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Master Pathway Agreement Nampa Meridian Irrig DistrictNov 2 0 2000 i n t e r o f f ice CITY OF MERIIi.IAN MEMORANDUM To: William G. Berg, Jr. From: Wm. F. Nichols Subject: City of Meridian Parks/Simunich Date: November 20, 2000 Will: Please find attached the original of the Title Policy for the City of Meridian Parks/Simunich matter. Please note that I have attached the Invoice in the amount of $215.00. This now completes this transaction, and if you have any questions pertaining to it please advise. msg/Z:\Work\M\Meridian\Meridian 15360M\CherryLane Land Exchange\Bergl 12000.Mem S ALLi. ACE TITLE & ESCROW C%aRP. 200 EAST CARLTON, STE. 10 - MERIDIAN, IDAHO - 83642 208-888-3150 - 1-877-88TITLE - FAX 208 888-6414 TO: MARLENE WHITE, PETERSON, PRUSS MORROW & GIGRAY 200 E. CARLTON SUITE 31 MERIDIAN, ID 83642 - INVOICE - ORDER NUMBER: 00088367 JG DATE: November 15, 2000 RE: CITY OF MERIDIAN PROPERTY DESCRIPTION: 2405 OF NW4 SEC 1 - DESCRIPTION OF SERVICES AND CHARGES - OWNER'S TITLE POLICY: STANDARD COVERAGE $1,800.00 RATE $200.00 RECORDING FEES $ 15.00 mm AMOUNT DUE $215.00 Customer Copy Accounting Copy File Copy INVOICE PAYABLE UPON RECEIPT. After thirty (30) days, invoice is subject to a 1.5% service charge each month. PLEASE NOTE: Until such time as payment is received on this invoice, the policy/policies, if applicable, issued in connection herewith are NOT in full force and effect. Thank You. American Land Title Association Owner's Policy (10-17-92) J TIIl:OR TITLE 45URANCE 13 4036 106 00008279 Policy of Title Insurance SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULA- TIONS, TICOR TITLE INSURANCE COM- PANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; Issued by: ALLIANCE TITLE & ESCROW CORP. 200 E. CARLTON SUITE 10 MERIDIAN, ID 83642 (208) 888-3150 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title. 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. This policy shall not be valid or binding until countersigned below by an authorized signa- tory of the Company. TICOR TITLE INSURANCE COMPANY BY ��— President Attest + a o Secretary JJJJ�J JJ JJJJJJ�JJJJ JJJJJJJJJJJJJJJJJJ JJJ�J e ALTA OWNER'S POLICY -17-92) Reorder Form No. s— Exclusions from Coverage The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. Conditions and Stipulations 1. DEFINITION OF TERMS The following terms when used in this policy mean: (a) "insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representatives, next of kin, or corporate or fiduciary successors. (b) "insured claimant": an insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowl- edge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart construc- tive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A, or in Schedule C if not provided for in Schedule A, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in the applicable Schedule, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "ynmarketability of the title": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given to the insured. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on; (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or dam- age for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. if prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the insured and subject to the options con- tained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph. it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent juris- diction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In all cases where this policy permits or requires the Company to prose- cute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the qiction or proceeding, and all appeals therein, and permit the Company to use" at its option, the name of the insured for this purpose. Whenever mm Premium Amount: $ 200.00 S C H E D U L E- A Order No.: 00088367 JG Policy No.: 13 4036-106 8279 Date of Policy: NOVEMBER 06, 2000 at 4:56 P.M. Amount of Insurance: $ 1,800.00 1. Name of Insured: THE CITY OF MERIDIAN 2. The estate or interest in the land which is covered by this Policy is: FEE SIMPLE 3. Title to the estate or interest in the land is vested in: THE CITY OF MERIDIAN, a Municipal Corporation 4. The land referred to in this Policy is described as follows: situate in State of IDAHO, County of ADA: A parcel located in the Southeast Quarter of the Northwest Quarter of Section 1, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, more particularly described as follows: COMMENCING at a stone monument marking the Southeasterly corner of said Southeast Quarter of the Northwest Quarter (center one-quarter corner) from which a brass cap marking the Southwesterly corner of said Northwest Quarter (one-quarter corner) bears South 89 degrees 48120" West a distance of 2655.19 feet; thence South 89 degrees 48120" West along the Southerly boundary of said Southeast Quarter of the Northwest Quarter a distance of 663.77 feet to the POINT OF BEGINNING; thence continuing South 89 degrees 48120" West a distance of 513.77 feet to a point; thence leaving said Southerly boundary North 0 degrees 11140" West a distance of 56.28 feet to a point; thence North 60 degrees 11'17" West a distance of 174.64 feet to a point on the Westerly boundary of said Southeast -1- Schedule A Order No.: 00088367 JG Quarter of the Northeast Quarter; thence North 0 degrees 41106" West along said Westerly boundary a distance of 59.44 feet to a point; thence leaving said Westerly boundary South 60 degrees 11'17" East a distance of 370.02 feet to a point; thence North 89 degrees 48120" East a distance of 344.94 feet to a point; thence South 0 degrees 38142" East a distance of 18.00 feet to the POINT OF BEGINNING. END OF SCHEDULE A -2- Owner's Schedule A -continued S C H E D U L E B ORDER NO.: 00088367 JG POLICY NO.:13 4036-106 8279 THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE BY REASON OF THE FOLLOWING: (Exceptions] 1. Rights or claims of parties in possession not shown by the public records. 2. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey or inspection of the premises including, but not limited to, insufficient or impaired access or matters contradictory to any survey plat shown by the public records. 3. Easements, or claims of easements, not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the public records. G. Taxes or special assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 7. General Taxes for the year 2000, a Lien but not yet due and payable. 8. The Land described herein is located within the boundaries of the CITY of MERIDIAN (888-4433) and is subject to any Assessments levied thereby. 9. The Land described herein is located within the boundaries of the NAMPA-MERIDIAN Irrigation District and is subject to any Assessments levied thereby. For current status call 466-7861. 10. Rights-of-way for Ditches, Tunnels and Telephone and Transmission Lines constructed by Authority of the United States as granted to the United States under provision of Section 58-604, Idaho Code 1947. -1- Owner's Schedule B ATTACHED TO AND MFS A PART OF TICOR TITLE IN; ANCE COMPANY POLICY NO.: 13 4036-106 8279 Order No.: 00088367 JG 11. Right-of-way for FIVE MILE CREEK and the Rights of Access thereto for Maintenance of said CREEK. 12. Easement, and the Terms and Conditions thereof: In Favor of CITY OF MERIDIAN Purpose SEWER EASEMENT Recorded JANUARY 11, 1978 Instrument No. 7801820 13. Easement, and the Terms and Conditions thereof: In Favor of CITY OF MERIDIAN Purpose PERMANENT AND TEMPORARY SANITARY SEWER EASEMENT AGREEMENT Recorded MARCH 16, 1992 Instrument No. 9215420 14. Agreement, and the Terms and Conditions contained therein: Between JOY S. FLACK AND JOE SIMUNICH and CITY OF MERIDIAN Recorded MARCH 16, 1992 Instrument No. 9215420 Purpose PERMANENT AND TEMPORARY SANITARY SEWER EASEMENT AGREEMENT 15. Agreement, and the Terms and Conditions contained therein: Between NAMPA & MERIDIAN IRRIGATION DISTRICT and CITY OF MERIDIAN, A MUNICIPAL CORPORATION Recorded DECEMBER 21, 1992 Instrument No. 9288367 Purpose LICENSE AGREEMENT 16. Agreement, and the Terms and Conditions contained therein: Between JOE SIMUNICH AND KATHERINE SIMUNICH, HUSBAND AND WIFE and CITY OF MERIDIAN, A MUNICIPAL CORPORATION Recorded AUGUST 25, 1999 Instrument No. 99084852 Purpose RELEASE AND SETTLEMENT AGREEMENT 17. Agreement, and the Terms and Conditions contained therein: Between JOE SIMUNICH AND KATHERINE SIMUNICH, HUSBAND AND WIFE and CITY OF MERIDIAN, A MUNICIPAL CORPORATION Recorded AUGUST 25, 1999 Instrument No. 99084853 Purpose RELEASE AND SETTLEMENT AGREEMENT -2- Owner's Schedule B ATTACHED TO AND W. A PART OF TICOR TITLE INL ANCE COMPANY POLICY NO.: 13 4036-106 8279 Order No.: 00088367 JG 18. An Easement for Ingress and Egress as disclosed in Warranty Deed Recorded October 20, 2000 as Instrument No. 100084264. END OF SCHEDULE B -3- Owner's Schedule B requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or pro- ceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obliga- tion to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE In addition to and after the notices required under Section 3 of these Condi- tions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obliga- tion to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reason- able times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any autho- rized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspon- dence and memoranda in the custody or control of a third party, which reason- ably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reason- ably requested information or grant permission to secure reasonably neces- sary information from third parties as required in this paragraph shall termi- nate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS: TERMINATION OF LIABILITY In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations to the insured under this policy, other than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or con- tinue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against underthis policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prose- cute or continue any litigation. 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE This policy is a contract of indemnity against actual monetary loss or dam- age sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is subject to the following: (i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the amount of insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy; or (ii) where a subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement. The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses for which the Company is liable under this policy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. APPORTIONMENT If the land described in applicable Schedule consists of two or more parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILITY (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or dam- age until there has been a final determination by a court of competent jurisdic- tion, and disposition of all appeals therefrom, adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto. 11. LIABILITY NONCUMULATIVE It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter ex- ecuted by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS (a) No payment shall be made without producing this policy for endorse- ment of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damaqa-l�as been definitely fixed in accordance with these Conditions and Stipuk s, the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and reme- dies in the proportion which the Company's payment bears to the whole amount of the loss. If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impair- ment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against Non-insured Obligors. The Company's right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to indem- nities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subroga- tion rights by reason of this policy. 14. ARBITRATION Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connec- tion with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when ttrgmount of Insurance is $1,000,000 or less shall be arbitrated at the optior ther the Company or the insured. All arbitrable matters when the Amount or Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the insured. Arbitra- tion pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Com- pany. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 16. SEVERABILITY In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES, WHERE SENT All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to the Company at Ticor Title Insurance Company, Claims Department, P.O. Box 2233, Los Angeles, California 90051. JJJJJJJJOrr] J Orr, JJ�JJJJJJJJJJJJJJ JJJJJMA mgJJJ 0 0 0 0 0 n 0 IN 0 L n O M M Z Ln C M D Z n T R i -- W i - N 2 R V = ~ 3 N R tz 4- 5 F'Jr'19D AS AN ACGJ4ti.DATIO�Y, STR4CTLY FGR THE PURPOSES C� GENE^v1LLY Q�,�TiNu THE Ii-ka 4T C'GES NOT P�?ESENT A OF THE LAN!: GR IMPLY ANY SLJ �"`• r b RLL;. ^ rN;?A?iGPlS As TO TOESIZE, AR - E-A OR ANY =ACTS RELATEDTo THE LAID SHOWN THE-, c \ �� B r ua' ,48 3 rl $ . T it Five rr,;Ie. D,..;n ' •■ a I � n n n >e n� n n na sryM_ ss.� 2 ] 4 b 4 7 1 1. 10 ri T 5 b A. 1 CHATEAU DRIVE,, x P40.. � 2 2 M, 3 ]a 40 16 , 841 $ 42y � n 4 It Q _;';FAIRW00D COURT I F"%5 x d ^11 ^ i 20. 21 22, i,A 26 X.1 1 7 a tz 3 b p ` = r/ a K IS 14 0 L, 12. II � S w b IR 19 7.06 6 15 rr 73 s DRIVE7;0-W'W�'�V s % Raj 12 / 1175 15p WARRT,�dJF1�CCROE�' AT - Dob 8ff3&7 e-4 Project No.CM-0100(114)Key No.57 Parcel No2902 ID No. 5729L02 2000 CC GO ALUANCETVTLE THIS INDENTURE, Made this day of SEPT- 2000, between JOE AND KATHERINE SIMUNICH, husband and wife, Grantors, and THE CITY OF MERIDIAN, a municipal corporation, 33 East Idaho Ave., Meridian, Idaho 83642, Grantee. WITNESSETH: That the Grantors, for value received, do by these presents, grant, bargain, sell and convey unto the Grantee, the following described real property, situated in the County of Ada, State of Idaho, to - wit. A parcel located in the SE 1/4 of the NW 1/4 of Section 1, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a stone monument marking the southeasterly corner of said SE 1/4 of the NW 1/4 (center one-quarter corner) from which a brass cap marking the southwesterly corner of said NW 1/4 (one-quarter corner) bears S 89048120" W a distance of 2655.19 feet; thence S 89048120" W along the southerly boundary of said SE 1/4 of the NW 1/4 a distance of 663.77 feet to the POINT OF BEGINNING; thence continuing S 8948120" W a distance of 513.77 feet to a point; thence leaving said southerly boundary N 0°11'40" W a distance of 56.28 feet to a point; thence N 60°11' 17" W a distance of 174.64 feet to a point on the westerly boundary of said SE 1/4 of the NE 1/4; thence N 041'06" W along said westerly boundary a distance of 59.44 feet to a point; thence leaving said westerly boundary S 60011'17" E a distance of 370.02 feet to a point; Page 1 RECORD AT THE REQUEST OF THE STATE OF IDAHO FEE EXEMPT - I.C. 67-2301 WARRANTY DEED Project No.CM-0100(114) Key No.5729 Parcel No. 02 ID No. 5729L02 thence N 89°48120" E a distance of 344.94 feet to a point: thence S 0°38142" E a distance of 18.00 feet to the POINT OF BEGINNING. This parcel contains 0.61 acres. RESERVING TO THE GRANTORS, a 25 foot Permanent Easement for ingress and egress at the west end of the above described parcel. TO HAVE AND TO HOLD the said premises, with their appurtenances unto the said Grantee, and Grantee's assigns forever. And the said Grantors do hereby covenant to and with the said Grantee, that Grantors are the owners in fee simple of said premises; that said premises are free from all encumbrances, EXCEPT those to which this conveyance is expressly made subject and those made, suffered or done by the Grantee; and subject to reservations, restrictions, dedications, easements, right of way and agreements, (if any) of record, and general taxes and assessments, (includes irrigation and utility assessments, if any) for the current year, which are not yet due and payable, and that the Grantors will warrant and defend the same from all lawful claims whatsoever. Page 2 RECORD AT THE REQUEST OF THE STATE OF IDAHO FEE EXEMPT - I.C. 67-2301 WARRANTY DEED Project No.CM-0100(114) Key No.5729 Parcel No. 02 ID No. 5729L02 IN WITNESS WHEREOF, Grantors have hereunto set their hands and seals the day and year first above written. UNICH 42 - NE SIMI CH STATE OF IDAH 0 ) ss. County of NDA ) On this I day of SEFT. , 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared JOE AND KATHERINE SIMUNICH, husband and wife, known or identified to me to be the persons whose names are subscribed to the \foregoing instrument, and acknowledged to me that they executed the same. �s°,fi°®9eac1089@"* (SEAL) ✓' ♦� � •� �6 .C1 0 4 jz�: oTAR e® y S PUBlies L�� 2 Notary Public for Residing at MAYJ:--I L Lna 1 D My commission expires 9 1� ZaUs� Page 3 RECORD AT THE REQUEST OF THE STATE OF IDAHO FEE EXEMPT - I.C. 67-2301 ;DCOUNTY KCOR�CE 0,%V11.0 l i ^ Z I`+�/,�1Rn t l,r, :t0 26CO NO -5 PH 4: 56 QUITCLAIM DEED ^EC0R0ED - R7" Q,JEST Of' FEE DE'UTY1-d�" s - 100089634 Simunich Properties Limited Partnership, an Idaho limited partnership, whose address is 955 West Ustick Road, Meridian, Idaho 83642, hereinafter called "Grantor", does hereby release and forever quitclaim all interest in the real estate situated in the County of Ada, State of Idaho, unto The City of Meridian, a municipal corporation, whose address is 33 East Idaho Ave., Meridian, Idaho 83642, hereinafter called "Grantee", and to "Grantees" heirs and assigns, all right, title and interest which Grantor now has or may hereafter acquire in the following described real property situated in Ada County, State of Idaho, to -wit: A parcel located in the SE 1/4 of the NW 1/4 of Section 1, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a stone monument marking the southeasterly corner of said SE 1/4 of the NW 1/4 (center one-quarter corner) from which a brass cap marking the southwesterly corner of said NW 1/4 (one-quarter corner) bears S 89°48'20" W a distance of 2655.19 feet; Thence S 89°48'20" W along the southerly boundary of said SE 1/4 of the NW 1/4 a distance of 663.77 feet to the POINT OF BEGINNING; thence continuing S 89048120" W a distance of 513.77 feet to a point; thence leaving said southerly boundary N 0°11'40" W a distance of 56.28 feet to a point; thence N 6001 I' 17" W a distance of 174.64 feet to a point on the westerly boundary of said SE 1/4 of the NE 1/4; thence N 0°41'06" W along said westerly boundary a distance of 59.44 feet to a point; Thence leaving said westerly boundary S 60'1117" 17" E a distance of 370.02 feet to a point; thence N 89°48'20" E a distance of 344.94 feet to a point; thence S 0038'42" E a distance of 18.00 feet to the POINT OF BEGINNING. This parcel contains 0.61 acres. QUITCLAIM DEED -1 TO HAVE AND TO HOLD, all and singular the said premises, together with the appurtenances, unto Grantee, and to Grantee's heirs and assigns forever. WITNESS the hand of said Grantors this day of a 2000. STATE OF IDAHO :ss County of Ada, SIMUNICH PROPERTIES LIMITED PARTNERSHIP 12-41 �hunich Investments, LLC, General Partner oseph Simunich, Member On this / day of ��✓Plyl/SP.�; in the year 2000, before me, EAZIAI SER VISS , a Notary Public, personally appeared Joseph Simunich, known or identified to me to be a Member of Simunich Investments, LLC, an Idaho limited liability company, the General Partner of Simunich Properties Limited Partnership, and the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as a member of Simunich Investments, LLC, as General Partner for Simunich Properties Limited Partnership. SER 4Z .. ftvfJ,iA :.•' kOT.aRr �1.AUBoc, f. Z:\ QUITCLAIM DEED -2 Notary Public for Idaho Commission expires: 2111114) WorksTive We Pathway\QCDeedTwo.wpd TO; MAYOR & COUNCIL FROM; Gary D. Smith, PE RE; Five Mile Creek Pathwa oject Supplemental Engineering Agreement You may or may not be aware that the residents adjacent to the pathway as previously planned, voiced almost unanimous opposition to it at an informational meeting that was held recently. This was because of its immediate adjacent proximity to the rear lot lines along most of the paths length. We knew it was going to be a tight fit but were a little surprised that there was so much opposition. This supplemental change is pretty comprehensive because of where we were with the original agreement and because the pathway is being moved to the other side of the creek and basically involves a redesign of the work that has been done.. Please review the scope of work outlined on page 2 of this proposal for a clearer understanding of what needs to be done. I plan on bringing this before you at the November 1st Council meeting under my department reports. r r-� HUB OF TREASURE VALLEY OFFICIALS A Good Place to Live COUNCIL MEMBERS WILLIAM G. BERG, JR., City Clerk JANICE L. GASS, City Treasurer CITY OF MERIDIAN RONALD R. TOLSMA MAX YERRINGTON GARY D. SMITH, P.E. City Engineer ROBERT D. CORRIE BRUCE D. STUART, Water Works Supt. WALT W. MORROW JOHN T. SHAWCROFT, Waste Water Supt. 33 EAST IDAHO SHARI STILES KENNY W. BOWERS, Fire Chief "BILL" MERIDIAN, IDAHO 83642 Planner & Zoning Administrator W.L. GORDON, Police Chief WAYNE G. CROOKSTON, JR., Attorney Phone (208) 888-4433 • FAX (208) 887-4813 JIM JOHNSON Public Works/Building Department (208) 887-2211 Chairman - Planning &Zoning GRANT P. KINGSFORD Mayor MEMORANDUM October 31, 1994 TO; MAYOR & COUNCIL FROM; Gary D. Smith, PE RE; Five Mile Creek Pathwa oject Supplemental Engineering Agreement You may or may not be aware that the residents adjacent to the pathway as previously planned, voiced almost unanimous opposition to it at an informational meeting that was held recently. This was because of its immediate adjacent proximity to the rear lot lines along most of the paths length. We knew it was going to be a tight fit but were a little surprised that there was so much opposition. This supplemental change is pretty comprehensive because of where we were with the original agreement and because the pathway is being moved to the other side of the creek and basically involves a redesign of the work that has been done.. Please review the scope of work outlined on page 2 of this proposal for a clearer understanding of what needs to be done. I plan on bringing this before you at the November 1st Council meeting under my department reports. Sa�-iTD-ss2oo-2112a LIlKIl3-93 n SUPPEAL AU[1= PROJECT NAME Five Mile Creek Pathway, Meridian to Linder REVISION NO. 1 PROJECT No. CM -0100 ( 114) KEY No. 5729 SHEET 1 OF 4 WORK AUTHORIZATION NO. T 9 4 3 8 7 0 AGREEMENT NO. 3561 DATE 10/27/94 CONSULTANT Civil Survey Consultants, Inc. - ORIGINAL AGREEMENT AMOUNT $ 24,766.69 PREVIOUS SUPPLEMENTALS $ 0.00 THIS SUPPLEMENTAL $ 14,568.06 NEW AGREEMENT AMOUNT $ 39,334.75 The Agreement dated April 5, 1994 between the State and Consultant is hereby modified as the parties hereto mutually agree. (Describe changes to the Agreement, list all additional work, and show method of payment and maximum cost. Use continuation sheets 2112-A if necessary.) The preliminary engineering schedule for this project required that design be completed by October 25, 1994. Plans were completed and ready for an intermediate design review submittal on September 12, 1994. A public informational meeting was held by the City of Meridian on September 14, 1994. As a result of the public input received at this meeting the City of Meridian has requested that the pathway be located north of Five Mile Creek, east of the Tully Park site to Meridian Road, see the attached letter from Gary Smith dated September 22, 1994. This is a major change in project plans requiring the addition of a bridge crossing of Five Mile Creek and redesign of 4,100 lineal feet of the project. (Continued on next page) The undersigned Consultant hereby agrees that if this Supplemental Agreement is approved, they will perform the work detailed above and accept pay- ment at the prices shown for the respective items, in accordance with the terms of the original Agreement, except as herein provided. By reason of this proposed change, completion time will be adjusted as follows: 218 calendar day extension with final design submittal May 31, 1995 Acceptet 2 j ZyL/ NSUtTANT By City of Meridian APPROVED FOR STATE OF IDAHO STATE HIGHWAY ADMINISTRATOR :N�'TE. This Supplemental Agreement is not ::: ei'feotz ue t1nil approved 1iy the Stade Highwax Administrator or his authori2ed representative. f -212 ,A 12-92 CONTINUATION SHEET i-153210-3 4X4 SHEET 2 of 4 SUPPLEMENTAL AGREEMENT N0. 