement Parcel is located. Declarant shall be entitled to use those portions of the Natural Pond Easement Parcel for those uses provided herein and for any other reasonable uses so long as such other uses do not interfere with or obstruct the use of the Natural Pond Easement Parcel by Declarant, the other Owners, or the Permitees. Declarant shall specifically have the right upon those portions of the Natural Pond Easement Parcel to make any use of the subsurface of such Natural Pond Easement Parcel at Declarant's sole cost and expense, so long as such use does not interfere with or obstruct either the Declarant, the Owners, or the Permittees' use as provided herein. 1.3 Relocation and Reconfiguration. Upon execution of this Agreement, Declarant shall have the right, from time to time, to relocate andlor reconfigure all or that portion of the Natural Pond Easement Parcel, all at the sole cost and expense of Declarant, provided, however, nothing Declarant does in connection with such relocation andlor reconfiguration shall: (a) permanently interfere with the use and benefit of the Natural Pond Easement Parcel by Declarant, the Owners and the Permittees; or (b) materially reduce the size of the Natural Pond Easement Parcel without the prior written consent of the applicable governmental agencies. 1.4 Indemnification. Each Owner including Declarant, by accepting a deed to a Lot, hereby agrees to indemnify, defend and hold Declarant and the other Owners harmless from and against any and all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, andlor judgments (including reasonable costs and attorney fees) for injury to or death of any person or damage to or destruction of any property occurring within the Natural Pond Easement Parcel as a result of any act or omission of the indemnifying party. 1.6 Casualty and Condemnation. In the event all or any portion of the Natural Pond Easement Parcel is: (i) damaged or destroyed by fire or other casualty; or (H) taken or damaged as a result of the exercise of the power of eminent domain or any transfer in lieu thereof, Declarant shall promptly restore, or cause to be restored, that portion of the Natural Pond Easement Parcel lying upon Lot 4. ARTICLE 11 Taxes and Maintenance of Natural Pond Easement Parcel 2.1 Taxes. Declarant shall be obligated to pay when due all real estate and other taxes and assessments related to the Natural Pond Easement Parcel. 2.2 Maintenance of Natural Pond Easement Parcel, Mussel) Corner Business Owners Association, Inc., an Idaho nonprofit corporation ("Owners Association") shall maintain, or cause to be maintained, the Natural Pond Easement Parcel in good condition and repair, and provide Maintenance, defined below. "Maintenance" of the Natural Pond Easement Parcel shall include, without limitation: A. Maintenance, repair and replacement of the surface and subsurface of the Natural Pond Easement Parcel, as necessary, to maintain the Natural Bond Easement Parcel in good repair and condition including, without limitation, maintaining the landscaping on the Natural Pond Easement Parcel surrounding the Pond, cleaning the Pond as necessary, planting appropriate vegetation at or near the Pond, aerating the Pond as necessary, and all other activities deemed reasonably necessary by the Owners Association to maintain the Pond in its clean and pristine nature. B. Removal from the Natural Pond Easement Parcel of paper, rubbish, debris, and other hazards to persons using the Natural Pond Easement Parcel. NATURAL POND EASEMENT AGREEMENT-- Page 2 S_\Docs\0aas Laney, LLMVictory Corner SaleVAGWNatural Pond Easement Agreement (FINAL 11A-05).DOG u C. Maintenance of such appropriate signs and markings including, without limitation, warning signs, on, over and around the Natural Pond Easement Parcel. 2.3 Maintenance Costs and Reimbursement. The cost of Maintenance and all utilities' costs and expenses (if any), and any other liability or expense for the Natural Pond Easement Parcel shall be borne by the Owners in proportion to the percentage that the area of each Owner's Lot(s) bears to the total area of the Property (the ~Proportionate Share'), which, as of the date of this Agreement, is estimated as set forth below: Square Proportionate Share of Lot Footage Maintenance Costs of Lot Lot 1 284,784 32.0% Lot 2 42,006 4.7% Lot 3 106,253 12.0% Lot 4 456,879 51.3% The Owners shall be billed by the Owners Association for each such Owner's Proportionate Share of the Maintenance and utilities not more than annually in arrears. Such costs shall be payable within fifteen (15) days after receipt of the Owners Association invoice therefor. The Owners Association shall not be liable for failure to perform any item of Maintenance on the Natural Pond Easement Parcel as set forth herein unless the Owners Association has been given written notice describing such item or items. In the event any Owner fails or refuses to pay when due such Owner's share of the Maintenance ("Defaulting Owner"), which failure continues for a period of ten (10) days after such payment is due, such failure shall constitute default under this Agreement and the Owners Association may pursue all available remedies at law or in equity. 2.4 Right to Maintain. in the event the Owners Association fails to adequately perform the Maintenance described in this Article 11, and such failure continues for a period of fifteen (15) days after receipt of written notice from an Owner claiming such failure (the "Repairing Owner"), the Repairing Owner giving such notice shall have the right to perform all items of Maintenance detailed in the written notice that remain uncured following the applicable 15-day cure period (except for those items of Maintenance that cannot be completed within such 15-day period, if the Owners Association shall commence to cure such Maintenance item and diligently pursue the same to compietion, then the Repairing Owner shall have no right to repair such Maintenance item). Within fifteen (15) days after receipt of an itemized Invoice for the cost of the Maintenance performed by the Repairing Owner, the other Owners shall reimburse the Repairing Owner for their Proportionate Share of the reasonable: costs actually incurred in performing such Maintenance, less the percentage of cost that would otherwise be payable by the Repairing Party according to the Repairing Party's Proportionate Share. ARTICLE III Miscellaneous 3A 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 Lots to the general public or for the benefit of the general public or for any public purpose whatsoever, it being the intention that this Agreement shall be strictly limited to and for the purposes expressed herein. The Owners each shall be permitted, from time to time, to take whatever reasonable action they deem necessary to prevent any portion of the Natural Fond Easement Parcel from being dedicated or taken for public use or benefit. 3.2 Duration. This Agreement and the easements and restrictions herein created, declared and granted shall be perpetual and run with the land. NATURAL POND EASEMENT AGREEMENT — Page 3 S:1Docsk0aas Laney, LLC1Victory Corner SaleIAGRtNaturai Pond Easement Agreement (FINAL 11-4-05)•DOC 3.3 Severabitity. if any term or provision of this Agreement, to any extent, shall be held invalid or unenforceable, the remaining terms and provisions hereof shall not be affected thereby, but each such remaining term and provision shall be valid and enforced to the fullest extent permitted by law. 3.4 Enforcement. In the event of a breach of any term, covenant, restriction or condition of this Agreement by an Owner, the other party shall have, in addition to the right to collect damages, the right to enjoin such breach or threatened breach in a court of competent jurisdiction. 3.5 Attorneys' Fees. In the event a party initiates or defends any legal action or proceeding in any way connected with this Agreement, the prevailing party in any such action or proceeding (in addition to any other relief which may be granted, whether legal or equitable), shall be entitled to recover from the losing party in any such action or proceeding its reasonable costs and attorneys' fees. All such costs and attorneys' fees shall be deemed to have accrued on commencement of any legal action or proceeding and shall be enforceable whether or not such legal action or proceeding is prosecuted to judgment. 3.5 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws in the State of Idaho. 