HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Sewer line extension Ten Mile Drain
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Letter of Transmittal
462 E. Shore Drive, Suite 100 Eagle, Idaho 83616
(208) 939-4041 Fax (208) 939-4445
THE LAND GnOUp. INC.
Date: 8/1 0104
To:CityofMeridian
33 East Idaho
Meridian, Idaho
Phone: Fax:
Enclosures include the following:
OCopyofLetter OSubmittal Data
OSamples OChange Order
OAttached OUnder Separate Cover
OShop Drawings OPlans
Architect Job No:
Job Name: 10 Mile Drain
Attention:
0 Specifications
OPrints
OOther
Via:
[g Courier
OFax
OFed-Ex
OU.S. Mail
Dills
OOther
2
Duplicate originals of Request for License
Agreement
RECEIV'EI)
AUG ., 0 2004
City OfMeridiaE
City Clerk Office
These are submitted as checked below:
DFor acceptance DFurnish as submitted
DFor your use DFurnish as noted
DAs requested DReturned for corrections
DFor review & comment DRejected - see remarks
DResubmit_copies for acceptance DPrints returned
DSubmit copies for distribution after loan to us
DReturn corrected prints DFor bids use
DRetum prints after use
Remarks: Both sets of originals to be signed and notarized, then returned to Tbe Land Group.
I Signed: Ken Nguyen I Ice:
If enclosures are not as noted. kindlv notifv us immediatelv.
,
LmdscopeArchit"fIIre . Site Pkmning' Civil Engineering 8 GolfConr" Irrigation & Engimrring' Graphic Communication
462 E. Shore Drive, Ste. 100, Eagle, Idaho 83616. P 208.939.4041 F 208.939.4445' www.thelandgroupinc.com
RINGERT
-CLARK Ò ræ~ræDVræ
CHARTERED 1 AUG -6 " Laum E. Bu"i
LA WYERS Jerr'ey R Cu,"',n,on
'-I David P Clalbome
D. Blal, Clack
Mieuael J. Doali"le
5. B"co Falli,
David Hammelqul"
Cuacle, L. Hon""",
August 5, 2004
Ja,eph B. Jone,
Jame> P. Kaulman
Jcnnife' Reid Mahoney
Jame> G. Reid
Daniel V. Sleen,on
Allyn L. Sweeney
Ken Nguyen
The Land Group, Inc.
462 E. Shore Drive, Suite 100
Eagle, ill 83616
William F. Ringen. 01 Counsel
S,mue! Kaulman !!921~1986)
Re:
Request for License Agreement with Nampa & Meridian Irrigation District to
construct sewer line within the easement for the Ten Mile Drain.
Dear Ken:
Enclosed for review and signature are duplicate originals ofthe above-referenced License
Agreement which you requested on behalf of Gary Bates, Larry and Lisa Ross and the City of
Meridian.
Both originals ofthe Agreement must be signed and notarized as indicated by Mr. Bates, Mr.
and Mrs. Ross and the City of Meridian. Do not date the agreement. Ifboth originals are executed
and returned to me by August 11, 2004, I will be able to submit the agreement to the District's Board
of Directors for approval and signature at the Board's next meeting on August 17, 2004. The District
will then have its original recorded and return your original to you with a bill for our services in
preparing the agreement and the recording fees.
Please contact me if you have any questions.
Yours very truly,
~d~'
'~:¡~ce Farris
Enclosures
455 South Third Street. P.O. Box 2773 . Boise, Idaho 83701 . 2081342-4591 E'\X 3424657
,.