1 This change requires the following major work effort: 1. Redo the Environmental Evaluation. 2. Prepare and submit a Joint application For Permit for the Five Mile Creek crossing. The crossing is proposed to be a pre-engineered wooden structure suitable for pedestrian traffic only. 3. A portion of the alignment between Tully Park east to the mid section line will require right-of-way acquisition which will require the preparation of descriptions and right-of- way plans for use by the City in aquiring the necessary right-of-way. 4. A topographic survey of the north bank area between Tully Park and Meridian Road is required. 5. New preliminary plans must be prepared and submitted for review and approval. A new concept approval will be required. 6. The existing plan set (16 sheets) must be updated which will require revisions to 13 sheets, preparation of 3 new plan and profile sheets, and additional sheets as required. The proposed pedestrian crossing of Five Mile Creek shall be a pre-engineered wooden structure. The plans and contract documents shall establish the general configuration of the structure and require that the structure be pre -approved prior to bidding. The successful bidder will be required to submit design calculations for the structure and foundations, including geotechnical work if required, for review and approval prior to construction. 7. Once the above tasks are accomplished, the project will be completed to the stage that existed on September 22, 1994. .211'2=A 12-92 ^ CONTINUATION SHEET ,-153210-3 SUPPLEMENTAL AGREEMENT N0. 1 SHEET 3 of 4 A man-hour and cost estimate for the work effort required to complete the above work effort is shown on sheet 4 of 4. The estimated additional cost for this effort is $14,568.06. The revised total contract amount is $39,334.75. The method of payment shall be at the billing rates established in the original Agreement For Engineering Services dated April 5, 1994. The following is a revised completion schedule for the project. Supplemental Agreement Approved By City 11/01/94 Supplemental Agreement Approved By ITD 11/15/94 Complete Topographic Survey of North Bank 11/18/94 Complete Preliminary Design Concept 11/30/94 Revised Design Concept Approved 12/30/94 Revised Environmental Evaluation Complete 01/30/95 Preliminary Right -of -Way Plans Completed 01/30/95 Intermediate Design Plans Completed 02/28/95 Joint Application For Permit Completed 02/28/95 Intermediate Design Review Completed 03/31/95 Crossing Permit Approved 04/30/95 Complete Environmental Evaluation 05/15/95 Final Design Submittal 05/31/95 Right -Of -Way Acquired 07/31/95 Advertisement and Bid 07/31/95 Begin Construction 09/01/95 Complete Construction 11/01/95 The above schedule requires a 218 day extension with a completion date of May 31, 1995. This schedule does not meet the February 1, 1995 deadline identified in a letter dated October 5, 1994 from John Collins of ITD to Gary Smith of the City of Meridian. The February 1, 1995 deadline can not be met due to review time requirements, permitting requirements, and the anticipated time required for right-of-way acquisition. • Y ,-2112-A 12-92 /-153210-3 CONTINUATION SHEET SUPPLEMENTAL AGREEMENT N0. 1 City of Meridian Five Mile Creek Pathway Project Project No. CM -0100; Key 5729 Supplemental Agreement No. 1 Man Hour and Cost Estimate Civil Survey Consultants, Inc. SHEET 4 of 4 Engineer = WORK TASK DESCRIPTION hrs @ $21.63 Man Hours Land Surveyor = 32.00 Engineer Land Designer Field Surveyor Man Total 1. Environmental Evaluation 8.00 hrs @ 24.00 = $1,840.92 32.00 56.00 hrs @ $15.15 = $848.40 Subtotal Labor Charges = 2. Joint Application For Permit 8.00 21.27% 24.00 32.00 General Overhead = 137% $6,754.36 Fee = 10% 3. Right -of -Way, research, calculations, $1,274.37 32.00 32.00 $14,018.06 descriptions and plan preparation. 4. Topographic survey of north bank. 24.00 24.00 5. Prepare new preliminary plans and 24.00 32.00 56.00 obtain concept approval. 6. Set new centerline and cross-section 32.00 32.00 7. Prepare new design plans. 40.00 60.00 100.00 72.00 32.00 116.00 56.00 276.00 Engineer = 72.00 hrs @ $21.63 = $1,557.36 Land Surveyor = 32.00 hrs @ $21.63 = $692.16 Designer = 116.00 hrs @ $15.87 = $1,840.92 Field Man = 56.00 hrs @ $15.15 = $848.40 Subtotal Labor Charges = $4,938.84 Direct Overhead = 21.27% $1,050.49 General Overhead = 137% $6,754.36 Fee = 10% $1,274.37 Subtotal Labor Costs = $14,018.06 Computer = Mileage = Printing and Copies = Subtotal - Out of Pocket Costs = Total Contract Increase = Original Total Contract Amount = Revised Total Contract Amount = 46 hrs @ $10.00 = 100 mi @ $0.40 = $50.00 = $460.00 $40.00 $14,568.06 $24,766.69 $39,334.75 OFFICIALS WILLIAM G. BERG, JR., City Clerk JANICE L. GASS. City Treasurer GARY D. SMITH. P.E. City Engineer BRUCE D. STUART. Water Works Supt. JOHN T. SHAWCROFT, Waste Water Supt. KENNY W. BOWERS, Fire Chief W.L. "BILL', GORDON, Police Chief WAYNE G. CROOKSTON, JR., Attorney ^HUB OF TREASURE VALLEY A Good Place to Live CITY OF MERIDIAN 33 EAST IDAHO MERIDIAN, IDAHO 83642 Phone (208) 888-1433 - FAX e2W)�) 88712211 Public Works/Building Depart GRANT P. KINGSFORD Mayor September 22, 1994 Mr. John Collins, PE Idaho Transportation Department P.O. Box 7129 Boise, Idaho 83707-1129 RE: FIVE MILE CREEK PATHWAY, MERIDIAN CM -0100 (114); KEY 5729 Dear John: The following is being presented to you.for informational purposes. COUNCIL MEMBERS RONALD R. TOLSMA MAX YERRINGTON ROBERT D. CORRIE WALT W. MORROW SHARI STILES Planner & Zoning Administrator JIM JOHNSON Chairman • Planning & Zoning When we started this project with our consulting engineer nlocate thhe e Nampa & Meridian Irrigation District Superintendent and we were told by him to the south side of the Five Mile Creek as they were using the north side proposed pathway along for maintenance access. On September 14, 1994 we held an informational meeting for ee benefit o ther. residents Cadents adjacent to the project. Coincidentally that same day and prior to the g, (Bureau of Reclamation) stopped by to visit with our Planning & Zoning Administrator about pathway projects in general and this project in particular. Mr. Caywood informed us that we could locate the pathway on either side of the Five Mile Creek as this was deeded ground owned by the Bureau of Reclamation. As it turned out �� afternoonas valuable wanted the pathway to be located ion because the approximate 3 5 residents attending the meeting on the north side of the creek from Meridian Road the Tull Parko Tully ParkanA small scalehen to sdralve Milwing ise Creek and be located along the south side through Y attached showing the original and proposed revised alignment. I presented the above information to our City Council and Mayor and they concurred that we should locate the pathway on the sides requested by the residents. I will be meeting with our consulting engineer to discuss the costs to make this brevision. moved topFY195a I nwil`l be back in ng, from our recent telephone conversation, that our funding contact with you after we have met with our consultant. Sincerely, 8• Gary D. 'th, PE City Engineer cc File Tim Burgess, PE ITD-510 2/90 c(oply STATE/LOCAL AGREEMENT (PRELIMINARY ENGINEERING) CM -0100(114) Five Mile Creek, Meridian to Linder, Meridian THE CITY OF MERIDIAN KEY NO. 5729 PARTIES THIS AGREEMENT is made and entered into this day of 19 , by and between the IDAHO TRANSPORTATION DEPARTMENT, hereafter called the STATE, and THE CITY OF MERIDIAN, acting by and through its Mayor and Council, hereafter called the SPONSOR. PURPOSE The SPONSOR has requested the STATE to program for construction Federal -Aid Highway Project CM -0100(114), described as Five Mile Creek, Meridian to Linder, Meridian, the preliminary engineering for which is to be performed by SPONSORIS staff/Consultant Engineers (x -out non -applicable term). NOTE: Securing the services of a consultant for preliminary engineering services must follow the process outlined in the LPA Guidelines. Since certain functions under this Agreement are to be performed by the STATE, involving the expenditure of funds, and since the STATE can only pay for work associated with the State Highway System, the SPONSOR is fully responsible for all costs related to the project. The Parties agree as follows: SECTION I. 1. This Agreement is entered into for the purpose of developing construction plans and specifications in order that federal participation may be obtained in the construction costs of the project. 2. All information, regulatory and warning signs, pavement or other markings, and traffic signals required and warranted will be developed as a part of the plans, regardless of whether the work is done as a portion of the contract or by the SPONSORIS forces. 10-1 SECTION II. That the STATE will: 1. Assume no responsibility for the timely performance of this Agreement and in no way guarantee that the federal funds herein sought are available or will be made available. In the event federal funds are unavailable, this agreement is void. 2. Provide the following services incidental to the preliminary engineering: a. If required, assist in the selection of a Consultant Engineer, negotiate, and furnish the Agreement for Engineering Services and any supplements thereto, to be used between the SPONSOR and Consultant Engineers on this project. b. Review Preliminary Environmental Evaluation and recommend other appropriate environmental documentation. C. Advertise for required formal public hearings and provide hearing officer. d. Review rights-of-way appraisals and assign personnel to determine relocation entitlements and assistance which might be required by the project. e. File with the Federal Highway Administration applica- tions for exceptions to AASHTO Standards when appropriate and for government land withdrawals for rights-of-way and airport clearance. f. Assist in negotiations with public carriers and utilities for agreements on behalf of the SPONSOR. g. Hold utility hearings or advertise the opportunity therefore when necessary. h. Review the Engineers' plans, estimates, reports and environmental studies, and issue notice of approval to the SPONSOR and the Engineer following the Concept, Preliminary and Final Design Reviews and the Design Study Report. i. Supply roadway summary sheets and such standard draw- ings as may be required to supplement the plans. j. Prepare title sheet. k. Print and assemble plans, special provisions, speci- fications and contract. E W2 1. Advertise for bids and let the construction contract. M. Furnish to the Engineers copies of materials test reports and other data applying to the project and available to the STATE. SECTION III. That the SPONSOR will: 1. Pay to the STATE, before the STATE begins the incidental services, the sum of TWO THOUSAND AND NO/HUNDREDTHS DOLLARS ($2,000.00), estimated to be the total expense to the STATE. Upon project completion, if the estimated expense does not reflect the true cost of the work performed by the STATE, an adjustment will be made accordingly. 2. Reimburse the STATE for all services rendered and material furnished in connection with the project. 3. Acquire, at its sole expense, with the STATE IS assistance as noted in Section II, Paragraph 2e, all rights-of-way and easements needed to provide for construction and maintenance of the project. 4. Furnish all appraisals required for the project to be reviewed by the STATE. 5. Before initiating negotiations for any real property, establish an amount considered to be just compensation, under Idaho Code, and will make a prompt offer to acquire the property for the full amount established. 6. Make every reasonable effort to acquire the real property by negotiation. 7. Inform the property owner, in those cases where he indicates a willingness to donate a portion of his real property for rights-of-way, of all the facts including his right to full compensation in money for land and damages, if any, in accordance with Idaho Code. 8. Provide relocation assistance and payments for any displaced person, business, farm operation, or nonprofit organization in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; the Idaho Real Property Acquisition Act of 1971; Title 40, Chapter 29; and Title 58, Chapter 11; Idaho Code, as amended, and regulations promulgated thereunder. No individual or family shall be displaced until decent, safe and sanitary replacement housing is available to the relocatees for immediate occupancy. Advise the STATE of any relocations required by the project and authorize the STATE to negotiate 3 11� "ON in its behalf for all relocation assistance and payments, the cost of which will be assumed by the SPONSOR at the time of negotiation. 9. To the greatest extent practicable, schedule the advertise- ment and subsequent construction of the project so that no person lawfully occupying the real property shall be required to move from his home, farm or business without at least ninety (90) days' written notice. 10. Before advertisement for bids, provide a certification that all rights-of-way, easements, permits, materials sources and agreements necessary for the construction of the project have been acquired in accordance with Paragraph 8, this Section. 11. Evaluate the impact the project might have on the quality of the human environment and prepare and furnish to the STATE an environmental evaluation and any other documents required by the National Environmental Policy Act. 12. At all required public hearings, furnish all necessary exhibits and provide for a representative of the SPONSOR to describe the project; present information about the location and design, including alternates; discuss the tentative schedules for rights-of-way acquisitions and construction; discuss the SPONSORIS relocation assistance program; discuss the economic, sociological, and environmental effects of the project; and answer all questions concerning the project. 13. Indemnify, save harmless and defend regardless of outcome the STATE from the expenses of and against suits, actions, claims or losses of every kind, nature and description, including costs, expenses and attorney fees, that may be incurred by reason of any act or omission, neglect or misconduct of the SPONSOR or its consultant in the design, construction and maintenance of the work which is the subject of this Agreement. 14. Comply with Appendix A, Title 49 CFR, Part 21, ttached hereto and made a part hereof. 4 /'ti EXECUTION This Agreement is executed for Administrator; and executed for attested to by the Clerk, with THE CITY OF MERIDIAN. APPROVED BY: APPROVED AS TO FORM: Legal Counsel ATTEST: the STATE by its State Highway the SPONSOR by the Mayor, the imprinted corporate Seal of IDAHO TRANSPORTATION DEPARTMENT State Highway Administrator RECOMMENDED BY: Local Roads Engineer CITY OF MERIDIAN SEAL) May By reg lar/special meeting on regular/special o- /6, l9l3 c:\lib\meridian.sla 5 ITD-510 2/90 APPENDIX A n Excerpts from Title 49 CPR Part 21 During the performance of work covered by this Agreement, the City of Meridian for itself, its assignees and successors in interest (hereafter referred to as the "SPONSOR"), agrees as follows: 1. Compliance with Regulations: The SPONSOR during the performance of work covered by this Agreement sha 1 comply with all regulations of the United States Department of Transportation relative to Civil Rights with specific /reference to Title 49 CFR Part 21, Title 41 CFR Part 60, Civil Rights Act of 1964 as amended and Executive Order 11246. 2. Non -Discrimination: The SPONSOR, with regard to the work performed during the term of this Agreement, shall not in any way discriminate: against any employee or applicant for employment; subcontractor or solicitations for subcontract including procurement of materials and equipment; or any other individual or firm providing or proposing services based on race, color, religion, sex, national origin, age or non -job-related handicap. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In a 1 so icitations, either by bidding or negotiation, made y the SPONSOR for work or services performed under subcontract, including procurement of materials and equipment, each potential subcontractor or supplier shall be made aware, by the SPONSOR, of the obligations of this Agreement and to the Civil Rights Requirements based on race, color, religion, sex, national origin, age or non -job-related handicap. 4. Information and Reports: The SPONSOR shall provide all information and reports required by Regu ations and/or Directives and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Idaho Transportation Department, Division of Highways or the Federal Highway Administration. The SPONSOR will be required to retain all records for a period of three years. 5. Sanctions for Non -Compliance: In the event the SPONSOR is in non- compliance with the Civil Rights Provisions of this Agreement, the Idaho Transportation Department, Division of Highways shall impose such sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) Withholding of payments to the SPONSOR until he has achieved compliance and/or (b) Cancellation, termination or suspension of the contract, in whole or in part. 6 Incorporation of the Provisions: The SPONSOR shall physically include this Appendix In every subcontract of $10,000 or more to include procurement of materials and leases of equipment unless exempt by Regulations, Orders, or Directives pursuant thereto. The SPONSOR shall take such action with respect to subcontractor or procurement as the Idaho Transportation Department, Division of Highways or the Federal Highway Administration may direct as a means of enforcing the provisions, including sanctions for noncompliance, provided in event the SPONSOR becomes involved in, or is threatened with litigation with the subcontractors or suppliers as a result of such direction, the SPONSOR may request the STATE to enter into such litigation to protect the interest of the STATE, and in addition the SPONSOR may request the United States to enter into such litigation to protect the interest of the United States. DH -1841 12-80 RESOLUTION #151 WHEREAS, the Idaho Transportation Department, Division of Highways, hereafter called the State, has submitted an Agreement stating obligations of the State and the City of Meridian Idaho, for the construction of , Five if refeek, Mer±d.*..T-4t - a pathway along Five Mile Creek from Meridian Road to Linder Road. ; and WHEREAS, the State is responsible for obtaining compliance with laws, standards and procedural policies in the development, construction and maintenance of improvements made to the Federal -Aid Highway System when there is federal participation in the costs; and WHEREAS, certain functions to be performed by the State involve the expenditure of funds as set forth in the Agreement; and WHEREAS, the State can only pay for work associated with the State Highway System; and WHEREAS, the City is fully responsible for its share of project costs; and WHEREAS, it is intended that the project shall be developed and constructed so as to receive federal participation; NOW, THEREFORE, BE IT RESOLVED: 1. That the Agreement for Federal -Aid Highway Project CM -0100(114) is hereby approved. 