Easement - 2001 - Merrill Park - Pond Access City of Eagle - 11/8/2001RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Givens Pursley LLP
277 N. 6' Street, Suite 200
Boise, Idaho 83701
Attn. L. Edward Miller
RECORDED-UQUEST 01
SOA COUNTY RECORDER
J. O/WT NAVARRO t�
A. Cr �EE DEPUTY..
2901 N0 16 AM 8: 53 F0 112 0 5
(space above this line for Recorder's use)
EASEMENT AGREEMENT
(Pond Access — City of Eagle)
THIS EASEMENT AGREEMENT ("Agreement") is entered into by and between Eagle River
L.L.C., an Arizona limited liability company ("Eagle River") and the City of Eagle, Idaho, an Idaho
municipal corporation ("City"). Eagle River and the City may be referred to as a "Party" or
collectively as the "Parties." This Agreement shall be effective on the date on which the last Party
executes the Agreement ("Effective Date").
RECITALS
A. Eagle River is the owner of that certain real property located in Ada County, Idaho which is
adjacent to the Boise River ("Eagle River Parcel").
B. The City is the owner of that certain real property located in Ada County, Idaho which is
adjacent to the Eagle River Parcel, known as Lot 4, Block 4, Mixed Use Subdivision-No.1,
("City Parcel"). The Eagle River Parcel and the City Parcel may collectively be referred to
herein as "Parcels."
C. Eagle River desires to grant a nonexclusive easement for the benefit of the City to expand
the pond currently existing on the Eagle River Parcel through a portion of the City Parcel, to
provide landscaping and improvements adjacent to the pond, and for the maintenance of
the pond and improvements, all in the area shown on Exhibit A, and legally described on
Exhibit B attached hereto ("Easement Area"). The City desires to accept the above-
described easement from Eagle River.
D. The Eagle River Parcel, the City Parcel and this Easement Agreement are subject to the
Master Declaration of Covenants, Conditions, and Easements and Restrictions for Eagle
River, as amended and supplemented from time to time ("Declaration").
E. The Ada County Highway District ("ACHD") has a storm drainage easement over the
Easement Area (or a portion thereof) ("Drainage Easement").
AGREEMENT
NOW THEREFORE, for good and valuable consideration, including the recitals above,
which are incorporated below, the receipt and sufficiency of which are hereby acknowledged, the
following grants, agreements, covenants and restrictions are made:
EASEMENT AGREEMENT - 1
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1. GRANT OF EASEMENT:
Subject to the terms and conditions of this Agreement, the Declaration, and the Drainage
Easement, Eagle River hereby grants to the City a nonexclusive right to do the following on, under,
over, across and through the Easement Area as shown on Exhibit A: (i) expand the pond currently
existing on the Eagle River Parcel through a portion of the City Parcel; (ii) construct Improvements
(defined in Section 3) adjacent to the pond for access to the pond for viewing and fishing purposes,
but which discourage access to the pond other than over the viewing platforms described in Section
3; and (iii) maintain the pond and Improvements and Easement Area ("Easement").
2. PURPOSE AND USE OF THE EASEMENT:
The Easement shall be used only for the following nonexclusive purposes: (i) construction,
maintenance, repair and replacement of any of the Improvements and the Easement Area; (ii)
access to the pond over the viewing platforms for viewing and fishing purposes; and (iii)
maintenance of the Easement Area in a good, attractive and environmentally sound condition. The
Easement Area shall not be used for swimming, boating, fishing (except from the viewing
platforms) or any other water -related sports or activities. The City shall take reasonable steps to
ensure the Easement Area is used consistent with the terms of this Agreement.
3. CONSTRUCTION OF IMPROVEMENTS:
The City must complete construction of the following improvements to the Easement Area after the
Effective Date and concurrently with construction of the park improvements on the City Parcel: (i)
expansion of the pond through the City Parcel with an appropriate underwater graduated slope to
minimize danger in the event of swimming or wading; (ii) two (2) viewing platforms on the pond
perimeter; and (iii) landscaping, including fencing, around the perimeter of the pond in a manner
which discourages access to the pond other than over the viewing platforms, all as approximately
shown on Exhibit A (collectively "Improvements"). "Improvements" shall also include any
improvements required in the Easement Area by ACHD from time to time. All improvements in the
Easement Area, and plans and specifications relating to such improvements, must be approved by
Eagle River (and ACHD if required by the Drainage Easement) in writing prior to their construction.
