HomeMy WebLinkAbout18-00548 - RECORDED DITCH AGREEMENT - Inst. 425875 - Summerfield Div. 6RECORDING REQUESTED BYAND
WHEN RECORDED RETURN TO:
Robert L. Harris
Holden, Kidwell. Hahn & Crapo PLLC
PO Box 50130
Idaho Falls, ID 83406
Instrument # 425875
REXBURG, MADISON, IDAHO
9-12-2019 09:36:13 AM No. of Pages: 11
Recorded for: ROBERT L. HARRIS
KIM H. MUIR Fee: 40.00
Ex -Officio Recorder Deputy
(Space Above for Recorder's Use)
DITCH MODIFICATION AGREEMENT
THIS DITCH MODIFICATION AGREEMENT (this "Agreement"), which is entered into
as of the last date denoted on the signature lines below, is hereby made by and between Shane D.
Weimer, a single man, whose address is 2612 W. 1000 S., Rexburg, Idaho 83440, Kim E. Weimer
and Jodi Weimer, husband and wife, whose address is 501 S. 2000 W., Rexburg, Idaho 83440,
and Fern E. Weimer, a life estate holder, whose address is 501 S. 2000 W., Rexburg, Idaho 83440
(hereinafter all collectively "Weimer'); TKP Farms, LLC, whose address is 1444 Flint Ct.,
Kaysville, Utah 84037; (hereinafter "TKP"); Kevin R. Powell and LeAnn Powell, husband and
wife, whose address is 626 Angela, Rexburg, Idaho 83440 (hereinafter collectively "Powell"); and
BV Summerfield, LLC, an Idaho limited liability company, whose address is PO Box 51298,
Idaho Falls, Idaho (hereinafter "BV Summerfield"). Weimer, TKP, Powell, and BV Summerfield
may hereinafter be referred to individually as a "party" and collectively as the " ap rties."
RECITALS:
A. Weimer, TKP, and Powell are the owners of a certain ditch that diverts water allocated to
them from the Rexburg Irrigation Company canal system (hereafter, the "Ditch System").
B. BV Summerfield has received approval from the City of Rexburg to construct a residential
subdivision known as Summerfield on certain property located within portions of the
NESE, NWSE, SWSE, NESE, and SESW within Section 26 of Township 06N., Range
39E., identified as of the date of this Agreement as Madison County Tax Parcel No.
RPRXBCA0264843 (hereinafter simply "Summerfield").
C. In conjunction with the development of Summerfield, BV Summerfield desires to relocate
and replace an open -channel portion of the Ditch System with a pipeline. A map showing
the location of the proposed pipeline is attached hereto as Exhibit I and by this reference
is made a part hereof.
D. As of the date of this Agreement, Idaho Code § 42-1207, in its entirety, provides:
DITCH MODIFICATION AGREEMENT—PAGE 1
42-1207. CHANGE OF DITCH, CANAL, LATERAL, DRAIN
OR BURIED IRRIGATION CONDUIT. Where any ditch, canal, lateral
or drain or buried irrigation conduit has heretofore been, or may hereafter
be, constructed across or beneath the lands of another, the person or
persons owning or controlling said land shall have the right at their own
expense to change said ditch, canal, lateral or drain or buried irrigation
conduit to any other part of said land, but such change must be made in
such a manner as not to impede the flow of the water therein, or to
otherwise injure any person or persons using or interested in such ditch,
canal, lateral or drain or buried irrigation conduit. Any increased
operation and maintenance shall be the responsibility of the landowner
who makes the change, his heirs, executors, administrators, successors
and assigns.
A landowner shall also have the right to bury the ditch, canal,
lateral or drain of another in pipe on the landowner's property, provided
that the pipe, installation and backfill reasonably meet standard
specifications for such materials and construction, as set forth in the
Idaho standards for public works construction or other standards
recognized by the city or county in which the burying is to be done. The
right and responsibility for operation and maintenance shall remain with
the owner of the ditch, canal, lateral or drain, but the landowner, his
heirs, executors, administrators, successors and assigns, shall be
responsible for any increased operation and maintenance costs, including
rehabilitation and replacement, unless otherwise agreed in writing with
the owner.
The written permission of the owner of a ditch, canal, lateral,
drain or buried irrigation conduit must first be obtained before it is
changed or placed in buried pipe by the landowner.
While the owner of a ditch, canal, lateral, drain or buried
irrigation conduit shall have no right to relocate it on the property of
another without permission, a ditch, canal, lateral or drain owner shall
have the right to place it in a buried conduit within the easement or right-
of-way
ight-
ofway on the property of another in accordance with standard
specifications for pipe, materials, installation and backfill, as set forth in
the Idaho standards for public works construction or other standards
recognized by the city or county in which the burying is to be done, and
so long as the pipe and the construction is accomplished in a manner that
the surface of the owner's property and the owner's use thereof is not
disrupted and is restored to the condition of adjacent property as
expeditiously as possible, but no longer than thirty (30) days after the
completion of construction. A landowner shall have the right to direct
that the conduit be relocated to a different route than the route of the
ditch, canal, lateral or drain, provided that the landowner, his heirs,
executors, administrators, successors and assigns, shall be responsible
for any increased construction or future maintenance costs necessitated
DITCH MODIFICATION AGREEMENT—PAGE 2
by said relocation. Maintenance of the buried conduit shall be the
responsibility of the conduit owner.