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this - day of ,2004, by and
among NAMP A & MERIDIAN IRRlGA TIONDISTRICT, an irrigation district organized and existing under
and by virtue of the laws of the State ofIdaho, party of the first part, hereinafterreferred to as the "District",
and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642; and
GARY D. BATES, a single man, and LAWRENCE A. ROSS AND LISA H. ROSS, husband and wife,
14]2 W. Idaho Street, Suite 110, Boise, Idaho 83702,
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
~!I~¡:;~HIH:
WHEREAS, Licensee is the owner of real property and/or right-of-way for a sanitary sewer line and
water line (burdened with the easement of the District hereinafter mentioned) particularly described in the
"Legal Description" attached hereto as Exhibit A and by this reference made a part hereof; and,
WHEREAS, the District owns the irrigation ditch or canal known as TEN MILE DRAlN (hereinafter
collectively referred to as "ditch or canal"), an integra] part of the District's irrigation works and system,
together with the easement therefor to convey irrigation water, operate, clean, maintain, and repair the ditch
or canal, and access the ditch or canal for those purposes; and,
WHEREAS, said ditch or canal and easement crosses Licensee's property and/or right-of-way as
shown on Exhibit B attached hereto and by this reference made a part hereof; and,
WHEREAS, the Licensee desires a license to engage in construction or activity affecting said ditch
or canal or the District's easement in its course across the lands of the Licensee in the manner and under the
tenns and conditions hereinafter set forth; and,
WHEREAS, the City of Meridian, by execution of this agreement, agrees to assume the maintenance
and operation of the sewer and water facilities constructed affecting said ditch or canal or the District's
easement in the manner and under the tenns and conditions hereinafter set forth after it provides final
approval, in writing, and to be bound by the terms and conditions of this agreement and the City of Meridian
agrees to assume the obligations and responsibilities as the Licensee which are imposed by this agreement
once it provides final approval of the construction and installation; and,
WHEREAS, it is necessary that the District protect absolutely its right to control any modification
or alteration of its watercourses and its right of way along its watercourses;
NOW, THEREFORE, for and in consideration ofthe premises and ofthe covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
.'
,: .
1. The Licensee shall have the right to modify the said ditch or canal or encroach upon the
District's easement along said ditch or canal in the manner generally described in the "Purpose of License"
attached hereto as Exhibit C and by this reference made a part hereof. Any modification of said ditch or
canal by the Licensee or encroachment upon the District's easement along said ditch or canal shall be
performed and maintained in accordance with the "Special Conditions" stated in Exhibit D, attached hereto
and by this reference made a part hereof.
2. This agreement pertains only to the Licensee's modification of said ditch or canal or
encroachment to the District's easement for the purposes and in the manner described herein. The Licensee
shall not change the location of the ditch or canal, bury the ditch or canal in pipe, or otherwise alter the ditch
or canal in any manner not described in this agreement without first obtaining the written permission of the
District.
3. Each facility ("facility" as used in this agreement means any object or thing of any nature
installed in or on the District's easement by the Licensee or the Licensee's predecessor in interest) shall be
constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense
of the Licensee.
4. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct
its activities within or affecting the District's easement so as not to constitute or cause:
a. a hazard to any person or property;
b. an interruption or interference with the flow of irrigation water in the ditch or canal
or the delivery of irrigation water by the District;
an increase in seepage or any other increase in the loss of water from the ditch or
canal;
the subsidence of soil within or adjacent to the easement;
any other damage to the District's easement and irrigation works.
c.
d.
e.
5. The Licensee agrees to indemnify, hold harmless, and defend the District from all claims
for damages arising out of any of the Licensee's construction or activity which constitutes or causes any of
the circumstances enumerated in the preceding paragraph, 4,a. through 4.e., or any other damage to the
easement and irrigation works which may be caused by the construction, installation, operation, maintenance,
repair, and any use or condition of any facility.
6. Licensee agrees that the work performed and the materials used in such construction shall
at all times be subject to inspection by the District and the District's engineers, and that final acceptance of
such work shall not be made until all such work and materials shall have been expressly approved by the
District. Such approval by the District shall not be unreasonably withheld.
