Easement - Laguna Pointe Subdivision - 9/11/2018TEMPORARY LICENSE, IMPROVEMENT, AND INDEMNITY AGREEMENT
THIS TEMPORARY LICENSE, IMPROVEMENT, AND INDEMNITY AGREEMENT
(this "Agreement") is made this 11 day of S _ ike tL _2018, by and between Laguna Pointe
Homeowners' Association, Inc., an Idaho nonprofit corporation ("Laguna Pointe"), and the City
of Eagle, a political subdivision of the State of Idaho (the "City"), (each, a "Party" and
collectively, the "Parties") with reference to the following facts:
RECITALS
A. Laguna Pointe is the owner of certain real property situated in Ada County, Idaho, within
the community commonly known as the Laguna Pointe Subdivision (the "Property").
B. The City and Laguna Pointe are parties to that certain Access Easement recorded on
September 29, 2014 as instrument no. 2014-079398 in the Official Records of Ada County,
pursuant to which Laguna Pointe granted to the City, a non-exclusive pathway easement over a
portion of the Property as more particularly described therein- (the "Easement Area").
C. The City desires to undertake certain improvements and repairs to the Easement Area (the
"Repairs") at the City's sole cost and expense, and upon the terms and conditions more
specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein
contained and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
TEMPORARY LICENSE
1.1 Temporary License. Laguna Pointe hereby grants to the City, a non-exclusive
temporary license over, upon and across the surface of the Property for the purpose of ingress,
egress, and vehicular parking as well as enter on the Easement Area or in near proximity of
Easement Area (the "License") for the purposes of conducting trail Repairs until the completion
of the Repairs, whereupon the License shall automatically terminate.
1.2 Indemnify and Hold Harmless. The City shall indemnify, defend and hold
Laguna Pointe and its officers, managers, directors, employees, agents, guests, invitees, successors
and assigns, and all residents of the Laguna Pointe Subdivision (collectively, the "Indemnified
Parties"), harmless from and against all loss, liability, costs, claims, demands, damages, injuries,
actions, causes of action, suits and expenses (including reasonable attorneys' fees) (collectively,
"Claims"), arising from or relating to the City's use of the License, except to the extent (if any)
such liabilities, costs or expenses are caused by, arise out of, result from or relate to Licensor's
own negligence or intentional misconduct, or arise out of the Licensor's 404 Permit from the Army
Corp of Engineers.
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ARTICLE II
REPAIRS
2.1 Compliance with Applicable Law. The City shall be responsible, at its sole cost
and expense, for the construction and completion of the Repairs- in accordance with all Applicable
Law. "Applicable Law" means all rules, regulations, orders, permits, and directives of any
governmental, public or quasi -public authority, including, without limitation, the Army Corps of
Engineers, having jurisdiction over the Property or the Easement Area.
2.2 Repairs. The City shall furnish all construction services, management,
supervision, and administration needed to complete the Repairs in the most expeditious manner
possible, but in any event, within one hundred twenty (120) days after the date hereof. The City
shall furnish and transport all necessary labor, materials, tools, implements, and equipment
required to perform and finish the Repairs in a good and workmanlike manner, free of any and all
liens and claims of laborers, materialmen, suppliers, and subcontractors, and in conformity with
Applicable Law.
2.3 No Interference. Laguna Pointe acknowledges that control, direction and
supervision of all construction personnel in connection with the Repairs will lie exclusively with
the City, and Laguna Pointe may not issue instructions to, or otherwise interfere with, construction
personnel. Laguna Pointe will not perform any work or contract with the City's contractors or
others to perform work in or about the Easement Area until the Repairs are complete.
2.4 Notice of Completion. The City shall deliver written notice to Laguna Pointe
within ten (10) business days after its completion of the Repairs.
2.5 Indemnity. The City hereby agrees to indemnify, defend, and hold harmless the
Indemnified Parties, from and against any and all Claims arising from or in any way related to the
Repairs or any similar or ancillary activity, including, without limitation, damages, losses, injuries,
or death to persons, or damages, infringements or losses to or of property, whether personal, real,
or intangible; or violation of any statute, law, ordinance, regulation or code of any federal, state or
local government entity which may be asserted against an Indemnified Party; provided, however,
the City's obligation under this paragraph to indemnify and hold an Indemnified Party harmless
shall not extend to damages caused by the gross negligence or willful misconduct of such
Indemnified Party.
