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Exception 31RECORDED- REQUEST OF rnA r�(,tPJT { Pf�`OIRDFP r / r� t17 r. i tl� E�n,At"lri.i7(� FEE2- 0E UT 2HOGE 25 100 02999 MMPA & MERVAN IRRIGATION P151 -W MASTER PATHWAY AGREEMENT THIS MASTEr PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this /?a 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 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 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 pathway plans, 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 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 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 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 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. 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 he 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 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. in. Each agreement executed pursuant to this Master Agreement shall establish the authorized daily hours of use for each pathway. rL 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 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 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 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 parry 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. Catchlines. 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 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 WIHEREOF, 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. x ' Ifs Secretary` - ATTEST: William G. Berg, Jr. - Cle MASTER PATHWAY AGREEMENT NAMPA & MERIDIAN IRRIGATION DISTRICT I By/ % �fi� Its Presid t THE CITY OF MERIDIAN By Ro a D. Come - M oto V ��M4�fh l� SUL a STATE OF IDAHO ) ) ss: County of Canyon ) On this day of , 2000, before me, the undersigned, a Notary Public in and f�� 0e.Sta e, personally appeared and XJM , 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 ) ss: Notary Public for Idaho Residing at My Commission Expires:/DKZ DS On this t day of b , 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. V 4 4R), -'o TA G ' . 'cn .0 MASTER PATHWAY AGREEMENT - Page 12 Notary Publio I Residing at VKeAi cko_ k1, Idaho My Commission Expires: q Zb — b RECORDED- Ri;CUES T Cr P o� g L 7 ACA COUNTY RECOFTER AGMT. NO. ,�. _ _. J1 DAVID NAVARRO k+rF, i€,N3 FEDEPUTY _. 401JA-9 AM 9:4-9 101002090 UMPA & MERIDIAN IRRIGATION D1STPJCJ MASTER PATHWAY AGREEMENT THIS MASTER PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this JAM day of 200' by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation distract organized and existing under and by virtue of the laws of the State of Idaho (hereinafter "District"), and ADA COUNTY, a political subdivision of the State of Idaho represented by its duly elected and qualified Board of County Commissioners (hereinafter "County"). 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 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 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 ref ubish 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 County 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 County 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 County's pathway planning through early consultation between the County and the District; to establish a process for the County'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 County agrees to consult with the District in the County'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 County in the County's pathway planning, to review the County'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 County 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 County's pathway -planning process to identify potential pathway locations and determine project feasibility before the County submits pathway requests to the District as provided in Section 3 of this Master Agreement. The parties shall consult with each other in the County's planning process as follows: a. The County shall provide the District notice and an opportunity to comment on pathway plans, maps, proposals and requirements as early as possible in the County's pathway - planning process. This shall include, but is not limited to, situations in which the County 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 County 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 MASTER PATHWAY AGREEMENT - Page 2 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. C. The County shall advise the District in writing if, prior to submitting a pathway request, the County 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 County'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 ApProyal 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 County 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 County 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 County 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 MASTER PATHWAY AGREEMENT - Page 3 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. g. The County 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 County'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 County. 4. Indemnification. The County represents and warrants unto the District that the County has the authority, capacity and financial ability to indemnify, hold harmless and defend the District as provided in this Master Agreement. The County 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 County'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 County'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 County, the County'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 access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. The County agrees that the District shall not be liable for any injury or damages which may occur to any pathway or facility installed by the County 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 County 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 County acknowledges that the District has no right or power to create rights in the County 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 County 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 County 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 County 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 County, 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 County 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 (unless otherwise agreed to by