2. That the Mayor and the City Clerk are hereby authorized to execute the Agreement on behalf of the City. 3. That duly certified copies of the Resolution shall be furnished the Idaho Transportation Department, Division of Highways. CERTIFICATION I hereby certify that the above is a true copy of a Resolution passed at a regular, 3XXR*AX%MK4R;C (X -out non -applicable term) meeting of the City December 7th 93 Idaho, held on 19 City C rk Mayo n 11 December 1997 Jerrold D. Gregg, Area Manager United States Department of the Interior Bureau of Reclamation Snake River Area Office 214 Broadway Avenue Boise, lD 83702-7298 RE. City of Meridian's Five Mile Drain Pathway Dear Jerry. '>Fr,,E1vFn DEC 171997 In n'tERIDIAr 1503 FIRST STREET SOUTH NAMPA, IDAHO 83651-4395 FAX # XWEA1062MXX 208-463-0183 Phones: Area Code 208 OFFICE: Nampa 466-7861 XUMXXW)MX SHOP: Nampa 466-0663 XUMXXW X I received your letter dated 01 December 1997 which required the District a three week deadline for a response on the above mentioned subject or you would issue an agreement for the City of Meridian to construct a pathway on the Nampa & Meridian Irrigation District's easement for operation and maintenance. I would like to take this opportunity to ask you to cease and desist from issuing any kind of agreement until the Nampa & Meridian Irrigation District has resolved its' problems in the signing of a proposed agreement with the City of Meridian which they have had for approximately two years. I find it very alarming that the Bureau of Reclamation is so anxious to authorize this type of agreement when during the summer you run ads with the Idaho Waterusers Association which you have sponsored and helped put together the idea to stay away from canals and laterals as they are dangerous. I don't disagree with these ads, but they are part of the problem that is keeping the District from obtaining agreements with the cities and counties regarding pathways. The number one issue is liability, the second being the District's ability to operate and maintain drain ditches throughout our system in a safe manner. You ask what some of the O&M problems that this kind of facility might create and l would list them for you but I feel you probably understand them very well, although one of them being that when the District dredges these drains as they silt in or grow closed with debris, this material is moved up onto the banks and creates an odor temporarily as well as a mess. The general public, if allowed to be on these areas, will complain, harass, etc., not to mention the danger of non -district personnel being close to this type of activity when it is being conducted. Therefore, this being one of the reasons the Nampa & Meridian Irrigation District has prepared a very stringent document which requires the licensee to indemnify, hold us harmless, provide signs, establish rules and others areas which are too numerous to mention to protect the District's interests in its' facilities. In this particular case the facility is known as the Five Mile Drain, not Five Mile Creek as you suggest in your letter. Page 1 of 2 APPROXIMATE IRRIGABLE ACRES RIVER FLOW RIGHTS - 23,000 BOISE PROJECT RIGHTS - 40,000 Mr. Jerrold D. Gregg 11 December 1997 Page 2of2 The Board of Directors of the Nampa & Meridian Irrigation District have agreed to allow the drain ditches to be used in this fashion, providing we can structure the appropriate agreement and have it signed prior to any work commencing. Please feel free to contact me if you feel further discussion is required. Sincerely, le John P. Anderson, Water Superintendent NAMPA & MERIDIAN IRRIGATION DISTRICT JPA: dln cc: File Each Director Secretary -Treasurer Asst. Water Superintendent Attorney - Steenson MINVINI n 28 July 1995 Tim Burgess, P.E. Civil Survey Consultants, Inc. P.O. Box 39 Meridian, Idaho 83680 no 1503 FIRST STREET SOUTH NAMPA, IDAHO 83651-4395 FAX # 208-888-6201 Re: Five Mile Creek Pathway, Meridian CM-0100(114);Key 5729 Dear Mr. Burgess: Phones: Area Code 208 OFFICE: Nampa 466-7861 Boise 343-1884 SHOP: Nampa 466-0663 Boise 345-2431 Nampa & Meridian Irrigation District will not approve of any pathway along a District facility until a License Agreement has been signed by the District's Board of Directors. As of this date, we do not have an agreement with the City of Meridian so our only comment at this time is that the pathway is not approved by the Nampa & Meridian Irrigation District and we will not allow construction to take place prior to the completion of an agreement. We will not comment any further at this time regarding this project. If you feel further discussion is required, please feel free to contact me. Sincerely, John P. Anderson District Water Superintendent pc: Each Director Secretary of the Board �Wil iam F. Ringert t Kingsford, Mayor of Meridian Bill Henson File APPROXIMATE IRRIGABLE ACRES RIVER FLOW RIGHTS - 23,000 BOISE PROJECT RIGHTS - 40,000 FROM: baw SUBJECT: , City of Meridian INTER -OFFICE MEMO DATE � _ " _ ?5 TO: 7'1'l�yov - COtt� c�/l C 1 U" i .. /. 7L, WI June 2, 1995 City of Meridian 33 East Idaho Meridian, Idaho 83642 Attention: Mr. Gary D. Smith, P.E. Director of Public Works Re: Five Mile Creek Pedestrian Bridge Project N.W. 11th Street in Meridian, Idaho Terracon Project No. 62955027 Gentlemen: 1rerracon CONSULTANTS WESTERN, INC. 10840 Executive Drive Boise, Idaho 83713 (208) 323-9520 Fax: (208) 323-9592 RECEIVED J U N 0 5 1995 MERIDIAN CITY ENGINEER- As NGINEER As part of our geotechnical investigation for the above project, two borings were drilled into the banks of Five Mile Creek on Friday, May 19, 1995, at the approximate centerline of the proposed bridge structure to determine the nature of the subsurface soils. The borings were drilled to depths of 14 feet to 16 feet. During the investigation, representative samples were obtained and sealed in ziplock storage bags for laboratory classification testing and determination of engineering properties. The borings were backfilled with the auger cuttings immediately after completion of drilling. The bagged samples were stored at our laboratory facility in Boise over the weekend (3 days). When opened for visual evaluation and laboratory testing on Monday, May 22, 1995, an odor similar to gasoline or solvent was detected in several of the samples. A Photoionization Detector (PID) probe was inserted into each of the samples to determine the potential level of contamination. Readings as high as 125 parts per million (ppm) were recorded. The highest readings were generally found in the samples obtained from the deeper portions of the south embankment boring. Samples with PID readings of over 100 ppm are considered to be potentially contaminated above the DEQ action levels. The generally accepted method of field screening for contamination using a PID or similar instrument is to place the samples in sealed jars, warm to room temperature, and perform headspace readings while the samples are fresh. Because the PID readings were performed on samples stored for 3 days in ziplock bags, it is possible that some of the volatile gases may have escaped and the actual contamination levels may be higher than indicated by the PID readings. Please note that the focus of our investigation was geotechnical in nature. Sample storage and contamination precautions such as steam cleaning augers, field monitoring of samples with a PID or similar devices, and other measures were not employed. We recommend that you contact either Mark Van Kleek or Mark Cantrell at the DEQ and discuss the above. The -telephone number is 334-0550. Offices of The Terracon Companies, Inc. Geotechnical, Environmental and Materials Engineers Arizona ■ Arkansas ■ Colorado ■ Idaho ■ Illinois ■ Iowa ■ Kansas ■ Minnesota Missouri ■ ' Montana ■ Nebraska ■ Nevada ■ Oklahoma ■ Texas ■ Utah ■ Wyoming QUALITY ENGINEERING SINCE 1965 Five Mile Creek Pedestrian Bridge Project N.W. 11th Street in Meridian, Idaho Terracon Project No. 62955027 June 2, 1995 Terracon Please call if you have questions regarding the above. We are continuing the geotechnical investigation and will publish our Phase IV report as scheduled. Respectfully submitted, TERRACON CONSULTANTS WESTERN, INC. Michael R. Merhar, P.E. Project Engineer VI Peterson, P.E. Manager J A P/MRM /b h s: 50 549 501 2 4 5 r. CMAC. 'PROJECTS APPROVE[3Y ITD FY 1994 1 Coeur d'Alene water truck Pave gravel streets Resurface ex. streets Total 51P update Pathways in Boise/Garden City Pathway, Willow Lane— Lake Hbr Pathway Bridge, E. Boise R. Pathway in Kuna Pathway in Garden City .Pa W1Ilow Ln Phase 2 athwa in Meridian Total Total ; in Twin Falls Co. Mixer & Pugm �6�th!��Idaho Fallsal P Prelim. Development $140,000 Buses in Kell( $150,000 `Buses m Coei 220 000 Sweeper trucl $510, 000 $320,000 Vanpools in U $130,000 $230,000 $180,000 $150,000 $100,000 $250,000 $220,000 180,000 omt 1y atauun expansion vehicles are promotion for Rideshare program Buses in Ketch irchasi Sweeper truck, Chubb $180,000 Total `� rojects $1, 510, 000 Grand Total 600 000 Total value of Ada County$1, ' Ada County Projects $1,910,000 percentage of CMAQ 42% Cost $270,000 $250,000. 10— $620, 000 $100,000 $160,000 $290, 000 $120,000 12—_ 170 000 -$1,270,0001 $3, 070, 000 $690,000 22% * Includes $470,000 for West Bench interconnect. Other signal projects are in Lewiston, Pocatello, and Idaho Fall Shaded projects in Preliminary Development are in designated air ualit s areas will qualify for FY 1995-97 funding, q Y problem areas. Only projects in designated KIDATAILOTUs�,nF�CMAO-PD,WK1 02/28/94 ' IM -1983 5-98 W 27-132000-4 LOCAL PUBLIC AGENCIES CERTIFICATE OF RIGHT-OF-WAY OF A FEDERAL -AID PROJECT Protect No. dM -0/000&J Key No. 5729 PART A The proposed construction project did not require the acquisition of additional real property rights. ❑ Check here if Part A Pertains then skip to Part C and complete date/signature area of form below. (If not applicable, please complete Part B and Part C below.) PART B The proposed construction project required the acquisition of additional real property rights. There were % ownerships involved and O relocations of persons as a result of said acquisitions. I hereby certify that all acquisitions and relocations, if any, were performed in accordance with our assurances to comply with state and federal laws and regulations related to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and amendments thereto. It is further certified that in all cases where the real property rights were obtained through donation, that the property owner(s) was fully informed of the right to receive just compensation and the owner has released our agency from its obligation to appraise the property in the event that the estimated value may exceed $2,500.00. PART C ❑ Check here if there is no utility involvement on this project. Check here if arrangements have been made to coordinate the relocation of any/all utility facilities. Date: j Ce- _4e-� Z aoe) �".0 of:itti�u�''/�,''� G �.0SpoR4 �o Attest: Clerk or Se et ry 7. -.9c ��,�'T est • ,�. 7 an, President,`or Mayor IM- 1983 796 w - ^ Figure 515-01 27-132000-4 LOCAL PUBLIC AGENCIES CERTIFICATE OF RIGHT-OF-WAY OF A• FEDERAL -AID PROJECT PART A The proposed construction project did not require the acquisition of additional real property rights. Check here if Part A Pertains then skip to Part C and"complete date/ signature area of form below. (If not applicable please complete Part B and Part C below) The proposed construction project required the acquisition of additional real property rights. There were 7 ownerships involved and O relocations of persons as a result of said acquisitions. * except Parcel 6 (Ada County Highway District), for which an agreement is pending. I hereby certify that all acquisitions and relocations, if any, were performed in accordance with our assurances to comply with state and federal laws and regulations related to the Uniform Relocation A and Real Property Acquisition Policies Act of 1970 and am,-- It m,- -It is further certified that in all, ��J �0 '��'� ty rights were obtained through donation, that the prope. �.L med of the right to receive just compensation and the �� G� �ncy from its obligation to appraise the property T t _.aced value may exceed $2,500.00. OXL PART C Check here if there is no utility involvement on this project. ✓ Check here if arrangements have been made to coordinate the relocation of any/all utility facilities. Date: �,. , C. ` Attest: or Secretary �/ WY Ci It, SEAL ` -- --� "FAZ P� President or Mayor N n 101*11, Property Management No. 0131 -1007 - 1000 Street: Chrisfield T.3N., RAW., Sec. 1 TEMPORARY LICENSE AGREEMENT THIS TEMPORARY LICENSE AGREEMENT (the "Agreement") is made and entered into this 3RD day of OCTOBER , 2000, by and between the ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho, hereinafter referred to as "ACRD" and CITY OF MERIDIAN, hereinafter referred to as "Licensee"; WITNESSETH: FOR GOOD AND SUFFICIENT CONSIDERATION IT IS AGREED: 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 Licensee desires 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 Licensee. SECTION 2. LICENSE; LICENSE NOT EXCLUSIVE. 2.1 On the terms and conditions hereinafter set forth, ACHD hereby extends to Licensee a license on, over, across and under the Right -of -Way for the following uses and purposes ("Authorized Use") and no others: Licensee to pave over NW '/e of SE % Sec 1 T.3N.,R.1 W., ACHD parcel #6 between lots 22 & 24 Block 12 and make into a pedestrian pathway to access Five Mile Creek pedestrian pathway. Licensee will design pathway for HS -25 truck loading standards. 2.2 This Agreement does not extend to Licensee the right to use the Right -of - Way to the exclusion of ACHD for any use within its jurisdiction, authority and discretion. 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)) Licensee's LICENSE AGREEMENT - Page 1 (rev. 11/19/99) Authorized Use is subject to the rights of the public to use the Right -of -Way for Highway purposes. Licensee's 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, INSTALLATION OF IMPROVEMENTS. Any construction and/or installation by Licensee of improvements, including, without limitation, buildings, fixtures and landscaping (the "Improvements"), on, over, across and under the Right -of -Way 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 Licensee. SECTION 4. TERM. 411 The term of this Agreement will commence on the 3RD day of 2000, 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. 4. Licensee defaults in the performance of any obligations incumbent upon it to perform hereunder ACHD may terminate this Agreement and the rights extended to Licensee hereunder at any time, effective at the end of thirty (30) days following the date ACHD shall provide written notice of termination to Licensee, which notice shall specify such default(s). Licensee shall have such thirty (30) day period to correct and cure the specified defaults, and if so corrected and cured, to the satisfaction of ACRD, this Agreement shall not be terminated but shall continue in full force and effect. SECTION 5. FEE. There is no fee for the Licensee's Authorized Use of the Right -of - Way under—this—Agreement. SECTION 6. MAINTENANCE: FAILURE TO MAINTAIN: RELOCATION OF UTILITIES. 6.1 At its sole cost and expense, Licensee shall maintain the Improvements in good condition and repair and as required to satisfy applicable laws, the policies of ACHD and sound engineering practices. Licensee shall have access over, across and under the Right -of -Way for the purposes of accomplishing such repair and maintenance. LICENSE AGREEMENT - Page 2 (rev. 11/19/99) 6.2 If the Highway on and/or adjacent to the Right -of -Way is damaged as a result of: (i) the performance by Licensee of the maintenance required by section 6.1, or the failure or neglect to perform such maintenance; and/or (ii) Licensee's design, installation or use of the Improvements, regardless of cause; at its sole cost and expense Licensee 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 Licensee 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 Licensee agrees to reimburse ACHD for the costs and expenses thereof, including, without limitation, reasonable compensation for the use of staff and equipment of ACRD. 6.3 Notwithstanding the provisions of section 6.2, should an emergency exist related to the Licensee's 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 Licensee necessary emergency repairs. 6.4 Licensee 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 Licensee in the Right -of -Way. SECTION 7. 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, Licensee hereby accepts responsibility for all costs for relocating, modifying or otherwise adapting the Improvements to such realignment and/or relocation and/or reconstruction if required by ACRD, which shall be accomplished by Licensee according to designs, plans and specifications approved in advance by ACHD in writing; provided Licensee may elect to terminate this Agreement in lieu of complying with this responsibility, and further provided ACHD gives Licensee adequate written notice as necessary to allow Licensee to redesign, relocate, modify or adapt the Improvements to the realignment and/or relocation and/or reconstruction of the Highway and also licenses Licensee such additional area of its right-of-way, if any, as may be necessary for the proper operation of the Improvements. SECTION 8. PERMIT. If the proposed construction and installation of the Improvements, or any reconstruction, relocation or maintenance thereof requires Licensee to obtain a permit under ACHD policies, Licensee shall first obtain such permit LICENSE AGREEMENT - Page 3 (rev. 11/19/99) from ACHD (Construction Services Division) before commencing such work, and pay the required fees and otherwise comply with the conditions set forth therein. SECTION 9. NO TITLE IN LICENSEE. Licensee 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 10. NO COSTS TO ACHD. Any and all costs and expenses associated with Licensee's 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 Licensee. SECTION 11. TAXES AND ASSESSMENTS. Licensee agrees 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 12. RESTORATION ON TERMINATION. Upon termination of this Agreement, Licensee will promptly remove all Improvements and restore the Right -of - Way to at least its present condition. Should Licensee fail or neglect to promptly remove the Improvements and restore the Right -of -Way, ACHD may do so, and assess Licensee for the costs thereof. Provided, ACHD and Licensee 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 Licensee thereby disclaims 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 Licensee need not remove the same from the Right -of -Way. SECTION 13. INDEMNIFICATION. Licensee hereby indemnifies and holds 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 Licensee, Licensee's employees, contractors and agents, to properly and reasonably make Authorized Use 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 Licensee, and including any attorney fees and costs that may be incurred by ACHD in defense of such claims or actions indemnified against by Licensee hereunder. For claims or actions arising out of failures or neglects occurring during the term of this Agreement Licensee's obligations pursuant to this section shall survive the termination of this Agreement. LICENSE AGREEMENT - Page 4 (rev. 11/19/99) SECTION 14. COMPLIANCE WITH LAW: WASTE AND NUISANCES PROHIBITED. In connection with Licensee's use of the Right -of -Way, throughout the term of this Agreement Licensee covenants and agrees 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. Licensee covenants and agrees 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 15. ASSIGNMENT. Licensee cannot sell, assign or otherwise transfer this Agreement, the license herein extended, or any of its rights hereunder except with the prior written consent of ACRD, which consent will not be granted unless the assignee assumes all obligations, warranties, covenants and agreements of Licensee herein contained. SECTION 16. 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 attomeys' fees. SECTION 17. NOTICE. Any notice under this Agreement shall be in writing and be delivered in person 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 notice 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) the day of delivery to the overnight courier, or (c) the day facsimile delivery is electronically confirmed. If to ACRD: Ada County Highway District 318 East 37th Street Garden City, Idaho 83714 Attn: Right -of -Way Division LICENSE AGREEMENT - Page 5 (rev. 11 /19/99) 11 r n If to Licensee: City of Meridian, Parks and Rec Department 11 W Bower Street Meridian, Idaho 83642 (208) 88-3579 SECTION 18. 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 15, Licensee's assigns. SECTION 19. EXHIBITS. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. SECTION 20. NO RECORDATION. This Agreement shall not be recorded in the Official Real Property Records of Ada County, Idaho. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. COUNTY Supervisor City of Meridian cella or Robert D. Corrie, Clerk Will Berg EXHIBITS: Exhibit "A" -Description and depiction of Right -of -Way AACHDIDATAWSERSILEGALU mporery ficense agreemem.doc LICENSE AGREEMENT - Page 6 (rev. 11/19/99) .a rat ` w 5 �t NOW�nIO�ni S.Lu"d 3F O = 3 a.y .t •y 1 Y N t - rr'77� T ti - ! 7f I M C 19. CO l e N l 1N Y' ar tr MMi TV ^e _ �Z10a t i W u ; �• 8 L z z� e O W' f .a rat ` w 5 �t NOW�nIO�ni S.Lu"d 3F avowF avow MItOIbjWI. - ��...w i1P0 •y 1 Y N t - rr'77� elRr O yy �- L R 0A vrrft.. l e N l 1N Y' ar tr MMi TV ^e _ � L33Ns satl 33s Son KUVR 3nNJAV wvM�v� N f=wki::EizMaaa's:::i'ss-=kzra�:De M.Mr•..w _ .wM•w 1..a.....t. w eaa:ra�.z ay xa:e:ar::a rs9aa_wt- j bizsssfitlssl::t::l:Ss:S:SitaaRtk= i ', �zsacs$$OeEEEeta�$$$Ettoe!!ss$�s I w t.sssRea_ e:sszg�ii is 1 •14e41c:_a:si_tLiakss:s*.b;piai= J( Etk•aa.:::!_a.Aa:'_alz:raaz -ks j ri�9t4aaaazss:•::a:a�!°•`1a.: i 71 6r e Oy •'.� j 3 MASTER PATHWAY AGREEMENT between NAMPA & MERIDIAN IRRIGATION DISTRICT and CITY OF MERIDIAN 19 December 2000 Instrument #100102999 RECEIVED JAN 31 2001 CITY W MERIDIAN '-` R;Z0R0E0 - U 0 UcST Of r-1A :'0U-"T*? PE"ORQSR � j. C 41% `t.`><YARRO FDEPUTY FF p2A 2030 DE 25 X1.1 9: 11 100102999 P4MMPA & MERUAN IRRIGATION Mal MASTER PATHWAY AGREEMENT THIS MASTS PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this /?6( day of�, 2000, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho (hereinafter "District"), and THE CITY OF MERIDIAN, a political subdivision and municipality of the State of Idaho (hereinafter "City"). WITNESSETH: WHEREAS, the District owns or controls numerous irrigation canals, laterals and drains (hereinafter collectively referred to as "ditches") with associated fee title land and ditch easements, most ofwhich are described and recorded in Instrument No. 797771, recorded January 11, 1977, in the office of the Ada County Recorder, Instrument No. 8367341, recorded December 19, 1983, in the office of the Ada County Recorder, Instrument No. 989070, recorded on October 18, 1983, in the office of the Canyon County Recorder, and Instrument No. 8505634, recorded March 7, 1985, in the office of the Canyon County Recorder, with the exception of those ditches or portions thereof which have been relocated and recorded subsequent to the recording of the aforementioned instruments; and, WHEREAS, the District utilizes the aforementioned fee title land and ditch easements to access its ditches, to monitor and adjust water flows, to remove sediment and debris, to pipe, line and refurbish ditches, to maintain and repair ditch banks and ditch roads, and to perform other inspection, operation, maintenance and repair activities with the appropriate personnel and equipment; and, WHEREAS, the City may wish to develop pathways for public use along and across some of the District's ditches and within some of the District's easements and fee title lands; and, WHEREAS, the maintenance of pathways along certain District ditches, may be compatible with the District's primary interests and operations; and, WHEREAS, in order to develop such pathways it will be necessary to obtain the District's cooperation and permission; and, MASTER PATHWAY AGREEMENT - Page 1 WHEREAS, the District and the City intend by entering this Master Agreement to accomplish the following in a manner that is consistent with their respective legal and fiduciary responsibilities: to enhance the City's pathway planning through early consultation between the City and the District; to establish a process for the City's submission of pathway requests and the District's consideration of such requests; and to provide the general conditions for the District's approval and authorization of pathway requests affecting the District's ditches, property, operations, and maintenance, AGREEMENT NOW, THEREFORE, for and in consideration of the covenants, agreements and conditions hereinafter set forth, the parties mutually agree as follows: 1. General. The City agrees to consult with the District in the City's pathway planning, to submit pathway requests to the District, and to obtain the District's approval of such requests pursuant to the terms and conditions hereinafter provided. The District agrees to consult with the City in the City's pathway planning, to review the City's pathway requests, and to approve those which do not interfere with the District's use and management of the District's property, business and affairs, the District's delivery or drainage of water, or the District's access, use, operation, maintenance and repair of its ditches and irrigation works, and which do not create unacceptable risks to public safety, pursuant to the terms and conditions hereinafter provided. The District's approval shall not be unreasonably withheld. Nothing in this Master Agreement shall be construed, implemented or enforced to diminish or impair the District's authority, powers, or discretion in meeting its legal and fiduciary responsibilities in the management and protection of its irrigation system, ditches, property, assets or business and affairs. The parties agree to implement the provisions of this agreement in a reasonable, good faith manner. 