Murgoitio well share agreementADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 36.00 12
BOISE IDAHO 06116109 04:20 PM
DEPUTY VIcM Allen
RECORDED—REQUEST OF �II����iIIIIIIIIiIIIIIIIIIIIII( II
Pioneer 109056419
Recording Requested By and
When Recorded Return to:
Richard F. Goodson
HAWLEY TROXELL ENNIS & HAWLEY LLP
P.O. Box 1617
Boise, Idaho 83701-1617
S,% (_` SPACE ABOVE THIS LINE FOR RECORDER's USE ONLY
WELL SHARING AND EASEMENT AGREEMENT
THIS WELL SHARING AND EASEMENT AGREEMENT (this "Agreement") is made
as of the 151 day of May, 2009 (the "Effective Date"), among L & G Murgoitio, LLC, an
Idaho limited liability company ("Murgoitio"), and The City of Meridian, an Idaho Municipal
Corporation ("Meridian"), under the following circumstances:
RECITALS
A. Murgoitio is the fee owner of real property located in Ada County, Idaho, and
legally described in Exhibit A attached hereto, which consists of approximately 33 acres of land
(the "Murgoitio Property").
B. Meridian is the fee owner of certain real property located adjacent to the
Murgoitio Property and legally described in Exhibit B attached hereto, which consists of
approximately 78 acres of land (the "Meridian Property").
C. The Parties to this Agreement each own a portion of the water right described in
State of Idaho Water License Number 63-11703 (the "Water License"), which authorizes the
diversion of a total of 1.07 cfs of water for the irrigation of a total of 103 acres within the
Murgoitio Property and the Meridian Property. The Parties' respective shares of the Water
License are referred to individually as a "Water Right" and collectively herein as the "Water
Rights."
The allocation of the Water License among the Water Rights (the "Proportionate Shares")
is as follows:
Party
Proportionate Share
Acres
Murgoitio
27.18%
28
Meridian
72.82%
75
WELL SHARING AND EASEMENT AGREEMENT - 1
02872.0002.1539694.2
D. The irrigation water is currently delivered from a ground water well and ancillary
facilities located on the Murgoitio Property (the "Irrigation Well").
E. The Parties desire to share the use, operation, maintenance and repair of the
Irrigation Well pursuant to the terms and conditions of this Agreement.
F. The Parties desire to (i) memorialize their agreements regarding the ownership of
the Water Rights and to address their rights and obligations with respect to the Irrigation Well
and the costs associated with the maintenance, repair, use, operation and replacement of the
Irrigation Well and (ii) to create an easement across the Murgoitio Property for Meridian for
ingress and egress to the Irrigation Well.
NOW, THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
[x"901I1i5101►11
1. Agreement as to Proportionate Shares of Water Rights. The Parties hereby
agree that the information contained in Recital C above is accurate, and each Party specifically
agrees that its Proportionate Share of the Water Rights as reflected therein is accurate.
2. Ownership of Well. The Parties hereto agree that Murgoitio, subject to
Meridian's right to use the same, owns the Irrigation Well, pump, motor and all miscellaneous
ancillary equipment utilized in connection therewith.
3. Joint Use of Well. The Parties agree, subject to Meridian paying its
proportionate share of the costs of maintenance, operation, repair and replacement of the
Irrigation Well, that they will share in the use of the Irrigation Well and the irrigation water
produced therefrom.
4. Meridian's Reimbursement Obligations. Meridian shall and does hereby agree
to reimburse Murgoitio for 72.82% of all expenses Murgoitio incurs in connection with the
maintenance, operation, repair and replacement of the Irrigation Well, pump, motor and
miscellaneous ancillary equipment, including but not limited to, electricity, maintenance and
insurance (collectively "Well Expenses"). Meridian shall reimburse Murgoitio for the Well
Expenses within forty five (45) days after Murgoitio notifies Meridian of its share of such Well
Expenses. Murgoitio shall provide Meridian with a copy of all documentation supporting such
Well Expenses. Notwithstanding the address for Notices under this Agreement, a copy of such
documentation of expenses shall be delivered to the Department of Parks and Recreation at 33
East Broadway Avenue, Meridian, Idaho 83642.