All improvements shall be constructed at the City's sole cost and expense and shall be in
compliance with all governmental laws, statutes, rules and regulations.
4. MAINTENANCE OF EASEMENT AREA:
The City shall maintain the Improvements and the Easement Area in a good and attractive
condition which is normally found in first-class riparian areas, and in compliance with all
governmental laws, statutes, rules and regulations (including, but not limited to, any applicable
water quality standards) at the City's sole cost and expense. Maintenance of the Easement Area
shall include, but is not limited to, removal of all trash and debris from the Easement Area or any
area of the pond which contains trash or debris related to use of the Easement Area. Additionally,
the City agrees to not introduce any "hazardous substance" or "hazardous waste" into the
Easement Area. As used in this Agreement, "hazardous substance" or "hazardous waste" is
defined as any substance or waste which is considered hazardous by any federal, state, or local
laws, statutes, rules or regulations which apply to the Easement Area.
EASEMENT AGREEMENT - 2
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5. REMEDIES FOR DEFAULT:
In the event either Party defaults pursuant to this Agreement, the nondefaulting Party shall have all
remedies available at law or equity, including, but not limited to specific performance.
6. TERMINATION OF EASEMENT:
This Agreement may be terminated by a mutual agreement of the Parties in a written document
signed by both Parties which is recorded in the records of the Ada County Recorder's Office, or as
specified in Section 5 hereof.
7. NOT A PUBLIC DEDICATION:
The Parties acknowledge that under no circumstances is the Easement to be considered a
dedication to the public on the part of Eagle River.
8. INDEMNIFICATION AND INSURANCE:
The City shall indemnify, hold harmless and defend Eagle River from and against all liabilities,
damages, suits, obligations, fines, losses, claims, actions, judgments, penalties, charges, costs, or
expenses, including, without limitation, attomeys' and other professional fees and disbursements, in
conjunction with any loss of life, personal injury and/or property damage arising out of or relating to
the occupancy or use of the Easement, or any introduction of a "hazardous substance" or
"hazardous waste" into the Easement Area, by the City or its officers, licensees, agents, servants,
employees, guests, invitees or visitors, the public, and any other party for whom the City would
otherwise be liable, unless caused by the negligent act or willful misconduct of Eagle River or its
officers, agents, servants or employees.
The City will obtain and maintain commercial general liability insurance in commercially reasonable
amounts covering the City's (and its employees, invitees, guests and the public's) use of the
Easement Area. The insurance policy shall name Eagle River as an additional insured and provide
Eagle River with thirty (30) days notice prior to any termination or cancellation.
9. RUNNING OF BENEFITS AND BURDENS:
All provisions of this Agreement, including the benefits and burdens, easements and covenants, run
with the land and are binding upon and enure to the heirs, assigns, successors, tenants and
personal representatives of the Parties hereto.
10. ATTORNEYS' FEES:
In any suit, action or appeal therefrom to enforce or interpret this Agreement, the prevailing Party or
Parties shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees
and disbursements.
11. GOVERNING LAW:
This Agreement shall be governed, construed, and enforced pursuant to the laws of the State of
Idaho as a contract to be performed within Idaho.
EASEMENT AGREEMENT - 3
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12. MODIFICATION:
This Agreement shall not be modified, in whole or in part, except by an instrument in writing signed
by all Parties or their respective successors or assigns.
13. SEVERABILITY:
If any term or provision of this Agreement, or the application thereof to any person or circumstance,
shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, such
invalidity shall not affect other provisions of this Agreement or the application thereof which can be
given effect without the invalid provision or application.
14. COUNTERPARTS:
This Agreement may be executed in any number of counterparts and once so executed by all
Parties, each such counterpart shall be deemed to be an original instrument but all such
counterparts together shall constitute but one Agreement.
15. HEADINGS:
The headings contained in this Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation hereof.
16. ADDITIONAL ACTS:
Except as otherwise provided herein, in addition to the acts and deeds recited herein and
contemplated to be performed, executed and/or delivered by the Parties, the Parties hereby agree
to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all
such further acts, deeds and assurances as any Party may reasonably require to effectuate the
easements and agreements contemplated hereunder.
17. CONSTRUCTION:
All Parties have been represented by counsel in the course of the negotiations for and the
preparation of this Agreement; accordingly, in all cases, the language of this Agreement will be
construed simply, according to its fair meaning, and not strictly for or against any Party.
