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HomeMy WebLinkAboutConstruction, Operation, and Maintenance Agreement with Settlers Irrigation District for Lochsa Fallsfeu f 27 RECORDED-REQUEST OF 1111~i1~i~{~111~1{1111111111111111111 Maflafl Thomas 103087464 AMOUNT 81.00 ADA COUNTY RECDRDER J. DAVID NAVAflRO 801SE IQAH4 ly5/28108 04,41 PM DEPUTY Llsa D'Aleaslo CONSTRUCTION, OPERATION, AND MAINTENANCE AGREEMENT FOR LOCHSA FALLS SUBDIVISION This Construction, Operation, and ltiiaintenance Agreement ("Agreement") is dated this -F-~--- day of M,~c~ , ? 043, by and between SETTLERS IRRIGATION DISTRICT, whose address is P.Q. Box 7571, Boise, Idaho 83707, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho ("Settlers"), and LOCHSA FALLS, LLC, an Idaho limited liability company whose address is 4487 N. Dresden Place, Suite 102, Boise, Idaho 83714 ("Developer") WITNESSETH: WHEREAS, the Developer owns that certain real property, situated in the City of Meridian, Ada County, Idaho, commonly known as Lochsa Falls Subdivision, which property is described in Exhibits A-1 through A-5 attached hereto and made a part hereof (the "Property"); CONSTRUCTION, OPERATION, AND MAINTENANCE AGREE]4iENT -1 OS]G03 BOI tv1TZ:5Q2601.2 ~a WHEREAS, Developer further desires to obtain a License from Settlers tQ construct an off-site water lint across the Cana within Sections 25, 26, 35, and 36 of T.4.N. R.1.W., Ada County, Idaho, as more particularly described in the Vicinity Map attached hereto as Exhibit A-2 and incorporated herein. WHEREAS, Settlers desires to grant the License to Developer for purposes of constructing and installing the sewer and water extension and off-site water line in accordance with the terms set forth in this Agreement; . NOW, THEREFQRE, in consideration of the mutual benefits to be received by Settlers and the Developer, and other goad and valuable consideration, which consideration is hereby acknowledged by the parties, and the promises, covenants, agreements, and conditions hereinafter set forth, the par ties agree with one another as follows: I. Grant of License, Settlers hereby grants a License to Developer for the purpose oI GOnstruCting, installing, inspecting, maintaining, and repairing the sewer and water extension and off-site water Iine, as mare particularly described in Exhibit B, subject and subordinate to any and all property rights Settlers may have in the Canal. Developer expressly acknowledges and agrees that this Agreement does not grant the Developer the right to install any property or equipment, except as may be described in this Agreement, or the right to impair any rights of Settlers. This grant is expressly conditioned upon the prior receipt by the Developer of any and all necessary approvals from governmental entities and private parties for its activities to be performed under the terms of this Agreement, and is further expressly conditioned upon Settlers' written approval of all drawings and plans concerning the activities to be conducted by the Developer under this Agreement. CROSSING AGREEMEN'C' -2 Lochsn Subdivision - ! l-6-02 901 MT1:411952.1 _ 1 ~~ 2. Tenn of Grant of License. The term of the License shalt commence upon the effective date of this Agreement and shall continue far so long as Developer is incompliance with the terms of this Agreement. Settlers reserves the right to revoke this License, effective upon written notice to Developer thereof, should Developer at any time fail to comply with the terms of this Agreement. 3. Installation and Inspection. The Developer, or its agents or contractors, shalt perform all work contemplated by the terms of this Agreement in a workmanlike manner. The Developer agrees to assume all responsibitity, including general liability and costs far the construction. Prior to commencing construction, Developer shall provide written notice to T Settlers which selects Alternate #1 or Alternate #2 described on Exibit B. Any construction or other activities by the Developer which may impede or impair the flow of water may only be performed during the non-irrigation season, which is usually between November I and March 15. The Developer expressly acknowledges that, notwithstanding the Developer's assumption of certain responsibilities and receipt of certain rights under this Agreernent, Settlers does not relinquish its ownership rights in any portion of its canals. 