3.7 Running of benefits and Burdens. All provisions of this Agreement, including the benefits and burdens hereof, run with the land and are binding upon and inure to the benefit of the parties, and the respective heirs, assigns, successors, and personal representatives of the Owners. 3.8 Mediation in the Event of Failure to Agree. Notwithstanding any other provision herein to the contrary, in the event a disagreement arises between any of the Owners related to this Agreement and the easements created herein, a party may demand mediation and shall give written notice to that effect to the other party specifying in such notice the name, address, and professional qualifications of the person designated to act as mediator on behalf of the party requesting mediation. Within ten (10) days after delivery of such notice, the other party shalt give written notice to the party desiring such mediation specifying the name, address, and professional qualifications of the person designated to act as mediator on said other party's behalf. If the two mediators so selected cannot agree within thirty (30) days after the appointment of the second mediator, the two mediators shall, within ten (10) days thereafter, select a third mediator. The decision of the mediators so chosen shall be given within a period of twenty (20) days after the appointment of such third mediator. Each party shall pay the fees and expenses of the mediator appointed by or on behalf of such party and one-half (1/2) of the fees and expenses of the third mediator, If those receiving a request for mediation fail to appoint an mediator within the time above specified, or if the two mediators so selected cannot agree on the selection of a third mediator within the time above specified, or if the result of such mediation is unsatisfactory to one or more parties, then any party may avail itself of any legal or equitable remedy available to it under Idaho law. (The remainder of this page left intentionally blank.] NATURAL POND EASEMENT AGREEMENT— Page 4 S:1QocslOaas Laney, 1-1-C1Viciory Corner SaletAGR%laturat Pond Easement Agreement (FiNAL 11-4-45).00C IN WITNESS WHEREOF, Declarant has caused this Natural Pond Easement Agreement to be duly executed the day and year first above written. KUNA VICTORY, LLC, an Idaho limited liability company By: Oaas Laney, LLC, an Idaho limited liability company, its Member By: Whiterock Investments, LLC, an Idaho li ited liability company, it Memo ri an er By: Laneyland an Idaho li ited partnershi its Memb , . By: Partner For good and valuable consideration, the receipt anWsufficienc which is hereby acknowledged and agreed, R. R. Davis Properties, Inc., an Idaho corporation, as an "Owner" hereby consents to the attached Natural Pond Easement Agreement and agrees to be bound by all of the terms contained herein including, without limitation, the reimbursement of the Mussell Corners Owners Association, Inc. for costs incurred in maintaining the Pond and the Natural Pond Easement Parcel. R. R. DAVIS PROPERTIES, INC., an Idaho corporation 4 r By: Richard Davis, resident For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, Timothy J. and Carol Mussell, husband and wife, as an "Owner" hereby consents to the attached Natural Pond Easement Agreement and agree to be bound by all of the terms contained herein including, without limitation, the reimbursement of the Mussel] Corners Owners Association, Inc. for costs incurred in maintaining the Pond and the Natural Pond Easement Parcel. TIMOTHY J. AND CAROL MUSSELL, husband and wife Ti of y J. Mussell )Strol Mussell NATURAL POND EASEMENT AGREEMENT — Page 5 3: 0=e Oaas Laney, LLCtVictory Corner SaleXAGRINatural Pond Easement Agreement (FINAL 11-4-05).DOC For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, Mussed Corner Business Owners Association, Inc., an Idaho nonprofit corporation, hereby consents to the terms of the attached Natural Pond Easement Agreement, and agrees to be bound by all of the terms contained herein including, without limitation, the Maintenance obligations and duties. MUSSEL CORNER BUSINESS OWNERS ASSOCIATIO a Idaho n fi or ation By: . Erik , P€ ide t List of Exhibits: Exhibit A— Legal Description of Property Exhibit B — Final Plat of Mussell Corner Subdivision Exhibit C — Legal Description of Natural Pond Easement Parcel NATURAL POND EASEMENT AGREEMENT -- Page 6 S:tDocstOaas Laney, LLCXVictory Corner Sate%MNatural Pond Easement Agreement (FINAL 11-4d75).DOC STATE OF IDAHO } ) ss. County of Ada } On this Jna y apztay of November, 2005, before me, the undersigned, a Notary Public in and for said State, personpeared T. Erik Oaas, known or identified to me to be the Manager of Whiterock Investments, LLC, a member of Oaas Laney, LLC, a member of Kuna Victory, LLC, the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. s KIMBERLY CLARKE Notary Public Not h State Of Idaho Residing at WWI My commission expires: _ STATE OF IDAHO } ) ss_ County of Ada } On this c�tay of November, 2005, before me, the undersigned, a Notary Public in and for said State, persona ly appeared Steven H. Laney, known or identified to me to be the General Partner of Laneyland L.P., a member of Oaas Laney, LLC, a member of Kuna Victory, LLC, the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. KIM4BERLY CLARKE 1 Notary Public State Of Idaho Notary c fo Idaho Residing at _ _ My commission expires: STATE OF IDAHO ) ) ss. County of } On this ay of November, 2005, before me, the undersigned, a Notary Public in and for said State, person lly appeared Richard Davis, known or identified to me to be the President of R. R. Davis Properties, 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. IN WITNESS WHEREOF, I have hereunto set year in this certificate first above written. =Public Not Pu c Residing a _ My commission affixed my official seal the day and NATURAL POND EASEMENT AGREEMENT - Page 7 S:\DorsOaas Laney, LLCWictory Corner SaWAGWNaturai Pond Easerrient Agreement (FINAL 114-05).DOC STATE OF IDAHO } ss. County of,�•� ? On this O'day of November, 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared Timothy J. and Carol Mussels, known or identified to me to be the persons who signed the within and foregoing document, and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto set year first above written. r KIMBERLY CLARKE Nota c fc ' Notary Public E Residing at - State of Idaho My commission STATE OF IDAHO ) ) ss. County of Ada ) affixed my official seal the day and On this `day of November, 2005, before me, the undersigned, a Notary Public in and for said State, person lly appeared T. Erik Oaas, known or identified to me to be the President of Mussell Corner Business Owners Association, Inc., the nonprofit corporation that executed the instrument or the person who executed the instrument on behalf of said nonprofit corporation, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set year in this certificate first above written. f KIMBERLY CLARKE Nota b Notary Public Residing at State of Idaho My commis and affixed my official seal the day and expires: NATURAL POND EASEMENT AGREEMENT - Page 8 S-\DocslOaas Laney, LLCtVictory Corner SaletAGRWatural Pond Easement Agreement (FINAL 114-05).00C EXHIBIT A LEGAL DESCRIPTION OF PROPERTY EXH1131T "A" A parcel of land as shown on Record of Survey 3523 and recorded as instrument Number 96033829, located in a portion of the SW 1 /4 of the SW 1/4 of Section 19, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho and more described as follows: Commencing at an aluminum cap monument marking the NW comer of said SW I A, thence along the West line of said SWI/4 S00155'37"W it distance of 1330.53 feet to a 5/8 inch rebar marking the NW corner of said S W i/4 of the SWI/4 from which an aluminum cap monument marking the SW comer of the said SWI/4 bears S0015517"W a distance of 1330.37 feet, thence leaving said West line S89'59'45"E a distance of 70.00 feet to a 518 inch rebar being the POINT OF BEGINNING; Thence S89159'45"E a distance of 162.00 feet to a 518 inch rebar; Thence along the arc of a curve to the left having a radius of 655.00 feet, a chord length of 438.43 feet, a central angle of 38"2I'02", and a chord bearing S3I *17'57"E a distance of 430.29 feet to a 519 inch rebar; Thence S50°28'28"E a distance of 558.77 feet to a 5/8 inch rebar; Thence S53'05'22"E a distance of 285.31 foci to a 5/8 inch rebar on the East line of said SWI/4 of tlic SWIA; Thence along said East line S00'46' I2"W a distance of 435.31 feet to a 518 inch rebar marking the SE corner of said SW 1/4 of the S W 114; Thence leaving said East line and along the South line of said SWI/4 of the SW IA S89'59'08"W a distance of 770.34 feet to a 5/8 inch rebar; "Thence leaving said South line N00°00'52"W a distance of 25.00 feet to a brass cap monument on the northerly right -of way of Victory Road; Thence along said right-of-way N86'49'39"W a distance of 269.75 feet to a brass cap monument; Thence N44'32'42"W a distance of 42.08 feet to a brass cap monument on the easterly right-of-way of Meridian Road; Thence parallel with said West line and along said easterly right-of-way N00'55'37"Is a distance of 728.38 feet to a 5/8 inch rebar; Thence continuing along said easterly right of way NO2'00'09"E a distance of 532.22 feet to the POINT OF BEGINNING. Said parcel contains 21.38 acres more or less and is subject to all existing easements and rights -of -ways of record or implied. .a / COi6Z02_6onnJnn _lega!