Easement - Drainage District No. 2 - 2000 - McDonald's Pathway (Drainage District No. 2 Drain No. 15, Eagle Rd to 2nd Street) - McDonald's Pathway (Drainage District No. 2 Drain No. 15, Eagle Rd to 2nd Street)
2000 SP 25 Prl 3: 55
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ADA COUNTY RECORDER
J. DAVID NAVARRO
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ADDENDUM TO AGREEMENT
ADDENDUM TO AGREEMENT, made and entered into this (o'fl-- day of~f1k' l~boj , 2000,
by and between DRAINAGE DISTRICT NO.2, a drainage district organized and existing under and by virtue
of the laws of the State of Idaho ("District"), and THE CITY OF EAGLE, a political subdivision and
municipality of the State ofIdaho ("City"),
W IIN ES.S.EIH:
WHEREAS, the District and Edge Investment, LLC ("Edge") entered into a certain Agreement dated
November 3, 1997, recorded as Instrument No. 98020057, Records of Ada County, Idaho. The Agreement
granted Edge the permission and license to utilize Drain No. 15 of the District's drainage system to receive
drainage from Edge's property known as Gleneagles Subdivision in accordance with the terms and conditions
of said Agreement; and,
WHEREAS, Edge has conveyed to the City the portion of the property that is the subject of the
Agreement described in the deed, attached hereto as Exhibit A-I and by this reference made a part hereof; and
WHEREAS, the Agreement acknowledges and confirms the District's exclusive easement extending
100 feet, fifty feet on each side of the centerline of Drain No. 15; and,
WHEREAS, in violation and breach of the Agreement prior to deeding the property to the City, Edge
trespassed upon the District's exclusive easement, constructing portions of a building, an asphalt pathway,
installing a fence, benches, concrete platforms, bike racks and light fixtures, underground electric wiring,
underground sprinkler lines and valve boxes, and planting trees, shrubbery, and other structures and plants
within the District's easement for Drain No. 15; and,
WHEREAS, the City has an interest in the continued maintenance and public use of the pathway,
fence, and certain other encroachments constructed, installed, or planted by Edge within the District's
easement and has entered negotiations with the District to determine whether such continued maintenance may
occur under terms and conditions that are acceptable to the District and has entered negotiations with the
District; and,
WHEREAS, the District, and the City as the new property owner have reached agreement and wish
to set forth in this Addendum to Agreement the terms and conditions under which some of the above-described
encroachments may be maintained within the District's easement; and,
WHEREAS, execution of this addendum in accordance with these facts will affect or change the terms
of said Agreement; and,
NOW, THEREFORE, for and in consideration of the premises and of the c9venants, agreements and
conditions hereinafter set forth and those set forth in the Agreement referred to above, the parties agree as
follows:
1. The City shall install a switch which the District may access to turn off power to all electrical
wiring and all electrical devices and fixtures installed within the District's easement for Drain No. 15. The
switch shall be in a locked box installed in a location designated by the District and the City, and the City shall
provide the District keys for the box. The District and the City shall have each have the unconditional
ADDENDUM TO AGREEMENT - 1
discretionary right to turn off power by the switch.
2. The District agrees that the City may maintain the portions of the asphalt pathway, fence,
benches, concrete platforms, bike racks, light fixtures not designated for removal, underground sprinkler lines
and valve boxes, and shrubbery and other plants which Edge installed or planted within the District's easement
for Drain No. 15 between Eagle Road and 2nd Street so long as the City maintains, cleans, and repairs the
entire portion of Drain No. 15 located between Eagle Road and 2nd Street as shown on Exhibit B attached
hereto and by this reference made a part hereof in accordance with the provisions of this Addendum to
Agreement.
