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HomeMy WebLinkAboutNoise Odor Light and Dus... (2)- 1 - 41526.0005.720682.1 Recording Requested By and When Recorded Return to: HAWLEY TROXELL ENNIS & HAWLEY LLP Attn: Geoffrey M. Wardle P.O. Box 1617 Boise, Idaho 83701 SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY NOISE, ODOR, LIGHT AND DUST EASEMENT THIS NOISE, ODOR, LIGHT AND DUST EASEMENT is made and executed this ________ day of 20__ by _______________________________________________, the owner of the property described herein in Schedule I (the “Property”). RECITALS: WHEREAS the Property is located in close proximity the Meridian City Waste Water Treatment Plant (the “Plant”), which the City of Meridian (the “City”) has constructed and currently operates to provide waste water treatment for the current and future residents of the City, including the Owner; and WHEREAS the Owner desires to rezone the property within the City and develop it in conformance with the City’s Comprehensive Plan and Zoning Ordinance; and WHEREAS the Property’s proximity to the Plant places it within that area designated on the City’s Land Use Map as “Mixed Use-Waste Water Treatment Plant;” and WHEREAS the City is willing to rezone the property subject to the provisions of this Noise, Odor, Light and Dust Easement; and WHEREAS the City and the Owner desire to provide notice to all future owners of the Property and their successors and assigns of this Noise, Odor, Light and Dust Easement. WITNESSETH: NOW THEREFORE, for good and valuable consideration, including the foregoing, the Owner does hereby execute this Noise, Odor, Light and Dust Easement on the following terms and conditions: - 2 - 41526.0005.720682.1 1. Notice. The Owner is aware of the close proximity of the Plant to the Property and the fact that the Property is located within that area designated on the City’s Land Use Map as “Mixed Use-Waste Water Treatment Plant.” The Owner is aware that as a result of the close proximity of the Plant to the Property, offensive noises, odors, lights and dust may emanate therefrom and may be experienced by the Owner and that such noises, odors, lights and dust may interfere with the Owner’s use and enjoyment of the Property. 2. Consent. The Owner does hereby consent to the rezone of the Property and future development of the Property in conformance with the City’s Comprehensive Plan and Zoning Ordinance. The Owner further consents to the City’s requirement that execution and recording of this Noise, Odor, Light and Dust Easement, as a condition to rezoning of the Property by the City. Furthermore, the Owner consents to the existing use and operation of the Plant and the future use and operation of the Plant, including potential changes to the Plant and its future maintenance, renovation and possible expansion. This Noise, Odor, Light and Dust Easement shall not terminate or vary in the event of changes in the operation, use or management of the Plant. 3. Waiver. It is the intent of the Owner, that in consideration of the foregoing, the City, its agents, successors and assigns be released from any and all claims the Owner may have as a result of the proximity of the Property to the Plant and operation of the Plant. Therefore, to the fullest extent permitted by law, the Owner does hereby fully waive any and all rights or causes of action which the Owner may now have or which the Owner or its successors in interest may have in the future against all predecessors in interest to the Owner, the City, its agents, and successors or assigns, for any harm, damage or injury of any kind, including injury to both person and property, without limitation, and any claims sounding in contract, tort or nuisance caused or occasioned by the proximity of said Plant to the Property, its lawful operation, and the emanation of noises, odors, and dust therefrom (collectively the “Claims”). Moreover, to the fullest extent permitted by law, the Owner releases its predecessors in interest, the City, its agents, and successors or assigns, from all such Claims. Nothing contained herein shall be construed, however, as a waiver by the Owner or its successors or assigns of any right provided by law for redress, arising from the mismanagement of operations of the Plant or the failure of the City, its successors or assigns to operate the Plant in conformance with all local, state and federal regulations governing waste water treatment facilities. 4. Running with the Land, Binding on Successors. This Noise, Odor, Light and Dust Easement and all rights, waivers and releases created hereunder shall be a burden on the Property, shall be a covenant running with the land, shall be appurtenant to the Property for the benefit of the City, its agents, and successors or assigns, including any entity acquiring any interest in the Plant. This Noise, Odor, Light and Dust Easement shall be binding upon the Owner, its heirs, successors, assigns and personal representatives, and upon any person acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or otherwise. All references herein to the “Owner” shall be construed to include any party that has any interest whatsoever in the Property including all successors and assigns of the Owner. - 3 - 41526.0005.720682.1 5. Severability. If any provision of this Noise, Odor, Light and Dust Easement shall be held invalid, it shall not affect the validity of the remainder of this Noise, Odor, Light and Dust Easement. 6. Duration. This Noise, Odor, Light and Dust Easement shall be valid for so long as the City, or its successors or assigns, operate the Plant at its current location. In the event the Plant is moved or relocated from its present general site, excluding the future maintenance, renovation and expansion of the Plant, this Noise, Odor, Light and Dust Easement shall automatically terminate and the Property shall be released therefrom. 7. Modification. Except as set forth above in Section 6, this Noise, Odor, Light and Dust Easement shall not be modified in any respect whatsoever or terminated, in whole or in part, except in writing with the consent of the City. 8. No Dedication. Nothing contained in this Noise, Odor, Light and Dust Easement shall be deemed to be a gift or dedication of any portion of the Property to the City or to the general public or for the general public or for any public purpose whatsoever, it being the intention of the parties that this Noise, Odor, Light and Dust Easement shall be strictly limited to and for the purposes herein expressed. This Noise, Odor, Light and Dust Easement is not intended to create, nor shall it be in any way interpreted or construed to create, any third party beneficiary rights in any person not identified herein. 9. Captions and Headings. The captions and headings in this Noise, Odor, Light and Dust Easement are for reference only and shall not be deemed to define or limit the scope or intent of any of the terms or covenants contained herein. IN WITNESS AND EXECUTION WHEREOF, the Owner set their hands on the day and date first above written. OWNER: _______________________________________ By: ___________________________ Its: Dated: - 4 - 41526.0005.720682.1 STATE OF IDAHO ) ) ss. County of Ada ) On this _____ day of _________, 2022, before me, ______________________________, the undersigned, a Notary Public in and for said State, personally appeared _______________________ as ______________ of _________________________________known or identified to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ____________________________________ Notary Public for Idaho Residing at ______________, Idaho My commission expires ______________________ - 5 - 41526.0005.720682.1 SCHEDULE I LEGAL DESCRIPTION OF PROPERTY