_112103PHJ-Je EXHIBIT A 4,1 ... EXHIBIT B FINAL PLAT OF MUSSEL!_ CORNER SUBDIVISION �� ti ��•.i'r� Y �4 i r 6i €' I f g all tyff Epvpp / q Fliv L�AY C g�nlNw. pM 11 all ?s 1 i�!(�=Iq$I: ; s IR iF ; Pr k' [` f` x 1 c R$ a `t i n- ~x r� r� $ yI� i[Tklf� ��_ `r �f � tl Lif �i �� ,'� �i g,;� r•• � s°I4J=fl jq i §![ 11111 ilk;d %. .10 ji a @1 ` X � � f # it c, I I 1 it p Jill i g� fitf jai I EXHIBIT B EXHIBIT C LEGAL DESCRIPTION OF NATURAL POND EASEMENT PARCEL An casement for an existing pond over, ender and across a portion of U.S. Government Lot 4 of Section 19, Township 3 North, Range I Bast, noise Meridian, City of Meridian, Ada County, .Idaho and more particularly described as follows: Commencing at all aluminum cap marking the SW Comer ofsaid U.S. Government Lot 4, thence along `the South line of said U.S. Government Lot 4, also being the ccnierline of E. Victory Road, N89'59'3 VT a distance of 386.98 feet to a point, from which a 518 inch rcbar marking the SE Comer of said U.S. Gov=ravnt Lot 4 bears N89159'31 "E a distance of 743.33 feet, thence leaving said South line and along a random line N00'00'52"W a distance oft 94,09 feet to a point on the East edge of an existing road being the POINT OF BEGINNING of the following described natural pond easement; Thence along; stud East ape N 18' 17'01"W a distance of 33.07 feet to a point; ThenceN06"12'46"W a distanceofZL61 feet to apoint; 'Thence N12110' 13"E a distance of 41.43 feet to a point marking the intersection of said Eost edge and the South edge of.an existing road; Thence leaving said East edge and alcmg said South edge N57'09'34"E a distance of 34.W feet to a point; Thence N7r50'34"E a distance of 64.48 Peet to a point; Thence leaving said South edge S20104'29'T a distance of 35.70 feat to a point on an existing fence line; 'Thence along said existing fence line N69'55'3l'T a distance of 56.15 feet to a point; Thence S75'54'1I'T a distance of20.81 feet to a point; Thence S45'55'23 E a distance of 25.02 feet to a point; Thence SUrl 1' 19' W a distance of 54.11 fact to a point marking the intersection of said fence line and the NoT th edge of an existing road; Theme leaving; said fence tine and along said North edge $88*03 *04"VS a distance of 54.75 feet to apoint; Thence S82`41'26"W a distance of 63.41 feet to a point; Thence S70'58' 14"iY a distance of 77.06 feet to the POINTOF BEGINNING. Said natural pond easement contains approximately 16,903 square feet or 039 acres, more or less and is subject to u;l existing easements and rights -of -ways ofrecord or in use. Co?b;at_ga,d_tnrsmcnl, pc7Zit5hwc,4ac EWBIT C ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 42.00 14 After Recording, O�AH /was014A PM Return to: B�ofIt f rrrr {iir + j t C RECORDED -REQUEST OF�! Lauren Maiers Reynoldson $Pink Buller 105175653 Spink Butler, LLP P.O. Box 639 Boise, ID 83701 CROSS -ACCESS EASEMENT AGREEMENT This Cross -Access Easement Agreement ("Agreement") is made this 413mclayof November, 2005, by and among Kuna Victory, LLC, an Idaho limited liability company ("Kung Victory'), and R. R. Davis Properties, Inc., an Idaho corporation ("Davis"), and Timothy J. and Carol Mussels, husband and wife (collectively, 'Mussell'). Kuna Victory, Davis and Mussell may be collectively referred to herein as "Declarant". RECITALS A. Declarant is the owner of fee simple title to that certain parcel of real estate located at the northeast corner of S. Kuna-Meridian Road and E. Victory Road in the City of Meridian, County of Ada, State of Idaho, as more particularly described on Exhibit A attached hereto and made a part hereof (hereafter "Property"). The Property is divided into four (4) separate lots (each, a "Lot°), as depicted on that certain final subdivision plat for Mussell Corner Subdivision. Such subdivision plat shall be recorded in the office of the Ada County, Idaho Recorder's office. Duna Victory owns fee simple title to Lots 1 and 4; Mussell owns fee simple title to Lot 2; and Davis owns fee simple title to Lot 3. B. Declarant desires to declare, create and provide for the use and benefit of the Lots, subject to the limitations hereinafter provided, reciprocal, perpetual and non-exclusive easements for: (a) pedestrian and vehicular ingress, egress, passage and traffic between the Lots and that certain public roadway commonly known as S. Kuna-Meridian Road; (b) pedestrian and vehicular ingress, egress, passage and traffic between the lots and that certain public roadway commonly known as E. Victory Road; and (c) utility lines and systems servicing each Lot and the Property. C. Declarant also desires and intends that the singular or several owners of fee simple title to the Lots, mortgagees, lessees, occupants and such other persons as from time to time shall possess or acquire an interest in the Lots or any portion thereof, and all customers, employees, licensees, tenants and business invitees of such occupants and their respective successors and assigns (the "Permitees") shalt at all times enjoy the benefits of, and that the singular and several owners of fee simple title to the Lots including Declarant and Declarant's respective successors and assigns (sometimes referred to herein as the "Owner" or "Owners") shall at at) times hold their interests subject to, the rights, easements, privileges and restrictions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the terms of this Agreement, and in consideration of the recitals above which are incorporated below as if set forth in full herein, and the premises and the mutual undertakings and agreements hereinafter contained, Declarant hereby declares and grants as follows. ARTICLE Use, Access, Relocation and Reconfiguration 1.1 Access Easement. Declarant hereby declares, creates and grants for its own use and the use of the Owners and the Permittees, subject to all existing easements, encumbrances and restrictions of record, and subject to such reasonable rules and regulations as Declarant may establish or impose, as an easement appurtenant to and for the benefit of the Property and the Lots, a perpetual, non - CROSS -ACCESS EASEMENT AGREEMENT — Page i SADocMOaas Laney, LLCiVictory Corner Sale{AGRICross-Access Easement Agt (FINAL 11-04-05).00G exclusive easement upon, over and across the Access Easement Parcel, as defined below, solely for the limited purposes of pedestrian and vehicular ingress, egress, passage and traffic between: (a) the Lots and that certain public highway commonly known as S, Kuna-Victory Road (being contiguous to and bordering upon Lots 1, 2 and 3); and (b) the Lots and that certain public roadway commonly known as E. Victory Road (being contiguous to and bordering upon Lots 3 and 4) (collectively, the "Access Easement'). The Access Easement shall be located over, upon and across the "Access Easement Parcel," as depicted on Exhibit B, and more particularly described on Exhibit C attached hereto and made a part hereof. 1.2 Utility Easement. Declarant also hereby declares, creates and grants for its own use and the use of the Owners and the Permittees, subject to all existing easements, encumbrances and restrictions of record, and subject to such reasonable rules and regulations as Declarant may establish or impose, as an easement appurtenant to and for the benefit of the Property and the Lots, a perpetual, non- exclusive easement upon, over and across the Access Easement Parcel solely for the limited purpose of installation, operation, maintenance, repair and replacement of water mains, sewers, water sprinkler systems, telephone and communications lines, electrical conduits or systems, gas mains and other public or private utilities providing service to one or more of the Lots (the "Utility Easement") 1-3 Use. Use of the Access Easement Parcel is not hereby exclusively granted but shall be in common with the use thereof by the Owners and the Permittees of those portions of the Lots upon which the Access Easement Parcel is located. The Owners shall be entitled to use those portions of the Access Easement Parcel which lie on their respective Lot(s) for those uses provided herein and for any other reasonable uses so long as such other uses do not interfere with or obstruct the use of the Access Easement Parcel by the other Owners or the Permttees. The fawners shall specifically have the right upon those portions of the Access Easement Parcel which shall lie on their respective Lot(s) to make any use of the subsurface of such Access Easement Parcel at their sole cost and expense, so long as such use does not interfere with or obstruct either the other Owners or the Permittees' use as provided herein. 