7. The District reserves the right, at the District's option, to remove any facility installed by the
Licensee and to repair any alteration by the Licensee of said ditch or canal and the easement therefor which
does not comply with the terms of this agreement, and to remove any impediment to the flow of water in said
ditch or canal and any unsafe condition or hazard caused by the Licensee, at any time, and the Licensee
agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for
such purposes. If the Licensee shall fail in any respect to properly maintain and repair such facility, then the
District, at its option, and without impairing or in anywise affecting its other rights and remedies hereunder,
LICENSE AGREEMENT - Page 2
.. .
shall have the right to perform the necessary maintenance and repairs and the Licensee agrees to pay to the
District, on demand, the cost or expense which shall be reasonably expended or incuITed by the District for
such purposes. The District shall give reasonable notice to the Licensee prior to the District's performing
such maintenance, repair or other work except that in cases of emergency the District shall attempt to give
such notice as reasonable under the circumstances. Nothing in this paragraph shall create or support any
claim of any kind by Licensee or any third party against the District for failure to exercise the options stated
in this paragraph, and Licensee shall indemnify, hold harmless and defend the District from any claims made
against the District arising out of or relating to the terms of this paragraph except for claims arising solely
out of the negligence of the District.
8. Neither the terms of this agreement, the permission granted by the District to the Licensee,
the Licensee's activity which is the subject of this agreement, nor the parties exercise of any rights or
performance of any obligations of this agreement, shall be construed or asserted to extend the application
of any statute, rule, regulation, directive or otherrequirement, or the jurisdiction of any federal, state, or other
agency or official to the District's ownership, operation, and maintenance of its ditches, canals, drains,
iITigation works and facilities which did not apply to the District's operations and activities prior to and
without execution of this agreement. In the event the District is required to comply with any such
requirements or is subject to the jurisdiction of any such agency as a result of execution of this agreement
or the Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmless and defend the
District from all costs and liabilities associated with the application of such laws or the assertion of such
jurisdiction or, at the option of the District, this agreement shall be of no force and effect and the Licensee
shall cease all activity and remove any facility authorized by this agreement.
9. In addition to all other indemnification provisions herein, Licensee further agrees to
indemnify, hold harmless and defend the District from any injury, damages, claim, lien, cost and/or expense
(including reasonable attorney's fees) incurred by, or asserted against, the District by reason of the negligent
acts or omissions of Licensee or its agents, contractors or subcontractors in performing the construction and
activities authorized by this agreement.
10. The Licensee agrees that the District shall not be liable for any damages which shall occur
to any facility, structure, plant, or any other improvement of any kind or nature whatsoever which the
Licensee shall install on the said easement area of the District in the reasonable exercise of the rights of the
District in the course of performance of maintenance or repair of said ditch or canal. The Licensee further
agrees to suspend its use of the said easement area when the use of the easement area is required by the
District for maintenance or repair under this or any other paragraph of this agreement.
II. Licensee shall place no structures or landscaping of any kind above within the District's
easement area except as refeITed to in this agreement or exhibits hereto without the prior written consent of
the District.
12. Should either party incur costs or attorney fees in connection with efforts to enforce the
provisions of this agreement, whether by institution of suit ornot, the party rightfully enforcing orrightfully
resisting enforcement of the provisions of this agreement, or the prevailing party in case suit is instituted,
shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party.
13.
The parties hereto understand and agree that the District has no right in any respect to impair
LICENSE AGREEMENT - Page 3
.' ,
the uses and purposes of the irrigation works and system of the District by this agreement, nor to grant any
rights in its irrigation works and system incompatible with the uses to which such irrigation works and
system are devoted and dedicated and that this contract shall be at all times construed according to such
principles.
14. Nothing herein contained shall be construed to impair the right of way of the District in the
said ditch or canal and all uses of said ditch or canal by the Licensee and the license herein provided therefor
shall remain inferior and subservient to the rights of the District to the use of said ditch or canal for the
transmission and delivery of irrigation water.
IS. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
and conditions of this agreement, the license of the Licensee under the terms hereof may be terminated by
the District, and any facility, structure, plant, or any other improvement in or over said ditch or canal, and
the right of way therefor, which may impede or restrict the maintenance and operation of such ditch or canal
by the District with its equipment for the maintenance of its said ditch or canal may be removed by the
District.