2. Consultation in City Pathway Planning. The parties acknowledge that planning of pathways along or across District ditches, easements and fee title lands requires consultation between the parties as early as possible in the City's pathway -planning process to identify potential pathway locations and determine project feasibility before the City submits pathway requests to the District as provided in Section 3 of this Master Agreement. The parties shall consult with each other in the City's planning process as follows: a. The City shall provide the District notice and an opportunity to comment on Poway per, maps, proposals and requirements as early as possible in the City's pathway -planning process. This shall include, but is not limited to, situations in which the City requires, requests or authorizes third parties to construct pathways across or along the District's ditches, irrigation system and works, and associated real property interests. b. In its written comments, the District shall: (1) advise the City whether the District requires additional information in order to respond; (2) identify circumstances and options in which construction and maintenance of pathways across or along District ditches may be compatible with the District's primary interests, operations and obligations without creating unacceptable risks MASTER PATHWAY AGREEMENT - Page 2 to public safety; (3) identify circumstances in which space constraints, and operation, maintenance and safety issues preclude, limit, or otherwise diminish the potential for the construction of pathways along or across District ditches under consideration. C. The City shall advise the District in writing if, prior to submitting a pathway request, the City desires a statement from the District regarding the feasibility of a specific pathway along or across a District ditch, easement, or fee title land, based on the City's submission of preliminary plans. A statement that a proposed pathway is feasible shall not constitute District approval, nor affect the parties rights and obligations in the submission, review and approval of pathway requests as provided in this Master Agreement. 3. Submission. Review, and Approval of Pathway Requests. The following procedures, terms and conditions shall apply to the submission, review, and approval of pathway requests: a. Prior to constructing, requiring or authorizing any pathway and/or related landscaping and structures within or affecting any District property, right of way, ditch, or irrigation works, the City agrees to submit a written request to the District, and to obtain the District's written permission and approval through execution of an agreement. b. The City shall submit its request far enough in advance of the proposed initiation of construction to provide the District a reasonable time to evaluate and respond to the request, but in no event shall such a request be submitted less than six months prior to the first date of construction. C. Each request shall describe the proposed pathway generally, identify the proposed dates of construction (if any), and shall identify any known local, state, or federal procedures or requirements which may affect the District's review and approval of the proposed pathway. d. Each request shall include a location map; fee title legal description, easement or authorization from the servient estate owner; and construction plans which show the pathway's proposed location, design, and all physical structures, plants and landscaping proposed to be constructed, installed or planted in connection with the pathway. e. The District's Water Superintendent shall review each request and communicate by letter to the City and the District's attorney whether the proposed pathway meets the requirements of the District. Such letter shall not constitute approval of the District. Approval may only be granted by the District's board of directors through a resolution during one of its regular meetings. f. If the Water Superintendent indicates that the proposed pathway will meet the requirements of the District, an agreement shall be prepared. The agreement shall incorporate by reference all covenants, conditions, and agreements of this Master Agreement; shall identify the proposed pathway; shall give a legal description of the subject property; shall describe the width of MASTER PATHWAY AGREEMENT - Page 3 the District's easement; and shall include any special conditions applicable to the particular proposed pathway. Each party shall be responsible for its own costs in preparing such agreements. g. The City shall execute duplicate originals of each agreement and deliver them to the District for consideration during the next meeting of the District's board of directors. h. The District agrees to complete its review of the City's requests for pathway agreements pursuant to this Master Agreement within two months prior to the first date of construction. The District's approval shall not be unreasonably withheld, consistent with its legal and fiduciary responsibilities. i. Each agreement, once approved and signed by District's board of directors, and shall be recorded by the District and a recorded copy returned to the City. 4. Indemnification. The City represents and warrants unto the District that the City has the authority, capacity and financial ability to indemnify, hold harmless and defend the District as provided in this Master Agreement. The City agrees to indemnify, hold harmless and defend the District, the District's directors, officers, employees, agents, contractors, partners and the heirs, personal representatives, successors, and assigns of each of them (hereinafter collectively referred to as "District" for purposes of the City's covenants to indemnify) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, arising from: the terms and performance of this Agreement and any agreement executed hereunder; the City's construction, use, operation, or maintenance of pathways and related facilities within and affecting the District's property, ditches, and irrigation works; or the use of such pathways and facilities by any third party or member of the public. The District agrees to indemnify, hold harmless, and defend the City, the City's directors, officers, employees, agents, contractors, partners and the heirs, personal representatives, successors, and assigns of each ofthem, from all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees arising solely out of the acts ofthe District's employees, agents or contractors in the course of the District's access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. The City agrees that the District shall not be liable for any injury or damages which may occur to any pathway or facility installed by the City in the reasonable exercise of the rights of the District in the course of the District's access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. The provisions of this section establish a duties between the City and the District only, and this Agreement does not intend nor does it provide that this duty is owed to any other entity and/or person, and specifically this section does not extend these duties to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. MASTER PATHWAY AGREEMENT - Page 4 5. Authorization From Servient Estate Owners Required. The City acknowledges that the District has no right or power to create rights in the City affecting the holders of title to property servient to the District's easements. With respect to the District's easements, the District's commitments in this Master Agreement and the uses permitted by any agreement executed pursuant to this Master Agreement pertain only to the District's rights as the owner of easements. Rights affecting fee title must be acquired from the holders of title to such property. Should the City fail to obtain such rights from the holder of title to property servient to an easement of the District which is the subject of an agreement executed pursuant to this Master Agreement, or should the rights obtained prove legally ineffectual, the City shall hold harmless, indemnify and defend the District from any claim by any party arising out of or related to such failure of rights. 6. Conditions. Construction, use, maintenance and repair of each pathway by the City and members of the public within or affecting the District's ditches, irrigation system and works, and associated real property interests shall be performed in accordance with the conditions listed below. "Facility" means any pathway and any object, plant or thing of any nature installed in, on, under or across the District's ditches and property by the City, and any activity which changes the physical condition or appearance of the District's property, ditches, and irrigation system. a. The purpose of agreements executed pursuant to this Master Agreement shall be to approve, authorize and permit the construction, installation, use and maintenance of pathways and related facilities within or affecting the District's ditches, irrigation system and works and associated property, and to permit the City to make the pathways available to the public without charge for recreational uses as contemplated by Idaho Code section 36-1604. The authorized uses of the pathways are limited to walking, jogging, and riding bicycles or other human -powered vehicles or devices. Authorized uses shall not include horseback riding, hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for construction, maintenance or repair work by the City of the pathway, landscaping, and related improvements or by the District for District purposes, or for access by handicapped persons with motorized wheelchairs or comparable equipment for access by handicapped persons. b. The uses permitted by each agreement executed pursuant to this Master Agreement shall all times be subordinate and subservient to the District's rights and uses of the District's property, ditches, and irrigation works. Nothing contained herein or in any agreement executed pursuant to this Master Agreement shall be construed, implemented or enforced to impair, limit, restrict or otherwise affect the District's rights, authority, powers, and discretion with respect to the District's property, ditches and irrigation system, or to grant or create any rights which interfere with the purposes and uses to which the District's property, ditches and irrigation system are devoted and dedicated. The District and the City agree that all of the District's rights and discretion to access, operate, construct, maintain, repair, clean or otherwise use of any portion of the District's property, ditches, and irrigation works are reserved. After reasonable advance notice from the District, the City agrees to temporarily suspend its use and public use of pathways when the use of the easement areas occupied by the pathways is required by the District for access, operation, maintenance, repair, cleaning and other District purposes, or to perform, effectuate or enforce any provision of this Master MASTER PATHWAY AGREEMENT - Page 5 n Agreement or any agreement executed pursuant to this Master Agreement. C. Each pathway and facility shall be constructed, operated, maintained, repaired and cleaned at all times by the City, at the cost and expense of the City, in a good, workmanlike, safe, sanitary, and sightly manner and condition in compliance with the laws of the State of Idaho and the conditions stated herein. The City shall enforce its anti -littering ordinances, provide waste receptacles, and take other reasonable actions within its authority to prevent litter, trash or other material to gather or be deposited on or along pathways authorized pursuant to this Master Agreement. d. The City acknowledges that the District has, and agrees that the District shall continue to have, the right to deposit sediment, plant material, debris and other material (collectively "spoil') which the District removes from its ditches on the District's fee title lands and the District's easement areas for its ditches. Without limiting this right, the District agrees to give reasonable advance notice to the City prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the City's pathways. The City may spread and level any spoil removed from the Drain and placed on the District's fee title lands and easement areas or, in the alternative, may transport the spoil to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any spoil removed from the Drain and place on the District's fee title lands and easement areas. e. The City shall have no right, power or authority to grant, allow or suffer any lien or other charge or encumbrance of any kind against the District's right, title and interest in the District's property, ditches and irrigation works. f. The City agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's ditches and property so as not to constitute or cause: a hazard to any person or property; an interruption or interference with the flow of water in any ditch or the delivery or drainage of water by the District; an increase in seepage or any other increase in the loss of water from the ditch; the subsidence of soi!1 within or adjacent to the easement; and any other damage to the District's property, ditches and irrigation works. The provisions of this section pertain to construction, maintenance, and repair and otherwise establish a duty owed by the City to the District only, and this Aunt does not intend nor does it provide that this duty is owed to any other entity and/or person, and specifically this provision does not extend the duty of the City to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. g. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph or any other damage to the easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any pathway or facility. MASTER PATHWAY AGREEMENT - Page 6 h. The City shall do the following to ensure that the permitted public uses of pathways do not interfere with the District's property and the District's access, operation, maintenance, cleaning and repair of its ditches and irrigation works: (1) The City shall prepare and install readily visible signs at pathway entrances or other appropriate locations along each pathway advising the public: that the pathway is located within the District's property or easement by the District's consent; that the primary use of the easement area is for the District's access, operation, maintenance, repair and cleaning of the District's ditch and irrigation works; that users of the pathway must yield to District personnel engaged in District activities; that swimming, wading, boating and any other activity in District ditches or within the inside slope of District ditch banks is prohibited; that public use of motor vehicles or equipment on the pathway is prohibited; that the pathway may be closed from time to time upon request of the District; of any City ordinances which apply to public use of the pathway; of the permitted hours of use of the pathway; and that persistent violations of any of these rules may result in temporary suspension of use of the pathway. (2) The City shall take appropriate action and exercise best efforts to protect the safety of the members of the public who use the City's pathways, ensure that members of the public comply with the terms of this Master Agreement, agreements executed pursuant to this Master Agreement, and any City ordinance regarding activity on City pathways, prevent interference with the District's use, operation, and maintenance of the District's property, ditches, and irrigation works, and prevent members of the public using City pathways from swimming, wading, boating, or conducting any other activity within the inside slope of the District's ditch banks. This Master Agreement shall not prevent the District from enforcing any prohibition against unauthorized use of the District's property, ditches, and irrigation works. i. The City shall provide notice prior to and immediately after construction so that the District's engineers may inspect the construction. Final acceptance of the work performed and the materials used in the City's installation of the pathway and all facilities shall not be made until all such work and materials have been expressly approved by the District. Such approval by the District shall not If unreasonably withheld. j. The City shall not excavate, place any structures, plant any trees, shrubs, or landscaping, or perform any other construction or activity within or affecting the District's property, ditches, and irrigation system except as authorized by agreements executed pursuant to this Master Agreement without the prior written consent of the District. k. Upon request of the District, the City shall investigate and perform reasonable and necessary modifications or repairs of any facility or alteration constructed or performed by the City which does not comply with the terms of this Master Agreement or any agreement executed pursuant hereto. The District shall give reasonable notice to the City and shall allow the City a reasonable period of time to perform such maintenance, repair, and other work. The District reserves the right to perform any and all work which the City fails or refuses to perform within a reasonable time after MASTER PATHWAY AGREEMENT - Page 7 request, and/or to require the public use of the pathway be temporarily suspended until such work is completed. In cases of emergency the District shall attempt to give such notice as is reasonable under the circumstances and reserves the right to perform any work deemed necessary under the circumstances. The City agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for such purposes. Nothing in this paragraph shall create or support any claim of any kind by the City or any third party against the District for failure to exercise the options stated in this paragraph. 1. The City sball construct obstructions to unauthorized vehicles and equipment on each pathway and in a manner that will prevent access to the District's property, ditches and irrigation system and works. M. Each agreement executed pursuant to this Master Agreement shall establish the authorized daily hours of use for each pathway. n. The City shall comply fully with all federal, state or other laws, rules, regulations, directives or other governmental requirements in any form as administered by appropriate authorities, regarding environmental matters, and specifically those relating to pollution control and to materials and chemicals which may be inimical to human health or the environment, which may be applicable to its construction, installation, operation, or maintenance of any pathway and facilities pursuant to this Master Agreement and any agreement executed hereunder. o. The covenants, conditions and agreements contained in each agreement and this Master Agreement shall constitute covenants to run with, and running with, the servient lands and/or easements of the City, and shall be binding on each of the parties hereto and on all parties and all persons claiming under them for as long as the subject pathway continues to be used for the purposes authorized by each agreement. The City shall provide the District written notice upon cessation of use of each authorized pathway for the authorized purposes. 7. Applicable Law and Jurisdiction Unaffected. Neither the terms of this Master Agreement, nor any agreement executed hereunder, nor the parties exercise of any rights or performance of any obligations hereunder, shall be construed or asserted to extend the application of any such governmental requirements or the jurisdiction of any federal, state, or other agency or official to District's ownership, operation, and maintenance of its ditches, drains, canals, irrigation works and facilities which did not apply prior to and without execution of this agreement. By entering this Master Agreement the District does not create, or exercise legal or other authority, either express or implied, to regulate, control, or prohibit the discharge or contribution of pollutants or contaminants to any groundwater, waters of the State of Idaho or the United States, or any other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental environmental agencies. MASTER PATHWAY AGREEMENT - Page 8 n rt By entering this Master Agreement, the District does not assume any responsibility or liability for any impact upon or degradation of human health or safety or the environment resulting from any activity of the other party, including, but not limited to, the City's construction, operation, and maintenance of its pathways and facilities. In the event District is required to comply with any governmental requirements or is subject to the jurisdiction of any governmental agency as a result of authorizing the construction and maintenance of a pathway upon its property, ditches, or irrigation works, the City, if it is the cause of such governmental intervention, shall: (1) immediately cease such action; and (2) indemnify, hold harmless or defend or reimburse the District for its costs and liabilities associated with the governmental requirements and intervention. 