Magnolia Park COM15-0081 T4N, R1E, Section13 (Space Above Reserved for Ada County Recorder s Office) PERPETUAL STORM WATER DRAINAGE EASEMENT (Non-Exclusive) This Non-Exclusive Perpetual Storm Water Drainage Easement (this Easement ) is made as of the 19th day of, December 201_ 7by and between the City of Boise, a municipal corporation in Idaho ( Grantor ) and Ada County Highway District, a body politic and corporate of the State of Idaho ( ACHD ). W I T N E S S E T H: For good and sufficient consideration it is agreed: Section 1. Recitals. 1.1 Grantor owns a parcel of real property located in Ada County, Idaho, a portion of which is more particularly described and depicted on Exhibit A and Exhibit B attached hereto (the Servient Estate ) that is adjacent to a public street under the jurisdiction of ACHD which is municipally known as N. Bogart Lane and W. Sloan Street (hereinafter the Dominant Estate ). 1.2 There are certain existing facilities on the Servient Estate that are currently being used as part of the system for the drainage of storm water from the Dominant Estate. For convenience, such facilities are referred to herein as the Storm Water Drainage System. 1.3. Upon construction and installation of the Storm Water Drainage System, and after Acceptance (as defined below) by ACHD, it will become a part of ACHD s highway system, and to formalize such transfer ACHD desires to obtain this Easement from Grantor and Grantor is willing to grant such Easement to ACHD all on the terms and conditions hereinafter set forth Section 2. Grant of Easement. 2.1 For the period and on the terms and conditions hereinafter set forth, for the benefit of the Dominant Estate, Grantor hereby grants to ACHD an easement on and Non-Exclusive Perpetual Storm Water Drainage Easement - Page 1
under the Servient Estate for the Storm Water Drainage System and for the passage and retention of storm water from the Dominant Estate to, into, on, under, over and across the Servient Estate in the Storm Water Drainage System, and for the repair and maintenance, reconstruction and enhancement of the same (hereafter Authorized Use ). Enhancement means any construction, modifications or improvements to the Storm Water Drainage System, including, but not limited to, work on the drain lines, catch basin, drop inlets and conduit systems constructed to manage storm water flows, surface and groundwater quality and to provide erosion and sedimentation control so as to comply with the requirements of federal, state and local laws and ordinances. Any enhancement that materially changes the location, size or configuration of the Storm Water Drainage System shall require Grantor's prior written approval, which approval shall not be unreasonably withheld. 2.2 The Easement herein granted is not exclusive to ACHD. ACHD acknowledges that the Servient Estate contains numerous other improvements, utilities and landscaping, and that Grantor contemplates installing future improvements, installation of irrigation pressure lines and related facilities, utilities and landscaping in the Servient Estate. ACHD further acknowledges that Grantor and its grantees and licensees (including future grantees and licensees) may use the Servient Estate for any lawful purpose provided that such use does not materially interfere with ACHD s Authorized Use of the Servient Estate. If any structures, fences, landscaping or other improvements are constructed or planted on the Servient Estate in the future, such improvements must be removed in order for ACHD to perform its obligations to repair and maintain the Storm Water Drainage System, the costs of removal and replacement or restoration of the said improvements shall be the sole obligation of the owner of such improvements. Grantor shall not use the Storm Water Drainage System without the prior written consent of ACHD. If such consent is granted, Grantor shall not allow the presence, use, generation, release, discharge, storage or disposal in, on or under the Servient Estate of any hazardous materials. Hazardous Material is defined as any substance or material defined or designated as hazardous or toxic waste, material or substance, or other similar term, by any applicable federal, state or local law. Section 3. Construction; Acceptance; Repair and Maintenance; Warranties. 3.1 Grantor has constructed and installed the Storm Water Drainage System on the Servient Estate and adjacent to N. Bogart Lane in accordance with designs, plans and specifications prepared by Justin P. Leraris, P.E., dated June 24, 2016, and approved by ACHD on July 6, 2016 ( Approved Plans ), and in compliance with all applicable statutes, ACHD policies and standards, and good engineering practices. Also on the Servient Estate is an existing Storm Water Drainage System previously constructed by another party that accepts drainage from W. Sloan Street. 3.2 From and after the date ACHD gives Grantor written notice that ACHD accepts the Storm Water Drainage System as constructed and installed by Grantor on the Servient Estate ( Acceptance ), Grantor shall have sole responsibility for the operation, Non-Exclusive Perpetual Storm Water Drainage Easement - Page 2
maintenance, repair, replacement, reconstruction and, as applicable, Enhancement of the Storm Water Drainage System at its sole expense. Grantor shall operate, maintain, repair, replace, and as necessary reconstruct the Storm Water Drainage System at all times in good and safe condition and in full compliance with all Applicable Laws, all environmental laws and according to the Best Management Practices as set forth in the Idaho Department of Environmental Quality Stormwater Management Catalogue and any other current standards in effect ( BMP ) throughout the term of this Easement. 3.3 Grantor shall assign as necessary to ACHD any warranties contained in the construction contract (or other applicable contracts) for the construction and installation of the Storm Water Drainage System. Section 4. Indemnification. 