E. Pursuant to Idaho Code § 42-1207, BV Summerfield must first have written permission
from the Ditch System owners to modify and pipe the open -channel portion of the Ditch
System located on the property where Summerfield will be constructed, and pursuant to
the terms of conditions of this agreement, Weimer hereby provides such necessary written
authorization regarding modification of its Ditch to satisfy the requirements of Idaho Code
§ 42-1207, subject to the following provisions.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, the parties hereto, for themselves, their heirs,
successors and assigns, do hereby agree as follows:
AGREEMENTS:
Acknowledgement of Prescriptive Easement for Ditch System. BV Summerfield
hereby acknowledges the existence of a long-established prescriptive easement for the
benefit of the Ditch System owners described herein for the portion of the Ditch System
where it is currently located on BV Summerfield's property being developed as part of the
Summerfield subdivision.
Permission to Replace Portion of Ditch System. Pursuant to Idaho Code § 42-1207, and
subject to the provisions of this Agreement, the Ditch System owners described herein
hereby grants written permission for BV Summerfield to replace a portion of the open -
channel Ditch System described in this Agreement with a 30 -inch pipeline from the
Rexburg Canal running in a southerly direction to tie into an existing culvert which crosses
1000 S. BV Summerfield shall also install a trash grate at the headgate through which
water from the Rexburg Canal Company system is delivered. The modifications shall be
made after October 15, 2019 and completed before April 15, 2020 to ensure there is no
disruption of irrigation water deliveries made through the Ditch System.
Construction Standards. BV Summerfield shall install the pipeline in a good and
workmanlike manner consistent with Idaho Code § 42-1207, which requires that "the pipe,
installation and backfill reasonably meet standard specifications for such materials and
construction, as set forth in the Idaho standards for public works construction or other
standards recognized by [Madison County]."
4. Approval of Pipeline Installation. BV Summerfield agrees to allow for the inspection of
the pipeline installation by the Ditch System owners during the pipeline's
installation/construction and upon completion of the pipeline. BV Summerfield agrees to
remedy any identified deficiency in the pipeline installation/construction from the Ditch
System owners as soon as is practicable, including any flow impediments caused by the
pipeline to the historical flows of the Ditch System.
DITCH MODIFICATION AGREEMENT—PAGE 3
5. Maintenance of the Pipeline Intake. The Ditch System owners described herein shall be
responsible to maintain, at its sole cost and expense, the intake to the pipeline described
herein (including removal of trash and debris at the trash grate) consistent with its
obligations described in Idaho Code §§ 42-1102, 42-1204, and other applicable Idaho law.
6. Future Maintenance of Pipeline. Consistent with the provisions of Idaho Code § 42-
1207, the right and responsibility for operation and maintenance of the pipeline shall
remain with the Ditch System owners, but BV Summerfield shall be responsible for any
increased operation and maintenance costs, including rehabilitation and replacement of
the pipeline. Nothing herein changes the Ditch System owners' responsibility for
maintaining the Ditch System downstream from the portion of the Ditch System being
piped described in this Agreement.
Miscellaneous.
a. Attorney Fees. If either party commences any legal action or proceeding to enforce
any of the terms of this Agreement (or for damages by reason of an alleged breach
hereof), the prevailing party therein shall be entitled to recover from the other, in
addition to any other relief granted, its reasonable attorney's fees, costs and
expenses incidental to such legal action.
b. Merger. This Agreement supersedes any and all other written or verbal agreements
between the parties hereto. None of the parties shall be bound by any
understanding, agreement, promise, representation or stipulation, express or
implied, not specifically contained herein.
c. Remedies Cumulative. Upon any breach, any and all rights and remedies which
either party may have under this Agreement or by operation of law or equity, shall
be distinct, separate and cumulative and shall not be deemed inconsistent with each
other. No such right or remedy, whether exercised by said party or not, shall be
deemed to be in exclusion of any other right or remedy, any two or more of all such
rights and remedies may be exercised at the same time or separately as desired.
d. Further Documents. The parties hereby agree that they shall sign such other and
further documents as may be required to carry into effect the terms and conditions
of this Agreement.
e. Enforceability. The validity or enforceability of any term, phrase, clause,
paragraph, restriction, covenant, agreement or other provision hereof, shall in no
way affect the validity or enforcement of the remaining provisions, or any part
hereof.
f. Governing Law. This Agreement shall be governed by the laws of the State of
Idaho.