8. Claims of the Bureau of Reclamation. There presently exists a difference between District and the United States of America, specifically the Bureau of Reclamation, concerning the ownership, possession, management and control of certain ditches, drains and canals. District will advise City and address the consequences of this dispute as necessary in reviewing and approving each request of City for an agreement which involves any drain, ditch, or canal which is the subject of the dispute. The City is advised by District to communicate with the Bureau of Reclamation before signing any agreement affecting any ditch, drain or canal which is subject to the dispute concerning the Bureau of Reclamation's position and to learn of any requirements which may be imposed by the Bureau of Reclamation in connection with City's activity which is the subject of an agreement. 9. Water Rights. The City acknowledges that the waters in the District's ditches are fully appropriated for beneficial use, and that the water flows in the District's ditches fluctuate based on demand, diversion and use of water. The City shall not attempt to divert or claim the right to diversion or maintenance of minimum stream flows of any water in any of the District's ditches. The City shall not in any manner attempt to require the District to maintain any flow of water in any of the District's ditches. 10. Not a Public Dedication. Except for the permission to construct and maintain a pathway contained in agreements executed pursuant to this Master Agreement, nothing contained herein or in such agreements shall be deemed to constitute a gift or dedication of any portion of the District's property, ditches or irrigation and drainage works to the general public or for the benefit of the general public or for any public purpose whatsoever, and nothing contained herein shall be deemed to provide that any pathway shall be used for any other purpose than as stated herein and in amts executed pursuant hereto, it being the intention of the parties that this Agreement and any further agreements will be strictly limited to and for the purposes expressed herein. The parties shall be permitted, from time to time, to take whatever reasonable action it or they deem necessary to prevent any portion of the District's property, ditches, and irrigation and drainage works from being dedicated or taken for public use or benefit. MASTER PATHWAY AGREEMENT - Page 9 11. Relocation. If desired by the District, any pathway within or affecting the District's property, ditches, and irrigation system and works may be relocated in a functionally similar manner. Such relocation shall be with the prior written approval of the City, which approval shall not be unreasonably withheld. The costs of such relocation shall be borne by the District. 12. No Claims Created. Nothing in this Master Agreement or any agreement executed or permit issued pursuant to this Master Agreement shall create or support a claim of estoppel, waiver, prescription or adverse possession by either party hereto or any third party against either party hereto. 13. Rights Nonexclusive. This Master Agreement is entered subject to all rights previously acquired by third parties. The rights and privileges granted by this Master Agreement are nonexclusive and will not prohibit the District or the City from entering into agreements with other parties. 14. Assignment. Neither this Master Agreement nor any agreement entered pursuant to this Master Agreement may be assigned or transferred without the prior written approval of the Parties, which approval shall not be unreasonably withheld. 15. Attorneys Fees. Should either party incur costs or attorney fees in connection with efforts to enforce the provisions of this Master Agreement or any agreement executed pursuant hereto, whether by institution of suit or not, the party rightfully enforcing or rightfully resisting enforcement of such provisions, or the prevailing party in case suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party. 16. Construction, Binding Effect. This Master Agreement shall be construed and enforced in accordance with the laws of the State of Idaho and shall be binding upon and inure to the benefit of the parties hereto and their respective successors. This Agreement is not intended for the benefit of any third party and is not enforceable by any third party. If any provision of this Master Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this Master Agreement shall remain in full force and effect. The parties represent and warrant to each other that they each have authority to enter this Master Agreement. 17. Dispute Resolution. The parties agree to engage in mediation through a mutually acceptable mediator prior to institution of legal proceedings to resolve any issues pertaining to the provisions of this Master Agreement. The parties shall each pay fifty percent (50%) of all fees and costs charged by such mediator. 18. Catchfines. The catchlines or section headings herein set forth are provided only for the convenience of the parties in locating various provisions of the Agreement, and are not intended to be aids in interpretation of any provision of the agreement with respect to which the parties might disagree at some future time, and shall not be considered in any way in interpreting or construing any provision of the Agreement. MASTER PATHWAY AGREEMENT - Page 10 .^N 19. Notices. Any and all notices, demands, consents and approvals required pursuant to this Master Agreement shall be hand delivered, or if sent by mail shall be certified, postage prepaid, return receipt requested, addressed to the parties as follows: Nampa & Meridian Irrigation District City of Meridian 1503 First Street South 33 E. Idaho Street Nampa, ID 83651-4395 Meridian, ID 83642 Notices shall be deemed to have been delivered upon hand deposit in the United States mail as provided above. IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the City has hereunto caused its municipal name to be subscribed and its seal to be affixed by it officers first thereunto duly authorized by resolution of its City Council, all as of the day and year herein first above written. Y � i By . Its Presid t I VS ATTEST: William G. Berg, Jr. - CIA MASTER PATHWAY AGREEMENT - NAMPA & MERIDIAN IRRIGATION DISTRICT THE CITY OF MERIDIAN Come - eta' 0 rr 'nr r ake, ff hicil to POOt�t��`� STATE OF IDAHO ) ) ss: County of Canyon ) On this day of 2000, before me, the undersigned, a Notary Public in and forsaid Stale, personally appeared and X, known to me to be the Presi ent and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that executed the foregoing instrument and acknowledged to me that such irrigation district 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. STATE OF IDAHO ) County of Ada ) ••••'••8OP IDA �•'� ss: Aocex 11-f - �2)1� - Notary Public for Idaho Residing at 61. My Commission Expires: D� On this day of � byg 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared Robert D. Come and William G. Berg, Jr., known to me to be the Mayor and City Clerk, respectively, of THE CITY OF MERIDIAN, the political subdivision and municipality that executed the foregoing instrument and acknowledged to me that such entity 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. MASTER PATHWAY AGREEMENT - Page 12 120kVNAN-'- Notary Publi o I Residing at VQ / Q. Yt , Idaho My Commission Expires: q - lk- 0 (L7 f?FCr,1VE]D AUG 3 0 2000 CITY OF MERIDIAN LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this 30* day of , 2000, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation di trict organized and existing under and by virtue of the laws of the State of Idaho, party of the first part, hereinafter referred to as the "District", and THE CITY OF MERIDIAN, a political subdivision and municipality of the State of Idaho party of the second part, hereinafter referred to as the "Licensee", WITNESSETH: WHEREAS, the District is the owner of the irrigation ditch or canal known as FIVEMILE DRAIN (hereinafter referred to as the "Drain"), an integral part of the irrigation works and system of the District, together with easements therefor (the "easement area") which include easements to convey irrigation water, to operate and maintain the ditch or canal, and for ingress and egress for those purposes; and, WHEREAS, a portion of the Drain and easement area crosses and intersects lands within the City of Meridian in Section 1, Township 3 North, Range 1 West, B.M., Ada County, as shown on Exhibit A attached hereto and by this reference made a part hereof; and, WHEREAS, the Licensee owns the portion of the real property crossed by the Fivemile Drain described in Exhibit B, attached hereto and by this reference made a part hereof, and has obtained or will obtain easements or authorizations from the owners of the remainder of the real property crossed by the Fivemile Drain shown in Exhibit A: and, WHEREAS, the Licensee desires a license to permit the construction, installation, and maintenance of a pathway, landscaping and related improvements within the easement area for the portion of the Drain located in Section 1, Township 3 North, Range 1 West, B.M., Ada County, and to make the pathway available to the public without charge for recreational activities, in the manner hereinafter appearing and under the terms and conditions hereinafter set forth; and, LICENSE AGREEMENT - Page 1 Licensee agrees to make any reasonable changes which may be required by the District's engineers. Final approval of the plans shall not be unreasonably delayed or withheld. All construction shall be completed by September 30, 2001. Time is of the essence. b. The work performed and the materials used in the Licensee's construction of the pathway and all facilities shall at all times be subject to inspection by the District and its engineers. The Licensee shall provide notice prior to and immediately after construction so that the District's engineers may inspect the construction. Final acceptance of such work and materials shall not be made until all such work and materials have been expressly approved by the District. Such approval by the District shall not be unreasonably withheld. C. The pathway and each facility shall be constructed, operated, maintained, repaired and cleaned at all times by the Licensee in a good, workmanlike, safe, sanitary, and sightly manner and condition in compliance with the laws of the State of Idaho and the with the conditions stated herein. The Licensee shall not permit litter, trash or other material to gather or be deposited on or along the pathway. d. All costs and expenses involved in the construction, operation, maintenance, repair and cleaning of the Fivemile Drain Pathway, landscaping, and related improvements or in the operations of the Licensee pursuant to this License Agreement, or in the public use authorized by this License Agreement, shall be paid by the Licensee and the District shall have no obligation or responsibility for payment of any such costs or expenses. The Licensee shall have no right, power or authority to grant, allow or suffer any lien or any other charge or encumbrance of any kind against the District's right, title and interest in the Drain or the easement area. e. The Licensee acknowledges that the District has, and agrees that the District shall continue to have, the right to deposit sediment, plant material, debris and other material (collectively "spoil") which the District removes from the Drain on the fee title land and the easement area for the Drain. Without limiting this right, the District agrees to give reasonable advance notice to the Licensee prior to depositing spoil along the Drain, and to exercise reasonable best efforts to avoid placing spoil on the Fivemile Drain Pathway. The Licensee may spread and level any spoil removed from the Drain and placed on the easement area or, in the alternative, may transport the spoil to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any spoil removed from the Drain and place on the easement area. f. The Licensee agrees to construct, operate, maintain and repair the pathway and each facility and conduct its activities within or affecting the Drain and easement area so as not to constitute or cause: a hazard to any person or property; an interruption or interference with the flow of water in the Drain or the delivery or drainage of water by the District; an increase in seepage or any other increase in the loss of water from the ditch; the subsidence of soil within or adjacent to the easement; and any other damage to the Drain and easement area, ditches and irrigation works. LICENSE AGREEMENT - Page 4 n AI -N g. The Licensee agrees to indemnify, hold harmless, and defend the District from all claims arising out of any of the Licensee's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph or any other damage to the easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any pathway or facility. h. The Licensee shall not excavate, place any structures, plant any trees, shrubs, or landscaping, or perform any other construction or activity within or affecting the Drain and easement area or any other District property, easement, ditch, or irrigation works except as authorized by this License Agreement without the prior written consent of the District. i. Upon request of the District, the Licensee shall investigate and perform reasonable and necessary modifications or repairs of any portion of the pathway and related facilities which does not comply with the terms of this License Agreement. The District shall give reasonable notice to the Licensee and shall allow the Licensee a reasonable period of time to perform such maintenance, repair, and other work. The District reserves the right to perform any and all work which the Licensee Fails or refuses to perform within a reasonable time after request, and/or to require the public use of the pathway be suspended until such work is completed. In cases of emergency the District shall attempt to give such notice as is reasonable under the circumstances and reserves the right to perform any work deemed necessary under the circumstances. The Licensee agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for such purposes. Nothing in this paragraph shall create or support any claim of any kind by the Licensee or any third parry against the District for failure to exercise the options stated in this paragraph. j. The Licensee agrees that the District shall not be liable for any injury or damages which may occur to the Fivemile Drain Pathway or any facility installed by the Licensee in the reasonable exercise of the rights of the District in the course of the District's access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. k. The Licensee agrees to suspend its use and public use of the Drain and easement area after notice from the District that temporary suspension of use is necessary for the District's protection, maintenance, repair or cleaning of the Drain or to perform, effectuate or enforce any provision of this License Agreement. 1. The Licensee shall comply fully with all federal, state or other laws, rules, regulations, directives or other governmental requirements in any form as administered by appropriate authorities, regarding environmental matters, and specifically those relating to pollution control and to materials and chemicals which may be inimical to human health or the environment, which may be applicable to its construction, installation, operation, or maintenance of the pathway and facilities pursuant to this License Agreement. in. The Licensee shall construct obstructions to unauthorized vehicles and equipment at the termini of each segment of the Fivemile Drain Pathway. LICENSE AGREEMENT - Page 5 / 'N 11N n. The hours of use for the Fivemile Drain Pathway shall be from 30 minutes before sunrise to 30 minutes after sunset, and it shall be closed to use during all other times. o. The Licensee shall do the following to ensure that the permitted public uses of the pathway do not interfere with the Drain and easement area or the District's access, operation, maintenance, cleaning and repair of the Drain and easement area: (1) The Licensee shall prepare and install readily visible signs at pathway entrances or other appropriate locations along the pathway advising the public: that the District's uses the easement area to access, operate, and maintain, the Drain; that users of the pathway must yield to District personnel engaged in District activities; that, swimming, wading, boating and any other activity in District ditches or within District ditch banks is prohibited; that public use of motor vehicles or equipment on the pathway is prohibited; that the pathway may be closed from time to time upon request of the District; of the authorized hours of use of the pathway and any ordinances which apply to public use of the pathway; and of the permitted hours of use of the pathway. The size of the signs, and the material painted, printed or otherwise displayed thereon, shall be as shown in Exhibit D, attached hereto and by this reference made a part hereof. (2) The Licensee shall adopt such ordinances as it deems necessary to protect the safety of the members of the public who use the pathway, ensure that members of the public comply with the terms of this License Agreement, and prevent interference with the District's access, use, operation, maintenance, repair and cleaning of the Drain and easement area. The Licensee shall take appropriate action to prevent members of the public using the pathway from fishing, swimming, wading, boating, or conducting any other activity within or affecting the Fivemile Drain. The Licensee shall exercise best efforts to prevent members of the public who use the pathway from violating the terms of this License Agreement or any ordinance regarding activity on the pathway. This License Agreement shall not prevent the District from enforcing any prohibition against unauthorized use of the Drain and easement area. 7. Possible Future Maintenance of the Drain by Licensee. It is expressly understood and agreed that this License Agreement does not modify or in any way affect the District's right to fully maintain the Drain and the easement area, including removal of trees and bushes and removal of spoil, and the Licensee agrees that it will not interfere with or attempt to prevent any such maintenance work by the District. The Licensee may submit comments to the District concerning any such maintenance work, but the District shall not be bound to any extent by those comments and shall not be required to take any specific action to consider those comments. The Licensee is authorized at any time during the existence of this License Agreement to trim vegetation that the water superintendent of the District and the city engineer of the Licensee mutually agree is obstructing the use, enjoyment or safety of the Fivemile Drain Pathway. 8. Removal of Hazards or Impediments by District. The District reserves the right, at its option, to remove at any time any impediment to drainage of water into, or the flow of water through, the Drain, including any facilities constructed or installed on the easement area by the LICENSE AGREEMENT - Page 6 Licensee, and to remove at any time any hazards to persons or property which may arise by reason of any construction or installation by the Licensee or the recreational activity by the public. 9. Attorneys Fees for Enforcement. Should either party incur costs or attorney fees in connection with efforts to enforce the obligations of the other party under the provisions of this License Agreement, whether by institution of suit or not, the party rightfully enforcing or rightfully resisting enforcement of the provisions of this License Agreement, or the prevailing party in case suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party. 10. No Impairment of District's Rights. The parties hereto understand and agree that the District has no right to in any respect impair the uses and purposes of the irrigation and drainage works and system ofthe District, by this contract, nor to grant any rights in its irrigation and drainage works and system incompatible with the uses to which such irrigation and drainage works and system are devoted and dedicated and that this contract shall be at all times construed according to such principles. 11. Water Rights; Termination. Nothing in this License Agreement shall create or support any claim to a water right in the Licensee or any other party or the general public for use of the waters of the Drain for any purpose. The Licensee shall not file an application for a permit to appropriate the waters of the Drain or any tributary thereof, whether surface water or ground water, and shall not file a request for the Idaho Water Resource Board to consider the appropriation of a minimum stream flow under § 42-1504, Idaho Code, for the Drain. Licensee acknowledges that the District does not regard the Drain or any portion thereof as a natural stream whose waters are subject to appropriation and Licensee acknowledges and agrees that all sources of the waters flowing in the Drain are fully appropriated. The Licensee recognizes the right of the District to reclaim any surface waters or ground waters within the boundaries of the District for use or reuse within the irrigation system of the District, and acknowledges that the flow of water in the Drain may be diminished as a result of any such reclamation by the District. The Licensee shall not in any manner attempt to require the District to maintain any flow of water in the Drain. 12. Termination. This Agreement and the District's permission to the Licensee to construct and maintain the Fivemile Drain Pathway shall continue so long as the pathway is used by the Licensee and the public for the purposes and in compliance with the conditions stated herein, unless otherwise terminated by agreement of the Licensee and the District. After termination and written notice from the District, the Licensee shall remove the pathway and all related facilities on the District's Property which the District identifies for removal in such notice. 13. No Assignment; Sub -License. The Licensee shall have no right, power or authority to assign this License Agreement or any privileges hereunder to any person or entity. The Licensee shall have no right, power or authority to issue a sub -license to any person or entity without the prior LICENSE AGREEMENT - Page 7 written approval of the District, which approval shall be entirely and unconditionally optional with the District. 