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MOU with Julius M. Kleiner Trust for Regarding Details related to Julius MADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 5 BOISE IDAHO 05/09/12 01:52 PM DEPUTY Bonnie erbillig III ILII'II'II'III'If'II'll�'I'll'I'I� RECORDED- REQUEST OF I I Meridian City 112043737 MEMORANDUM OF UNDERSTANDING BETWEEN THE JULIUS M. KLEINER MEMORIAL PARK TRUST AND THE CITY OF MERIDIAN THIS MEMORANDUM OF UNDERSTANDING ("Agreement") is made and entered into this -/�ay of May, 2012, by and between The Julius M. Kleiner Memorial Park Trust, UTA, Dated April 5, 2007 ("Trust") and The City of Meridian, Idaho ("City"), to establish a mutual understanding regarding certain details related to the Julius M. Kleiner Memorial Park ("Park") WHEREAS, Trust is constructing a developed park on 60 acres that is to be donated to City as a public park ("Project"); and, WHEREAS, Trust intents to convey a complete Project to City and that all construction will be completed before deed conveyance or shortly thereafter; and, WHEREAS, City and Trust desire to establish a mutual understanding regarding issues related to deed conveyance and ongoing obligations. NOW, THEREFORE, the parties hereby agree as follows: 1. Well Relocation. After the recording of the Gift Deed, Trust shall continue to be responsible for its obligations under the Well Sharing, Water Supply and Easement Agreement dated July 31, 2008 and recorded as Ada County Instrument Number 108087272 (the "Well Sharing Agreement"). If the well identified in the Well Sharing Agreement has not been relocated within five (5) years from the date of the recording of the Gift Deed, then Trust and City shall enter into an addendum to this Agreement whereby the Trust's obligations under the Well Sharing Agreement shall be transferred to City, and the Trust shall transfer to the City MEMORANDUM OF UNDERSTANDING - 1 42340.0004.4943292.4 sufficient funds to fulfill the Trust's obligations under the Well Sharing Agreement, not to exceed Thirty Thousand Dollars ($30,000). 2. Roadway Cost Reimbursement. After the recording of the Gift Deed, Trust shall continue to be financially responsible to Meridian Centercal, L.L.C. ("Centercal") for the Trust's reimbursement obligation for its share of the construction of Records Road and related improvements, as set forth in the Purchase and Sale Agreement and Joint Escrow Instructions between the Trust and Centercal dated June 30, 2008. 3. Gift Deed. City and Trust have agreed on the form and content of the Gift Deed, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference. At such time that the Gift Deed is presented to City by Trust, the City Council hereby authorizes the Mayor to sign, and the City Clerk to attest said deed and any other escrow or closing documents not inconsistent with the provisions of this Agreement. 4. Escrow and Taxes. City has chosen to utilize the services of an Escrow Agent to assist the parties in determining the amount of pro -rated property taxes at the time the Park is transferred and to carry out instructions related to the recording of the Gift Deed. Trust agrees to be responsible for payment of its share of pro -rated property taxes prior to recording of the Gift Deed. If the Gift Deed is recorded before the taxes for 2012 are set, the apportionment of the real property taxes for 2012 shall be based upon the taxes for 201 L When the taxes for 2012 are set, City and Trust agree to adjust the proration of the 2012 taxes and, if necessary, to refund or pay such sums as necessary to effect such adjustment as of the date of recording of the Gift Deed. City agrees to pay for the services of the Escrow Agent and any related recordings fees. The designated Escrow Agent shall be Erin Dixon at First American Title. Trust and City shall MEMORANDUM OF UNDERSTANDING - 2 42340.0004.4943292.4 each submit escrow instructions which shall include a provision instructing the Escrow Agent to record the executed Gift Deed in the land records of Ada County at such time as City and Trust agree. 5. Water Rights. City and Trust acknowledge that Trust has submitted to the Idaho Department of Water Resources ("IDWR") on or about April 4, 2012 a Notice of Change in Water Right Ownership pertaining to State of Idaho Water Right No. 63-33613. Trust agrees to cooperate with IDWR as reasonably necessary to obtain approval from IDWR to the requested change. In the event IDWR approves the requested change, Trust shall cooperate with City in its Notice of Change in Water Right Ownership for Water Right No. 63-33613 to be prepared and submitted by City after the Gift Deed has been recorded. 6. This Agreement shall be construed and interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho shall have exclusive jurisdiction and agree that Ada County is the proper venue. 7. Time is of the essence with respect to the obligations to be performed under this Agreement, and said obligations shall be ongoing and survive the recording of the Gift Deed. 8. Except as expressly provided in this Agreement, and to the extent permitted by law, any remedies described in this Agreement are cumulative and not alternative to any other remedies available at law or in equity. 9. The failure or neglect of a party to enforce any remedy available by reason of the failure of the other party to observe or perform a term or condition set forth in this Agreement shall not constitute a waiver of such term or condition. A waiver by a party (i) shall not affect MEMORANDUM OF UNDERSTANDING - 3 42340.0004.4943292.4 any term or condition other than the one specified in such waiver, and (ii) shall waive a specified term or condition only for the time and in a manner specifically stated in the waiver. 10. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or transferees of any kind. [SIGNATURES TO FOLLOW ON NEXT PAGE] MEMORANDUM OF UNDERSTANDING - 4 42340.0004.4943292.4 IN WITNESS WHEREOF, the parties do execute this Agreement the day and year first above written. THE JULIUS M. KLEINER MEMORIAL PARK TRUST, UTA, DATED APRIL 5, 2007 Michael E. Huter, Co -Trustee By: n��I Z46 e�'K-10001 Elden E. Gray, Co -Trustee CITY OF MERIDIAN, IDAHO ,!..I Tammy df� e rc�, Mayor ATTEST: C =�o-.Qv:�.piflD AUCU�Jr94a City of E�.. ID IDAHO SEAL AV Jaycee ICY101man, City Clerk e,ft" TIOS14�% MEMORANDUM OF UNDERSTANDING - 5 42340.0004.4943292.4