4. Representations and Warranties. (a) Settlers. Settlers represents and warrants that: (i) it is an irrigation district organized and existing under and by virtue of the laws of the State of Idaho; (ii) it has the capacity to enter into and perform it's obligations under this Agreement; (iii} all organizational and other actions required to authorize it to enter into and perform this Agreement have been CR055lNGACREEMENT -3 Lachsa Subdivision - 1 I-6-0? aa~ Mri:a~~a~a.~ J - - _ ~ _ properly taken; and (iv) this Agreement has been properly executed and delivered by Settlers astd is valid and binding upon Settlers in accordance with its terms. (b) Developer. The Developer represents and warrants that: (i } it is an Idaho limited liability company; (ii} it has the capacity to enter into and perform its obligations under this Agreement; (iii} all actions required to authorize the Developer to enter into and perform this Agreement have been properly taken; (iv) this Agreement has been properly executed and delivered by the Developer and is valid and binding upon the Developer in accordance with its terms; and {v) it has obtained all permits, licenses, and acknowledgments required to conduct the activities to be performed under the terms of the Agreement. 5. indemnity. The Developer agrees to protect, defend, indemnify, and hold Settlers and its officers, directors, employees, members, and agents harmless from and against any and a111iability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including court casts and attorney fees, arising from or out of any acts or omissions of the Developer, its agents, or contractors related to or in connection with its activities under this Agreement and the exercise of any privileges or performance of any obligations by the Developer hereunder. Furthermore, the Developer agrees to protect, indemnify, and hold Settlers and its officers, directors, employees, members, and agents harmless from and against any and all liability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including court costs and attorney fees, arising from or out of water quality violations, flooding, or any interruption or interference with the flow of water in Settlers' Canal caused by any act or omission of the Developer or its agents, CROSSING AGREEhIENT -4 LpchsnSu6division - 11-6-Q? 60i M7~~A11572 t o. No Liens, The Developer shall allow no liens as a result of any labor performed ar materials supplied in connection with the activities of the Developer, its agents, or contractors, to attach to Settlers' Canal or to any adjacent lands held by Settlers. 7. Binding Agreement. The promises, covenants, conditions, and agreements herein containcd shall be binding on each of the parties hereto and on alI parties and all persons claiming undcr them or any of them; and the rights and obligations hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. 8. Further Consideration. In further consideration for inducing Settlers to grant this Agreement, t17e Developer agrees to promptly pay all legal expenses incurred by Settlers relating to the negotiation, preparation, and execution of this Agreement. 9. No Waiver. The failure of a party to insist on the strict performance of any provision of this Agreement or to exercise any right or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit such party's right to enforce any provision ar excrcise any right. 10. Limitations on Liability. The parties hereto agree that nothing herein contained shall be construed to create a joint venture, partnership, or other similar relationship which might subject any party to liability for the debts and/or obligations of the others, except as otherwise expressly agreed in this Agreemenk. 11. lnterpretation. The validity, meaning, and effect of this Agreement shall be determined in accordance with the laws of the State of ldaho. CRQSSIIYC AGREEMENT - 5 Lochsu Subdivision -- 1 l-b-Q' aos_nrTi aitiau.i 12. Severability. if anypart of this Agreement is held to be illegal or unenforceable by a col~rt of competent jurisdiction, the remainder oi'this Agreement shall be given effect to t11c fullest extent reasonably possible. 13. Entire A~rcement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter of this Agreement. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 14. Recording. This Agreement shall be recorded at the Ada County Recorder's Office. 