16. The Licensee agrees to pay attorney fees or engineering fees charged by the attorney for the
District or by the engineers for the District in connection with the preparation of this License Agreement or
in connection with negotiations covering the terms and conditions of this License Agreement. Licensee also
agrees to pay any fees incurred in connection with the recording of this Agreement.
17. Nothing in this agreement shall create or support a claim of estoppel, waiver, prescription
or adverse possession by the Licensee or any third party against District.
18. This agreement is not intended for the benefit of any third party and is not enforceable by
any third party,
19. If any provision of this agreement is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, all remaining provisions of this agreement shall remain in full force and
effect.
20. The word "Licensee", if used in the neuter in this agreement, includes the masculine and
feminine genders, the singular number includes the plural, and the plural number includes the singular.
The covenants, conditions and agreements herein contained shall constitute covenants to run with,
and running with,.all of the lands ofthe Licensee described in said Exhibit A, and shall be binding on each
of the parties hereto and on all parties and all persons claiming under them or either of them, and the
advantages hereof shall inure to the benefit of each of the parties hereto and their respective successors and
assigns.
NAMP A & MERIDIAN IRRIGA nON DISTRICT
By
Its President
LICENSE AGREEMENT - Page 4
. ,
ATTEST:
Its Secretary
CITY OF MERIDIAN
By
ATTEST:
GARY D. BATES, a single man, and LAWRENCE A.
ROSS AND LISA H. ROSS, husband and wife
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Lawr~. Ross .-
. STATE OF IDAHO
County of Canyon
)
) ss:
)
On this - day of ,2004, before me, the undersigned, a Notary Public in
and for said State, personally appeared Henry Weick and Daren R. Coon, known to me to be the President
and Secretary, respectively, ofNAMP A & MERIDIAN IRRIGATION DISTRICT, the irrigation district that
executed the foregoing instrument and acknowledged to me that such irrigation district 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.
LICENSE AGREEMENT - Page 5
Notary Public for Idaho
Residing at , Idaho
My Commission Expires:
STATE OF IDAHO
)
)ss.
)
County of Ada
On this - day of , 2004, before me, the undersigned, a notary
public in and for said state, personally appeared and , known to
me to be the and , respectively, of the CITY OF MERIDIAN,
the political subdivision and municipality that executed the foregoing instrument, and acknowledged to me
that such entity 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.
Notary Public for
Residing at-,
My Commission Expires:
STATE OF IDAHO
)
)ss.
County of~tf1\... )
On this ~ day of J.l.LjÚcst ,2004, before me, the undersigned, a notary
public in and for said state, personally appeared GARY D. BATES, a single man, and LAWRENCE A.
ROSS AND LISA H. ROSS, husband and wife, known to me to be the individuals that executed the
foregoing instrument, and acknowledged to me that they 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. ~. 'Jf1 .~
Notary blic for ::n ~Irø
Residingat Si-ôr , ,;dalw.
My Commission Expires: 7- 3J.z-CXf1
LICENSE AGREEMENT - Page 6
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ADA COUI/I'Y RECORDfil J. DAVID NAVARRO
80lSE IDAHO UBIZllU4 12:59 PM
DEPUTY Bonnie OÞlrbllllg
~I~I~~:IED-REQU!ST OF 111111101111111/111111111111111 U III
AMOUI/I' 5.00 1040778131
Order No-: AO3192265T/KF
WARRANTY DEED
FOR VALUE RECEIVED,
PATRICK M. THACKER and JUD! B. TIiACKER, husband and wife, tile
Grnntors do hereby grant, bargain sell and convey unto GARY D. BATES, a single man
and LAWRENCE A. ROSS and USA H, ROSS, husband and wife whose current
address is 1412 W. Idaho Street Suite 110, Boise, ID 83702, the Grantee, the following
described premises, in Ada Cowrty, Idaho, TO WIT:
Thatpor!Îon of Lot I in SectionJ9, Township 3 North, Range I East, Boise Meridian,
Ada County, Idaho, more particularly described as folJows:
,------,------
Beginning at the brass cap marking the Northwest comer of said Lot I: thence
North 89°43'43" East 545.60 feet along the Northerly boundary of said Lot I to a point,
said point being the REAL POINT OF BEGINNING: thence
South 3°00'00" East 497.46 fect to an iron pin; thence
South 89°43'43" West 210,22 feet to an iron pin on the center line ofTen Mile Drain;
thence
North 17°38'40" West 520.65 feet along the said center line to a point on the Northerly
boundary of said Lot 1; thence
North 89°43'43" East 342.00 feet along the said Northerly boundary to the POINT OF
BEGINNING.