1.4 Relocation and Reconfiguration. Upon execution of this Agreement, the Owners each shall have the right, from time to time, to relocate and/or reconfigure all or that portion of the Access Easement Parcel lying upon such Owner's Lot(s), all at the sole cost and expense of the respective relocating Owner; provided, however, nothing any Owner does in connection with such relocation and/or reconfiguration shall: (a) permanently interfere with the free and unimpeded flow of vehicular and pedestrian traffic between the Lots and/or S. Kuna-Meridian Road beyond the specific time reasonably required to accomplish any permitted relocation and/or reconfiguration; or (b) interfere with the free and unimpeded flow of permitted traffic between the Lots and/or E. Victory Road beyond the specific time reasonably required to accomplish any permitted relocation and/or reconfiguration; or (c) permanently interfere with the delivery of utility services to and/or the utility lines, systems or structures on the Lots beyond the specific time reasonably required to accomplish any permitted relocation and/or reconfiguration. The relocating Owner shall deliver written notice detailing such relocation and/or reconfiguration to all other Owners no later than thirty (30) days prior to commencing such relocation and reconfiguration. 1.5 Indemnification. Each Owner, by accepting a deed to a Lot, hereby agrees to indemnity, defend and hold Declarant and the other Owners harmless from and against any and all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, and/or judgments (including reasonable costs and attorney fees) (a) relating to this Agreement, and/or (b) for injury to or death of any person or damage to or destruction of any property occurring within the Access Easement Parcel as a result of any act or omission of the indemnifying party. 1.6 Casualty and Condemnation. In the event all or any portion of the Access Easement Parcel is; (I) damaged or destroyed by fire or other casualty; or (ii) taken or damaged as a result of the exercise of the power of eminent domain or any transfer In lieu thereof, the respective Owner(s) shall promptly restore, or cause to be restored, that portion of the Access Easement Parcel lying upon their respective Lot. CROSS -ACCESS EASEMENT AGREEMENT— Page 2 SADocs10aas Laney. LLCWictory Comer SaIOAGR\Cross-Access Easement Agt (FINAL 1 1-04-05).DOC ARTICLE 11 Taxes and Maintenance of Access Easement Parcel 2.1 Taxes and Utilities. The Owners of each of the Lots shalt be obligated to pay when due all real estate and other taxes and assessments, and all utilities' costs and expenses (if any), and any other liability or expense for those portions of the Access Easement Parcel from time to time located on their respective Lot(s). 2.2 Maintenance of Easement Parcels. Mussell Corner Business Owners Association, Inc., an Idaho nonprofit corporation ("Owners Association") shall maintain, or cause to be maintained, the Access Easement Parcel in good condition and repair including, without limitation, snow removal, sweeping, patching, paving, painting, resurfacing or seal coating, and provide Maintenance, defined below. "Maintenance" of the Access Easement Parcel shall include, without limitation: A. Maintenance, repair and replacement of the surface and subsurface of the Access Easement Parcel, as necessary, to maintain the Access Easement Parcel in a level, smooth and evenly covered condition with the types of materials and at the same grade and elevation as in use upon execution of this Agreement, except that the Owners Association shall be permitted to use such substitute materials as will in all respects be equal to or better than the materials originally used to construct the Access Easement Parcel with respect to quality, appearance and durability. B. Removal from the Access Easement Parcel of paper, rubbish, debris, ice, snow and other hazards to persons using the Access Easement Parcel, and washing or thoroughly sweeping paved areas as required. C. Maintenance of such appropriate parking signs and pavement markings, entrance, exit and directional signs and markers and lights so as to be uniform with those used on the Lots. D. Such painting and repainting of traffic lines and parking lines to maintain the Access Easement Parcel in first-class condition so as to be uniform with and provide for safe traffic flow between the Lots and/or S, Kuna-Meridian Road, and between the Lots and/or E. Victory Road. 2.3 Maintenance Costs and Reimbursement. The cost of Maintenance shall be borne by each Owner in proportion to the percentage that the area of each Owner's Lot(s) bears to the total area of the Property (the "Proportionate Share"), which, as of the date of this Agreement, is estimated as set forth below: Square Proportionate Share of Lot Footage Maintenance Costs of Lot Lot 1 284,784 32.0% Lott 42,006 4.7% Lot 3 108,253 12.0%4 Lot 455,879 51.3% CROSS -ACCESS EASEMENT AGREEMENT— Page 3 S:IDocsX0aas Laney, LLC1Victory Corner SaieXAGR{Cross-Access Easement Agt (FINAL 11-04-45).DOC The Owners shall be billed by the Owners Association for each such Owner's Proportionate Share of the Maintenance not more than annually In arrears, Such costs shall be payable within fifteen (15) days after receipt of the Owners Association invoice therefor. The Owners Association shall not be liable for failure to perform any item of Maintenance on a specific Lot as set forth herein unless the Owners Association has been given written notice describing such item or items. In the event any Owner fails or refuses to pay when due such Owner's share of the Maintenance ("Defaulting Owner"), which failure continues for a period of ten (1 D) days after such payment is due, such failure shall constitute default under this Agreement and the Owners Association may pursue all available remedies at law or in equity. 2.4 Right to Maintain, In the event the Owners Association fails to adequately perform the Maintenance described in this Article II, and such failure continues for a period of fifteen (15) days after receipt of written notice from an Owner claiming such failure (the 'Repairing Owner"), the Repairing Owner giving such notice shall have the right to perform all items of Maintenance detailed in the written notice that remain uncured following the applicable 15-day cure period (except for those items of Maintenance that cannot be completed within such 15-day period, if the Owners Association shall commence to cure such Maintenance item and diligently pursue the same to completion, then the Repairing Owner shall have no right to repair such Maintenance item). Within fifteen (15) days after receipt of an itemized invoice for the cost of the Maintenance performed by the Repairing Owner, the other Owners shalt reimburse the Repairing Owner for their Proportionate Share of the reasonable costs actually incurred in performing such Maintenance, less the percentage of cost that would otherwise be payable by the Repairing Party according to the Repairing Party's Proportionate Share. ARTICLE IIi Miscellaneous 3.1 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 Lots to the general public or for the benefit of the general public or for any public purpose whatsoever, it being the intention that this Agreement shall be strictly limited to and for the purposes expressed herein. Declarant and the Owners each shall be permitted, from time to time, to take whatever reasonable action they deem necessary to prevent any portion of the Access Easement Parcel from being dedicated or taken for public use or benefit. 