the District in writing), hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for construction, maintenance or repair work by the County 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 County 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 County 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, MASTER PATHWAY AGREEMENT - Page 5 maintenance, repair, cleaning and other District purposes, or to perform, effectuate or enforce any provision of this Master 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 County, at the cost and expense of the County, 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 County 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 County 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 County prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the County's pathways. The County 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 County 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 County 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 County 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 County to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. g. The County agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the County'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 County 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 County 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 County 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 County shall take appropriate action and exercise best efforts to protect the safety of the members of the public who use the County'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 County ordinance regarding activity on County 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 County 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 County 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 County'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 County 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 County shall investigate and perform reasonable and necessary modifications or repairs of any facility or alteration constructed or performed by the County 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 County and shall allow the County 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 County fails or refuses to perform within a MASTER PATHWAY AGREEMENT - Page 7 reasonable time after 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 County 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 County or any third party against the District for failure to exercise the options stated in this paragraph. 1. The County 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. M. Each agreement executed pursuant to this Master Agreement shall establish the authorized daily hours of use for each pathway. n. The County 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 County, 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 County 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 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 County'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 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. 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 County and address the consequences of this dispute as necessary in reviewing and approving each request of County for an agreement which involves any drain, ditch, or canal which is the subject of the dispute. The County 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 County's activity which is the subject of an agreement. 9. Water Rights. The County 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 County 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 County 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 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 County, 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 parry 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 County 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. ionstmction. 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. Catchlines. 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 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 1503 First Street South Nampa, ID 83651-4395 Board of Ada County Commissioners 650 Main Street Boise, ID 83702 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 County 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 County Council, all as of the day and year herein first above written. NAMPA & MERIDIAN IRRIGATION DISTRICT i t ` B i s Pres' ent ATTEST: `Itsa�etary BOAS'OF -ADA COUNTY COMMISSIONERS r t By - ABSENT Commissioner By Commissio er ATTEST: Ada County Clerk MASTER PATHWAY AGREEMENT - Page 11 STATE OF IDAHO ) )ss. COUNTY OF CANYON ) On this �d day of 200 1, before me, the undersi ed, a Notary Public in and for said State, personally a eared ,� and e 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. OD 0 TA 4ft•qb A y'>,••• UBLiC • STATE OF IDAHO ti•J` OF ID Kl� COUNTY OF ADA ) AA.lu �/- ewe. Notary Public for Idaho Residing at , Idaho My Commission Expires: �0¢' LODG On this � day of Dec2000, before me, the undersigned, tary public in and for said state, personally appeared r J �9� and , known to me to be the commissioners of the ADA COUNT, the body corporate and politic of the State of Idaho that executed the forgoing instrument and acknowledged to me that such body executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this ce tige:first above written. M. O •• t F, +�I • Ov #pTA/R r !y Notary Public for Idaho Residing at Ad& CA4j1h Ida o *V9Lt0 My Commission Expires: J4,JAC OS7 •j� o OF 19 .cuce MASTER PATHWAY AGREEMENT - Page 12 RECORDED-F,EGUESTCF ADA COUNTY RECORDER nAViP NAVAR(10 2001 JA -9 Aim 9=1,9 101002091 UMPA & MERIDIAN IRRIGATION DWRICT THIS MASTER PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this , k6 day of .� _ 2001, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigko n district organized and existing under and by virtue of the laws of the State of Idaho (hereinafter "District"), and THE CITY OF BOISE, 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 of which are described and recorded in Instrument No. 797771, recorded January 11, 1977, in the office of the Ada County Recorder, Instrument No. 8357341, recorded December 19, 1983, in the office of the Ada County Recorder, Instrument�meno. $ No 859070, 0 634,don recorOctober 18, ded March 798985, the office of the Canyon County Recorder, 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 Pa hwayplanning. 