3. The City agrees to maintain, clean, and repair the entire portion of Drain No. 15 located
between Eagle Road and 2nd Street in accordance with the provisions ofthis Addendum to Agreement. The
City shall remove all trash and all human deposited debris from this portion of Drain No. 15 and the District's
easement. The City shall perform all other maintenance and cleaning of Drain No. 15 and the District's
easement including, but not limited to the removal and disposal of silt, gravel, trees, tree limbs, plant material,
and debris which may impair access to or the flow of water through Drain No. 15. The City shall perform all
repairs necessary to preserve the structural integrity and unobstructed flow of water through Drain No. 15. If
the City shall fail in any respect to properly maintain, clean, and repair such portion of Drain No. 15 and the
District's easement, then the District, at its option, and without impairing or in anyway affecting its other rights
and remedies hereunder, shall have the right to perform the necessary maintenance, cleaning, and repairs and
the City agrees to pay to the District, on demand, the cost or expense which shall be reasonably expended or
incurred by the District for such purposes. The District shall give ten (1 It) days written notice to the City prior
to the District's performing such maintenance, cleaning, or repair except that in cases of emergency the District
shall attempt to give such notice as is reasonable under the circumstances. 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, and the City shall indemnifY, hold harmless and defend the District from
any claims made against the District arising out of or relating to the terms of this Addendum except for claims
arising solely out of the negligence or intentional act of the District.
4. Each facility ("facility" as used in this Addendum to Agreement means any object or thing
of any nature installed within the District's easement by the City or the City's predecessor in interest) shall be
constructed, installed, operated, maintained, and repaired at all times by the City at the cost and expense of the
City.
5. The City agrees to maintain and repair each facility and conduct its activities within or
affecting the District's easement, and the City agrees to perform maintenance, cleaning and repair of Drain No.
15 so as not to constitute or cause:
a. a hazard to any person or property;
b. an interruption or interference with the flow of water in the ditch;
c. an increase in the loss of water from the ditch;
d. the subsidence of soil within or adjacent to the easement;
e. any other damage to the District's easement and drainage works.
6. The City agrees to indemnifY, hold harmless, and defend the District from all claims for
damages arising out of any of the City's activities which constitutes or causes any of the circumstances
enumerated in the preceding paragraph, 5.a. through 5.e., or any other damage to the easement and drainage
works which may be caused by the construction, installation, operation, maintenance, repair, and any use or
condition of any facility.
ADDENDUM TO AGREEMENT - 2
7. The District reserves the right, at the District's option, to remove any facility installed on the
easement and to repair any improvement of said ditch and the easement therefor which does not comply with
the terms of this Addendum, and to remove any impediment to the flow of water in said ditch and any unsafe
condition or hazard caused by the City, at any time, and the City agrees to pay to the District, on demand, the
costs which shall be reasonably expended by the District for such purposes. If the City shall fail in any respect
to properly maintain and repair such facility, then the District, at its option, and without impairing or in anyway
affecting its other rights and remedies hereunder, shall have the right to perform the necessary maintenance
and repairs and the City agrees to pay to the District, on demand, the cost or expense which shall be reasonably
expended or incurred by the District for such purposes. The District shall give reasonable notice to the City
prior to the District's performing such maintenance, repair or other work except that in cases of emergency the
District shall attempt to give such notice as reasonable under the circumstances. Nothing in this paragraph
shall create or support any claim of any kind by any third party against the District for failure to exercise the
options stated in this paragraph, and the City shall indemnifY, hold harmless and defend the District from any
claims made against the District arising out of or relating to the terms of this paragraph except for claims
arising solely out of the negligence of the District.
8. The City represent to the District that it intends to invite public use of the asphalt pathway,
benches, concrete platforms, and bike racks by members of the public, including, but not limited to, the
owners, employees, customers, guests, and invitees of businesses located adjacent to the easement. The City
understands and acknowledges that the District does not generally allow such use of its easements because of
the risks of public injury and interference with the District's operation,-maintenance and repair of its drains
inherent in such use. The District agrees to allow the City to invite and permit public use of the asphalt
pathway, benches, concrete platforms, and bike racks within the portion of the District's easement for Drain
No. 15 between Eagle Road and 2nd Street upon the following terms and conditions:
a. The only authorized uses of the asphalt pathway shall be walking, jogging, and riding
bicycles or other human-powered vehicles, access by vehicles, equipment and personnel for law enforcement
and emergency purposes or for construction, maintenance or repair of Drain No. 15, and use of the pathway
by handicapped persons with motorized wheelchairs or comparable equipment.
