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HomeMy Public PortalAbout2011.01.13 Pathway Easement - J.R. SimplotInstrument # 358428 VALLEY COUNTY, CASCADE, IDAHO 2-14-2011 05:03:39 No. of Pages: 7 Recorded for: CITY OF MCCALL ARCHIE N. BANBURY Fee: 0.00 Ex-OlBclo Recorder Deputy Index to: EASEMENT RECREATIONAL PATHWAY EASEMENT This Grant of a Recreational Pathway Easement is made by and between J. R. Simplot Company, a Nevada corporation, its successors and assigns (hereinafter called the "Grantor"), and CITY OF McCALL, a municipal corporation of the State of Idaho (hereinafter called the "Grantee" ). RECITALS a) Grantor owns that certain real property situated in Valley County, Idaho, more particularly described in Exhibit A hereto; and b) Grantee desires to construct a public recreational pathway along the property described in the Exhibit A attached hereto; and c) Grantor desires to grant to Grantee, and Grantee desires to accept, a perpetual, non-exclusive pathway easement (the "Easement") over, upon and across the Exhibit A property as described in Exhibit B attached hereto for the purpose of a public pathway and for the construction and continuing operation, cleaning, maintenance and repair thereof. AGREEMENT/GRANT OF EASEMENT NOW, THEREFORE, in consideration of the recitals above, which are incorporated below, and good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged, Grantor, by giving this Easement, and Grantee, by recording this Easement and/or exercising the rights granted herein, agree as follows: 1. Grant of Easement. Grantor hereby grants and conveys to Grantee, a perpetual non-exclusive Recreational Pathway Easement in, to, over, upon, across the Exhibit A property (the "Easement Premises") as more particularly described on Exhibit B attached hereto (the "Easement"), together with the right to enter the Easement for the purposes of constructing, operating, cleaning, maintaining and repairing the Easement and the right to occupy such width of the Easement as is necessary to properly construct, operate, clean, maintain and repair the Easement with personnel and with such equipment as is commonly used, or is reasonably adapted, to that work. The Easement is dedicated to Grantee for use by the general public as a non motorized, recreational pathway. 2. Construction. Grantee shall construct the recreational pathway within 2 years of the effective date of this Recreational Pathway Easement set forth below at the sole expense of Grantee. In the event Grantee does not complete the construction of the recreational pathway within 2 years of the effective date, this Recreational Pathway Easement shall terminate. In the event this Recreational Pathway Easement is terminated in accordance with this Paragraph 2, Grantee hereby grants to Grantor the right to record a termination and release of this Recreational Pathway Easement in the official real property records of Valley County, Idaho. In RECREATIONAL PATHWAY EASEMENT SIMPLOT -1 the event the construction of the recreational pathway is complete within 2 years of the effective date, Grantor hereby grants to Grantee the right to record a notice of complete whereupon the right to record a termination and release of this Recreational Pathway Easement shall cease. 3. Maintenance, Repair; Costs and Expenses. Grantee shall be solely responsible for the operation, cleaning, maintenance and repair of the Easement as well as for all costs and expenses relating to said operation, cleaning, maintenance and repair. Grantee shall maintain and repair the Easement, as necessary, to facilitate the safe use thereof by the public; provided, Grantee shall not be obliged to maintain the Easement for winter use. 4. Limitation of Liability. The provisions of Idaho Code Section 36-1604 shall apply with regard to the use of the Easement by the public, including but not limited to the following: (A) Grantor Exempt from Warning. Grantor owes no duty of care to keep the Easement safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. Neither the installation of a sign or other form of warning of a dangerous condition, use, structure, or activity, nor any modification made for the purpose of improving the safety of others, nor the failure to maintain or keep in place any sign, other form of warning, or modification made to improve safety, shall create liability on the part of the Grantor where there is no other basis for such liability. (B) Grantor Assumes No Liability. Grantor does not, with regard to individuals who are either directly or indirectly invited or permitted to use the Easement for no charge for recreational purposes, thereby: (i) Extend any assurance that the Easement is safe for any purpose; or, (i i) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or, (iii) Assume responsibility for or incur liability for any injury to person or property of such persons. (C) Grantor Not Required to Keep Easement Safe. Nothing in this section shall be construed to: (i) Create a duty of care or ground of liability for injury to persons or property; or, (ii) Relieve any person using the Easement for recreational purposes from any obligation which they may have in the absence of this section to exercise care in their use of such land and in their RECREATIONAL PATHWAY EASEMENT SIMPLOT -2 activities thereon, or from legal consequences or failure to employ such care; or, (iii) Apply to any person or persons who for compensation permit the land to be used for recreational purposes. (D) User Liable for Damages. Any person using the Easement for recreational purposes, with or without permission, shall be liable for any damage to persons or property which they may cause while on said property. 