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Sewer and Irrigation Maintenance Agreementr -~ ~ ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 43.00 12 BOISE IDAHO 01/04111 04:16 PM DEPUTY Bonnie0berbillig IIII'II'IIIIIIII'll'll'I'I"III'll'll RECORDED-REQUEST OF 111 fl014379 1 Hawley Troxell Ennis & Hawley RECOtiDTNG ttEQUESTED AND Wtff3V REC©RDED RE'i1JRN T'O: [fawky Troxeit Pia 4~ }iawky LLP Ada: Tis~o~y W. "tyree >t77 Main Street, Sine 1600 P.©. t3ox i 617 poise, ED ~376i-t617 ~ t.~ woat s t-ss o~a.n SEWER AND IRRIGATION MAINTENANCE AGREEMENT THIS SEWER AND IRRIGATION MAINTENA?~CE AGREEMENT ("Agreemaat") ~ entered into on ~TO~2 ~ , 2010, betvreen Presbytery of Boise, an Idaho non-profit corporation ("Fiat Party', ate Spring Creek Ustick, LLC, an Idaho limited liability coanpas~ty ("Spring Creek"}. 1. Preliminary. 1.1 Recitab. (a) Spring Crock is the Owner of Parcel 2 and First Party is the Owner of Parcel 1 as mere particularly described in Schedule I attadied hereto and made a part hereof: (b) The Owners desire to provide for the common operation, maintenance, repair, and replacement of the Sewer Lines and Irrigaiian Lines as hereinafter provided. 1.2 Definitions. (a) "Development": Parcels 1 and 2 eoilectively. (b) "First Party": Presbytery of Boise, an Idaho non-profit carpvr~i~t, together with any entity succeeding thereto by consolidation, merger or acquisition of its assets, and any subsidiary thereof: First Party's current address is 2fll W. Ustick Road, Mttidian, ID 83542. (c) "Irrigation Lines": The portions of the irrigation lines and sysietrts serving the Development which are not dedicated to the public or conveyed to any public cx private utility. "Common Irritation Linea" shall mean those Utility Lines which proti+ide irritation water to more than one Parcel. "Separate Irritation Linea" shall mean those Irrigation Lines which provide irrigation water to only one Parcel. For the purpose of this Agreement, the portion of an irrigation line extending bttwexrt a Coxrmron Irrigation Ltne and on to one Parcel shall be eonsider+ed a Separate Irrigation Line. So long as Parcel 2 is not served by the Irrigation Line within the easement are as shown on Exhibit B, the krigation Lirsc shall be Parcet 1's Separate Irrigation Line. (d) "LienLa-Ider": Any mortgagee under a mortgage, or a trustee or beneficiary under a deed of tttt~ constituting a lien on any Parcel. A Lierrlrokkr shall not be deerncd to be an Owner for purposes of this Agreement until such time as said L>e;rrholder -1- usar.ooot.~eafr.s acquires fee simple title m its Parcel(s) by foreclosure, trustee's sale or otherwise. of Parcel 3. (e) "Maintenance Director": The Owner of Parcel 2 and successor Owners (~ "Owner": The record holder of fee simple title to a Parcel, its heir, personal representatives, successors and assigns. (g) "Parcel": Parcel I or 2 as more particularly described in Schedule I attached hereto acrd Houk a part hereof. (>r) "Person": Individuals, partnerships, firms, associations, corporations, trusts, governmental agencies, administrative tribunals or any other form of business or legal entity. (i) "Spring Creek": Spring Creek Ustick, LLC, an Idaho limited liability company, together with any entity succeeding thereto by consolidation, merger or acxluisirion of its assets substantially ss an entirety, and any wholly owned subsidiary thereo€. Spring Creek's current address is 253 E. Calderwood Dr., E Meridian, ID 83642. (j) "Sewer Lines": The portions of the sewer lines and systems serving the Development which are not dedicated to the public or conveyed to any public or private utility. "Common Sewer Linea" shaft mean those Sewer Liras which are installed tc- provide the applicable service to more than one Parcel. "Separate Sewer Lines" shall mean those Sewer Lines which are installed to provide the applicable service to only one Parcel. For the purpose of this Agreement, the portion of a Sewer Line extending between a Common Sewer Line and a single building shall be considered a Separate Sewer Line. (k) "U#ility I.~ines": Shall mean collectively the Irrigation Lines and Sewer Lines. "Common Utility Linea" shall mean the Common Sewer Lines and the Common Irrigation Lines collectively and indivtdually as the circumstance may require. "Separate Utility Lines" shall mean the Separate Sewer Lines and the Separate Irrigation Lines collectively and individually as the circumstance may require. Z. Maintenance Obtigationa. 