3.2 Duration. This Agreement and the easements and restrictions herein created, declared and granted shall be perpetual and run with the land. 3.3 Severability. If any term or provision of this Agreement, to any extent, shall be held invalid or unenforceable, the remaining terms and provisions hereof shall not be affected thereby, but each such remaining term and provision shall be valid and enforced to the fullest extent permitted by law. 3.4 Enforcement. in the event of a breach of any term, covenant, restriction or condition of this Agreement by Declarant or an Owner, the other party shall have, in addition to the right to collect damages, the right to enjoin such breach or threatened breach in a court of competent jurisdiction, 3.5 Attorneys' Fees, to the event a party initiates or defends any legal action or proceeding in any way connected with this Agreement, the prevailing party in any such action or proceeding (in addition to any other relief which may be granted, whether legal or equitable), shall be entitled to recover from the losing party in any such action or proceeding its reasonable costs and attorneys' fees. All such costs and attorneys' fees shall be deemed to have accrued on commencement of any legal action or proceeding and shall be enforceable whether or not such legal action or proceeding is prosecuted to judgment. 3.6 Applicable Law, This Agreement shall be construed and enforced in accordance with the laws in the State of Idaho. CROSS -ACCESS EASEMENT AGREEMENT-- page 4 S:1Docs10aas Laney, LLC1Victory Comer SaIOAGRkCross-Access Easement Agt (FINAL 11-04-05).DDC 3.7 Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens hereof, run with the land and are binding upon and inure to the benefit of the parties, and the respective heirs, assigns, successors, and personal representatives of Declarant and the Owners. 3.8 Mediation in the Event of Failure to Agree, Notwithstanding any other provision herein to the contrary, in the event a disagreement arises between Declarant and any Owner(s) related to this Agreement and the easements created herein, a party may demand mediation and shall give written notice to that effect to the other party specifying in such notice the name, address, and professional qualifications of the person designated to act as mediator on behalf of the party requesting mediation. Within ten (10) days after delivery of such notice, the other party shalt give written notice to the party desiring such mediation specifying the name, address, and professional qualifications of the person designated to act as mediator on said other party's behalf. If the two mediators so selected cannot agree within thirty (30) days after the appointment of the second mediator, the two mediators shalt, within ten (10) days thereafter, select a third mediator. The decision of the mediators so chosen shall be given within a period of twenty (20) days after the appointment of such third mediator. Each party shall pay the fees and expenses of the mediator appointed by or on behalf of such party and one-half (1/2) of the fees and expenses of the third mediator. If those receiving a request for mediation fail to appoint an mediator within the time above specified, or if the two mediators so selected cannot agree on the selection of a third mediator within the time above specified, or if the result of such mediation is unsatisfactory to one or more parties, then any party may avail itself of any legal or equitable remedy available to it under Idaho law. [The remainder of this page left intentionally blank.] CROSS -ACCESS EASEMENT AGREEMENT —Page 5 SMocs*aas Laney, LLCtVictory Corner Safe\AGRlCrass-Access Easement Agi (FINAL 11-04-05).DOC .Pol IN WITNESS WHEREOF, Declarant has caused this Cross -Access Easement Agreement to be duty executed the day and year first above written. KUNA VICTORY, LLC, an Idaho limited liability company By: Oaas Laney, LLC, an Idaho limited liability company, its Member R. R. an Id M By: Whiterock Investments, LLC, an Idaho ' d liability company, its�em .- -nk a� , M ag r By: Laneyland L. :, an Idaho IlTited partnership, its bRy By: ve . La , Ge, eral Partner Richard TIMOTHY J. AND CAROL MUSSELL, hus and and wife WJMT mo ,sell arol Mussell For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, Mussell Corner Business Owners Association, Inc., an Idaho nonprofit corporation, hereby consents to the terms of the attached Cross -Access Easement Agreement, and agrees to be bound by all of the terms contained herein including, without limitation, the maintenance obligations and duties. MUSSEL CORNER BUSINESS OWNERS ASSOCIAT C., an Idaho C nratinn List of Exhibits: l Exhibit A — Legal Description of Property Exhibit B — Final Plat of Mussell Corner Subdivision Exhibit C — Legal Description of Access Easement Parcel CROSS -ACCESS EASEMENT AGREEMENT— Page 6 S:tDocsioaas Laney, LLCSVictory Comer SateAGRkGross-Access EasementAgt (FINAL 11-04-05).DOC STATE OF IDAHO ) 3 ss. County of Ada �t ) On this' `day of November, 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared T. Erik Oaas, known or identified to me to be the Manager of Whiterock Investments, LLC, a member of Oaas Laney, LLC, a member of Kuna Victory, LLC, the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such Company executed the same. IN WITNESS WHEREOF, I have hereunto aset-andfixed my official seat the day and year in this certificate first above written. KIMBERLYCLARKE No Notary Public Residing at State Of Idaho My commission expires: STATE OF IDAHO ) j ss. County of Ada } On this L-W-day of November, 2005, before me, the undersigned, a Notary Public in and for said State, person Ily appeared Steven H. Laney, known or identified to me to be the General Partner of Laneyland L.P_, a member of Oaas Laney, LLC, a member of Kuna Victory, LLC, the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto se a affixed my official seal the day and year in this certificate first above written. KIMBEr?LY CL4l2KE Kota Idaho Residing at Notary Public My commission expires. State of fdoho CROSS -ACCESS EASEMENT AGREEMENT - Page 7 SADocsloaas Laney, LLC1\/Ictooy Corner SaWAGR\Cross-Access Easement Agt (FINAL 11-04-05),DOC u STATE OF IDAHO County of )Ss'} On this 4iay of November, 2005, before me, the undersigned, a Notary Public in and for said State, person!ally appeared Richard Davis, known or identified to me to be the President of R. R. Davis Properties, 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. IN WITNESS WHEREOF, I have hereunto set rrgy . "E4 ffixed my official seal the day and year in this certificate first above written. / ,/ KIMBERLY CLARKE Notary �idapo Notary Public Residing at — tRl My commission expires: State of Idaho STATE OF IDAHO } County of On this lAay of November, 2005, before me, the undersigned, a Notary Public in and for said State, personally ppeared Timothy J. and Carol Mussell, known or identified to me to be the persons who signed the within and foregoing document, and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto se y han an affixed my official seal the day and year first above written. KIMBERLY CLARKE Notary Public State of Idaho Residing at ld�° My commission expires: CROSS -ACCESS EASEMENT AGREEMENT — Page 8 S.Mt)ocs%0aas Laney, LLMVictory Corner SakeWGRlCross-Access Easement Agt (FINAL 11-04-05).DOC u STATE OF IOAHO } ) ss. County of Ada ) On this - day of November, 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared T. Erik Oaas, known or identified to me to be the President of Mussell Corner Business Owners Association, Inc., the nonprofit corporation that executed the instrument or the person who executed the instrument on behalf of said nonprofit corporation, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my ndrrct;a#fixed my official seal the day and year in this certificate first above written. /, \ KIMBERLY CLARKE Notar d ho Notary Public Residing at State of Idaho My commission expires: GROSS -ACCESS EASEMENT AGREEMENT —Page 9 S:lDecsIOaas Laney, LLCiVictory Corner SaJOAGRiCfoss-Acacss Easement Agt (FINAL 1 T-04-05).DOC EXHIBIT A LEGAL DESCRIPTION OF PROPERTY EXHIBIT "A" A parcel of land as shown on Record of Survey 3523 and recorded as Instrument Number 96033828, located in a portion of the SWI/4 of the SW 114 of Section 19, Township 3 North, Mange 1 Bast, Boise Meridian, Ada County, Idaho and more described as follows. Commencing at an aluminum cap monument marking the NW corner of said SW I/4, thence along the West line of said S W I14 S00'55'37"W a distance of 1330.53 feet to a 519 inch rebar marking the NW corner of said SW114 of the SWl/4 from -which an aluminum cap monument marking the SW comer of the said SW i/4 bears S00*55'37"W a distance of 1330.37 feet, thence leaving said