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 pathway plans, 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 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 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 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 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. 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 slopes 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 slopes 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 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 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 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. 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 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 leam 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 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. Ass ament. 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 from the Idaho Supreme Court Roster prior to institution of legal proceedings to resolve any issues pertaining to the provisions of this Master Agreement. The mediator will assist and facilitate the timely and equitable resolution of disputes between the parties in an effort to reach an agreement, and to avoid delay and litigation The parties shall each pay fifty percent (50%) of all fees and costs charged by such mediator. 18. Caltchlines. 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 MASTER PATHWAY AGREEMENT - Page 10 provision of the Agreement. 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 Boise 1503 First Street South P.O. Box 500 Nampa, ID 83651-4395 Boise, ID 83701-0500 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. NAMPA & MERIDIAN IRRIGATION DISTRICT B� h t' is Arelent 4T)9E$7, , •~fig '{ , �� /� :��'.. Vit- Sec karya THE CITY OF BOISE By ATTEST: „RauWA*s - Mayor MASTER PATHWAY AGREEMENT - Page 11 STATE OF IDAHO ) ) ss: County of Canyon ) On this ti"Q day of og'200,/ 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. STATE OF IDAHO ) ) ss: County of Ada ) Notary Public for Idaho Residing at &Ak My Commission Expires: 11M 1141,1004 On this 28 day of November , 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared H. Brent Coles and Annette P. Mooney known to me to be the Mayor and City Clerk, respectively, of THE CITY OF BOISE, 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. 13 URR 'TAR * ... •• 4 00 006 4N 4 ti,4,9 TE 0 F MASTER PATHWAY AGREEMENT - Page 12 My Commission Expires - 6 -14-05 RESOLUTION 16276 BY THE COUNCIL: BAKER, FORNEY, MAPP, MASON TERTELING-PAYNE AND WETHERELL A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST A MASTER PATHWAY AGREEMENT BETWEEN THE CITY OF BOISE, BY AND THROUGH ITS PARKS AND RECREATION DEPARTMENT, AND THE NAMPA & MERIDIAN IRRIGATION DISTRICT, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, The Nampa & Meridian Irrigation District (the "District") owns or controls numerous irrigation canals and ditches within the city limits of the City of Boise, and, WHEREAS, the City of Boise may wish to develop future recreational pathways for public use along and across some of the District's canals and ditches; and WHEREAS, the City of Boise and the District negotiated the Master Pathway Agreement to establish a process for the City of Boise to submit pathway requests to the District, and to establish guidelines for the District's consideration of such requests in a manner consistent with the parties' respective legal and fiduciary responsibilities. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Master Pathway Agreement by and between City of Boise and the Nampa & Meridian Irrigation District, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, be and the same is hereby approved as to both form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Agreement for and on behalf of the City of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. R-522-00 ADOPTED by the Council of the City of Boise City, Idaho, this 28th day of November ,2000. APPROVED by the Mayor of the City of Boise City, this 28th day of November .2000. APPROVED: S - ATTEST: CITY CLERK ACA COUNTY RECORDER mss. AVID NAVARRO iu:., E, !0,r.:. 2001 FE -6 AM 10: 40 41-IISF REWO SMT. NO. FLOE . 101009549 MASTER PATHWAY AGREEMENT THIS MASTER PATHWAY AGREEMENT (,,master Agreement"), is made and entered into this AA'6 day of 2001, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrig on dist organized and existing under and by virtue of the laws of the State of Idaho (hereinafter "District"), and ADA COUNTY, a political subdivision of the State of Idaho represented by its duly elected and qualified Board of County Commissioners (hereinafter "County"). 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 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 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 refiubish 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 County 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 i WHEREAS, the District and the County 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 County's pathway planning through early consultation between the County and the District; to establish a process for the County'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 County agrees to consult with the District in the County'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 County in the County's pathway planning, to review the County'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. Consu tation in County 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 County's pathway -planning process to identify potential pathway locations and determine project feasibility before the County submits pathway requests to the District as provided in Section 3 of this Master Agreement. The parties shall consult with each other in the County's planning process as follows: a. The County shall provide the District notice and an opportunity to comment on pathway plans, maps, proposals and requirements as early as possible in the County's pathway - planning process. This shall include, but is not limited to, situations in which the County 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 County 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 MASTER PATHWAY AGREEMENT - Page 2 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. C. The County shall advise the District in writing if, prior to submitting a pathway request, the County 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 County'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 County 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 County 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 County 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 MASTER PATHWAY AGREEMENT - Page 3 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. g. The County 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 County'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 County. 