21 Maintenance of Common Utility Lines. The Maintenance Director shall maintain, repair and replace, when necessary, the Common Utility Lines at flu sole cost and expense of the Owner of Parcel 2, except as provided in Section 4. The Maintenance Director may contract with a third party or parties to perform any of the strvices described herein. 2.3 Maintenance of Separate Utility Lines. Each Owner shall, at each Owner's sole cost a~ul expense, maintain, repair and replace, when necessary, the Separate Utility Lines serving the Owner's Parcel. The Owners may contract with a third party or parties to perform any of the services described herein. 3. Utility Line Easements. 3.1 Utility Linea and Fadiities. Spring Creek, as grantor, hereby gratis to First Party, for the benefit of Parcel 1, as gratticx, a nonexclusive easement uraier, through and across that portion of Parcel 2, as described on Eachibit A attached hereto and mask a part hereof and -2- ass~.aooi.aos~a~t.~ depicted on }fit ~ attached heroto and n a part hereof, for tI~ installation, operation, maintenance, repair and replacertunt of the Utility Lines. 3.~ Construction Requirements. All Utility Lines shall be installed and maintained below the ground level or surface of such easerntnts except for portions of the Utility Lines as are required to be above ground. The installation, operation, maintenance, repair and replacement of such Utility Lines shall not unreasonably interfere with the use of the Development, the improved Common Area located on Parcel 2, or with the notmat operation of any business in the Development. Initial installation of the Sewer Line, Irrigation Lane, and improvements thereto serving both Parcels shall be at ttu sole cost and expense of Spring Creek. Spring Creek shall ordinate with the Owner of Parcel 1 so as to minimize any interruption of sewer service to Parcel 1. Interruption of sewer service to Parcel 1 shall be limited to a maximum of one business day, Monday through Friday. Ttsr Owner of Parcel 1 shat) have the right to review and approve all construction prior to acceptance of any maintenance responsibility associated with this agreement. The owner of Spring Creek shall provide a two year warranty, from the date of acceptance, in favor of First Party for all of the Separate Utility Lines installed by Spring Creek, including the connections and improvements thereto. This acceptance will not be unreal©nab#y withheld. 4. Ezpenses. The Owner of Parcel 2 shall pay for all expenses incurred in maintaining, repairing and replacing, when necessary, the Sewer Lines, both Common Sewer Lines and Separate Sewer Lines, located on Parcel 2. The Owner of Parcel 2 shall pay expenses incurred to stub the Irrigation Line to the location along the common boundary of Parcel I and 2 as shown on Facliibit C attached hereto and made a part hereo. The Owner of Parcel 1 shall pay for all expenses incumd in maintaining, repairing and replacing, when necessary, the Common Irrigation Line so long as the Owner of Parcel 1 is the sole user of the Imgation Line. If Parcel 2 uses the Common Irrigation Lines, the Owners shall share equally the expen~s incurred in maintaining, repairing and replacing, when necessary, the Common Irrigation Linc 3. Default. 5.1 Failure of Owner to Perform. In the event any Owner fails to perform or adhere to any provision of this Agreement, which failure continues for a period of ten (iQ) days after recei~ of written notice specifying the particulars of such failure, such failure shall constitute a default and any other Owner may thereafter institute legal action against the defaulting Owner for specific performance, declaratory or it}junctivc relief, monetary damages or any other remedy provided by taw or equity (including self help re~rricdies); provided, however, that ttre defaulting Owner shall not be deemed to be in default if such failure to perform cannot be rectified within said ten (1©} day period and such Owner is diligently proceeding to rectify the part~ulars of soh failure. Notwithstanding anything in this Agreement to the contrary, the liability of the Owner of a parcel to the Clvvner of the other Parcel for damages resulting from or relating to tt~ performance or nonperformance of any mairttenancc item shalt be limited to the cost of performing such item; it being specifieatly agreed and understood that, in no event, shall the owner be liable to any person for incidental or consequential damages on sccotrnt thereof. S.Z Attorneys' Fees. In addition to the foregoing, in the event any person initiates or defends any legal action or proceeding to enforce or interpret this Agreement, the pr+cvailing -3- ~r.eoos.