West line 589'59'45"E a distance of 70.00 feet to a 5/8 inch rebar being the POINT OF BEGINNING; Thence S89'59'45"E a distance of 162.00 feet to a 519 inch rebar; Thence along the arc of a curve to the left having a radius of 655.00 feet, a chord length of 439.43 feet, a central angle of 38'21'02", and a chord bearing S31'17'57"E a distance of 430.29 feet to a 5/8 inch rebar; Thence S50'28'28"E a distance of 558.77 feet to a 519 inch rebar; Thence S53'05'22"E a distance of 285.31 feet to a 518 inch rchar on the East tine of said SWIl4ofthe SWl/4; Thence along said East line SOV46'12"W a distance of435.31 feet to a 5/8 inch rebar marking the SE corner of said SWIM of the S W I/4; Thence leaving said East line and along the South line of said SWI/4 of the S W I/4 S89'59'08"W a distance of 770.34 leet to a 5/8 inch rehar; Thence leaving said South tine N00'00'52"W a distance of 25.00 feet to a brass cap monument on the northerly right-of-way of Victory Read; Thence along said right-of-way N86149'39"W a distance of 269.75 feet to a brass cap monument; Thence N44'32'42"W a distance of 42.08 feet to a brass cap monument on the easterly right-of-way of Meridian Road; Thence parallel with said West line and along said easterly right.of--way N00'55'37"E a distance of 728.38 feet to a 518 inch rebar; Thence continuing along said easterly right of way N02100'09" E a distance of 532.22 feet to the POINT OF BEGINNING. Said parcel contains 21.38 acres more or less and is subject to all existing casements and rights -of -ways of record or implied. _, If L`b362a2_bpvn�fa.7 _trgal_112193pnh.do EXHIBIT A wad EXHIBIT B FINAL PLAT OF MUSSELL CORNER SUBDIVISION 4 .g i' f• R 4 Q �, � i 4 5�? �'i �1i263' •� �.S C o 4�s A r i Fg yys all K F c i, V. 1IRRIP" _' ff . c, �p a I. if s 1till3 '€€�i �1 I:- if 11 ► ( g q � I X 1�;� �, JI I i : its I i 1'�: r ,< EXHIBIT S EXHIBIT C LEGAL DESCRIPTION OF ACCESS EASEMENT PARCEL A cross -access easement over and across a parcel of land being a portion of U.S. Government Lot 4 of Section 19. Township 3 North, Range i East, Boise Meridian, City of Meridian, Ada County, Idaho, and more particularly described as follows, Commencing at an aluminum cap monument marking the SW Corner ofU.S. Government .Lot 4 of said Scction ) 9, thence along the West line of said US. Government Lot 4, also being the centerlinc ofS. Ixna-Meridian Road, TiOV55'37"E a distance of 460.38 feet to a point, from which a 518 inch rebar marking the NW Corner of said U.S. Government Lot 4 bears N00'55'37" E a distance of 969.95 feet, thence leaving said West tine SSM4'23"E a distance of 60.00 feet to a point on the East right-of-way ' line of said S. Kuna-Meridian Road being the POINT OF 9EGIIJ.%M4G of the following described cross -access casement Thence along said East right-of-way line N00'55'37"L a distance of 20.00 feet to a point; Thence leaving said East right-of-way line S39*04'23"E a distance of 119.37 feet to a point; Thence along the are ofa curve to the left having a radius of 30.00 fcer,.an arc length of 41.85 feet, a central angle of 79'35'20", and a chord which bears N50'50'57"E a distance of M.54 feet to a point ofrcverse curve; Thence along the arc ofa curve to the right having a radius of 50.40 feet, an are length of 69.75 feet, a central angle of 79°55'20", and a chord which bears N50'50'57"F a distance of 64.23fect to a point; Thence S89'04'23" 8 a distance of 51.87 feet to a point; Thence along the arc ofa curve to the left having a radius of 40,00 feet, an, arc length of 62.83, a central angle of 90'00'00", and a chord which bears N45'55'3T'E a distance of 56.57 feet to a point; Thence NOW55'37"E a distance of 39A2 feet to a point; Thence N8959'31 "E a distance of 20.00 feet to a paint; Thence.SOp°55'37"W a distance of59,75 feet to a point; Thence along the arc of a curve to the right having a radius of 60.00 feet, an are length of 94.25 feet, a central angle of 90`00'00", and a chord which bears S45'55'37"W a distance of 84.85 feet to a point; Thence N89'04'23"W a distance of M.95.feei a a point; Thence along the arc ofa curve to the left having a radius of23.00 feet, an arc length of 72.26 feet, a central angle of 180'00'00", and a chord which bears SOW55'37"W a distance of 46.00 feet to a point ofrcversc curve; Thence along the are ofa curve to the right having a radius of 60.00 feet, an arc length of 93.27 fcct, a central angle of 89'03'54", and a chord which bears 544°32'26"13 a distance of 84.15 feet to a point; Thesice SWOW29" E a distance of 79.27 feet to a point, carsaax wsswctus_easc,rrnt Icgal_412105hwe dot EXHIBIT C - 1 Tlsencc along the ate of a curve to the left having a radius of 30.00 feet, an arc length of 57.80 feet, a central angle of I10'23'S2", and a chord which bears SS5'l2'25"E- a distance of 49.27 feet to a point; Thence N69'35'39"B a distance of 7l ,14 feet to a point; Thence along the arc of a curve to the right having a radius of 260.00 feet, an are length of 136.47 feet, a central angle of 30°04'27", and a chard which bears N84'3T52"E a distance of 134.91 feet to a point; Thence S80'19'54"E a distance of 94.77 feet to a point; Thencc along the arc ofa curve to the left having a radius of 30.00: feet, ail arc length of 54.35 feet, a contra) angle of 103'48'32", and a chord which bears N47°45'50"E a distance of 47.22 feet to a point Thence N04'08'26M1 a distance of 125.96 feet to a point; Thence along the arc of a curve to the left having a radius of I00.00 feet, an arc length of 86,91 feet a central angle of 4V47'49", and a chord which bears N29'02'20W a distance of 84.20 feet to a point; Thence N53'56'I5' V a distance of 133.68 feet to a point; Thence N89'59'3I "E a distance of 33.97 feet to a point; Thence S53'56'1 YT a distance of 106.22 feet to a point; Thence along the are of a curve to the tight having a radius of 120.00 €cot, an arc length of 104.29 feet, a central angle of 49'47'49", and a chord which boars S29102'20"E a distance of 101.04 feat to a point; Thence SO4'08'26"H a distance of 442.26 feet to a point on the North right -of --way line of E. Victory Road-, Thence along said Nor'Jr right -of -sway Iine S89'59'3 t"W a distance of 20.05 feet to a point; Thence leaving said North :fight -of -way line N04'08'26'W a distance of 232,41 feet to a Point; Thence along the arc nfa curve to the left having a radius of 30.00 feet, an am length of 39.89 feet, a central angle of 76'11'28' ; and a chord which bears N42114' ( 0"W a distance of 37.02 feet to a point; Thence N80'I,9'54'V a distance of I I4.43 feet to a point; Thcnca.along the arc ofa curve to the left having a'radius 017240.00 feet, an arc length of '125.97 feet, a central angle of 30'04'27", and a chord which bears S 84'37'52"<V a distance of 124.53 feet to a point; Thence 669'35'39W a distance of 166.99 feet to a point; Thence along the am of a curve to the left having a radius of 40.00 feet, an are length of 47.60 feet, a central angle of 68' 10'48", and a chord which bears S35'30'15"W a distance of 44.94 feet to a point; Thence 501'24'5I"W a distance of 172.23 feet to a point on said North right -of -Way line; Thence along said North Tight -Of -WRY line S89'59'3I"W a distance of20.01 feet to n point; Thence leaving said North right-of-way line N0I'24'51 "E a distance of 172.73 feet to a point; Thence along the arc ofa curve to the right having a radius of 60.00 feet, an am length of 66.13 feet, a central angle of 63'08'5 I ", and a chord which bears N32'59' 16"E a distance of 62.83 feet to a paint of reverse curve; caary',az_�osr.�ssu_��i_r<s,i_aaxsasn�.d� EXHIBIT C - 2 Thence along the are of a curve to the left having a radius of 60.00 feet, an arc length of 67.62 feet, a central angle of 64°34'11", and a chard wbieb bears N32'l6'36"E a distance of 64.10 feet to a point, Thence N00°00'29"W a distance of 88.66 feet to a point; Thence along the arc of a curve to the left having a radius of 40.0o feet, an arc length of 62.1 & feet, a central angle of 89'03'54", and a chord which bears N44132'26"W a distance of 56.11 feet to a point; 'M-.nce N64°04'23"W a distance of 191.05 feet to the PL`11N1' OF 13f GINNING of said ['Toss-acccs'. easement. Said easement contains approximately 41,091 square feet or 0.94 acres, snore or less and is subject to all existing easements and rights -of -ways of record or in use. CO�SdOlwcrpsr•scu.:.f_rastran: 3cg,1 _U/2i OShwc.doe EXHOTC-3 Property Management No. 1931 - 1591 0805 Street: Mussel] Corner — Kuna-Meridian Rd & Victory Rd T.3N., RA E., Sec. 19 TEMPORARY LICENSE AGREEMENT THIS TEMPORARY LICENSE AGREEMENT (the "Agreement") is made and entered into this 23 day of August , 200_, by and between the ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the state of Idaho, ("ACHD") and MUSSELL CORNER BUSINESS OWNERS ASSOCIATION (collectively "Licensees"). WITNESSETH: For good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties: SECTION 1. RECITALS. 