ARTICLE III
GENERAL PROVISIONS
3.1 Successors. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and assigns; provided, however, no assignment of
this Agreement shall in any way relieve the City of its obligations hereunder.
3.2 Severability. Should any provision in this Agreement be deemed void or invalid
or unenforceable by a court of competent jurisdiction, such provision shall be deemed severable
from the remaining provisions hereof and the remaining provisions hereof shall be and remain in
full force and effect to the maximum extent permissible to effectuate the intents and purposes
hereof.
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3.3 Interpretation. The provisions of this Agreement shall be liberally construed to
effectuate its purpose. Each Party acknowledges and agrees that this Agreement (a) has been
reviewed by it and its counsel, (b) is the product of negotiations between the Parties, and (c) shall
not be deemed prepared or drafted by any one Party. In the event of any dispute between the
Parties concerning this Agreement, the Parties agree that any ambiguity in the language hereof is
not to be resolved against either, but shall be given a reasonable interpretation in accordance with
the plain meaning of the terms of this Agreement. Whenever the context of this Agreement
requires same, the singular shall include the plural and the masculine shall include the feminine.
The titles or headings of the Articles or Sections of this Agreement have been inserted for
convenience only and shall not be considered or referred to in resolving questions or interpretation
or construction.
3.4 Governing LawNenue. This Agreement shall be governed by and construed
under the laws of the State of Idaho. Each Party agrees that the proper venue for any dispute
arising hereunder is with the appropriate state or federal court located in Boise, Idaho and each
party hereby consents to such court's jurisdiction.
3.5 Notices. All notices, demands, approvals, and other communications provided for
in this Agreement shall be in writing and shall be effective upon the earliest of the following to
occur when delivered to the recipient whether by (a) a nationally recognized overnight -guaranteed
delivery service; (b) United States mail; or (c) by facsimile or email (provided there is confirmation
of transmission. If the date on which any notice to be given hereunder falls on a Saturday, Sunday
or legal holiday, then such date shall automatically be extended to the next business day
immediately following such Saturday, Sunday or legal holiday. The following addresses may be
changed by written notice given in accordance with this Section:
If to the City: City of Eagle
c/o Department of Parks & Recreation
660 E. Civic Lane
P.O. Box 1520
Eagle, Idaho 83616
If to Laguna Pointe: Lam_ a_ncZ w, 074P Noy . Ene
O / ln1 Si -&-e Si- r ee±
S -Le 20
"f 'se cm 533114
with a copy to: Stoel Rives LLP
101 S. Capitol Blvd, Suite 1900
Boise, Idaho 83702
Attn: Nicole Hancock, Esq.
Email: nicole.hancock @- stoel.com
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3.6 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING HEREUNDER WHETHER SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT
OTHERWISE HAVE TO TRIAL BY JURY.
3.7 Third Party Beneficiaries. Nothing in this Agreement, whether expressed or
implied, is intended to confer any rights or remedies under or by reason of this Agreement on any
other person other than the Parties and the Indemnified Parties, and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability
of any third persons to any party to this Agreement.
3.8 Attorney's Fees. In the event of any dispute arising from or relating to this
Agreement, in addition to any other relief, the prevailing party shall be entitled to recover from the
non -prevailing party its attorneys' fees, costs and expense, regardless of whether an action has been
commenced. For purposes hereof, a "prevailing party" need not prevail on all issues in dispute, but
only on the principal issue in dispute.
3.9 Amendments; Counterparts. This Agreement may not be modified or amended
except by written agreement signed by the Parties. This Agreement may be executed in
counterparts, with signatures delivered as originals, via facsimile or electronically, each of which
shall be an original, but all of which together shall constitute one agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the undersigned, have entered into this TEMPORARY
LICENSE, IMPROVEMENT, AND INDEMNITY AGREEMENT as of the date first above
written.
THE CITY:
CITY OF EAGLE, a political subdivision of the
State of Idaho
By:
Stan Ridgeway, Mayor
ATTEST:
Sharon K. Bergmann, Ci
LAGUNA POINTE:
Clerk
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