5. Non -Use By Meridian. The Parties hereto acknowledge that at times, Meridian
choose to not use the Irrigation Well to produce water to irrigate the Meridian Property.
Notwithstanding anything to the contrary stated herein, if Meridian does not use the Irrigation
WELL SHARING AND EASEMENT AGREEMENT - 2
02872.0002.1539694.2
Well to produce water to irrigate the Meridian Property, Meridian shall not be obligated to
reimburse Murgoitio for any portion of the Well Expenses.
6. Conservation. The Parties agree that if the water level of the Irrigation Well
shall reach a low point requiring conservation, the Parties shall cooperate and make such rules as
are necessary to be followed to preserve the continuing quality and quantity of the irrigation
water produced from the Irrigation Well for the mutual benefit of the Parties.
7. Individual Systems. The maintenance, repair and replacement of the individual
pipelines and related equipment which lead from the Irrigation Well and provide irrigation water
to the Murgoitio Property and the Meridian Property shall be the sole responsibility of the Party
that owns such pipelines and related equipment. Each Party shall bear all the expense associated
with said Party's individual system, without right of contribution from the other Party. No
individual system shall unreasonably interfere with the access to and use of the Irrigation Well.
8. Disclaimers as to Water Quantity and Quality. Murgoitio does not make any
representation, warranty or guaranty to Meridian regarding the quality of the water from the
Irrigation Well, including but not limited to, the suitability of the water for irrigation purposes.
9. Grant of Easement. Murgoitio hereby grants to Meridian the following
easements:
(a) A nonexclusive subsurface pipeline easement ("Pipeline Easement") for
operating, maintaining, repairing, replacing, reconstructing, and monitoring pipelines and related
facilities to transport groundwater from the Irrigation Well to the boundary of the Meridian
Property. The Pipeline Easement shall be limited to the area of the Murgoitio Property in which
the pipelines which currently provide irrigation water from the Irrigation Well to the Meridian
Property are located on the date of this Agreement.
(b) A nonexclusive easement ("Well Access Easement") for ingress and
egress to the Irrigation Well over that portion of the Murgoitio Property approved by Murgoitio
in order for Meridian to exercise and perform its rights and obligations pursuant to this
Agreement. Meridian shall not unreasonably interfere with Murgoitio's operations or use of the
Murgoitio Property while accessing the Irrigation Well or the Murgoitio's Property. The legal
description and drawing of the approved Well Access Easement location are attached hereto as
Exhibit C and Exhibit D.
10. Indemnification by Meridian. Meridian shall indemnify, defend and hold
harmless Murgoitio and its successors and assigns from and against all damages, claims, actions,
demands, liabilities, costs and expenses, including without limitation, costs of investigation,
lawsuits and other proceedings, whether in equity or in law, settlement costs, attorneys' fees and
costs (including attorneys' fees and costs on appeal), and penalties or violations of any kind,
which are alleged to directly or indirectly arise out of, result from or relate to: (a) any injury to a
person, property or entity occurring in connection with the exercise of any of Meridian's rights
hereunder; (b) any negligent act or omission on the part of Meridian, its agents, representatives,
WELL SHARING AND EASEMENT AGREEMENT - 3
02872.0002.1539694.2
contractors, employees, invitees, licensees or lessees in the performance of this Agreement; and
(c) breach of the terms and conditions of this Agreement by Meridian. The foregoing
indemnification obligations owed to Murgoitio shall not include any claims or liability to the
extent of the negligence or intentional act of Murgoitio.
11. Indemnification by Murgoitio. Murgoitio shall indemnify, defend and hold
harmless Meridian and their heirs, successors and assigns from and against all damages, claims,
actions, demands, liabilities, costs and expenses, including without limitation, costs of
investigation, lawsuits and other proceedings, whether in equity or in law, settlement costs,
attorneys' fees and costs (including attorneys' fees and costs on appeal), and penalties or
violations of any kind, which are alleged to directly or indirectly arise out of, result from or
relate to: (a) any injury to a person, property or entity occurring in connection with the exercise
of any of Murgoitio's rights hereunder; (b) any negligent act or omission on the part of
Murgoitio or their agents, representatives, contractors, employees, invitees, licensees and lessees
in the performance of this Agreement; or (c) breach of the terms and conditions of this
Agreement by Murgoitio. The foregoing indemnification obligations owed to Meridian shall not
include any claims or liability to the extent of the negligence or intentional act of Meridian.