b. Use of Drain No. 15 and the District's easement for fishing, swimming, wading or
boating is prohibited. The City shall take appropriate action to prohibit swimming, wading or boating, or any
other intrusion into Drain No. IS and the District's easement beyond the fence installed by Edge. This
Addendum shall not preclude the District from enforcing these prohibitions.
c. The City shall adopt and enforce such ordinances as it deems necessary to protect the
safety of the members of the public who use the District's easement for Drain No. 15, ensure that members
of the public comply with the terms of this Addendum, and protect against interference with the District's use,
operation, and maintenance of the Drain No. 15 and the District's easement for drainage purposes.
d. The City will maintain liability insurance in at least the statutory amount and will
indemnifY the District for all claims arising from any negligent or intentional acts by the City's employees,
agents and/or contractors in performing the City's duties described in this Addendum, and for all claims arising
from the City's allowance of public use of the asphalt pathway, benches, concrete platforms, and bike racks
within the portion of the District's easement for Drain No. 15 located between Eagle Road and 2nd Street in
accordance with provisions of this Addendum.
ADDENDUM TO AGREEMENT - 3
9. The City shall not perform any excavations, place any additional structures nor plant any trees,
shrubs, or landscaping of any kind within the District's easement, or change the location of the ditch, bury the
ditch in pipe, or otherwise alter the ditch in any manner, without the prior written consent of the District.
10. Said Agreement is hereby affirmed and shall remain in full force and effect except as modified
by this Addendum.
11. The City agrees to pay $3,000.00 of the attorney fees, processing fees, and recording fees
incurred by the District as a result of Edge's encroachments to the District's easement for Drain No. 15,
including but not limited to the preparation, execution, and recording of this Addendum to Agreement and in
connection with negotiations covering the terms and conditions of this Addendum to Agreement.
12. Neither the terms of this Addendum, the permission granted by the District to the City for
maintenance, cleaning, and repair of Drain No. 15, nor the parties exercise of any rights or performance of any
obligations of this Addendum, shall be construed or asserted to extend the application of any statute, rule,
regulation, directive or other requirement, or the jurisdiction of any federal, state, or other agency or official
to the District's ownership, operation, and maintenance of its ditches, canals, drains, drainage works and
facilities which did not apply to the District's operations and activities prior to and without execution of this
Addendum. In the event the District is required to comply with any such requirements or is subject to the
jurisdiction of any such agency as a result of execution of this Addendum, or the City's operation,
maintenance, cleaning, and repair of Drain No. 15, the City, as applicable, shall indemnifY, hold harmless and
defend the District from all costs and liabilities associated with the application of such laws or the assertion
of such jurisdiction or, at the option of the District, this Addendum shall be of no force and effect and all
activity shall cease and the District may remove any facility authorized by this Addendum.
13. The District shall not be liable for any damages which occur to any facility, structure, plant,
or any other improvement of any kind or nature whatsoever which the City owns, operates, controls or
maintains on the said easement area of the District in the reasonable exercise of the rights of the District, in
the course of performance of maintenance or repair of Drain No. 15. The City further agrees to suspend its
use of said easement area when the use of the easement area is required by the District for maintenance or
repair under this or any other paragraph of this Addendum to Agreement.
14. The parties hereto understand and agree that the District has no right in any respect to impair
the uses and purposes of the drainage works and system of the District addressed by this Addendum, nor to
grant any rights in its drainage works and system incompatible with the uses to which such drainage works and
system are devoted and dedicated and that this contract shall be at all times construed according to such
principles.
15. Nothing herein contained shall be construed to impair the easement and right of way of the
District in Drain No. 15 and all uses of Drain No. 15 by the City and members of the public and the license
herein provided therefor shall remain inferior and subservient to the rights of the District to the use of said
ditch for the drainage of water.