4.1 Grantor shall indemnify, defend and save and hold harmless ACHD, its Commissioners and employees, from and against all claims, actions, judgments and expenses (including, without limitation, reasonable attorneys' fees incurred in defense thereof) for damages, injury or death (collectively, Claims ) caused by or arising out of Grantor s, and or Grantor s agents negligent design, construction and installation of the Storm Water Drainage System or Grantor s and or Grantor s agents failure to construct the Storm Water Drainage System in accordance with the Approved Plans. 4.2 Grantor shall indemnify and hold harmless ACHD and the Servient Estate from and against any and all claims for liens or liens (including, without limitation, mechanics and materialmans liens) (collectively, Mechanics Liens ) arising out of the construction and installation of the Storm Water Drainage System on the Servient Estate. 4.3 Grantor shall indemnify and hold harmless ACHD, its Commissioners and employees, from and against all Claims caused by or arising out of the presence, use, generation, release, discharge, storage or disposal of Hazardous Materials from Grantor s Property into the Storm Water Drainage System and/or in, on, or under the Servient Estate. 4.4 Upon ACHD s Acceptance of the Storm Water Drainage System as constructed and installed by Grantor, Grantor shall indemnify, defend and save and hold harmless ACHD, its Commissioners and employees from and against all Claims, arising out of Grantor s use of the Storm Water Drainage System, its failure or neglect to maintain, repair, or replace as necessary the Storm Water Drainage System, and or the presence, use, generation, release, discharge, storage or disposal of Hazardous Materials into the Storm Water Drainage System and/or in, on, or under the Servient Estate or Grantor s Property. 4.5 If ACHD consents to improvements and/or landscaping and/or Grantor s use proposed by Grantor under Section 2.2, Grantor shall indemnify, defend and save and hold harmless ACHD, its Commissioners and employees, from and against all Claims, Non-Exclusive Perpetual Storm Water Drainage Easement - Page 3
caused by or arising out of Grantor s use of the same, the construction, installation, maintenance and repair of such improvements and/or landscaping, and/or Grantor s failure to comply with applicable federal, state and local laws. Section 5. Term. The term of this Easement is perpetual. Section 6. Covenants Run with the Land. Throughout the term of this Easement, it shall be a burden upon the Servient Estate and shall be appurtenant to and for the benefit of the Dominant Estate, and shall run with the land. Section 7. Attorneys Fees and Costs. In any suit, action or appeal therefrom to enforce or interpret this Easement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees. Section 8. Exhibits. All exhibits attached hereto and the recitals contained herein are incorporated as if set forth in full herein. Section 9. Successors and Assigns. This Easement and the covenants and agreements made herein shall inure to the benefit of, and be binding upon, ACHD and Grantor, and their respective successors and assigns. Section 10. Modification. This Easement may not be amended in whole or in part except by written instrument, duly executed and acknowledged by the parties hereto, and recorded. Section 11. Notices. All notices given pursuant to this Easement shall be in writing and shall be given by personal delivery, by United States Mail Certified, Return Receipt Requested, or other established express delivery service (such as Federal Express), postage or delivery charge prepaid, addressed to the appropriate party at the address set forth below. Grantor: ACHD: City of Boise 150 N. Capitol Blvd. Boise, Idaho 83702 Ada County Highway District 3775 Adams Street Garden City, Idaho 83714-6499 Section 12. Recordation. This Easement shall be recorded in the Real Property Records of Ada County, Idaho. Section 13. Warranty of Authority to Execute. Non-Exclusive Perpetual Storm Water Drainage Easement - Page 4
13.1 The person(s) executing this Agreement on behalf of ACHD represent(s) and warrant(s) due authorization to do so on behalf of ACHD, and that upon execution of this Agreement on behalf of ACHD, the same is binding upon, and shall inure to the benefit of, ACHD. 13.2 If Grantor is not a natural person, the person(s) executing the Agreement on behalf of Grantor represent(s) and warrant(s) due authorization to do so on behalf of Grantor, and that upon execution of this Agreement on behalf of Grantor, the same is binding upon, and shall inure to the benefit, of Grantor. 13.3 Grantor warrants to the ACHD that Grantor is lawfully seized and possessed of the Servient Estate and has the right and authority to grant this Easement to ACHD. This Easement shall be subject to all easements and encumbrances of record or appearing on the land as of the date hereof. Non-Exclusive Perpetual Storm Water Drainage Easement - Page 5
IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed the day and year first set forth above. Grantor: City of Boise, a municipal corporation of Idaho ATTEST: By: 12/19/17 David H. Bieter Mayor By: Lynda Lowry Its: City Clerk STATE OF IDAHO ) ) ss. County of Ada ) This record was acknowledged before me on, December 19th 2017 by Debbie Westervelt [name(s) of individual(s)] as Notary [type of authority, such as officer or trustee] [date] of. City Boise [name of party on behalf of whom record was executed] Signature of notary public My commission expires: 8/24/2021 Non-Exclusive Perpetual Storm Water Drainage Easement - Page 6
ACHD: Ada County Highway District, a body politic and corporate of the State of Idaho By: Gary Inselman Development Services Manager STATE OF IDAHO ) ) ss. County of Ada ) This record was acknowledged before me on, 20 by Gary Inselman as Development Services Manager of the Ada County Highway District. Signature of notary public My commission expires: EXHIBIT LIST Exhibit A. Legal description of Bogart Lane Servient Estate. Exhibit B. Legal description of Sloan Street Servient Estate. The Ada County Highway District (ACHD) is committed to compliance with Title VI of the Civil Rights Act of 1964 and related regulations and directives. ACHD assures that no person shall on the grounds of race, color, national origin, gender, disability or age, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any ACHD service, program or activity. Non-Exclusive Perpetual Storm Water Drainage Easement - Page 7