12. Term, This Agreement shall commence on the Effective Date. Unless otherwise
canceled or terminated in writing by the mutual agreement of the Parties, or pursuant to the terms
of this Agreement, the easements granted in this Agreement shall continue in perpetuity. Upon
the expiration or earlier termination of this Agreement, the Parties will prepare and record a deed
quitclaiming any interest in the easements created under this Agreement.
13. Binding on Successors. This Easement shall be recorded in the official records
of Ada County, Idaho and shall be binding on the successors, administrators and assigns of all
Parties hereto and shall run with the land.
14. Failure to Pay Expenses. In the event Meridian fails or refuses to pay when due
its share of any expenses incurred in connection with the construction, maintenance, operation,
insurance and replacement of the Irrigation Well, its ancillary facilities and pipeline systems as
provided for in this Agreement, which failure continues for a period of forty five (45) days after
receipt of written notice of a bill thereof, such failure shall constitute a default and legal action
may thereafter be instituted against Meridian by Murgoitio for reimbursement, plus interest.
Interest shall accrue from the date said bill was due and payable to and including the date said
bill is paid at the rate of twelve percent (12%) per annum (the 'Default Rate").
15. Miscellaneous Provisions.
15.1 Recitals. The Recitals set forth at the beginning of this Agreement shall
be deemed a part of this Agreement.
15.2 Good Faith. The Parties agree to exercise their best efforts and utmost
good faith to effectuate all the terms and conditions of this Agreement and to execute such
WELL SHARING AND EASEMENT AGREEMENT - 4
02872.0002.1539694.2
further instruments and documents as are necessary or appropriate to effectuate all of the terms
and conditions of this Agreement.
15.3 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, taken together, shall constitute one and the
same instrument.
15.4 Entire Agreement. This Agreement contains the entire agreement
between the Parties regarding the Water Rights and the Irrigation Well and supersedes all prior
and contemporaneous understandings and agreements, whether oral or in writing, between the
Parties regarding the foregoing matters. There are no representations, agreements, arrangements
or understandings, oral or in writing, between or among the parties to this Agreement relating to
the subject matter of this Agreement that are not fully expressed in this Agreement or any
addendum or supplement hereto.
15.5 Interpretation and Headings. The provisions of this Agreement shall be
construed as to their fair meaning, and not for or against any party based upon any attribution to
such party as the source of the language in question. Headings used in this Agreement are for
convenience of reference only and shall not be used in construing this Agreement.
15.6 Governing Law. This Agreement shall be governed by the laws of the
State of Idaho.
15.7 Venue. The venue of any action brought to interpret or enforce this
Agreement shall be laid in Ada County, Idaho.
15.8 Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, to any extent shall be held
by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, covenants, conditions or provisions of this Agreement, or the application thereof to any
person or circumstance, shall remain in full force and effect and in no way shall be affected,
impaired or invalidated thereby.
15.9 Waiver. The waiver by one party of the performance of any covenant,
condition or promise under this Agreement shall not invalidate this Agreement, nor shall it be
considered a waiver by it of any other covenant, condition or promise under this Agreement.
The waiver by either or both parties of the time for performing any act under this Agreement
shall not constitute a waiver of the time for performing any other act or an identical act required
to be performed at a later time.
15.10 Amendment. This Agreement may be amended or supplemented at any
time, but only by the written agreement of the Parties.
15.11 No Third -Party Beneficiaries. This Agreement is intended to benefit
only the Parties hereto and no other person or entity has or shall acquire any rights hereunder.
WELL SHARING AND EASEMENT AGREEMENT - 5
02872.0002.1539694.2
15.12 Survival. Each of the obligations of the Parties hereto to provide any
documents, make any payments, or indemnify any other Party hereto shall survive the
termination of this Agreement.
15.13 Further Acts. Each Party agrees to perform any further acts and to
execute, acknowledge and deliver any documents which may be reasonably necessary to carry
out the provisions of this Agreement.