EXCEPTING THEREFROM:
A parcel ofland conveyed to Ada County Highway District by Warranty Deed recorded
October 4, 2002 as Instrument No. 102114824, being located In Government Lot I of
Section 19, Township 3 North, Range I East, Boise Meridian, Ada County, Idaho, more
particularly described as follows:
Commencing at a brass cap momU11ent marking the northwesterly comer of said
Government Lot I from which a 5/8 inch diameter iron pin marking ilie northeasterly
comer of said Government Lot I bears
North 89°43'25" East a distance of 1116.39 feet; thence
Exhibit A' page 1
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MI~HENER ImmENT~
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North 89'43'25" East along the northerly boundary of said Governmenl Lot 1 a distance
of203.45 feet to the POJNT OF BEGINNING; thence continuing
North 89°43'25" East a distance of 342.00 feel to a point; thence leaving said northerly
boundary
South 3°00'18" East a distance of 45.05 feet to a point; thence
South 89°43'25" West a distance of330.07 feet 10 a poinl; thence
North 17°38'58" West a distance of 47.15 feet to the POINT OF BEGINNING,
TO HAVE AND TO HOLD the said premises, with their appurn:nances unto the soid Grantee, his
heirs and assigus forever. And the saId Grantors do h=byeovenan[ to and with the .aid Grantee, that they
orelbe owners in fee .imple of said premi..s; that tbey ore free from all encumbronces EXCEPT: Subject
to all existing potem reservations, casements, right(s) oewoy, protective eovanants. zoning ordinances, and
applieabla building codas, laws and regulations, general taxes ond assessments, including irrigD1ion and
UtIlity ODSements (iCany) for the current year, which arc not due end payable, tU1d thct Grantors will warrant
end defend the some frem all ¡awfUl claims who"oever,
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udi B, Thacker
State ofIdaho
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County of Ada )
On this Lé.~~y of June 2004, before me, the undersigned a Notary Public in and for said state
personally appeared Palrlck M. Thacker and Judi B, Thaeker known to me or proved to me on
the basis of satisfactozy evidence to be the persons whose names are subscribed 10 the within
instrument and acknowledged to me that they executed the same.
IN~t my hand and official seal on the date shown above.
N/tazy Public ¿;f~~
CommissicnExpires: 10/'!5/' o,¿ I ~ ~\
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Exhibit A, page 2
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Ten Mile Drain in NW1/4, 5,19,
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Exhibit B
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EXHIBITC
Pumose of License
The purpose of this License Agreement is to permit Licensee to:
I. construct, install and maintain a sanitary sewer line within and across the District's
easement for the Ten Mile Drain,
all within or near Licensee's real property described in Exhibit A, Southern Springs No. I Subdivision,
located southeast of the intersection of Overland Road and Meridian Road in Meridian, Ada County, Idaho.