~s~is party in any such action or proceeding shall be entitled to recover from the losing party in any such action or proceeding its reasonable costs and attorneys' fees (including its reasonable caosts and attorneys' fees on any appeal) as determined by the court in the same or a separate proceeding. 5.3 No Waiver. Tht failure of a person to insist upon strict performance of any of the terms, covenants, conditions or Agreements contained herein shall not be deemed a waive of any rights or remedies that said person may have, and shall not be deemed a waiver of any subsequent breach or default in the performance of any of the terms, covenants, corutitic>r~ or Agreements contained herein by the same ~ any other person. 5.4 Remedies. In addition to the remedies set forth in this Agreement, each person entitled to enforce this Agreement shall have all other remedies provided by taw to the same extent as if fully set forth herein word for word. No remedy herein conferred upon, or reserved to any person shall oxeye any other remedy herein or by law provided, but each shall be cumulative. 6. General Provisions. 61 Successors aad Assigns. This Agreement shall inure to the benefit of and be binding upon the Owners, their heirs, successors, assigns and personal representatives, anti upon any person acquiring a Parcel, or any portion thereof, or any interest therein, whether by operation of law or otherwise. Notwithstanding the foregoing, if any Owner sells or transfers all or any portion of its interest in any Parcel, such Owner shall, upon the sale and conveyance of title, be released and discharged from alt of its obligations as Owner in connection with the property sold by it arising under this Agreement after the sate and conveyance of title but shall remain liable for all obligations arising under this Agreement prior to the sale and conveyance of title. The new Owner of any such Parcel or any portion thereof (including, without limitation, any Owner or Lienholder who acquires its interest by foreclosure, trustee's sale or otherwise) shalt be liable for all obligations arising under this Agreement with respect to such Parcel or portion thereof after the date of sale and conveyance of title. 6.2 Breach Shall Not Permit Termination. A breach of this Agreement shat) not entitle any Owner to terminate this Agrcement, but such limitation shall not affect in any manner any other rights or remedies which such Owner may have hereunder by reason of any breach of this Agreement. Any breach of this Agreement shall not do€eat or render invalid the lien of any mortgage or deed of trust made in gooc! faith for value, but this Agreement and any I-lens arising hereunder shalt be binding upon anEl be effective against any Owner whose title is acquired by foreclosure, trustee's sale or otherwise. 6.3 Covenants Rua With the Land. Each term, covenant, condition and Agretrnent contained herein respecting any Parcel shall be e burden on that Parcel, shall be appurtenant to and for the benefit of the ottxr Parcels and each part thereof and shall etsn with the land. 6.4 Modification aad Termiaatit-n. This Agreement may not be modified ~ any respect whatsoever or terminated, in whole or in part, except with the consent of the Owners, and then only by written instrument duly executed and acknowledged by the Owners and raecorded in tear office of the recorder of the county in which the Development is located. No modification or -4- <l6.17.000{.2W 45 t ~. ~ termination of this Agreement shall affect the rights of any Licnholder untess the Licntalder consents in writing to the modification or termination. 6.S Nvtlces. (a) Delivery. All notices given pursuant to this Agreement shall be in writing and shall be given by personal service, by United States mail or by United States express mail or other established express delivery service (such as Federal Express), postage or delivery charge prepaid, return receipt requested, addressed to the appropriate party at the address set forth below. If a notice must be given to a person other than one designated below, such notice shall be sent to the person and address shown on the then current real property tax rolls in the county in which the Development is located. All notices to First Party or Spring Creek shall be sent to the appropriate party at the address set forth below: First Party: Presbytery of Boise 201 W. Ustick Rd. Meridian,lD 83642 