15. Notices. All notices permitted or required to be given under the terms of this Agreement shall be in writing and shall be deemed effective upon receipt if sent by first class mail, pnstagc prepaid, and addressed to the respective party hereto as follows or at such other address as a party designates in writing. SETTLES iRRIGAT[©N DI5TRIC7 Post Office Box 7571 Boise, Idaho 83707 FARWES"i', L.L.C. 4487 N. Dresden Place, Suite 102 Boise, ID 83714 IN WiTT~lE55 WHEREOF, the parties hereto have executed this Agreement the date first set faith above. SETTLERS IRRICAT[ON DISTRICT Richard Allen, President of its Board of Directors Attest: CROSSING AGREEMENT - 6 Lochsn Subdivision - l 1-6-D2 aot MTtc411t3i2.t __ Vicki Keen, Secretary FARWEST, LLC. By ~ w Its_~, ~,.~_~Y ~ CfiOSSINC AtiftEEhfEI'~1i - 7 LorhsaSuhdivision - I I-6-03 Boi MT1:41SB12.1 STATE OF IDAHO ) ) S5. County of Ada ) On this ~~day of !~o /, 2002, before me, the undersigned notary public in and for said state, personalty appeared RICHARD ALLEN, President of the Board of Directo~~ of Settlers Irrigation District, an imgation district organized and existing under and by virtue of the laws of the State of Idaho, known or identified to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he has the authority to execute and executed the same for the purposes therein contained on behalf of Settlers Irrigation 1Jistrict. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official _„ seal the day and year in this certificate first above written. `• ,.,as>>ur~,,,, y :a - _ '~: NOTARY PUBLIC FOR IDAHO r : ,.L _,,, = r Residing at t.'r~•~ u ~ ~' '' ~~~ f;~~ ~ ~• • ._~.~ My Comrr!+ssion Expires i~ ~ .~ . ~. ~.~ 'r•,rr, UrN,rl~~' STATE OF IDAHO } ss. County of Ada ) On this day of,~~- , 2002, before me, the undersigned notary public in and for said state, personally appeared VICKI KEEN, Secretary of Settlers Irrigation District, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho, known or identified to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she has the authority to execute and executed the same for the purposes therein contained on behalf of Settlers Irrigation District. 1N 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 IDAH Residing at _,_,,•(,~~ ~' .'c,~~ ~u r My Commission Expires crzossi~vc wcrr>v~TMi~r~T - s T.o~i-sa 5ubdivisian - ! 1-6-02 ,l,,,rr„~~.,,,r tit -~ ~ ~ti ~ ~I , ' ~~'~ • -. ~..~~ .. i;~,~ ~! •~. '~'r7r11 UlI~1~1~~,1'`` ,~~.. eoi rnn:a~ie~z.~ i STATE OF IDAHO 5S. , County of Ada ~ On this ~~day of h1 o+Ie.~W~-~-~ , 2002, before me, the undersigned notary public in and for said state, personally appeared C~-~-{_ ~TD~ ~S';m;'~he r ,~~,> of Farwest, L.L.C., known or identified to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has the authority to exacute and executed the same for the purposes therein contained on behalf of Farwest, L.L.C. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official sea! the day and year in this certificate first above written. _= ~ ~G ~ ~N ~ ' NOTARY PUBLIC FOR IDAHO • ~` =~~ '~"~~'s ~~J Residing at ~[L i~t.~~ ~-oi.~e.. ~~X - ,,,,~ , .-. ~ f My Commission Expires J.z//~~ s '^'~et•~~9 ,f,~~ OP `gyp` ~= Lochsa Subdivision - ! I-6-02 aoi t~rs.a~ieiz.~ , _~ ~ :' • EXHIBIT A-1 yEC~raiT••r ~~.P I.GUICD ii SECiN1115 :6, ?l, !~ ?:Ill SS t E u. ~.t ~t. =cE t:uwm, ;Hra VlCIN{TY MAP Noy To sca~~ LOCATED iN SECTIONS 25,26,35, AHD 36 OF T.4N., R.1 W,, ADA CCUNfY EXHIBITA-~ _.r- -- -- - - . -- ., EXHIBIT B . Plans and Specifications Plans prepared by Briggs Engineers, Inc: Alternate #l -Ten Mile Road Sewer and Water Extension #2 Title Sheet: Sheet I of5, Dwg. No. 0501-T1, dated 4!30102 Sewer Plan/Profile: Sheet 2 of S, Dwg. No. 0501-SI, dated 4130!02 Sewer Plan/Profile: Sheet 3 of S, Dwg. Na. OSO1-S2, dated 4/30102 Sewer Details: Sheet 4 of S, Dwg. No. OSO1-DT1, dated 11/16/02 Water Details: Sheet S ofS, Dwg_ No. OSO1-DT2, dated S/i7100 Alternate #Z -Ten Mile Road Sewer and Water Extension #2 Title Sheet: Sheet 1 of ~, Dwg. No. OSOI-T1, dated 4!30!02 ' Sewer Plan/Profile: Sheet 2 of S, Dwg. No. 0501-S 1, dated 4/30/02 Sewer PIan/Profile: Sheet 3 of S, Dwg. No. 0501-52, dated 4/30/02 Sewer Details: Sliest 4 of 5, Dwg. No. 0501-DT1, dated 4/30/02 Water Details: Sheet 5 of 5, Dwg. No. 0501-DT2, dated 4/30102 Off-Site Water Line Title Sheet: Shcet l of4, T-I, Dwg. No. I 1001, dated 10/11/02 Offsite Water Plan: Sheet 2 of4, OSW-1, Dwg. No. 11001, dated 1019/02 Offsite Water Plan; Sheet 3 of4, OSW-2, Dwg. No. 1 IOOI, dated 1019/02 Dctail Sheet: Sheet 4 of 4, DT-1, Dwg. No. 11001, datcd 9/9102 aoi M1i:aiieiz.+