4. Indemnification. The County represents and warrants unto the District that the County has the authority, capacity and financial ability to indemnify, hold harmless and defend the District as provided in this Master Agreement. The County 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 County'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 County'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 County, the County'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 access, use, operation, maintenance, repair and cleaning of its property, ditches and irrigation works. The County agrees that the District shall not be liable for any injury or damages which may occur to any pathway or facility installed by the County 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 County 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 County acknowledges that the District has no right or power to create rights in the County 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 County 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 County 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 County 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 County, 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 County 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 (unless otherwise agreed to by the District in writing), hunting, or any use of motorized vehicles except for necessary access by law enforcement personnel or for constriction, maintenance or repair work by the County 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 County 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 County 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, MASTER PATHWAY AGREEMENT - Page 5 maintenance, repair, cleaning and other District purposes, or to perform, effectuate or enforce any provision of this Master 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 County, at the cost and expense of the County, 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 County 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 County 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 County prior to depositing spoil along the District's ditches, and to exercise reasonable best efforts to avoid placing spoil on the County's pathways. The County 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 County 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 County 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 County 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 County to the public beyond the provisions of Idaho Code Section 36-1604, which are incorporated herein by this reference. g. The County agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the County'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 County 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 County 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 County 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 County shall take appropriate action and exercise best efforts to protect the safety of the members of the public who use the County'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 County ordinance regarding activity on County 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 County 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 County 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 County'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 County 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 County shall investigate and perform reasonable and necessary modifications or repairs of any facility or alteration constructed or performed by the County 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 County and shall allow the County 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 County fails or refuses to perform within a MASTER PATHWAY AGREEMENT - Page 7 reasonable time after 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 County 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 County or any third party against the District for failure to exercise the options stated in this paragraph. 1. The County 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. m. Each agreement executed pursuant to this Master Agreement shall establish the authorized daily hours of use for each pathway. n. The County 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 County, 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 County 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 perforniance 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 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 County'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 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. 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 County and address the consequences of this dispute as necessary in reviewing and approving each request of County for an agreement which involves any drain, ditch, or canal which is the subject of the dispute. The County 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 County's activity which is the subject of an agreement. 9. Water Rights. The County 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 County 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 County 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 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 County, which approval shall not be unreasonablywithheld. 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 County from entering into agreements with other parties. 14. Assiioment. 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. Catchlines. 