14. Applicable Law and Jurisdiction Unaffected By License. Neither the terms of this Agreement, nor the parties exercise of any rights or performance of any obligations hereunder, shall be construed or asserted to extend the application of any governmental requirements or the jurisdiction of any federal, state, or other agency or official to District's ownership, use, operation, and maintenance of the District's Property which did not apply prior to and without execution of this agreement. By entering this Agreement the District does not create, or exercise legal or other authority, either express or implied, to regulate, control, or prohibit the discharge or contribution of pollutants or contaminants to any groundwater, waters of the State of Idaho or the United States, or any other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental environmental agencies. By entering this Agreement, the District does not assume any responsibility or liability for any impact upon or degradation of human health or safety or the environment resulting from any activity of the County, including, but not limited to, the County's construction, operation, and maintenance of the Eckert Pathway and related facilities. In the event District is required to comply with any governmental requirements or is subject to the jurisdiction of any governmental agency as a result of authorizing the County to construct and maintain the Eckert Pathway and related facilities upon the District's Property, the County, if it is the cause of such governmental intervention, shall (1) immediately cease such action; and (2) indemnify, hold harmless or defend or reimburse the District for its costs and liabilities associated with the governmental requirements and intervention. 15. Waiver; Catchlines; Construction; Binding Effect. The Licensee expressly waives and disclaims any right to assert estoppel or waiver against the District with respect to any act, course of conduct or omission by the District concerning the Drain, the easement area, or the activities of the Licensee or the general public pursuant to this License Agreement. Nothing in this License Agreement shall create or support a claim of estoppel, waiver, prescription or adverse possession by the Licensee or any third party against District. The catchlines or section headings herein set forth are provided only for the convenience of the parties in locating various provisions of this License Agreement, and are not intended to be aids in interpretation of any provision of this License Agreement with respect to which the parties might disagree at some future time, and shall not be considered in any way in interpreting or construing any provision of this License Agreement. LICENSE AGREEMENT - Page 8 A This License Agreement is not intended for the benefit of any third party and is not enforceable by any third party. None of the provisions of this License Agreement create any rights of obligations which affect the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. If any provision of this License Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this License Agreement shall remain in full force and effect. The covenants, conditions and agreements herein contained shall constitute covenants to run with, and running with the lands of the Licensee described in Exhibit B and all the easements interests and authorizations of the Licensee in the lands where the Fivemile Drain Pathway will be constructed described herein, and shall be binding on each of the parties hereto and on all parties and all persons claiming under them or either of them, and the advantages hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. This License Agreement does not create or confer any rights for any individual member of the general public or any group within the general public. IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the Licensee has hereunto caused its municipal name to be subscribed and its seal to be affixed by it officers first thereunto duly authorized by resolution of its City Council, all as of the day and year herein first above written. ATTEST: Its Secretary NAMPA & MERIDIAN IRRIGATION DISTRICT LOW Its President THE CITXOF MERIDIAN By A_ -J K - \`Corrie - Mayor ATTEST: . ` p ME J William G. Berg, Jr. - ClerV SEAL= 1Ce LICENSE AGREEMENT - Page 9 i"N STATE OF IDAHO ) ) ss: County of Canyon ) On this 20,' - `day of , 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared and , known to me to be the President and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that executed the foregoing instrument and acknowledged to me that such irrigation district 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 Nampa, Idaho My Commission Expires:_ STATE OF IDAHO ) ) ss: County of Ada ) On this day of , 2000, before me, the undersigned, a Notary Public in and for said State, personally appe ed Robert D. Corrie and William G. Berg, Jr., known to me to be the Mayor and City Clerk, respectively, of THE CITY OF MERIDIAN, the political subdivision and municipality that executed the foregoing instrument and acknowledged to me that such entity 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. �Of'- D. O 1/1k; ��►i T #0TA,tr •••� it pil B LZG O; 7Tg OF LICENSE AGREEMENT - Page 10 Notary Public for Idaho Residing at , Idaho My Commission Expires: 1,7 E^, i� • . 1 a ►- r S Y � s 1161 � 0 0o ao ao = p ooaoo se000� O�aeoov0000 �anoove O�eao00o0 0 10 0��00 4•!j o=eooQ,y,�/ Mo 0o s0 OHO° oo � o ©o o000Oo0�a �o �� o0e� 000000 � oaoo eo0 00 0 000000 oe ;e aaaeao 0 ,o o aoovoe oo e iv °a°ooa°oe aD a Exhibit A, page 2 oNI.L Sc, m n rn rn n o 'n o C } o � F- O CL LLJ Q O W � Z o U� ° W J_ Li C U W s > .. _ W a a O a o Z i o o U w Of U .qz. F z Ez oH� o moa W Aid a z �" y �A 5 F � C; z $UJ 8 Ila a N ►"1 EXHIBIT B [Description of City of Meridian's property] LICENSE AGREEMENT - Page 12 EXHIBIT C CONSTRUCTION PLANS Portions of the following plans incorrectly describe the Fivemile Drain as the Fivemile "Creek" and incorrectly identify other District drains and laterals as "Creeks." Through execution of this License Agreement, the parties acknowledge and correct such errors to replace all references to "Fivemile Creek" with "Fivemile Drain," and to conform all other descriptions and identifications of District drains and laterals to those contained in the District's map entitled "Nampa & Meridian Irrigation District, Ada and Canyon Counties, Idaho, Drawing No. 2," last revised July, 1999. Each of the following sheets bears the general title "Fivemile Creek Pathway, Meridian, Idaho," and bears an engineers stamp dated July 13, 2000, and is further titled and described as follows: Sheet 1 of 19, "Title Sheet." Sheet 2 of 19, "Standard Drawing Index." Sheet 3 of 19, "Standard Drawing Index." Sheet 4 of 19, "Vicinity/Total Ownership Map." Sheet 5 of 19, "Project Clearance Summary." Sheet 6 of 19, "Typical Sections." Sheet 7 of 19, "Roadway Summary." Sheet 8 of 19, "Pipe Culvert Summary." Sheet 9 of 19, "Park Sta. 10+00 to 14+00." Sheet 10 of 19, "Park Sta. 14+00 to 23+00." Sheet 11 of 19, "Park Sta. 23+00 to 27+32." Sheet 12 of 19, "Path Sta. 0+00 to 10+00." Sheet 13 of 19, "Path Sta. 10+00 to 20+00." Sheet 14 of 19, "Path Sta. 20+00 to 31+00." Sheet 15 of 19, "Path Sta. 31+00 to 41+72.43." LICENSE AGREEMENT - Page 13 Sheet 16 of 19, "Fieldcrest Access." Sheet 17 of 19, "Signing Erection Specifications." Sheet 18 of 19, "Water Pollution & Erosion Control Plan." Sheet 19 of 19, "Miscellaneous Details." Sheet 1 of 2, "61' Timber Bridge, Situation and Layout." Sheet 2 of 2, "61' Timber Bridge, Foundation Investigation." LICENSE AGREEMENT - Page 14 EXHIBIT D FIVEMILE DRAIN PATHWAY PUBLIC ACCESS PERMITTED FROM S:OOA.M. TO 10:OOP.M. NO UNAUTHORIZED MOTORIZED VEHICLES NO LITTERING NO FISHING, SWIMMING, BOATING, OR WADING NO HORSES NAMPA & MERIDIAN IRRIGATION DISTRICT USES THIS AREA TO ACCESS, OPERATE AND MAINTAIN THE FIVEMILE DRAIN PATHWAY USERS MUST YIELD TO IRRIGATION DISTRICT PERSONNEL ENGAGED IN DISTRICT ACTIVITIES THE PATHWAY MAY BE CLOSED FROM TIME TO TIME UPON REQUEST OF THE DISTRICT LICENSE AGREEMENT - Page 15 JLL 11 'W l::I:u hR F'1 -8.1C ;,MKS 208M'71297 TO PPPK-. OFFICE p•e2/td3 -33u0�.� THU POiM PIMNOM COUMUT OP: F D it SRw�i YYRh� r Ali'• J. DMD k.,. .RRO RECORDED BY STEWART TI'I'I.S OF IDAHO, INC. :� 40 192 NOV 19 ON 1101 taws a M►uwso er aRwNrea(l), ihACa ASOVS TMar LWO NOR RSOOMM40 DATA 4105 ordrr No.: 92034697 pq WARRANTY DEED FUR VALUE RBCEIVBD BBTr7 L. TULLY, API t7t1DW>; ISD R GRANTOR(S), does(do) hereby GRANT, BARGAIN. SELL w)d CONVBY unto CITY OF l+D IXDVW !>J ANTEE(S). wfwmc1Wf tiddrrau is: Tae cBXmUa STAT, M2 tYDIAIY, 7YaafiO 83642 desor& is fol fits the bilowing dacrroW mW y ADACAUM. Btu 0044M, More particularly As set forth on the Atteched ExFIIBIT 'AT, which by thla reference become a pert hereof, rxis un is uSINC REGARDED TO 1:ORRlCT THAT LEGAL DE9CATY:ION COI AINED MERwAaltAriTY D Rt!OolQl?0 SE".I, 1992, AS INSTRW MT W. 9259375/'R CO';tTY, IDAHO. =gDS OF AAA IDAHO. To HAVE AND To HOLD the said premises, whb aldr Wpurlananoas unto the said Grantee(s), and Grantee(a) burrs and assigns forarec. And the said arentor(s) doa(d0) heeeby COMM to erd with the add Orantae(s), that Grw or(s) Were the 0weot(a) In fee olmpk of said pnunlsa; that said premises are hoe from III encumbroxM, EXCEPT those to whkh thli COmey"M Is expressly node subject and thou made, suited Or dope by dw 0rM*e(s)r. and mibJ t to tooerrav i0ta, XSWICLION, dodkWM, aaamera. rlghq of way and if any) for ta RgraMMM, Of ot1 Any) Orew TO wt AAF, t�Ml MdOW sssas> M". (braiodb* aripdm and Wit messme a. tht soma horn all lawfUl claims whatsoever. are not ya ad I°' end dig (3nnDor(a) will warrrant and ddsnd Dated: November :7, 1.992 BXTTY L TV"Y STATE OP mma COZM—. , OF AOA pub Oin � thiS /9-1 rd � NN , in the year of M-), . before me, the uadengSq d, s Notary pasoW1y Vpeaed jjWM L. I=y known or [dandfled tD me tb bs dts persons) whoa =D*) Wam subaorlbed to dw wbdtin istga,uasn, and aelnwwled ed m me *a hs/9011 y exewtpd the sats. EKATRY�:—CCONTZ ,I"ICE ! �.wo Name: C, MYCem,r :7!�n r'N*40 9-1"71. Residing at: AOIOB. `o"'" o MOW at: Belse. ro ZO 39Vd OI1d3W38 GW smaVd 109986880Z i 10 5b:5T 000Z/6T/L0 tJl- +� rJrJ 1 J • EJ rR ruaL �wrvo 4w000 i a c;), r i u urr , t" r . r,r v.) ORDER NO. 92034627 YN . EXHIBIT "A" The Sauthwest 1/4 of the Northwest 1/4, Section. 1. Township 3 Noz•th, Range 1 west, Raise Meridian, Ada County, State of Idaho. EXCEPT: All real property in MERIDIAN PARK SUBDIVISION NO. 1 according to the off icial.records of the recorder, Ada County, Idaho and Lot 1 in Block 4 of Proposed 1+ZVTDVW PARK SUBDIVISION NO. 2, Ada County, Idaho, more particularly described as follows: eomencing at the quarter corner common to sections i and 2, Township 3'North, Range 1 West, Boise -Meridian, Ada County, Idaho: thence along the quarter seetLOZ line South 89 degrees 27'12" Sant 40.00 feet to a point on the proposed East right-of-way line of Linder Road, said point being THE REAL POINT OF BEGINNING; thence along said right-of-way line. North 0 degrees 00129" West 85.00 feet; thence leaving said sight -of -way line South 89 degrees 27'12" Sadt 120.00 feet; thence. South 0 degrees 001290 East 85.00 feet; thence North 69 degrees 27112" meet 120.00 feet to THE REAL POINT OF BEGINNING. ALSO EXCEPTING Any portion of SHERT_ LYNN SUBDIVISION lying within the Southwest quarter of the Northwest quarter Section 1, Township 3 North Range i West, Boise Meridian, Ada County, State of Idaho. ALSO EXCEPTING Any portion of Right -of -wady for LINDER ROAD. ** TOTAL PAGE -03 ** 60 39Vd OIld3W38 aW S>JaVd 10998688OZI 5b:5T 0002/6T/L0 "". d a..s MW wmowl JUL 17 loll 1J• Lb rK t•uoL-11. WIJKKt) --k=cn:r(1eJf lU .' l.R•t 1l.t "'•. e1.5/!7J exh 4 it man A parcel of land wholly contained within the SE 1/4 of the HW 1/4 Of Section. 1, T. 3R.1 R. IW., S.M. , Ada County, Idaho, send lying Southwesterly of the centerline of the Fives dile Drain and hest of the Rasterlyy right-of-way of NW 11th Avenue as extended, more particularly described as follovM1 Co mencing at the West quarter corner of Section 1, T- 3 W-, R- 1 W-, H.M., thence Noirth- 89-48'20" East, 1,327.65 feet to the C -W 1/16 corner, cQw=OA to the 'MOrthweet corner of Lot 18, Bleak 6; of Meadowwiew No. 2 Sabdivisfou as recorded in Hook 50 of Plats at Page 4100, record, of Ada County, xdaho, said Point being the REAL P0334T pF BBGImING. thence North 00-40151" West along the West boundary of the 03 1/4 of the EW 1/4 of said Section 1, approximately 140.00 feet to the canter of the Five Bile Dra-in; th"U" South 60-11.17" East along the centerline of the Dive Kilo Draia approximately 174.59 fiat to a point lying on the extouslon of the Basterly right-of-way of WW 11th Aveenue; thence South 00-11140" Bast, 32.68 feet to the WW corner Of Lot 1, Block 13 of Eeadowview No. 2 Subdivision; thence South 09--48,20" West, 150.00 Leat to the point of Beginning. Subject to a right-of-way easement for the Five Mile Drain. containing approximately 0.33 acres. IN ** TQTAL PAGE,03 ** VO 39Cd 0I1d3W3d (INV S>IdVd T0998688OZI 9b:9T 0002/6T/L0 Aftrow MWALD "ooRrm" m,,"aw a. IM 40 61"0 JAL 19 '00 15:25 FR PUB'S (G WVRKS 2088871237 TU" PRRKS UHF 1 Lt 10. U,�ib.S r'OA VALUE RMC EXWD I JOZ 8IM=1CH . S=td ]EATMMX= SIMUNICB, husband and wife, the Granters herein, do hereby grants bargain, sell and convey, unto, the CITY OF MERIDIAN, a municipal clorpo�ation, the Grantee, whose address is: The City of Meridian 33 Bast Idaho Street Meridian, Idaho 93642 the following described promises, to -wit; See attached Exhibit W TO SAVE AND TO BOLD 'the said premises, with their appurtenances unto the said Grantee, their heirs and esaigma fo=ever. And the said Grantoze do hereby covenant to and with the said Grsaatee, that they are the owner in fee simple of said premises; that said premises are free from all encumbrances, and that they will warrant and defend the same from all lawful elaims whatsoever. DATED This oda of �ca��— Y 1992. 724117 � /7 MINTY. 10, FCR��iNti �� MA�dRB� JO ICA 1 STAT! AN IDAHO.) County of Ada, on -this daY 02' 1992, before me, the undo=signed, a No Public in and for said State, personsll appsared, JG8 51MMICB and S,i�MICB, husband and rife, Sm tome .to be the pmrsons whom* names are subscribed to the a instrument, "d acJW0W3 9dged to me that they executed the safie. = WITMSS WMWOF, I have hereunto got my hand and off iced MY official seal, the day and year in thi, it awte first above written. SEAL .•`••• �`, F R ECS'' c,E' !E► . �o�a �C or 14" Rane. Meridian o OT o Id aha aZ �%rco or rI � • 90 39dd 0UV3W3N QNV SARWd T09986880ZT 90:9T 000Z/6T/L0 PIONEER '1'I= UCWANX.. OF ADA COUNTY 8131 West Rifleman Street / Boise, Idaho 83704 / Telephone (208) 3714700 May 22, 1996 Wayne G. Crookston, Jr. Ambrose, Fitzgerald & Crookston Attorneys at Law 1530 W. State Ave. Meridian, Idaho Dear Wayne: As you re%uested, I have checked the ownership of the property lying southwesterly of the plat of Meridian Park Subdivision No. 1. The last deed of record on said strip would be to the City of Meridian under instrument No. 9280090. Said deed was executed by Betty'L. Tully. The deed under which Betty L. Tully and her husband acquired title was recorded under instrument No. 7924092 and conveyed to theca the entire SW of the NW of Section 1, Township 3 North, Range 1 West. Copies of said deeds are enclosed. Very truly yours, Harold E. Huston Vice President. Z0 39Vd OIiV3W321 aNV SAWd i0SS8688OZI L9:9T 000Z/6L/L0 26t _L T.1_L._ .• �x�Ar j�p 11`17`- �J.��—.,.y.. .,...�..........�.... . iii Q(.......� --.�.../ t1w: patt_iPA_ of the sewn. f wt, .wyft;-• that ".mid part.? --At. per. !w and hr aonddwediont• of the nems of nm.,�hm------- - "--- ----- ------ -- -,,,,� _' :':;,r�'tliti;Ilydted *o&pa'd by, t4 partUIL- of the part. lira tsodpt -howl is-hwabr Adblowled" FA% l jaktad, seed, and by th.W !rant, borprm wl1 and owwo ' aod o=4rm wwo ' �.• �bd'AWt_ ALL... of tlu .acond pert, and to......VMir-A.ira =d 40sil1W iora+er, all the 10114 Ad deaeaibed i�2ltsl......................... , aSht� otwldst�riy t *.Wt: The Sri,f of the Aq of Section 1, Tomtship 3 a., !tan"p 1 `1.E_::, in Ada County, Idaho, except for read rights of %t.T-. SubjuL:L to all taxes and assess -menta, for tiu, year 1965 and all suirsaouent ysara. 60 30Vd ;:- r0O$rJYL'lt with e/i ar,d dndalar thw taontMnta, hareditaerea s and rPpwt—wm dwrowwo beJo04jf- fftf or is aarwima appwrtaaiq, a,d the twwre�ott and raraeYioes, rwaradeder and mra.in�dax and trurb, Jsewa ;= and pedita thw0af; and all ..tab. g4w, dao and intew t in std to tho said pmpmrW, as well in law es is wWtr a` of dw mW pwtY.—.. d dw mat put. To HAv,& Amn To HarA all and alnotaw t1w aJkwo aneatfawd and d"aribsd Pnraaw, 191w wr -'with am Apptanenanow unto the past.11WLi... of the aroaead Past, atr� tv. "' T . hairs sad aridm lararar. ttp¢tb.of Ow Ltd Parto and heirs. tht saki permiart in the gnfK and pNaable peeaaiilo-i of Un odd pelt Aa- of the awed d PAW,--Ah%1U- . Irirs and siert v&kwt the said peri Y. --- .- af tlr Lara Part, artd.... ht . _..!ries. and atarrut all and iovwY potion and Peewons whan"Wrer, IAWA Ny dalaoiat or to claim the seaoe Ihdl and will watrew and by thsaa presenia torowr adend. IN WZrNSSS WHEREO , tla add pest. Y-___. d tha Rnt Pan he'' Jwrwutto wt ' hand and sees.... do day and yaw &M abore wdttaL ti Zmarted and Deiivwed its dw Pmmoow OfAA OIIV3W3N aW SANVd I09986880ZI L5:91 0002/6Z/L0 X. 1 =x 4 f •k t 60 30Vd ;:- r0O$rJYL'lt with e/i ar,d dndalar thw taontMnta, hareditaerea s and rPpwt—wm dwrowwo beJo04jf- fftf or is aarwima appwrtaaiq, a,d the twwre�ott and raraeYioes, rwaradeder and mra.in�dax and trurb, Jsewa ;= and pedita thw0af; and all ..tab. g4w, dao and intew t in std to tho said pmpmrW, as well in law es is wWtr a` of dw mW pwtY.—.. d dw mat put. To HAv,& Amn To HarA all and alnotaw t1w aJkwo aneatfawd and d"aribsd Pnraaw, 191w wr -'with am Apptanenanow unto the past.11WLi... of the aroaead Past, atr� tv. "' T . hairs sad aridm lararar. ttp¢tb.of Ow Ltd Parto and heirs. tht saki permiart in the gnfK and pNaable peeaaiilo-i of Un odd pelt Aa- of the awed d PAW,--Ah%1U- . Irirs and siert v&kwt the said peri Y. --- .- af tlr Lara Part, artd.... ht . _..!ries. and atarrut all and iovwY potion and Peewons whan"Wrer, IAWA Ny dalaoiat or to claim the seaoe Ihdl and will watrew and by thsaa presenia torowr adend. IN WZrNSSS WHEREO , tla add pest. Y-___. d tha Rnt Pan he'' Jwrwutto wt ' hand and sees.... do day and yaw &M abore wdttaL ti Zmarted and Deiivwed its dw Pmmoow OfAA OIIV3W3N aW SANVd I09986880ZI L5:91 0002/6Z/L0 ft- in -wed lw add Stais, owww2aUr spimar Ing DSIP. MA ORM&O 2 1 --L'L—.sgdmKnlwd to the wiMn instrunuM, and-Acknowled0d :nr-Irzrmzss wmsREop, z be" howantoliot my h" mid affixed my offiddd and dho day lim ths qfftlabo" written. ev, State of NOWY PubUc or OR t 9 OIIV3W3a GNV SAaVd 109986880ZI L9:91 0002/6T/L0 4 109986880ZI L9:91 0002/6T/L0 510 EXHIBIT D FIVEMILE DRAIN PATHWAY PUBLIC ACCESS PERMITTED FROM 5:OOA.M. TO 10:00P.M. NO UNAUTHORIZED MOTORIZED VEHICLES NO LITTERING NO FWH+N-C, SWIMMING, BOATING, OR WADING NO HORSES NAMPA & MERIDIAN IRRIGATION DISTRICT USES THIS AREA TO ACCESS OPERATE AND MAINTAIN THE FIVEMILE DRAIN PATHWAY USERS MUST YIELD TO IRRIGATION DISTRICT PERSONNEL ENGAGED IN DISTRICT ACTIVITIES THE PATHWAY MAY BE CLOSED FROM TIME TO TIME UPON REQUEST OF THE DISTRICT LICENSE AGREEMENT - Page 15 RINGERT CLARK CHARTERED Laura E. Barri R Christenson LAWYERSJeffrey E PcEMED D. Blair Clark Michael J. Doolittle S. Bryce Farris Patrick D. Furey Sp ^^oo P Lu David Hammerquist Charles L. Honsinger Joseph B.Jones CITY OF MERID IAN James P. Kaufman Jennifer Reid Mahoney .lames G. Reid August 31, 2000 William F. Ringert Daniel V. Steenson Allyn L. Sweeney Samuel Kaufman (1921-1956) Tom Kuntz City of Meridian Parks and Recreation 11 W. Bower St. Meridian, Idaho 83709 Re: Nampa & Meridian Irrigation District (NMID): License Agreement Fivemile Drain Pathway, Master Pathway Agreement, Memorandum of Understanding Dear Tom: Enclosed are replacement pages 5 and 6 for the Master Pathway Agreement without any reference to fishing. Also enclosed is a replacement Exhibit D for the Fivemile Drain Pathway agreement. The Exhibit D you have is in draft form. NMID is replacing Exhibit D with the enclosed final version prior to recording the agreement. I apologize for these last minute corrections. Thanks for your assistance with these pathway agreements. Yours very truly, Daniel V. Steenson 455 South Third Street ♦ P.O. Box 2773 ♦ Boise, Idaho 83701 ♦ 208/342-4591 FAX 342-4657 6. Conditions. Construction, use, maintenance and repair of each pathway by the City and members of the public within or affecting the District's ditches, irrigation system and works, and associated real property interests shall be performed in accordance with the conditions listed below. "Facility" means any pathway and any object, plant or thing of any nature installed in, on, under or across the District's ditches and property by the City, and any activity which changes the physical condition or appearance of the District's property, ditches, and irrigation system. a. The purpose of agreements executed pursuant to this Master Agreement shall be to approve, authorize and permit the construction, installation and maintenance of pathways and related facilities within or affecting the District's ditches, irrigation system and works and associated property, and to permit the City to make the pathways available to the public without charge for recreational uses as contemplated by Idaho Code section 36-1604. The authorized recreational uses of the pathways are limited to walking, jogging, and riding bicycles or other human-powered vehicles or devices. Authorized uses shall not include horseback riding, hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for construction, maintenance or repair work by the City of the pathway, landscaping, and related improvements or by the District for District purposes, or for access by handicapped persons with motorized wheelchairs or comparable equipment for access by handicapped persons. b. The uses permitted by each agreement executed pursuant to this Master Agreement shall all times be subordinate and subservient to the District's rights and uses of the District's property, ditches, and irrigation works. Nothing contained herein or in any agreement executed pursuant to this Master Agreement shall be construed, implemented or enforced to impair, limit, restrict or otherwise affect the District's rights, authority, powers, and discretion with respect to the District's property, ditches and irrigation system, or to grant or create any rights incompatible with the purposes and uses to which the District's property, ditches and irrigation system are devoted and dedicated. The District and the City agree that all of the District's rights and discretion to access, operate, construct, maintain, repair, clean or otherwise use of any portion of the District's property, ditches, and irrigation works are reserved. The City agrees to suspend its use and public use of pathways when the use of the easement areas occupied by the pathways