16. In the event of the failure, refusal or neglect of the City to cure any default in compliance with
any term or condition of this contract, within 30 days after service of written notice from the District stating
the particular default or breach, then the license under the terms of this Addendum to Agreement may be
terminated by the District, and all facilities or improvements on the easement area shall be removed promptly
by the City following such termination, and if not so removed by the City within 30 days after termination, the
ADDENDUM TO AGREEMENT - 4
District may remove those facilities or improvements and shall be entitled to reimbursement from the City for
the reasonable cost of such removal, to be paid within 30 days after written notice of the amount of such costs.
17. If after providing the 30-day notice required in paragraph 16, the District incurs costs or
attorney fees in excess of $200.00 per calendar year in connection with efforts to enforce the provisions of this
Addendum without resorting to litigation, the City agrees to pay any costs or attorney fees, or both in excess
of $200.00 per calendar year, reasonably incurred by the District for that purpose. If any party commences
litigation to enforce this Addendum, the prevailing party in the litigation shall be entitled to reimbursement
for its costs and reasonable attomey fees from the other party.
18. Nothing in this Addendum shall create or support a claim of estoppel, waiver, prescription
or adverse possession by any third party against District or the City.
19. The City shall not have the right, power or authority to assign this Addendum to Agreement
or any privileges hereunder to any person or entity. The City shall not have the right, power or authority to
issue a sub-license to any person or entity without the prior written approval of the District, which approval
shall be entirely and unconditionally optional with the District. The City shall have no authority to enforce,
prohibit, or grant appropriation of water from Drain No. 15.
20.
third party.
This Addendum is not intended for the benefit of any third party and is not enforceable by any
21. If any provision of this Addendum is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, all remaining provisions of this Addendum shall remain in full force and
effect.
22. The District and the City shall meet on or before April 30 of each year to discuss the City's
obligations to maintain, clean, and repair the portion of Drain No. IS between Eagle Road and 2nd Street.
Notice of such meetings and all other notices or communications regarding maintenance of Drain No. 15
required by this Addendum shall be given to the following addresses. Each party shall provide the other
parties notice of any change in the addresses listed below.
Drainage District No.2
Milan L. Gould
10081 Lilac Place
Middleton, Idaho 83644
(208) 585-3768
(208) 250-2687 (cell#)
City of Eagle
Mayor
310 East State Street
Eagle, Idaho 83616
(208) 939-6813
23. The covenants, conditions and addendums contained herein and in said Agreement shall
constitute covenants to run with, and running with, all of the lands of the City described in Exhibit A-I of said
ADDENDUM TO AGREEMENT - 5
Agreement, and shall be binding on each of the parties hereto and on all parties and all persons claiming under
them or either of them, and the advantages hereof shall inure to the benefit of each of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the District, and the City of Eagle have hereunto caused their names to
be subscribed as of the day and year herein first above written.
DRAINAGE DISTRICT NO.2
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THE CITY OF EAGLE
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Mayor
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STATE OF IDAHO
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County of Ada
On this I ()#-. day of~{'f\~I"', 2000, before me, the undersigned, a Notary Public in and for
said State, personally appeared Eugene O. Muller and B. James Monczynski, known to me to be the Chairman
and Secretary, respectively, of DRAINAGE DISTRICT NO.2, the drainage district that executed the foregoing
instrument and acknowledged to me that such drainage district executed the same.
ADDENDUM TO AGREEMENT - 6
STATE OF IDAHO
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year
in this certificate first above written.
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County of ~
On this c.EO.- day of f , 2000, before me, the undersigned, a Notary Public in and for
said State, personally appeared Irr~ and SVnmn K.M.rrre- , known to
me to be the Mayor and City Clerk, respect ely, of THE CITY OF EAGLE, 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 affilred my official seal, the day and year
in this certificate first above written.
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My Commission Expires:
ADDENDUM TO AGREEMENT - 7