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 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 1503 First Street South Nampa, ID 83651-4395 Board of Ada County Commissioners 650 Main Street Boise, ID 83702 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 County 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 County Council, all as of the day and year herein first above written. ATTEST: .� '..4!1�fsFS etary, 9 NAMPA & MERIDIAN IRRIGATION DISTRICT N�Z, ByAPresid/Cnt VG J BOARD O� ADA COUNTY COMMISSIONERS ABSENT ATTEST: Ada County Clerk Commissioner By ssioner MASTER PATHWAY AGREEMENT - Page 11 STATE OF IDAHO ) )ss. COUNTY OF CANYON ) On this tl'a day of 2001, before me, the undersi ed, a Notary Public in and for said State, personally appeared X L" d, &Ijdd l 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. �plZ�A X. dl0 Notary Public for Idaho G Residing at , Idaho * .4 *� y Commission Expires: . A�8 L t G ' STATE OF IDAHO ) r8 OA ID )ss. COUNTY OF ADA ) On this /.Z * day of jOeCZM bCr 2000, before me, the undersigned, a notary public in and for said state, personally appear �, Si m mmS P. kAd and , known to me to be the commissioners of the ADA COUNT , the body corporate and politic of the State of Idaho that executed the forgoing instrument and acknowledged to me that such body executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this ce boN ft or 19 written. MASTER PATHWAY AGREEMENT - Page 12 ,&,n;.OL -?4n. 2> C4- - Notary Public for Idaho Residing at AdA, 04J1'41 , Idaho My Commission Expires: 3IIS'I05" A^A COUNTY RECORDER J. DAVIT NAVARRO C'h'i IS C. tVA `0 2DG 1 FE 15 Au 10.2 7 RECORDED - REOUEST Or BOISE CI FEE I" DEPUTY 10101no 85 RESOLUTION 16276 BY THE COUNCIL: BAKER, FORNEY, MAPP, MASON TERTELING-PAYNE AND WETHERELL A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST A MASTER PATHWAY AGREEMENT BETWEEN THE CITY OF BOISE, BY AND THROUGH ITS PARKS AND RECREATION DEPARTMENT, AND THE NAMPA & MERIDIAN IRRIGATION DISTRICT, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, The Nampa & Meridian Irrigation District (the "District") owns or controls numerous irrigation canals and ditches within the city limits of the City of Boise, and, WHEREAS, the City of Boise may wish to develop future recreational pathways for public use along and across some of the District's canals and ditches; and WHEREAS, the City of Boise and the District negotiated the Master Pathway Agreement to establish a process for the City of Boise to submit pathway requests to the District, and to establish guidelines for the District's consideration of such requests in a manner consistent with the parties' respective legal and fiduciary responsibilities. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Master Pathway Agreement by and between City of Boise and the Nampa & Meridian Irrigation District, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, be and the same is hereby approved as to both form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Agreement for and on behalf of the City of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. R-522-00 ADOPTED by the Council of the City of Boise City, Idaho, this 28th day of November , 2000. APPROVED by the Mayor of the City of Boise City, this 28th day of November 2000, APPROVED: u, O. ATTEST: TY CLERK ;. MASTER PATHWAY AGREEMENT THIS MASTER PATHWAY AGREEMENT ("Master Agreement"), is made and entered into this �,v4 day ofQt 2001, 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 BOISE, 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 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 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 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 parries 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, 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 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 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 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 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. 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 slopes 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 slopes 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 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 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 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. in. 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 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 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 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 from the Idaho Supreme Court Roster prior to institution of legal proceedings to resolve any issues pertaining to the provisions of this Master Agreement. The mediator will assist and facilitate the timely and equitable resolution of disputes between the parties in an effort to reach an agreement, and to avoid delay and litigation The parties shall each pay fifty percent (50%) of all fees and costs charged by such mediator. 18. Catchlines. 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 MASTER PATHWAY AGREEMENT -Page 10 provision of the Agreement. 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 Boise 1503 First Street South P.O. Box 500 Nampa, ID 83651-4395 Boise, ID 83701-0500 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: NAMPA & MERIDIAN IRRIGATION DISTRICT VsPriesVent THE OF BOISE Brent Coles - Mayor MASTER PATHWAY AGREEMENT - Page STATE OF IDAHO ) ) ss: County of Canyon ) On this a/A day of 2001, before me, the undersigned, a Notary Public in and for said State, p rsonally V appeared and ,f Qdr4.t� 461xL , 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. STATE OF IDAHO County of Ada OflN A � OD Nor • GBLIC DA ID ASO ss: X"' '(f - OFC... Notary Public for Idaho Residing at L,9c� �utL(-UtL My Commission Expires: 16L,0eee4 On this 28 day of November , 2000, before me, the undersigned, a Notary Public in and for said State, personally appeared H. Brent Coles and Annette P. Mooney known to me to be the Mayor and City Clerk, respectively, of THE CITY OF BOISE, the political subdivision and municipality that executed the foregoing instrument and acknowledged to me that such entity executed the same. IN' and year in OFF�''r'""'•�; 3��OT AR Y �r +0 -ap �'tt t,1G tEOF, I have hereunto set my hand and affixed my official seal, the day above written. !1 * Notary Public for I o Residing at NamP , Idaho • »�0 �� TF OF MASTER PATHWAY AGREEMENT - Page 12 My Commission Expires: 6-14-05