5. Easement Obstruction. Grantor reserves the right to the temporary erection of barricades within or across the Easement which are reasonably necessary for security and/or safety purposes in connection with the construction, reconstruction, repair and maintenance of improvements on Grantor's owned real property, it being agreed by the parties however, that all such work shall be conducted in the most expeditious manner reasonably possible to minimize the interference with the use of the easement rights held by Grantee, and such work shall be diligently prosecuted to completion. 6. Non -Exclusive Easement. Grantor reserves the right to grant easements, including, but not limited to ingress, egress, utility and communication easements, to other parties within, over, under and along the Easement Premises, so long as such grants do not interfere with Grantee's use of the Easement. 7. Adjoining Property. Grantor or Grantee may take such steps and implement such measures as are reasonably necessary to prevent the unauthorized entry onto Grantor's adjoining property by users of the Easement. The development of Grantor's adjoining property may include the construction of access points from public road rights -of -way over and across the Easement Premises. Grantor's rights of access to its adjoining property from public road rights - of -way shall be superior to the rights provided to Grantee hereunder and Grantor reserves the right to construct access points without being encumbered by this Recreational Pathway Easement. Such access points may be used by motorized and non -motorized vehicles to access Grantor's adjoining property, regardless of any conflict with Grantee's rights under this Recreational Pathway Easement. Such access points shall be constructed in conformance with the then current standards of the local land use authority. 8. Run with the Land. All provisions of this Easement, including the agreement as to payment of all costs and expenses therefor shall run with the Exhibit A property and shall benefit and bind the heirs, successors and assigns of Grantor and Grantee. 9. Remedies. The parties hereto, their heirs, successors and assigns shall have all rights and remedies provided at law or in equity to enforce their rights hereunder. In the event of any action or proceeding by either party hereto against the other, in any way arising out of this Recreational Pathway Easement, or attempting to enforce any right herein granted, the losing party shall pay the prevailing party's reasonable attorney fees and costs. RECREATIONAL PATHWAY EASEMENT SIMPLOT -3 IN WITNESS WHEREOF, the Grantor and Grantee have executed this Recreational Pathway Easement effective as of the day of �C���t�� 1' , 2011. GRANTEE: CITY OF McCALL GRANTOR: J. R. SIMPLOT COMPANY Don Bailey, Mayor Attest: l it Bessie Jo Wag r, City Clerle 15�� Terry T. Uhling, r. Vice President, Secretary & General Counsel RECREATIONAL PATHWAY EASEMENT SIMPLOT -4 STATE OF IDAHO, . ss. County of Valley, On this v?/ day of t in the year 2011, before me, Notary Public, personally appeared DONALD C BAILEY and BESSIE JO WAGNER, Mayor and City Clerk, respectively, of the CITY OF McCALL, known or identified to me to be the persons who executed the instrument on behalf of the City of McCall, and acknowledged to me that the City of McCall executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. (SE )" #OTA* Notary Public for Ida o ••� _ Commission Expires: /Ii— l /4Le pusf-%C' TF OF 19_..•• STATE OF IDAHO, ) ss. County of �, ) n On this day of in the year 2011, before me, t—. , a Notary Public in and for said state, personally TERRY T. UHLING, known or identified to me to be the Sr. Vice President, Secretary and General Counsel of J.R. SIMPLOT COMPANY, the corporation that executed the instrument or the person who executed the instrument on behalf of said corporation and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this gertificate first above written. •"•-KENO, �I A RY s (SEA� # d1op • PUB 10 ''•.,,�A TE 0 RECREATIONAL PATHWAY EASEMENT SIMPLOT Notary Public for Idaho Commission Expires: Oz Z oo -5 n �I RYNTRTT A STATE OF IDAHO SECESH ENGINEERING, INC. EASEMENT EXHIBIT 335 DEINHARD LANE, SUITE I DEINHARD PATHWAY EXTENSION McCALL, IDAHO 83638 208-834-8338 CITY OF McCAI L A Ch O 1 R n Drawing No.: Drawn by. REM Date: 12/11 /09 RECREATIONAL PATHWAY EASEMENT SIMPLOT 6 . . , EXHIBIT B SECESH ENGINEERING, INC. 335 Deinhard Lane, Suite 1 P.O. Box 70 McCall, ID 83638 208-634-6336 • FAX 208-634-6322 LEGAL DESCRIPTION PATHWAY EASEMENT TO THE CITY OF McCALL A parcel of land, located in the southwest 1/4 of the northeast 1/4 of Section 16, T.18N., R.3 E., B.M., City of McCall, Valley County, Idaho, more particularly described as: COMMENCING at a 1/2" rebar marking the C-E 1/16 corner of said Section 16, from which the center 1/4 comer of said Section 16 bears N.89048'18"W., 1334.60 feet; thence, along the east line of said southwest 1/4 of the northeast 114 of Section 16, A.) N.0°32'32"E., 30.00 feet to a point on the north Right -of -Way line for Deinhard Lane, the POINT OF BEGINNING; thence, departing said 1/16 line, along said Right -of -Way, 1.) N.89°48'18"W., 352.89 feet; thence, departing said Right -of -Way, 2.) N.0°32'32"E., 10.00 feet; thence, 3.) S.89048'18"E., 2.77 feet; thence, 4.) N.0°00'00"E., 10.00 feet; thence, 5.) S.89°48'18"E., 350.21 feet to a point on the east line of said southwest 1/4 of the northeast 1/4 of Section 16; thence, along said 1/16 section line, 6.) S.0°32'32"W., 20.00 feet to the POINT OF BEGINNING, CONTAINING 0.16 Acres, more or less. RECREATIONAL PATHWAY EASEMENT SIMPLOT 7