Spring Creek Spring Creek Ustick, LLC 253 E. Calderwood Dr., E Meridian, ID 83642 The person and address to which notices are to be given may be changed at any time by any party upon written notice to the other parties. All notices given pursuant to this Agreement shall be deemed given upon receipt. (b) Receipt. For the purpose of this Agreement, the term "receipt" shall mean the earlier of any of the following: (i) the date of delivery of the notice or other document to the address specified pursuant to subparagraph (a) above as shown on the return receipt, (ii) the date of actual receipt of the notice or other document by the person or entity specified pursuant to subparagraph (a) above, or (iii) in the case of refusal to accept delivery or inability to deliver the notice or other document, the earlier of (A) the date of the attempted delivery or refusal to accept delivery, (B) the date of the postmark on the return receipt, or (C) the dace of receipt of notice of refusal or notice ofnon-delivery by the sending party. 7. Severability. If any term or provision of this Agreement or the application of it to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agr+ecment or the application of such term or provision to persons or circumstances, other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. 8. Nat a Partnei^ship. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partr-ership, or any other similar relationship between the parties. 9. Nv Third Party Beneficiary Rights. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create, ~iy third party beneficiary rights in any person no# a party hereto. -5- ~~6i7.609S.2~fS47.~ 10. Captions and Headings. The captions and headings in this Agreement are for reference only and shall not be deemed to define or limit the scope or intent of any of the terms, covenants, conditions or Agreements contained herein. 11. Entire Agreement. This Agreement contains the entire Agreement between the parties hereto and supersedes all prior Agreements, oral or written, with respect to the subject matter hereof. The provisions of this Agreement shall be construed as a whole and not strictly for or against any party. 12. Constsaction. In construing the provisions of this Agreement and whenever the context so requires, the use of a gender shall include all other genders, the use of the singular shall include the plural, and the use of the plural shah include the singular. 13. Joint and Several Obligations. In the went any party hereto is composed of more than one (I}person, the obligations of said party shall be joint and several 14. Recordation. This Agreement shall be recorded in the office of the recorder of the county in which the Development is located. EXECUTED as of the day and year first above written. FIRST PARTY: SPRING CREEK: Presbytery of Boise, Spring Creek Ustick, LLC, an Idaho non-profit corporation an Idaho limited liability company By: - ~ By: Spring Creek Name: Bruce L. Thomas Its: Manager/) Its: President /~ By: -6- Clogg, t3sa~.oeoe. soesa t ~. a STATE OF IDAHO ) ss. County of Ada } On this ~ G ~` day of ~C E O~p-i 201 fl, before nu, Ct,~ c~ ~ - UU ~(o. a Notary Public in and fcx said state, persorally appeared race L. Thomas, known or identifred to me to be the President of Presbytery ©f Boise, the corporation that executed the within instrument or the person who executed the instr~ent on behalf of said earporation, and acknowledged to me that such corporation executed the aarr~e. IAd WITNESS WHEREOF, I have hereunto set my hacxl and affixod my official seal the day and year in this certificate first above written. ., ; .~ pR Y v ~ ,,a •r, Notary Public~or Idaho i •" tiG ~ o Residing at o~~-~- S• Pt38~'•~. ~~ My commission expires OS"-Cn -1~- 4~y,, •'~•....•• O~. '~i,`rr9 TE OF STATE OF ~•`•" ) ss. County of Ada ) ~_ On this ~ day of l./~~'JE' ~ 2fllfl, before ~, {~r,~, S,~II'~~~,h- rc~~-~z _, a Notary Pubiie in and for said State, personally appeared Douglas B. Clegg, known or identified to me to bt the Manager of Spring Creek Enterprise, LLC, s limited liability company, itself the manager of Spring Creek Ustick, LLC, a limited liability company, and the manager who subscribed said company name to the foregoing instrument, and acknowledged to me that he executed the within instrument on behalf of said company, and that such company executed the same in said company name. IW WITNESS WHEREOF, I have hereunto set my hand a~ affixtd my official seal the day and year in this certificate first above written. ••'" VAN. "'•• try ••. .