15.14 Attorneys' Fees. In the event of any litigation involving the Parties to this
Agreement to enforce any provision of this Agreement, to enforce any remedy available upon
default under this Agreement, or seeking a declaration of the rights of a Party under this
Agreement, the prevailing party shall be entitled to recover from the other such attorneys' fees
and costs as may be reasonably incurred, including the costs of reasonable investigation,
preparation and professional or expert consultation incurred by reason of such litigation or
appeal.
15.15 Notice. Any notice or other communication which a Party is required or
may desire to give any other Party pursuant to this Agreement shall be in writing and shall be
given by personal service, by United States registered or certified mail, return receipt requested,
postage prepaid, or by generally recognized overnight carrier with proof of delivery provided,
addressed to the party to whom the communication is being sent as follows:
Address for Notices to Murgoitio:
L & G Murgoitio, LLC
6575 South Locust Grove Road
Meridian, Idaho 83642
ATTN: Gary R. Murgoitio, Manager
Address for Notices to Meridian:
City Clerk
City of Meridian
33 East Broadway Avenue
Meridian, Idaho 83642
Either party may change its address by written notice to the other given in the manner set
forth above. Any notice so given shall be deemed to have been given at the time of delivery, if
personally served, or as of the date of delivery (whether accepted or refused) established by U.S.
Post Office return receipt or the overnight carrier's proof of delivery, as the case may be, if sent
by mail or overnight courier.
WELL SHARING AND EASEMENT AGREEMENT - 6
02872.0002.1539694.2
Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
L & G MURGOITIO, LLC,
an Idaho limited liability company
By
diary R. urgoiho, M91T9er
THE CITY OF MERIDIAN,
an Idaho Municipal Corporation
-10f M
TFO
9
BEAL
City 97lerk
WELL SHARING AND EASEMENT AGREEMENT - 7
Mayor
02872.0002.1639694.2
STATE OF IDAHO )
) ss.
County of Ada )
On this L day of May, 2009, before me,j C {� �p A ( Q � y, a
Notary Public in and for said State, personally appeared Gary R. Murgoitio, known or identified
to me to be the manager of L & G Murgoitio, LLC, or the person who executed the instrument
on behalf of said limited liability company and acknowledged to me that such limited liability
company executed the same.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year,in'this certiffcale first above written.
STATE OF IDAHO )
) ss.
County of Ada )
)r:s�
Notary Public for Idaho
Residing at:?�k� �L-P . =�Q
My commissionexpi�5'.� 3-10
On this 15'1_` day of May, 2009, before me, ��� i c P ((p �� h� t—,c,/ a
Notary Public in and for said state, personally appeared Tammy de Weerd and Jaycee L.
Holman, known or identified to me to be the Mayor and Clerk, respectively, of the City of
Meridian, who executed the instrument on behalf of said City, and acknowledged to me that such
City 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 Pu for Idaho
Residing at 1�Q�
My commission expires
WELL SHARING AND EASEMENT AGREEMENT - 8
02872.0002.1539694.2
EXHIBIT A
MURGOITIO PROPERTY
PARCEL I (Parcel 0902):
A parcel of land being a portion of the North half of Section 5, Township 2 North, Range 1 East
of the Boise Meridian, Ada County, Idaho being more particularly described as follows:
Commencing at the Northwest corner of Section 5, Township 2 North, Range 1 East, Boise
Meridian, thence South 89 degrees 57'42" East 2663.77 feet to the Northwest corner of the
Northeast quarter of the REAL POINT OF BEGINNING of this description; thence
South 89 degrees 57'30" East 287.50 feet along the North line of the Northeast quarter to a point;
thence South 00 degree 00'00" East 104.38 feet to a point on the centerline of the Farr Lateral;
Along the centerline of the Farr Lateral the following: thence South 69 degrees 12'36" East
194.76 feet to a point of curvature; thence 153.61 feet along a curve to the right; said curve
having a radius of 200.00 feet, a central angle of 44 degrees 00'19", a tangent of 80.82 feet and a
chord of 149.86 feet which bears
South 47 degrees 12'26" East 149.86 feet to a point of tangency; thence
South 25 degrees 12'17" East 135.17 feet to a point; thence
South 22 degrees 30'27" East 1518.71 feet to a point; thence
South 50 degrees 00'00" East 27.38 feet to a point; thence
South 00 degree 22'36" East 32.24 feet to a point; thence
North 64 degrees 59'21" West 64.46 feet to a point; thence
North 46 degrees 02'32" West 379.56 feet to a point; thence
South 68 degrees 36'36" West 694.84 feet to a point; thence
South 43 degrees 00'19" West 108.41 feet to a point; thence
North 78 degrees 30'03" West 191.66 feet to a point on the West line of the Northeast quarter;
thence North 00 degree 0I' 18" East 1854.47 feet to the REAL POINT OF BEGINNING.
