HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Finch Lateral
City of Meridian
Public Works Dept.
RECEIVED
JUN 1 4 2005
Memo
City Of Meridian
City Clerk Office
To: Mayor de Weei'd & City Council
From: Brad Watson, P.E.
CC: File, City ClerK
Date: 6/14105
Re:
June 21, 2005 City Council Meeting Agenda Item
The Public Works Department æspectfully requests that the following item be placed on the
June 21 City Council agenda, on the Consent Agenda, for Council's consideration:
Three cartv License Aereement with Namoa & Meridian Irrieation District - Finch Lateral (aka
South SIouah. This agreement is for a new sanitaly sewer main to serve the serve Vallin
Court Subdivision southwest of the intersection of Ustick Road and N Meridian Rd. This is a
three party agreement between the Nampa & Meridian Irrigation District, Woodside
Properties LLC, and the City of Meridian. The purpose of this agreement is to delineate the
responsibilities among the parties during and after construction. During the construction
period the agreement is between the NMID and Woodside Properties LLC, and upon the final
acceptance of the main by the City of Meridian, the developer drops out of the agreement,
and the City becomes the Licensee. This will wt out a necessary step of having to re-license
the crossing to the City of Meridian once it is complete.
Recommended Council Action: Approve the license agreement wiith
Nampa & Meridian Irrigation District, Woodside Properties LLC and the
City of Meridian, and authorize the Mayor to sign and City Clerk to
attest.
Thank you for your consideration.
. Page 1
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this - day of , 2005, by and
among NAMP A & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing under
and by virtue of the laws of the State of Idaho, party of the first part, hereinafter referred to as the "District",
and
WOODSIDE PROPERTIES, LLC, an Idaho limited liability company,
1282 Braemere Road, Boise, Idaho 83702
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
1YIItlE.s..s.EIH:
WHEREAS, Licensee is the owner of real property (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 ditch or canal known as the FINCH LATERAL (aka South
Slough) (hereinafter referred to as "ditch or canal"), an integral part of the District's irrigation works and
system, together with the easement therefor to convey irrigation and drainage 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 and intersects Licensee's real property as
shown on Exhibit B attached hereto and by this reference made a part hereof; and,
WHEREAS, Licensee desires a license to approve existing construction or activity or engage in new
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 terms and conditions hereinafter set forth; and,
NOW, THEREFORE, for and in consideration of the premises and of the 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 anyway affecting its other rights and remedies hereunder,
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 incurred 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.
LICENSE AGREEMENT - Page 2
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 other requirement, 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,
irrigation 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.
11. Licensee shall place no structures, pathways or landscaping of any kind above or within the
District's easement area except as referred to in this agreement or exhibits hereto without the prior written
consent of the District. Nor shall Licensee permit, authorize or grant any other person or entity to excavate,
discharge, construct or place any structures, pathways or landscaping within the District easement 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 or not, the party rightfully enforcing or rightfully
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
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
LICENSE AGREEMENT - Page 3
transmission and delivery of irrigation water.
15. 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 of the 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.
NAMPA & MERIDIAN IRRIGATION DISTRICT
By
Its President
ATTEST:
Its Secretary
LICENSE AGREEMENT - Page 4
WOODSIDE PROPERTIES, LLC, an Idaho limited
liability company,
J ;1~t')(¡
[.V~~.
STATE OF IDAHO
)
) ss:
)
County of Canyon
On this - day of , 2005, before me, the undersigned, a Notary Public in
and for said State, personally appeared Monte S. Janicek and Daren R. Coon, known to me to be the
President and Secretary, respectively, ofNAMPA & 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.
Notary Public for Idaho
Residing at
My Commission Expires:
, Idaho
STATE OF IDAHO )
)ss.
County of MIL )
On this ¡pÉday of Ju...L.-/ , 2005,bef e me, the undersigned, à notary
public in and for said. state, personally appeared r' known to me to be the
tJitLil&4/IICl /}t$.~f WOODSIDE PROPERTIES, LLC, e entity that executed the foregoing
instrumeht, ánd acknowledged to me that said entity executed the same.
IN WITNESS WHEREOF, I have hereunto set
and year in this certificate first above written.