1.1 ACHD owns and has exclusive jurisdiction over the public right-of-way located in Ada County, Idaho, more particularly described and/or depicted on Exhibit "A" attached hereto (the "Right -of -Way"). 1.2 Licensees desire a license to use the Right -of -Way for the limited purposes hereinafter set forth, and, for the consideration and on the terms and conditions hereinafter set forth, ACHD is willing to extend such license to Licensees. SECTION 2. LICENSE: LICENSE NOT EXCLUSIVE. 2.1 On the terms and conditions hereinafter set forth, ACHD hereby extends to Licensees a license on, over, across and under the Right -of -Way for the following uses and purposes ("Authorized Use") and no others. - Licensee to construct, install & maintain landscaping per landscaping plan Exhibit "A" consisting of trees, sod and sprinklers within the five foot strip between the back of curb and the detached sidewalk along E Victory Rd. Licensee to coordinate landscaping within the right of way along Kuna-Meridian Rd with ITD. Licensee to install landscaping and sprinklers in a manner to eliminate irrigation flows and/or ponding of irrigation water within the ACHD Right of Way. Any perennial trees or plants that will extend roots deeper than 18 inches shall be prohibited over ACHD underground seepage beds, infiltration facilities or piping systems. Trees shall be offset from edge of seepage beds a minimum of 10 feet LICENSE AGREEMENT - Page 1 (5/16/02 to allow for future root pruning, if necessary, and maintenance access for heavy equipment over beds. Infiltration areas shall not be covered with sod or non -free draining materials/soil, unless other wise approved by ACHD. Grass can be hydro seeded or planted in these areas with approved soils mix. Access to inlets and outlets of ACHD Drainage Areas shall not be planted with trees, shrubs or any landscaping that would impede heavy equipment vehicle access. Licensee to observe the 40' sight triangle within the subdivision and will not plant any shrubs or trees within the area or over any utility lines. All trees in the public Right of Way to be maintained by Licensee for clearance of 94' over all roadways measured at gutter plate and 8' overall sidewalks. Licensee to contact Digline inc., prior to start of construction. Licensee to contact Construction Services at 387-6280 to verify if a construction permit is required. 2.2 This Agreement does not extend to Licensees the right to use the Right - of -Way to the exclusion of ACHD for any use within its jurisdiction, authority and discretion or of others to the extent authorized by law to use public right-of-way. If the Right -of -Way has been opened as a public Highway (as used in the Agreement the term "Highway" is as defined in Idaho Code § 40-109(5)) Licensees' Authorized Use is subject to the rights of the public to use the Right -of -Way for Highway purposes. Licensees' Authorized Use is also subject to the rights of holders of easements of record or obvious on inspection of the Right -of -Way and statutory rights of utilities to use the public right-of-way. This Agreement it is not intended to, and shall not, preclude or impede the ability of ACHD to enter into other similar agreements in the future allowing third parties to also use its public rights -of -way, or the ability of ACHD to redesign, reconstruct, relocate, maintain and improve its public rights -of -way and Highways as authorized by law and as it determines, in its sole discretion, is appropriate. SECTION 3. CONSTRUCTION OR INSTALLATION OF IMPROVEMENTS. Any repairs or maintenance, of the Licensees' improvements currently located in the Right - of -Way or the installation or construction of improvements by Licensees in the Right -of - Way as permitted by the Authorized Use, (the "Improvements"), shall be accomplished in accordance with designs, plans and specifications approved in advance and in writing by ACHD as required to satisfy applicable laws, its policies and good engineering practices. In approving such plans and specifications, ACHD assumes no responsibility for any deficiencies or inadequacies in the design or construction of the Improvements, and the responsibility therefor shall be and remain in Licensees. SECTION 4. WAIVER AND ESTOPPEL STATEMENT BY LICENSEES. Licensees acknowledge and agree that the license granted herein is temporary, non -transferable, and merely a permissive use of the Right -of -Way pursuant to this Agreement Licensees further acknowledge and agree that it specifically assumes the risk that the license pursuant to this Agreement may be terminated before Licensees have realized the economic benefit of the cost of installing, constructing, repairing, or maintaining the Improvements, and Licensees hereby waive and estop themselves from asserting any claim that the license is in any way irrevocable because Licensees have expended funs LICENSE AGREEMENT - Page 2 (5/16/02 on the Improvements and the Agreement has not been in effect for a period sufficient for Licensees to realize the economic benefit from such expenditures. SECTION 5. TERM. 5.1 The term of this Agreement will commence on the 23 day of August , 2005, and will continue until terminated by either party, with or without cause, which termination shall be effective following THIRTY (30) DAYS advance written notice of termination given the other party. 5.2 If Licensees default in the performance of any obligations incumbent upon it to perform hereunder ACHD may terminate this Agreement and the rights extended to Licensees hereunder at any time, effective at the end of thirty (30) days following the date ACHD shall provide written notice of termination to Licensees, which notice shall specify such default(s). Licensees shall have such thirty (30) day period to correct and cure the specified defaults, and if so corrected and cured, to the satisfaction of ACHD, this Agreement shall not be terminated but shall continue in full force and effect. SECTION 6. FEE. There is no fee for the Licensees' Authorized Use of the Right -of - Way under this Agreement. SECTION 7. MAINTENANCE: FAILURE TO MAINTAIN; RELOCATION OF UTILITIES. 7.1 At its sole cost and expense, Licensees shall maintain the Improvements in good condition and repair and as required to satisfy applicable laws, the policies of ACHD and sound engineering practices. Licensees shall have access over, across and under the Right -of -Way for the purposes of accomplishing such repair and maintenance. 7.2 If the Highway on and/or adjacent to the Right -of -Way is damaged as a result of: (i) the performance by Licensees of the maintenance required by section 6.1, or the failure or neglect to perform such maintenance; and/or (ii) Licensees' design, installation or use of the Improvements, regardless of cause; at its sole cost and expense Licensees shall forthwith correct such deficiency and restore the Highway and the surface of the Right -of -Way to the same condition it was in prior thereto, and if Licensees shall fail or neglect to commence such correction and restoration within twenty-four (24) hours of notification thereof, ACHD may proceed to do so, in which event Licensees agree to reimburse ACHD for the costs and expenses thereof, including, without limitation, reasonable compensation for the use of staff and equipment of ACHD. LICENSE AGREEMENT - Page 3 (5/16/02 7.3 Notwithstanding the provisions of section 7.2, should an emergency exist related to the Licensees' use of this license which threatens the stability or function of the Highway on or adjacent to the Right -of -Way or the safety of the public use thereof, ACHD shall have the right to immediately perform, on behalf of, and at the cost of Licensees necessary emergency repairs. 