1*.4:11:
02872.0002.1539694.2
EXHIBIT B
MERIDIAN PROPERTY
PARCEL 2410:
A portion of the East half of the Northwest quarter of Section 5, Township 2 North, Range 1 East,
Boise Meridian, Ada County, Idaho more particularly described as follows:
Commencing at the North quarter corner of said Section 5 from which the West 1/16 corner of said
Section 5 bears North 89058122" West, 1331.92 feet;
Thence along the North-South centerline of said Section 5, South 00°01' 18" West, 500.00 feet to
the REAL POINT OF BEGINNING;
Thence continuing along said North-South centerline South 00°O1' 18" West, 2174.91 feet to the
CIA corner of said Section 5;
Thence along the East-West centerline of said Section 5 North 89°52'48" West, 1329.59 feet to
the C -W 1/16 corner of said Section 5;
Thence along the West boundary line of the East half of the Northwest quarter of said Section 5
North 00101'41" West, 2672.76 feet to the West 1/16 corner of said Section 5;
Thence along the North boundary line of said Section 5 South 89°58'22" East, 983.43 feet;
Thence leaving said North boundary line South 00°02' 18" West, 500.00 feet;
Thence South 89158'22" East, 348.63 feet to the REAL POINT OF BEGINNING.
02872.0002.1539694.2
EXHIBIT C
DESCRIPTION FOR
WELL ACCESS EASEMENT.
MERIDIAN CITY PARK PROPERTY
An access easement located in the NW1/4 of the NE1/4 of Section 5, T.2N.,
R.1 E., B.M., Ada County, Idaho more particularly described as follows:
BEGINNING at the N1/4 corner of said Section 5 from which the E1/16 corner of
said Section 5 bears South 89056'48" East, 1329.60 feet;
thence along the North boundary line of said Section 5 South 89056'48" East,
15.00 feet;
thence leaving said North boundary line South 00°01'18" West, 40.75 feet to the
beginning of a curve to the left;
thence along said curve 12.11 feet, said curve having a radius of 10.00 feet, a
central angle of 69022'29" and a long chord of 11.38 feet which bears South 34°39'57"
East;
thence South 69°21'11" East, 105.80 feet;
thence South 20038'49" West, 15.00 feet;
thence North 69021'11" West, 123.10 feet to a point on the North-South
centerline of said Section 5;
thence along said North-South centerline North 00001'18" East, 58.07 feet to the
POINT OF BEGINNING.
02872.0002.1539694.2
5 20 80
0 10 40 120
SCALE: 1" = 40'
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EXHIBIT D
Depiction of
Easement
W. LAKE HAZEL ROAD
S 89'56'48" E 1329.60'
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EASEMENT �r� A<
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LEGEND
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CURVE TABLE
Curve Radius Length Chord Dist, Chord Brg. I Delta
C1 10.00 li 12.11 11.38 1 5 34'39'57" E 1 69'22'29"
E1/16 S 32
S 5
FOUND 5/8" IRON PIN
FOUND BRASS CAP MONUMENT
SECTION LINE
TOP OF BANK
EASEMENT LINE
WATER WELL
7729
?F�°F 0
CRY&CF
02872.0002.1539694.2
O
0
TOB
TOB
--------------
rwi
CURVE TABLE
Curve Radius Length Chord Dist, Chord Brg. I Delta
C1 10.00 li 12.11 11.38 1 5 34'39'57" E 1 69'22'29"
E1/16 S 32
S 5
FOUND 5/8" IRON PIN
FOUND BRASS CAP MONUMENT
SECTION LINE
TOP OF BANK
EASEMENT LINE
WATER WELL
7729
?F�°F 0
CRY&CF
02872.0002.1539694.2