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LICENSE AGREEMENT - Page 5
2.2005
5:06PM
EARL & ASSOCIATES
NO. 127
P.2
.'B.uu.. 8&808. & "'A8A8Z.D. 1110..
. PROFESSIONAL ENGINEERs, LAND SlJRVEYORS & PL4NNERS
. 314BADIOLi\STREET
.'. .CALDWELL, IDAHO 836~
TELEPHONE: (2,08) 454-0256
FAX: (208) 454-0979
ElI1ail: rgray@emllods.oet
FOR: Jeff Wood
JOB NO.: mO703
DATE: October 07, 2004
RE: VaIJin Courts Subdivision
PROPERTY DESCRIPTION
:\. parcelofland being a portion of the NE 114 of Section 1, Township 3 North, Range 1 West,
. j1oise Meridian, Ada County Idaho, more particularly described as follows:
Commencing at the NW comer of said NE 114, (North 1/4 comer), said comermoII1lIIleIlted with a
found 3 inch diameter bmss cap;
Thence S. 0" 06' 23" W., a distance of990.00 feet along the westerly boundary of said NE 1/4 to a
point;
Thence S. 890 20' 35" E., a distance of20.00 fi:ct pma,Ilel with the northerly boundary of said
.NE 114 to the POINT OF BEGINNING, said point mnnnmenff>d with a 5/8 inch diameter iron
¡,.,in;
. 'hence continuing S. 89" 20' 35" E., a distance of 640.00 feet parallel with the northerly boundary
,¡{ said NE 114 to a fotmd 5/8 inch diameter iron pin;
'Jihence N. 00 06' 23" E, a distance of 56.60 feet parallel with the westerly boundary of said
~iE 1/4 to a found 5/8 inch diameter iron pin;
thence S. 89° 20' 35" E., a distance of266.87 feet, (fonnerly 264 feet), parallel with the northerly
doundary of said NE 114 to tlte NW boundary comer of SalisbUl}" Lane SubdiviSion as on file in
Book 80 of Plats at Pages 8677 and 8678 in the Office of the Recorder of Ada County, Idaho, said
éomer is monumented with II fc;lUnd 5/8 inch diameter iron pin;
Thence along the westerly boundary of said Salisbury Lane Subdivision, S. 00 IS' 53" W ~ Ii
distance of 381.41 feet, (fmmer1y 381.06 fi:ct), to the SW boUlldary comer of said Salisbury Lane
~ubdivision, said comer also being the NW boundary comer ofLansbury Lane Subdivision as on
~]e in Book 64 ofP1aœ at Pages 6499 and 6500 in 1he Office of the Recorder of Ada County,
i~1aho, and is mon1lTn<m!M with a found 5/8 inch diameter iron pin;
. ithence along the westerly boundary of said Lansbmy Lane Subdivision, S. 0" 15' S3" W., a
.:trta.nce of 350.21 feet, (formedy 350.19 feet), to the SW bo1JD.C!my corner of said Lansbury Lane
:'i'~1bdivision. said corner monume.nted with. a 5/8 inch diameter iron pin;
>;
:I'
Exhibit A, page 1
t.
~
~ '
2. 2005
5: 07PM
EARL 8. ASSOCIATES
NO. 127 ,- P.3--- ---
-,
EARl., MAsoN &: STANl1ŒLÐ INc..