7.4 Licensees will be responsible for the relocation of any existing utilities located on the Right -of -Way as may be required in connection with any construction or installation of Improvements by Licensees in the Right -of -Way. SECTION 8. RELOCATION OF IMPROVEMENTS. If during the term of this Agreement ACHD requires, in its sole discretion, at any time, and from time to time, that the Highway on and/or adjacent to the Right -of -Way be widened and/or realigned, redesigned, improved and/or reconstructed, Licensees hereby accept responsibility for all costs for relocating, modifying or otherwise adapting the Improvements to such realignment and/or relocation and/or reconstruction if required by ACHD, which shall be accomplished by Licensees according to designs, plans and specifications approved in advance by ACHD in writing; provided Licensees may elect to terminate this Agreement in lieu of complying with this responsibility, and further provided ACHD gives Licensees adequate written notice as necessary to allow Licensees to redesign, relocate, modify or adapt the Improvements to the realignment and/or relocation and/or reconstruction of the Highway and also licenses Licensees such additional area of its right-of-way, if any, as may be necessary for the proper operation of the Improvements. SECTION 9. PERMIT. If the proposed construction and installation of the Improvements, or any reconstruction, relocation or maintenance thereof requires Licensees to obtain a permit under ACHD policies, Licensees shall first obtain such permit from ACHD (Construction Services Division) before commencing such work, and pay the required fees and otherwise comply with the conditions set forth therein. SECTION 10. NO TITLE IN LICENSEES. Licensees shall have no right, title or interest in or to the Right -of -Way other than the right to temporarily use the same pursuant to the terms of this Agreement. SECTION 11. NO COSTS TO ACHD. Any and all costs and expenses associated with Licensees' Authorized Use of the Right -of -Way, or any construction or installation of Improvements thereon, or the repair and maintenance thereof, or the relocation of Improvements or utilities thereon, or the restoration thereof at the termination of this Agreement, shall be at the sole cost and expense of Licensees. SECTION 12. TAXES AND ASSESSMENTS. Licensees agree to pay all special assessments and personal property taxes that may be levied and assessed on the Improvements during the term of this Agreement. SECTION 13. RESTORATION ON TERMINATION. Upon termination of this Agreement, Licensees will promptly remove all Improvements and restore the Right -of - LICENSE AGREEMENT - Page 4 (5/16/02 Way to at least its present condition. Should Licensees fail or neglect to promptly remove the Improvements and restore the Right -of -Way, ACHD may do so, and assess Licensees for the costs thereof. Provided, ACHD and Licensees may agree in writing that some or all of such Improvements are to remain on the Right -of -Way following termination, and by entering into such an agreement Licensees thereby disclaim all right, title and interest in and to the same, and hereby grants such Improvements to ACHD, at no cost. Further provided, if the Authorized Use of the Right -of -Way under this Agreement is for landscaping in ACHD right-of-way and the irrigation and maintenance thereof, and the general purpose government with jurisdiction has adopted ordinances, rules and regulations governing the landscaping and maintenance of such right-of-way by owners of the adjacent property, to the extent such owners are obligated to maintain and irrigate the landscaping Licensees need not remove the same from the Right -of -Way. SECTION 14, INDEMNIFICATION. Licensees hereby indemnify and hold ACHD harmless from and against any and all claims or actions for loss, injury, death, damages, mechanics and other liens, arising out of the failure or neglect of Licensees, Licensees' employees, contractors and agents, to properly and reasonably make Authorized Use of the Right -of -Way or properly construct, install, plant, repair or maintain the Improvements thereon, or that otherwise result from the use and occupation of the Right -of -Way by Licensees, and including any attorney fees and costs that may be incurred by ACHD in defense of such claims or actions indemnified against by Licensees hereunder. For claims or actions arising out of failures or neglects occurring during the term of this Agreement Licensees' obligations pursuant to this section shall survive the termination of this Agreement. SECTION 15. COMPLIANCE WITH LAW: WASTE AND NUISANCES PROHIBITED. In connection with Licensees' use of the Right -of -Way, throughout the term of this Agreement Licensees covenant and agree to: (i) comply and observe in all respects any and all, federal, state and local statutes, ordinances, policies, rules and regulations, including, without limitation, those relating to traffic and pedestrian safety, the Clean Water Act and/or to the presence, use, generation, release, discharge, storage or disposal in, on or under the Right-of-way of any Hazardous Materials (defined as any substance or material defined or designated as hazardous or toxic waste, material or substance, or other similar term, by any federal, state or local environmental statute, regulation or occurrence presently in effect or that may be promulgated in the future); (ii) obtain any and all permits and approvals required by ACHD or any other unit of government; and (iii) commit no waste or allow any nuisance on the Right -of -Way. Licensees covenant and agree to indemnify and hold ACHD harmless from and against any and all claims, demands, damages, liens, liabilities and expenses (including without limitation, reasonable attorneys' fees), arising directly or indirectly from or in any way connected with the breach of the foregoing covenant. These covenants shall survive the termination of this Agreement, SECTION 16. ASSIGNMENT, Licensees cannot sell, assign or otherwise transfer this Agreement, the license herein extended, or any of its rights hereunder except with the LICENSE AGREEMENT - Page 5 (5/16/02 prior written consent of ACHD, which consent will not be granted unless the assignee assumes all obligations, warranties, covenants and agreements of Licensees herein contained. SECTION 17. ATTORNEYS' FEES. In any suit, action or appeal therefrom to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees. SECTION 18. NOTICE. Any notice under this Agreement shall be in writing and be delivered in person, or by United States Mails, postage prepaid, or by public or private 24-hour overnight courier service (so long as such service provides written confirmation of delivery), or by facsimile verified by electronic confirmation. All notices shall be addressed to the party at the address set forth below or at such other addresses as the parties may from time to time direct in writing by notice given the other. Any notice shall be deemed to have been given on (a) actual delivery or refusal, (b) three (3) days following the day of deposit in the United States Mails, (c) the day of delivery to the overnight courier, or (d) the day facsimile delivery is electronically confirmed. If to ACHD: Ada County Highway District 3775 Adams Street Garden City, Idaho 83714 Attn: Right of Way Division If to Licensees: Mussell Corner Business Owners Association P.O. Box 2020 Boise, Idaho 83701 (208) 429-9596 SECTION 19. SUCCESSORS AND ASSIGNS. This Agreement, the license herein extended, and the covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and, if consented to by ACHD under section 16, Licensees assigns. SECTION 20. EXHIBITS. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. SECTION 21. NO RECORDATION. This Agreement shall not be recorded in the Official Real Property Records of Ada County, Idaho. SECTION 22. Warranty of Authority to Execute. 22.1 The person executing this Agreement on behalf of ACHD represents and warrants due authorization to do so on behalf of ACHD, and that upon execution of this Agreement on behalf of ACHD, the same is binding upon, and shall inure to the benefit of, ACHD. LICENSE AGREEMENT - Page 6 (5/16/02 22.2 If Licensees are not a natural person, the person executing the Agreement on behalf of Licensees represent and warrant due authorization to do so on behalf of Licensees, and that upon execution of this Agreement on behalf of Licensees, the same is binding upon, and shall inure to the benefit, of Licensees. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. ADA COUNTY HIGHWAY DISTRICT Kathy Smith, Right of Way Supervisor LICENSEE: Mussell Corner Business Owners Assn Its: Mier o aney L.L.C. a Membe Victory L.L.C. a Member of Mussell Corner Business Owners Association EXHIBITS Exhibit "A" -Description and depiction of Right -of -Way LICENSE AGREEMENT - Page 7 (5/16/02 X. JiIuIF a N 'vim 1 d 3 d b• S 3 aV NOislAIaBnS Z13NZtf(D0 1,3sSnW �; 3WH�lYNI } 3NIIHOJYY1 it e Q a ^ F O U ass � Z Q 'z O � � �- iYYY w kkkk o - 3:�� O � �331f usN ,. 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