18. RECITALS AND EXHIBITS:
The recitals and exhibits are hereby incorporated into the text of this Agreement and made a part
hereof.
19. ENTIRE AGREEMENT:
This Agreement embodies the entire agreement between the Parties hereto and there shall be no
oral agreements existing between the Parties relative to the subject matter hereof.
[end of text]
EASEMENT AGREEMENT - 4
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IN WITNESS WHEREOF, the Parties have signed their names and affixed their seals on
the day and year written below.
EAGLE RIVER:
EAGLE RIVER L.L.C., an Arizona limited
liability company
�� 4'�'
Charles Carlise, Authorized Signatory
Date:
State of Idaho )
ss.
County of —)
On this .� day of , in the year of 2001, before me, a Notary Public in
and for said State, personally appeared CHARLES CARLISE, known or identified to me to be the
Authorized Signatory of EAGLE RIVER L.L.C., a limited liability company, the Authorized Signatory
who subscribed said limited liability company name to the foregoing instrument, and acknowledged
to me that he executed the same in said limited liability company name.
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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iso 8tic••"'':
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EASEMENT AGREEMENT - 6
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Notary Public for Idaho
Residing at
My Commission expires
ATTEST:
AWS
CITY OF EAGLE, IDAHO, an Idaho municipal
corporation
By:
Rick Yzagu r , Iffayor
Date:
a1F
By: e �'
Sharon Moore, Clerk,?
Date: WN ZS1-4) 4 (V
State of Idaho )
ss.
County of )
On this -A— day of Mwvvv Y , in the year 2001, before me, the undersigned, a
Notary Public in and for said State, personally appeared RICK YZAGUIRRE and SHARON
MOORE, known to me to be the Mayor and City Clerk, respectively, of the CITY OF EAGLE,
IDAHO, a municipal corporation, and acknowledged to me that they executed the within and
foregoing Easement Agreement for and on behalf of said municipal corporation and in said
municipal corporation's name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year in this certificate first above written.
EASEMENT AGREEMENT - 6
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.,P lof Idaho
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EXHIBIT A
GRAPHIC DEPICTION OF PARCELS AND EASEMENT AREA
EASEMENT AGREEMENT - 7
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EXHIBIT 13A,�
To Declaration of Easement
Pond Access — CitY of Eagle
A 25.00 foot wide strip of land located within Lot S. Block 4 of
Mixed Use Subdivision No. 2, lying within Government Lot 3 of
Section 16, 7.4N., R.1 E., City of Eagle, Ado County, Idaho,
2001
E. SHORE DRIVE
LO
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ig
BLOCK
LOT E
Existing ACI -
easement.
_ig
Ei
u
419.53
Mixed Use Subdivision No. 1
$k. of Plats, Pgs, _
LOT 4
S' Pond Access Easement
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ENGIIVEiRS SURVEYORS
9177 CHIN13EN BOULEVARD - BOISE, WHO 83714-2008
PHONE: 2DS-323-2288 • FAX: 208—X23 -239.q
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EXHIBIT B
LEGAL DESCRIPTION OF EASEMENT AREA
EASEMENT AGREEMENT - 8
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PROJECT: 99112
DATE: August 29, 2001
AMENDED: September 26, 2001
SIMT: 1 of 1
E10MIT `°B"
To Declaration of Easement
Pond Access – City of Eagle
A 25.00 foot wide strip Of land lying Within Lot B, Blocic 4 oflvfixed Use Subdivision —No. 2 according
to the official plat thereof recorded in Book _ ofPlats at pages throw
Instrament No. Ada Co — . and as
R IE., Ci of Ada County, Idaho, being more parti.cularlyuated in odes cn'bad asofollows:
Sac -ton 16, T.4N.,
City Eagle,Of
A 25.00 foot wide strip of land lying westerly of and contiguous to the
of said Lot 8.
easterly line being common with the westerly line of Lot 4, Block 4 of.Mbod Use Subdivision No. Sai1
recorded in Book ofPlats at Pages fou
The easement shall commence on the easterly line of said Lot S and shall
teridnate at of water of the existing pond lying in tht easterly the westerly edge
y portion of said Lot Q, $iocic 4,
CONT ASD NG 0.16 acres, more or less.
SU=CT TO all Covenants, Rights, P"ghts-ofWay, and Easements ofR.ecord.
MMMIT "E" attached, and by this reference made a part hereof
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