•• y •~~ h . - CQ~ -- ~ ~ ~~ .ao~ A R y N L~ ~ ~ ~~,. * ; Notary Public f 1G ~ Residing at ~ ~~ Q-~ ~' * P ~'~l' ~ My eominissivn a c~U -. sr-«.....•• ~r~ -7- ta~r.oooe.sw~s~ r.a Schednte I Descriptfon of the Development Parcel 1 Lot 4 in Block 1 of Strasser Farms Subdivision No. 2, according to the official plat thereof, filed in Book 70 of Plats at pages 7148 and 7149, records of Ada County, Idaho. Parcel 2 A portion of Lots 3 and 4 of Block 1 of Strasser Farms Subdivision No. 2, as shown on the official plat thereof on file in the office of the Ada County, Idaho recorder, being situated in U.S. Lot I of Section I, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, and being more particularly described as follows: Commencing at the Northeast corner of said Section 1; Thence South 0°17'24" West, 426.49 feet along the Easterly boundary of said Section 1 to the Southerly boundary extended of said Lot 3; Thence North 89° 19' 19" West, 45.00 feet along the Southerly boundary extended of said Lot 3 to the Southeast corner of said Lot 3, which is the REAL POINT OF BEGINNING; Thence continuing North 89°19' 19" West, 255.84 feet along the Southerly boundary of said Lot 3 to the extension of the Westerly boundary of said Lot 4; Thence North 00°17'24" East, 200.21 fcet along the extension of the Westerly boundary of said Lot 4 to the Southwest corner of said Loi 4; Thence continuing North 00°17'24" East, 193.24 feet along the Westerly boundary of said Lot 4 to the Northwest comer of said Lot 4; Thence South 89°19'43" East, 226.13 feet along the Northerly boundary of said Lot 4; Thence South (10°43'38" West, 12.00 feet along the boundary of said Lot 4; Thence S46.92 feet slung the boundary of said Lot 4, along anon-tangent curve deflecting to the right, with a radius of 30.0(1 feet, a central angle of 89°37'07",along chord of 42.28 feet atxi a chord bearing of South 43°31'09" East; Thence South 00°17'24" West, 351.68 feet along the Easterly boundaries of said Lots 4 and 3 to the REAL POINT OF BEGINNING. -8- sssri.o~.zo~sn.a KESTREL LAND SURVEYING EXHIBIT A Legal Description For A private sanitary sewer and water Easanent An easement for private sanitary sewer and water systems boated in a portion of Lots 3 and 4 of Strasser Famts Subdivision No. 2, recorded in Book TO at pages 7148 and 7149, Records of Ada County, also boated in a portion of Parcel "B" as shown on Record of Survey 8141, records of Ada Ccwnty, said parcel s'fiaated ~ Coverrurter~ Lai 1 of Sion 1, Township 3 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho, more particularly described as follows: Commenting at the Northeast comer of said Section 1, from which the North Quarter caner of said section bears North 89°19'43" West a distance of 2882.33 feet, thence South abng the East line of said Section 1, Soutl~ 00°1724" West a distance of 428.49 feet to a poir~ thence North 89°19'19" West a distance of 45.00 feet to the Southeast comer of said Parcel.B, the Reat Point of Beginning; Thence along the Southerly line of said Parcel B, North 89°19'19' West a distance of 255.84 feet to the Southwest comer of said Parcel B; ' Thence along the Westerly line of said Parcel B, North 00°17'24" East a distance of 244.87 feet to a point; Thence South 89°42'34" East a distance of 20.00 feet to a point; Thence South 00°17'24" West a distance of 228.51 feet to a point; Thence South 89° 19' 19' East a distance of 235.64 feet to a point on the Easterly line of Said Parcel B; Thence along said Easterly line, South 00°17'24" West a distance of 18.50 feet to the point of beginning. Said easement contains 8,790 square feet more or less End of Description Project No. 10-111 Sept~nber 28, 2010 /67~ W. X/W Road N 6 N'o1s~, !D X3702 ROd) 8d8-73IJ~r - (20dU d8d-73Sf i~ _ ~; i ~ # O ~ ~ N 1 T ~ . t ~^ _ s oa ~ 7'?4' w 228.51 ' i I z j'^ '" ~ ~, ~ I I+ ; z '~~4 ~ ~ QN i ~ ~ yc b ~ I1O. ® ~ ~ I~ S ~ ~ t~ ~ ; ~ ,~ I ~ p~ I~ ..~ i ~ ~Q~~ i . ~ ~ ~~~ ~N~ v c1 ---------------------~ ~ ~ ~ N. M£RIOVAN ROAD ~ ~ 2231.89' ~ -~~- - -~-- - - - - - - ; 426.49' E: ~ S 00'1724~W 3658.38----- a ~~ ~°y by ~v~~ ~ ~ ~~~~~ bd . ~~~ ~ ti ~~~od y ~~~~~ y~ i I I a y°w ~ W i = ~i C11 o ® ®•~I I ~ °~ a ~ --~ ca I ~ g ~' ~ _ ~ I I I '~ ~~~ ~ ~~r ~ p~ ~~~~~~~ ~ ~~p~ N O ~ 2 i. ~ r b ~ ~ ~ ~ ~ ~ Q ~'1 ~; V1 tn0 ~ ~~~~ ~ ~ z ~ ;b.-tN ~ N ~ ~s_ ~sr 'sG9 o / . 4 12722 ~ '~ 7~°0 ~"~~OF1'~'G~i `' F BRPa` .~ Private Water and Sewer Easement sr~s~o~o Sca e• 1 ~h= fie: twa ~: a.zo~a Aa~w taro s~. 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