EXHIBIT D
SDecial Conditions
a. Construction shall be in accordance with certain plans consisting of two sheets: sheet Cl.O
entitled "Southern Springs No.1, Cover Sheet," bearing engineer's stamp dated July 13, 2004; and sheet
C3.0 entitled "Southern Springs No. I, Street Plan and Profile," bearing engineer's stamp dated July 13,
2004. These plans have been delivered to the District's water superintendent, are in his possession in his
offices, and are hereby incorporated by this reference.
b. Licensee shall notifY the water superintendent of the District prior to and immediately after
construction so that he or the District's engineer's may inspect and approve the construction.
c. The Licensee recognizes and acknowledges that the license granted in this agreement by the
District pertains only to the rights of the District as owner of an easement. The District has no right or power
to create rights in the Licensee affecting the holder of title to the property subject to the District's easement.
Any such rights affecting fee title must be acquired by the Licensee ftom the holder of title to the property.
Should Licensee fail to obtain such rights ftom the holder oftitle to the property or should the rights obtained
prove legally ineffectual, Licensee shall hold harmless, indemnifY and defend the District from any claim
by any party arising out of or related to such failure of rights and at the option of the District this agreement
shall be of no force and effect.
d. The parties expressly agrees that the City of Meridian shall not be considered the Licensee
under the terms of this agreement until the City of Meridian provides final approval, in writing, of the
construction and installation of the sewer line described in Exhibit C of this agreement and takes over the
operation and maintenance of said sewer line. Until such time as the City of Meridian provides final
approval in writing, the covenants, conditions and obligations of this agreement shall be binding upon Bates
and Ross, and their agents and successors in interest. At such time as the City of Meridian does provide final
approval of the construction and installation of the sewer line, the parties agree that Bates and Ross, shall
be released from any obligations, conditions or covenants of this agreement, and Bates and Ross, shall no
longer be considered the Licensee under the terms of this agreement.
e. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the Ten Mile Drain except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Ten Mile Drain is 100 feet, 50 feet to either
LICENSE AGREEMENT - Page 7
",'. .
side of the centerline.
f.
Construction shall be completed one year from the date of this Agreement. Time is of the
essence.
LICENSE AGREEMENT - Page 8
Know All Men by These Presents: That I lA6¡t
II~e ~ade, C. °r:¡'tit}lted, and appoi:d, and by these presents do make, constitute and. appoint_-
ItIIÙ,enœ IX ¡':n« 1~' , my true and lawful
attorney for and in my name, place and stead, and for my use and beuefit as follows:
SPECIAL POWER OF ATTORNEY
~I~
TO PRESERVE, MANAGE, LEASE, EXCHANGE, BUY OR SELL FOR CASH, CREDIT OR
CONTRACT, CONVEY, ENCUMBER BY MORTGAGE OR TRUST DEED, ALL UPON
SUCH TERMS AND CONDITIONS AS SHElHEffHEY SEE FIT, AS THE SAME PERTAIN
TO THAT CERTAIN REAL PROPERTY LOCATED AT 165 E. Overland Road, Meridiau.
Idaho, MORE P ARTICULARL Y DESCRIED AS FOLLOWS: (Continued)
and to sign, seal, execute, deliver and acknowledge such instruments in writiug of whatever kind aud
nature as may be necessary or proper in the premises.
Giving and granting unto said attorney full power and authority to do and perform and all every act
and thing whatsoever requisite and necessary to be done in and about the above stated premises, as fully to all
intents and purposes as the signer might or could do if personally preseut, and hereby ratifying and
coufirming all that said attorney shall lawfully do or cause to be done in the above state premises by virtue of
these preseuts.
/r2{11
IN WITNESS WHEREOF, I have hereunto set my band and seal this ~ day of {UIJr;
_,20~.
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STATE OF IDAHO
)
) ss
COUNTY OF ADA )
Ou this \ ,&'\-v.. day 0~1f'\E!... , 2004, before me, the undersigned, a Notary Public iu and. for said
State, personally appeared LI~ . \~ø ss , known to me to be tile person whose name is
subscribed to the within instmmentand who acknowledged to me that <;;I1I.L executed same.
IN WITNESS WHEREOF, I have hereunto set my haud and a IX
above written,
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