is required by the District for access, operation, maintenance, repair, cleaning and other District purposes. C. Each pathway and facility shall be constructed, operated, maintained, repaired and cleaned at all times by the City, at the cost and expense of the City, in a good, workmanlike, safe, sanitary, and sightly manner and condition in compliance with the laws of the State of Idaho and the conditions stated herein. The City shall enforce its anti-littering ordinances, provide waste receptacles, and take other reasonable actions within its authority to prevent litter, trash or other material to gather or be deposited on or along pathways authorized pursuant to this Master Agreement. The City may spread and level any material removed from the District's ditches and ditch banks and placed on the District's easement area or, in the alternative, may transport such material to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any material removed from its ditches and placed on the easement area. MASTER PATHWAY AGREEMENT - Page 5 6. Conditions. Construction, use, maintenance and repair of each pathway by the City and members of the public within or affecting the District's ditches, irrigation system and works, and associated real property interests shall be performed in accordance with the conditions listed below. "Facility" means any pathway and any object, plant or thing of any nature installed in, on, under or across the District's ditches and property by the City, and any activity which changes the physical condition or appearance of the District's property, ditches, and irrigation system. a. The purpose of agreements executed pursuant to this Master Agreement shall be to approve, authorize and permit the construction, installation and maintenance of pathways and related facilities within or affecting the District's ditches, irrigation system and works and associated property, and to permit the City to make the pathways available to the public without charge for recreational uses as contemplated by Idaho Code section 36-1604. The authorized recreational uses of the pathways are limited to walking, jogging, and riding bicycles or other human-powered vehicles or devices. Authorized uses shall not include horseback riding, hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for construction, maintenance or repair work by the City of the pathway, landscaping, and related improvements or by the District for District purposes, or for access by handicapped persons with motorized wheelchairs or comparable equipment for access by handicapped persons. b. The uses permitted by each agreement executed pursuant to this Master Agreement shall all times be subordinate and subservient to the District's rights and uses of the District's property, ditches, and irrigation works. Nothing contained herein or in any agreement executed pursuant to this Master Agreement shall be construed, implemented or enforced to impair, limit, restrict or otherwise affect the District's rights, authority, powers, and discretion with respect to the District's property, ditches and irrigation system, or to grant or create any rights incompatible with the purposes and uses to which the District's property, ditches and irrigation system are devoted and dedicated. The District and the City agree that all of the District's rights and discretion to access, operate, construct, maintain, repair, clean or otherwise use of any portion of the District's property, ditches, and irrigation works are reserved. The City agrees to suspend its use and public use of pathways when the use of the easement areas occupied by the pathways is required by the District for access, operation, maintenance, repair, cleaning and other District purposes. C. Each pathway and facility shall be constructed, operated, maintained, repaired and cleaned at all times by the City, at the cost and expense of the City, in a good, workmanlike, safe, sanitary, and sightly manner and condition in compliance with the laws of the State of Idaho and the conditions stated herein. The City shall enforce its anti-littering ordinances, provide waste receptacles, and take other reasonable actions within its authority to prevent litter, trash or other material to gather or be deposited on or along pathways authorized pursuant to this Master Agreement. The City may spread and level any material removed from the District's ditches and ditch banks and placed on the District's easement area or, in the alternative, may transport such material to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any material removed from its ditches and placed on the easement area. MASTER PATHWAY AGREEMENT - Page 5 /A--, 11-1% d. The City acknowledges that the District has, and agrees that the District shall continue to have, the right to deposit sediment, plant material, debris and other material (collectively "spoil') which the District removes from its ditches on the District's fee title lands and the District's easement areas for its ditches. Without limiting this right, the District agrees to give reasonable advance notice to the City prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the City's pathways. The City may spread and level any spoil removed from the Drain and placed on the District's fee title lands and easement areas or, in the alternative, may transport the spoil to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any spoil removed from the Drain and place on the District's fee title lands and easement areas. e. The City shall have no right, power or authority to grant, allow or suffer any lien or other charge or encumbrance of any kind against the District's right, title and interest in the District's property, ditches and irrigation works. f. The City agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's ditches and property so as not to constitute or cause: a hazard to any person or property; an interruption or interference with the flow of water in any ditch or the delivery or drainage of water by the District; an increase in seepage or any other increase in the loss of water from the ditch; the subsidence of soil within or adjacent to the easement; and any other damage to the District's property, ditches and irrigation works. The provisions of this section pertain to construction, maintenance, and repair and otherwise establish a duty owed by the City to the District only, and this Agreement does not intend nor does it provide that this duty is owed to any other entity and/or person, and specifically this provision does not extend the duty of the City to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. g. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph or any other damage to the easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any pathway or facility. h. The City shall do the following to ensure that the permitted public uses of pathways do not interfere with the District's property and the District's access, operation, maintenance, cleaning and repair of its ditches and irrigation works: (1) The City shall prepare and install readily visible signs at pathway entrances or other appropriate locations along each pathway advising the public: that the pathway is located within the District's property or easement by the District's consent; that the primary use of the easement area is for the District's access, operation, maintenance, repair and cleaning of the District's ditch and irrigation works; that users of the pathway must yield to District personnel engaged in District activities; that swimming, wading, boating and any other activity in District ditches MASTER PATHWAY AGREEMENT - Page 6 d. The City acknowledges that the District has, and agrees that the District shall continue to have, the right to deposit sediment, plant material, debris and other material (collectively "spoil") which the District removes from its ditches on the District's fee title lands and the District's easement areas for its ditches. Without limiting this right, the District agrees to give reasonable advance notice to the City prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the City's pathways. The City may spread and level any spoil removed from the Drain and placed on the District's fee title lands and easement areas or, in the alternative, may transport the spoil to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any spoil removed from the Drain and place on the District's fee title lands and easement areas. e. The City shall have no right, power or authority to grant, allow or suffer any lien or other charge or encumbrance of any kind against the District's right, title and interest in the District's property, ditches and irrigation works. £ The City agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's ditches and property so as not to constitute or cause: a hazard to any person or property; an interruption or interference with the flow of water in any ditch or the delivery or drainage of water by the District; an increase in seepage or any other increase in the loss of water from the ditch; the subsidence of soil within or adjacent to the easement; and any other damage to the District's property, ditches and irrigation works. The provisions of this section pertain to construction, maintenance, and repair and otherwise establish a duty owed by the City to the District only, and this Agreement does not intend nor does it provide that this duty is owed to any other entity and/or person, and specifically this provision does not extend the duty of the City to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. g. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph or any other damage to the easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any pathway or facility. h. The City shall do the following to ensure that the permitted public uses of pathways do not interfere with the District's property and the District's access, operation, maintenance, cleaning and repair of its ditches and irrigation works: (1) The City shall prepare and install readily visible signs at pathway entrances or other appropriate locations along each pathway advising the public: that the pathway is located within the District's property or easement by the District's consent; that the primary use of the easement area is for the District's access, operation, maintenance, repair and cleaning of the District's ditch and irrigation works; that users of the pathway must yield to District personnel engaged in District activities; that swimming, wading, boating and any other activity in District ditches MASTER PATHWAY AGREEMENT - Page 6 AUG -31-00 09:37 AM RINGERT CLARK 2083424657 P.02 �\ /ftl%� THIS MASTER PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this day of , 2000, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho (hereinafter "District"), and THE CITY OF MERIDIAN, a political subdivision and municipality of the State of Idaho (hereinafter "City"). WHEREAS, the District owns or controls numerous irrigation canals, laterals and drains (hereinafter collectively referred to as "ditches") with associated fee title land and ditch easements, most of which are described and recorded in Instrument No. 797771, recorded January 11, 1977, in the office of the Ada County Recorder, Instrument No. 8367341, recorded December 19, 1983, in the office of the Ada County Recorder, Instrument No. 989070, recorded on October 18, 1983, in the office of the Canyon County Recorder, and Instrument No. 8505634, recorded March 7, 1985, in the office of the Canyon County Recorder, with the exception of those ditches or portions thereof which have been relocated and recorded subsequent to the recording of the aforementioned instruments; and, WHEREAS, the City may wish to develop pathways for public use along and across some of the District's ditches and within some of the District's easements and fee title lands; and, WHEREAS, the maintenance of pathways along certain District ditches, may be compatible with the District's primary interests and operations; and, WHEREAS, in order to develop such pathways it will be necessary to obtain the District's cooperation and permission; and, WHEREAS, the District and the City intend by entering this Master Agreement to accomplish the following in a manner that is consistent with their respective legal and fiduciary responsibilities: to enhance the City's pathway planning through early consultation between the City and the District, MASTER PATHWAY AGREEMENT - Page 1 AUG -31-00 09:38 AM RINGERT CLARK 2083424657 P_03 11_\ ell to establish a process for the City's submission of pathway requests and the District's consideration of such requests; and to provide the general conditions for the District's approval and authorization of pathway requests affecting the District's ditches, property, operations, and maintenance, NOW, THEREFORE, for and in consideration of the covenants, agreements and conditions hereinafter set forth, the parties mutually agree as follows: 1. 5cmz1. The City agrees to consult with the District in the City's pathway planning, to submit pathway requests to the District, and to obtain the District's approval of such requests pursuant to the terms and conditions hereinafter provided. The District agrees to consult with the City in the City's pathway planning, to review the City's pathway requests, and to approve those which are compatible with the District's use and management of the District's property, business and affairs, and which do not interfere with the District's delivery or drainage of water, or the District's access, use, operation, maintenance and repair of its ditches and irrigation works, and which do not create unacceptable risks to public safety, pursuant to the terms and conditions hereinafter provided. The District's approval shall not be unreasonably withheld. Nothing in this Master Agreement shall be construed, implemented or enforced to diminish or impair the District's authority, powers, or discretion in meeting its legal and fiduciary responsibilities in the management and protection of its irrigation system, ditches, property, assets or business and affairs. The parties agree to implement the provisions of this agreement in a reasonable, good faith manner. 2. C snitmtion in Cijx rathwxy Elan". The parties acknowledge that planning of pathways along or across District ditches, easements and fee title lands requires consultation between the parties as early as possible in the City's pathway -planning process to identify potential pathway locations and determine project feasibility before the City submits pathway requests to the District as provided in Section 3 of this Master Agreement. The patties shall consult with each other in the City's planning process as follows: a. The City shall provide the District notice and an opportunity to comment on pathway plans, proposals and requirements as early as possible in the City's pathway -planning process. This shall include, but is not limited to, situations in which the City requires, requests or authorizes third parties to construct pathways across or along the District's ditches, irrigation system and works, and associated real property interests. b. In its written comments, the District shall: (1) advise the City whether the District requires additional information in order to respond, (2) identify circumstances and options in which construction and maintenance of pathways across or along District ditches may be compatible with the District's primary interests, operations and obligations without creating unacceptable risks to public safety; (3) identify circumstances in which space constraints, and operation, maintenance and safety issues preclude, limit, or otherwise diminish the potential for the construction of pathways along or across District ditches under consideration. MASTER PATHWAY AGREEMENT - Page 2 AUG -31-00 09:38 AM RINGERT CLARK 2083424657 P.04 /'1 /ftlk� C. The City shall advise the District in writing if, prior to submitting a pathway request, the City desires a statement from the District regarding the feasibility of a specific pathway along or across a District ditch, easement, or fee title land, based on the City's submission of preliminary plans. A statement that a proposed pathway is feasible shall not constitute District approval, nor affect the parties rights and obligations in the submission, review and approval of pathway requests as provided in this Master Agreement. 3, RLhMistion Review, and Approval of Pathway Requests. The following procedures, terms and conditions shall apply to the submission, review, and approval of pathway requests: a. Prior to constructing, requiring or authorizing any pathway and/or related landscaping and structures within or affecting any District property, right of way, ditch, or irrigation works, the City agrees to submit a written request to the District, and to obtain the District's written permission and approval through execution of an agreement. b. The City shall submit its request far enough in advance of the proposed initiation of construction to provide the District a reasonable time to evaluate and respond to the request, but in no event shall such a request be submitted less than two months prior to the first date of construction. C. Each request shall describe the proposed pathway generally, identify the proposed dates of construction (if any), and shall identify any known local, state, or federal procedures or requirements which may affect the District's review and approval of the proposed pathway. d, Each request shall include a location map; fee title legal description, easement or authorization from the servient estate owner; and construction plans which show the pathway's proposed location, design, and all physical structures, plants and landscaping proposed to be constructed, installed or planted in connection with the pathway. e. The District's Water Superintendent shall review each request and communicate by letter to the City and the District's attorney whether the proposed pathway meets the requirements of the District. Such letter shall not constitute approval of the District. Approval may only be granted by the District's board of directors through a resolution during one of its regular meetings_ f. If the Water Superintendent indicates that the proposed pathway will meet the requirements of the District, an agreement shall be prepared. The agreement shall incorporate by reference all covenants, conditions, and agreements of this Master Agreement; shall identify the proposed pathway; shall give a legal description of the subject property; shall describe the width of the District's easement; and shall include any special conditions applicable to the particular proposed pathway. Each party shall be responsible for its own costs in preparing such agreements. MASTER PATHWAY AGREEMENT - Page 3 AUG -31-00 09:39 AM RINGERT CLARK 2083424657 P.05 Iwo B. The City shall execute duplicate originals of each agreement and deliver them to the District for consideration during the next meeting of the District's board of directors. h. The District agrees to complete its review of the City's requests for pathway agreements pursuant to this Master Agreement within a reasonable time. The District's approval shall not be unreasonably withheld, consistent with its legal and fiduciary responsibilities. i. Each agreement, once approved and signed by District's board of directors, and shall be recorded by the District and a recorded copy returned to the City. 4. Tndemntficition, The City represents and warrants unto the District that the City has the authority, capacity and financial ability to indemnify, hold harmless and defend the District as provided in this Master Agmment. The City agrees to indemnify, hold harmless and defend the District, the District's directors, officers, employees, agents, contractors, partners and the heirs, personal representatives, successors, and assigns of each of them (hereinafter collectively referred to as "District" for purposes of the City's covenants to indemnify) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, arising from: the terms and performance of this Agreement and any agreement executed hereunder; the City's construction, use, operation, or maintenance of pathways and related facilities within and affecting the District's property, ditches, and irrigation works; or the use of such pathways and facilities by any third party or member of the public. The District agrees to indemnify, hold harmless, and defend the City, the City's directors, officers, employees, agents, contractors, partners and the heirs, personal representatives, successors, and assigns of each of them, from all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees arising solely out of the acts of the District's employees, agents or contractors in the course of the District's wcess, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. The City agrees that the District shall not be liable for any injury or damages which may occur to any pathway or facility installed by the City in the reasonable exercise of the rights of the District in the course of the District's access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. SAuthorization EM Servient Kgtste Ownen Bouired. The City acknowledges that the District has no right or power to create rights in the City affecting the holders of title to property servient to the District's easements. With respect to the District's easements, the District's commitments in this Master Agreement and the uses permitted by any agreement executed pursuant to this Master Agreement pertain only to the District's rights as the owner of easements. Rights affecting fee title must be acquired from the holders of title to such property. Should the City fail to obtain such tights from the holder of title to property servient to an easement of the District which is the subject of an agreement executed purauant to this Master Agreement, or should the rights obtained prove legally ineffectual, the City shall hold harmless, indemnify and defend the District from any claim by any patty arising out of or related to such failure of rights. MASTER PATHWAY AGREEMENT - Page 4 AUG -31-00 10:26 AM RINGERT CLARK 2083424657 P.03 /� /1 6. Conde. Construction, use, maintenance and repair of each pathway by the City and members of the public within or affecting the District's ditches, irrigation system and works, and associated real property interests shall be performed in accordance with the conditions listed below. "Facility" means any pathway and any object, plant or thing of any nature installed in, on, under or across the District's ditches and property by the City, and any activity which changes the physical condition or appearance of the District's property, ditches, and irrigation system a. The purpose of agreements