DITCH MODIFICATION AGREEMENT—PAGE 4
g. Successors. This Agreement is for the benefit only of the parties hereto and shall
inure to the benefit of and bind their respective heirs, agents, personal
representatives, successors and assigns.
h. Recording. This Agreement shall be recorded in the records of Madison County,
Idaho, with BV Summerfield paying the cost of recording.
IN WITNESS WHEREOF, the parties have hereunto dated and subscribed their names.
1��L,�� �/—civ»✓----,
Shane D. Weimer
STATE OF IDAHO
)ss.
County of
This record was acknowledged before me on the � ay of August, 2019, by Shane D.
Weimer.
AMANDA L.LARESE
COMMISSION N44534
NOTARY PUBLIC
STATE OF IDAHO
MY COMMI
S
SION EXPIRES MARCH 15, 2024
STATE OF IDAHO )
)ss.
County of - M
Notary Public for Idaho
My Commission Expires:
Fern E. Weimer
This record was acknowledged before me on the #-day of August, 2019, by Fern E.
Weimer.
EAIMANDA I #44534 Notary u is for Idaho
OM TARP UBLIC 4M Commission Ex fres:
NOTARY PUBLIC Y PSTATE OF IDAHO
ISSION EXPIRES MARCH 15, 2024
DITCH MODIFICATION AGREEMENT—PAGE 5
Kim E. Weimer
Joc,KAeimer
STATE OF IDAHO )
)ss.
County of )
This record was acknowledged before me on the j4day of August, 2019, by Kim E.
Weimer.
AMANDA L. LARESE I
COMMISSION#44534 NOTARY PUBLIC Notary Public for Idaho
STATE OF IDAHO
MY COMMISSION EXPIRES MARDIi5,2024 My Commission Expires:
STATE OFI AHO )
` )ss.
County of I
This record was acknowledged before me on the A& ay of August, 2019, by Jodi
Weimer. I
AMANDA L. LARESE
COMMISSIONNOTARY
PUBLIC
4 Notary Public for Idaho
NOTARY PUBLIC Y
STATE OF IDAHO My Commission Expires:
I MY COMMISSION EXPIRES MARCH 15, 2024
DITCH MODIFICATION AGREEMENT—PAGE 6
TKP FARMS, LLC
............... ....
Dated: By: Tony . Powell
Its: Manager
Dated: By: Emily A.
Its: Manager
STATE OF UTAH
)ss.
County of SALT LAKE
This record was acknowledged before me on this la day of August, 2019, by Tony
K. Powell as a manager of TKP Farms, LLC.
Kathie Chahanovich
NotaryPublic State of Utah /
=i' nits My Commission Expires on:
February 12, 2020 Notary Public for Utah
-> Comm. Number. 687,189 My Commission Expires: alta l�
STATE OF UTAH )
)ss.
County of SALT LAKE )
This record was acknowledged before me on this lad` day of August, 2019, by Emily
A. Powell as a manager of TKP Farms, LLC.
Kathie Ch pnnvlch rte/ 7�%�[ (/�
Notary Public State of Utah r�S�y nn0—
f?+ My Commission expires on: Notary Public for Utah
�� February 12, 2020
-' Comm. Number: 667469 My Commission Expires: alfa
DITCH MODIFICATION AGREEMENT—PAGE 7
I lie
vin R. Powell
(�Xt�&Mpoo
LeAnn Powell
STATE OF IDAHO )
)ss.
County of YYict�� ti )
This record was acknowledged before me on the j�day of August, 2019, by Kevin R.
Powell.
",IVmy
£ Notary Publi for Idaho
M
S MRES 11.17-2020. ?
My Commission Expires:— 0 2 0
' o
STATE OF IDAHO
)ss.
County of (YZa etc/d cyl—)
Powell.
This record was acknowledged before me on the IIf day of August, 2019, by LeAnn
s.41 N� y,WREN %�i
20PUBVo: Notary Public fork aho
MY cm - ? _ My Commission Expires:
DITCH MODIFICATION AGREEMENT—PAGE 8
BV SUMMERFIELD, LLC
/ ajy: PSV (AaaineT}v;ceS,I G.� Ma"a9er
Dated: B Ca e &-WS ar
Its:
STATE OF IDAHO )
)ss.
County of BONNEVILLE )
This record was a lc owledged before me on this 6 day of ��2019, by
Cv AelT Pre51 �a "A°gem°"% erVC0,.Tje. of BV Summerfield, LLC.
e mrn°)ll�
JEDD K. JONES
COMMISSION NO. 20181559
NOTARY PUBLIC
STATE OF IDAHO
MY COMMISSION EXPIRES 8/24/24
[ --------------- I
NO RY PUBLI OR IDAHO
My commission expires:
DITCH MODIFICATION AGREEMENT PAGE 9
EXHIBIT 1
Ditch System Modifications
DITCH MODIFICATION AGREEMENT—PAGE 10
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