executed pursuant to this Master Agreement shall be to approve, authorize and permit the construction, installation and maintenance of pathways and related facilities within or affecting the District's ditches, irrigation system and works and associated property, and to permit the City to make the pathways available to the public without charge for recreational uses as contemplated by Idaho Code section 36-1604. The authorized recreational uses of the pathways are limited to walking, jogging, and riding bicycles or other human -powered vehicles or devices. Authorized uses shall not include horseback riding, hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for construction, maintenance or repair work by the City of the pathway, landscaping, and related improvements or by the District for District purposes, or for access by handicapped persons with motorized wheelchairs or comparable equipment for access by handicapped persons. b. The uses permitted by each agreement executed pursuant to this Master Agreement shall all times be subordinate and subservient to the District's rights and uses of the District's property, ditches, and irrigation works. Nothing contained herein or in any agreement executed pursuant to this Master Agreement shall be construed, implemented or enforced to impair, limit, restrict or otherwise affect the District's rights, authority, powers, and discretion with respect to the District's property, ditches and irrigation system, or to grant or create any rights incompatible with the purposes and uses to which the District's property, ditches and irrigation system are devoted and dedicated. The District and the City agree that all of the District's rights and discretion to access, operate, construct, maintain, repair, clean or otherwise use of any portion of the District's property, ditches, and irrigation works are reserved. The City agrees to suspend its use and public use of pathways when the use of the easement areas occupied by the pathways is required by the District for access, operation, maintenance, repair, cleaning and other District purposes. C, Each pathway and facility shall be constructed, operated, maintained, repaired and cleaned at all times by the City, at the cost and expense of the City, in a good, workmanlike, safe, sanitary, and sightly manner and condition in compliance with the laws of the State of Idaho and the conditions stated herein. The City shall enforce its anti -littering ordinances, provide waste receptacles, and take other reasonable actions within its authority to prevent litter, trash or other material to gather or be deposited on or along pathways authorized pursuant to this Master Agreement The City may spread and level any material removed from the District's ditches and ditch banks and placed on the District's easement area or, in the alternative, may transport such material to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any material removed from its ditches and placed on the easement area. MASTER PATHWAY AGREEMENT- Page 5 AUG -31-00 10:25 AM RINGERT CLARK 2083424657 P.02 AI -N /-1%k d. The City acknowledges that the District has, and agrees that the District shall continue to have, the right to deposit sediment, plant material, debris and other material (collectively "spoil') which the District removes from its ditches on the District's fee title lands and the District's easement areas for its ditches. Without limiting this right, the District agrees to give reasonable advance notice to the City prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the City's pathways. The City may spread and level any spoil removed from the Drain and placed on the District's fee title lands and easement areas or, in the alternative, may transport the spoil to a sanitary landfill or some other authorized place of disposal. The District shall have no obligation to spread, level, or remove any spoil removed from the Drain and place on the District's fee title lands and easement areas. e. The City shall have no right, power or authority to grant, allow or sut%r any lien or other charge or encumbrance of any kind against the District's right, title and interest in the District's property, ditches and irrigation works. f. The City agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's ditches and property so as not to constitute or cause: a hazard to any person or property; an interruption or interference with the flow of water in any ditch or the delivery or drainage of water by the District; an increase in seepage or any other increase in the loss of water from the ditch; the subsidence of soil within or adjacent to the easement; and any other damage to the District's property, ditches and irrigation works. The provisions of this section pertain to construction, maintenance, and repair and otherwise establish a duty owed by the City to the District only, and this Agreement does not intend nor does it provide that this duty is owed to any other entity and/or person, and specifically this provision does not extend the duty of the City to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. S. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any ofthe City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph or any other damage to the easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any pathway or facility. h. The City shall do the following to ensure that the permitted public uses of pathways do not interfere with the District's property and the District's access, operation, maintenance, cleaning and repair of its ditches and irrigation works: (1) The City shall prepare and install readily visible signs at pathway entrances or other appropriate locations along each pathway advising the public: that the pathway is located within the District's property or easement by the District's consent; that the primary use of the easement area is for the District's access, operation, maintenance, repair and cleaning of the District's ditch and irrigation works; that users of the pathway must yield to District personnel engaged in District activities; that swimming, wading, boating and any other activity in District ditches MASTER PATHWAY AGREEMENT - Page 6 AUG -31-00 10:12 AM RINGERT CLARK 2083424657 P.03 /"\ /,'IN v ditches or within District ditch banks is prohibited; that public use of motor vehicles or equipment on the pathway is prohibited; that the pathway may be closed from time to time upon request of the District; of any City ordinances which apply to public use of the pathway; of the permitted hours of use of the pathway; and that persistent violations of any of these rules may result in suspension of use of the pathway. (2) The City shall take appropriate action to protect the safety of the members of the public who use the City's pathways, ensure that members of the public comply with the terms of this Master Agreement, and prevent interference with the District's use, operation, and maintenance of the District's property, ditches, and irrigation works. The City shall take appropriate action to prevent members ofthe public using City pathways from fishing, swimming, wading, boating, or conducting any other activity within or affecting the District's ditches. The City shall exercise best efforts to prevent members of the public who use the City's pathways from violating the terms of this Master Agreement or any City ordinance regarding activity on City pathways. This Master Agreement shall not prevent the District from enforcing any prohibition against unauthorized use of the District's property, ditches, and irrigation works. L The City shall provide notice prior to and immediately after construction so that the District's engineers may inspect the construction. Final acceptance of the work performed and the materials used in the City's installation of the pathway and all facilities shall not be made until all such work and materials have been expressly approved by the District. Such approval by the District shall not be unreasonably withheld. j. The City shall not excavate, place any structures, plant any trees, shrubs, or landscaping, or perform any other construction or activity within or affecting the District's property, ditches, and irrigation system except as authorized by agreements executed pursuant to this Master Agreement without the prior written consent of the District. k. Upon request of the District, the City shall investigate and perform reasonable and necessary modifications or repairs of any facility or alteration constructed or performed by the City which does not comply with the terns of this Master Agreement or any agreement executed pursuant hereto. The District shah give reasonable notice to the City and shall allow the City a reasonable period of time to perforin such maintenance, repair, and other work. The District reserves the right to perform any and all work which the City fails or refuses to perform within a reasonable time after request, and/or to require the public use of the pathway be suspended until such work is completed. In cases of emergency the District shall attempt to give such notice as is reasonable under the circumstances and reserves the right to perform any work doomed necessary under the circumstances. The City agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for such purposes. Nothing in this paragraph shall create or support any claim of any kind by the City or any third party against the District for failure to exercise the options stated in this paragraph. MASTER PATHWAY AGREEMENT - Page 7 AUG -31-00 10:13 AM RINGERT CLARK 2083424657 P.04 r �r 1. The City agrees that the District shall not be liable for any injury or damages which may occur to any pathway or facility installed by the City in the reasonable exercise of the rights of the District in the course of the District's access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. M. The City agrees to suspend its use and public use of pathways after notice from the District that suspension of use is necessary for the District's protection, maintenance, repair or cleaning of the District's ditches and irrigation works or to perform, effectuate or enforce any provision of this Agreement. n. The City shall construct obstructions to unauthorized vehicles and equipment on each pathway and in a manner that will prevent access to the District's property, ditches and irrigation system and works. o. The daily hours of use for any pathway shall begin no earlier than 5:00 a.m. and shall end no later than 10:00 p.m., and each pathway shall be closed to use during all other times. P. The City shall comply fully with all federal, state or other laws, rules, regulations, directives or other governmental requirements in any form as administered by appropriate authorities, regarding environmental matters, and specifically those relating to pollution control and to materials and chemicals which may be inimical to human health or the environment, which may be applicable to its construction, installation, operation, or maintenance of any pathway and facilities pursuant to this Master Agreement and any agreement executed hereunder. q. The covenants, conditions and agreements contained in each agreement and this Master Agreement shall constitute covenants to run with, and running with, the servient lands and/or casements of the City, and shall be binding on each of the parties hereto and on all parties and all persons claiming under them for as long as the subject pathway continues to be used for the purposes authorized by each agreement. The City shall provide the District written notice upon cessation of use of each authorized pathway for the authorized purposes. 7. Applicable lAw and Jurisdiglion Unati'ected. Neither the terms of this Master Agreement, nor any agreement executed hereunder, nor the parties exercise of any rights or performance of any obligations hereunder, shall be construed or asserted to extend the application of any such governmental requirements or the jurisdiction of any federal, state, or other agency or official to District's ownership, operation, and maintenance of its ditches, drains, canals, irrigation works and facilities which did not apply prior to and without execution of this agreement. By entering this Master Agreement the District does not create, or exercise legal or other authority, either express or implied, to regulate, control, or prohibit the discharge or contribution of pollutants or contaminants to any groundwater, waters of the State of Idaho or the United States, or any other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental environmental agencies. MASTER PATHWAY AGREEMENT • Page 8 AUG -31-00 10:14 AM RINGERT CLARK 2083424657 P.05 .rr By entering this Master Agreement, the District does not assume any responsibility or liability for any impact upon or degradation of human health or safety or the environment resulting from any activity of the other party, including, but not limited to, the City's construction, operation, and maintenance of its pathways and facilities. In the event District is required to comply with any web governmental requirements or is subject to the jurisdiction of any governmental agency as a result of authorizing the construction and maintenance of a pathway upon its property, ditches, or irrigation works, the City, if it is the cause of such governmental intervention, shall: (1) immediately cease such action; and (2) indemnify, hold harmless or defend or reimburse the District for its costs and liabilities associated with the governmental requirements and intervention. 8. Claims of the Bureau of Redmution. There presently exists a difference between District and the United States of America, specifically the Bureau of Reclamation, concerning the ownership, possession, management and control of certain ditches, drains and canals. District will advise City and address the consequences of this dispute as necessary in reviewing and approving each request of City for an agreement which involves any drain, ditch, or canal which is the subject of the dispute. The City is advised by District to communicate with the Bureau of Reclamation before signing any agreement affecting any ditch, drain or canal which is subject to the dispute concerning the Bureau of Reclamation's position and to learn of any requirements which may be imposed by the Bureau of Reclamation in connection with City's activity which is the subject of an agreement. 9. Water Rights. The City acknowledges that the waters in the District's ditches are fully appropriated for beneficial use, and that the water flows in the District's ditches fluctuate based on demand, diversion and use of water. The City shall not attempt to divert or claim the right to diversion or maintenance of minimum stream flows of any water in any of the District's ditches. The City shall not in any manner attempt to require the District to maintain any flow of water in any of the District's ditches. 10. Not a Public Dedication. Except for the permission to construct and maintain a pathway contained in agreements executed pursuant to this Master Agreement, nothing contained herein or in such agreements shall be deemed to constitute a gift or dedication of any portion of the District's property, ditches or irrigation and drainage works to the general public or for the benefit of the general public or for any public purpose whatsoever, and nothing contained herein shall be deemed to provide that any pathway shall be used for any other purpose than, as stated herein and in agreements executed pursuant hereto, it being the intention of the parties that this Agreement and any further agreements will be strictly limited to and for the purposes expressed herein. The parties shall be permitted, from time to time, to take whatever reasonable action it or they deem necessary to prevent any portion of the District's property, ditches, and irrigation and drainage works from being dedicated or taken for public use or benefit. MASTER PATHWAY AGREEMENT - Page 9 AUG -31-00 10:14 AM RIMGERT CLARK 2083424657 P.06 11, Relocation. If desired by the District, any pathway within or affecting the District's property, ditches, and irrigation system and works may be relocated in a functionally similar manner. Such relocation shall be with the prior written approval of the City, which approval shall not be unreasonably withheld. The costs of such relocation shall be borne by the District. 12. No Claims treated, Nothing in this Master Agreement or any agreement executed or permit issued pursuant to this Master Agreement shall create or support a claim of estoppel, waiver, prescription or adverse possession by either party hereto or any third party against either party hereto. 13. Right. Nonexclusive. This Master Agreement is entered subject to all rights previously acquired by third parties, The rights and privileges granted by this Master Agreement are nonexclusive and will not prohibit the District or the City from entering into agreements with other parties. 14. Anignmakt. Neither this Master Agreement nor any agreement entered pursuant to this Master Agreement may be assigned or transferred without the prior written approval of the Parties, which approval shall not be unreasonably withheld. 15. Attorneyl Fees. Should either party incur costs or attorney fees in connection with efforts to enforce the provisions of this Master Agreement or any agreement executed pursuant hereto, whether by institution of suit or not, the party rightfully enforcing or rightfully resisting enforcement of such provisions, or the prevailing party in case suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party. 16. Construction- Binding Effect. This Master Agreement shall be construed and enforced in accordance with the laws of the State of Idaho and shall be binding upon and inure to the benefit of the parties hereto and their respective successors. This Agreement is not intended for the benefit of any third party and is not enforceable by any third party. If any provision of this Master Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this Master Agreement shalt remain in full force and effect. The parties represent and warrant to each other that they each have authority to enter this Master Agreement. 17. Dispute Resolutiog. The parties agree to engage in mediation through a mutually acceptable mediator prior to institution of legal proceedings to resolve any issues pertaining to the provisions of this Master Agreement. The parties shall each pay fifty percent (50%) of all fees and costs charged by such mediator. 18. Catchlint. The catchiines or section headings herein set forth are provided only for the convenience of the parties in locating various provisions of the Agreement, and are not intended to be aids in interpretation of any provision of the agreement with respect to which the parties might disagree at some future time, and shall not be considered in any way in interpreting or construing any provision of the Agreement. MASTER PATHWAY AGREEMENT - Page 10 AUG -31-00 10:15 AM RINGERT CLARK 2083424657 P.07 19. Not Any and all notices, demands, consents andapprovals required pursuant to this Master Agreement shall be hand delivered, or if sent by mail shall be certified, postage prepaid, return receipt requested, addressed to the parties as follows: Nampa & Meridian Irrigation District City of Meridian 1503 First Street South l I W. Bower Street Nampa, ID 836514395 Meridian, ID 83642 Notices shall be deemed to have been delivered upon hand deposit in the United States mail as provided above. IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the City has hereunto caused its municipal name to be subscribed and its seal to be affixed by it officers first thereunto duly authorized by resolution of its City Council, all as of the day and year herein first above written. ATTEST - Its Secretary ATTEST: William G. Berg, Jr. - Clerk NAMPA & MERIDIAN IRRIGATION DISTRICT By Its President THE CITY OF MERIDIAN By Robert D. Come - Mayor MASTER PATHWAY AGREEMENT - Page 11 AUG -31-00 10:15 AM RINGERT CLARK 2083424657 P.08 STATE OF IDAHO ) ) ss.- County s:County of Canyon ) On this day of . 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared and known to me to be the President and Secretary, respectively, of NAMPA & NIERIDIAN IRRIGATION DISTRICT, the irrigation district that executed the foregoing instrument and acknowledged to me that such irrigation district 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 Nampa, Idaho My Commission Expires: STATE OF IDAHO ) ) ss: County of Ada ) On this day of . 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared Robert D. Corrie and William G. Berg, Jr., known to me to be the Mayor and City Clerk, respectively, of THE CITY OF MERIDIAN, the political subdivision and municipality that executed the foregoing instrument and acknowledged to me that such entity 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: MASTER PATHWAY AGREEMENT - Page 12 AUG -31-00 10:12 AM RINGERT CLARK 2083424657 RINGERT .� W CLARK A August 29, 1999 William F. Nichols White, Peterson, Pruss, Morrow & Gigray P.O. Box 1150 Meridian, Idaho 83680-1150 Dear Bill: P. 02 Witte V 1111.,1 n 1111 r H Cffrommr.rxl li. No-t;Wrk M101.11-1 J. llrr N111k• ti hryv't' P4 ... ir. 1'n411'k U, 1'U/t'1' I'nnh! 11+onrnc�ruulr:l 19ol1yiilgr L WU141 11. lens Jonu•e P, Knuhlmn by 11 ult'1 W,d NCIII(u)t•, Ntrtlrs f Itt'{1� Witloleu I14h,jI.•n 0;"11v;.V SktCllson AIly91 L, tMKaau'y :811111n•I V1.111111%04) 11W 1-11111r) Re' Nampa & Meridian Irrigation District (NM[D): Proposed Master Pathway Agreement & Fivemile Drain Pathway Agreement As we discussed by telephone today, enclosed are duplicate originals of the Master Pathway Agreement between the NMID and the City of Meridian, with the change to paragraph 19 you requested. I understand that you will forward these originals to Tom Kuntz and that he will obtain the signatures of the Mayor and City Clerk. Also enclosed are a draft and two originals of a replacement page 9 for the Fivemile Drain Pathway Agreement. Upon further proofing, we discovered that we had not changed pertinent names from Ada County's Eckert Pathway Agreement (from which we borrowed the language). Please insert these pages to replace those in the originals. You will also insert as exhibits the appropriate legal descriptions for the property(ies) currently owned by the City of Meridian, as 1 advised you in my August 25th letter. Thanks to you and Tom for your work on these agreements. As soon as they are signed later this week, I will forward them to the District for signature, have one original of each recorded, then return the City's originals to you. Yours very truly, 4LIA70M Daniel V. Steenson Enclosures cc. NMID 455 SuUth Third Streei • F'.U. Box 3773 • Fi ASC, Idaho 8:3701 9 208r342-4.501 F•AX :343.46 ,7