"M~ 1iNsrNEBRs, ÚNIJ SuRI-7mIJ/S, & l"LUtNEl1s
'~age2 orz
,alliaCour1sBouuolmy
Thence along the soUtherly boundary of said LansbUIy Lane Subdivision, S. 88° 43' 08" E., a
distance of29.88 feet to the NW comer of Clearbrook Estates Subdivision as on file in Book 90 of
Plats at Pages 10435 and 1O436:in the Office of the Recorder of Ada County, Idaho, said comer
l1J.oIlllIllented with a 5/8 inch diameter iron pin;
Thence along the westerly boundary of said Clearbrook Estates Subdivision. S. OC 15' 49" W., a
distaDce of296.06 feet, (formerly 296.51 feet) to the SE boundary comer of said Clearbrook
Estates SubdiVÌSÍOIl, said comer also being the northerly boundary ofWaterbmy Park No.4
Subdivision as on file in Book: 66 of Plats at Pages 6862 and 6863 in the Office of the Recorder of
Ada County, Idaho, and is nwnumented with a 5/8 inch diameter iron pin;
Thence along the northerly boundary of said Waœrbury Park: No.4 Subdivision the following
d,ourses and distances:
'¡
;:11ence N. 89" 30' 30" W., a distance of29.02 feet to a 5/8 inch diame\:er iron pin;
Thence S. I" 01' 04" W., a distance of19.86 feet to a point, said pointwimessed N. 1" 01' 04" E.,
il distance of 19.86 feet with a 518 inch diameter iron pin;
Thence N. 89" 13' 31" W., a distance of353,70 feetTÞapoint, saidpointreferencedN. 11" 45' 34"
E., a distance of 40. 75 feet with a 5/8 inch dîamerer iron pin;
Thence N. 67" 15' 21" W., a distance of157.00 feet to a point, saidpointreferencedN. 19" 38' 46"
E., a distaDce of 20.03 feet with a 5/8 inch diameter iron pin;
:bence N. 73° 27' 07" W., a disœnce of372.40 fuetto the NW boundary comer of said Waterbury
j"axk No.4 Subdivision, said comer also being the NE boUDdary comer ofWaterbu¡y Park No.5
~ubdivision as on file in Book 73 ofP1ats at Pages 7507 and 7508 in the Office of the Recorder of
l~(ia Coun1y, Idaho, and is referenced N. 15° 08' 02" E" a distance of20.01 feet with a 5/8 inch
f;,ameter irem pin;
~'!Jence N. 76° 16' 49" W., a ctistanœ of 45.04 tèet along the northerly boundary of said Waterbury
f'!l3I'k No.5 Subdivisionto apoint, said point witnessed N. 0" 06' 23" E., a distance of 41.16 feet
j ;ith a 5/8 inch diatneter iron pin;
Thence leaving the northerly boundaty of said Waterbury Park: No.5 Subdivision, N. 0° 06' 23" E.,
a distance of 102.46 feet paraIte1 with the westerly boundary of said NE 1/4 to a 5/8 inch diameter
iron pin;
Thence N. 65" 45' 53" W., a distance of 5.48 feet to a 5/8 inch diameter iron pin;
'{hence N. 0" 06' 23" E., ad.istanceof714.81 feet parallel with the westerly boundary of said
f+~ 1/4 to the POINT OF BEGINNING.
c'
fHs parcel contains 19.94 acres more or less.
- ..
:'o,'so, this parcel is SUBJECT TO all easements and righ:ts.of-wæj of record ûi implied.
, Exhibit A, page 2
j':
..... . .... --,
- - ~ finch L8n11*a 801M! Slough) I
.. in NE114r S.1rTJNr R1V( 8.M., I
Ada- kWIO~1994)J
Exhibit B
EXIDBIT C
Puroose of License
The purpose of this License Agreement is to permit Licensee to:
1. construct and install a ten foot asphalt pathway within the District's easement;
2. construct and install a chain link fence and wood fence on each side of said pathway and
within the District's easement; and
approve of the prior construction and installation of a sewer line across and under the Finch
Lateral and parallel to the Finch Lateral and within the District's easement,
3.
all within or near Licensee's property described in Exhibit A, YaIlin Courts Subdivision, located southwest
of the intersection of Ustick Road and Meridian Road in Meridian, Ada County, Idaho.
EXIDBIT D
Soecial Conditions
a. Construction shall be in accordance with certain plans consisting of two sheets: sheet 1 of
1 entitled "Yallin Courts Subdivision, Landscape Plan," revisions dated April 26, 2005; and sheet 4 of 20
entitled "Yallin Courts Subdivision, Offsite Sewer," bearing engineer's stamp dated January 14, 2005. 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 engineers may inspect and approve 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 from the holder of title to the property.
Should Licensee fail to obtain such rights from the holder of title 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. Licensee represents that Licensee has complied with all federal, state or other laws, rules,
regulations, directives or other requirements in any form regarding environmental matters,. as may be
applicable under the subject matter, terms or performance of this agreement broadly construed. Licensee
recognizes its continuing duty to comply with all such requirements that now exist or that may be
implemented or imposed in the future. By executing this agreement the District assumes no responsibility
or liability for any impact upon or degradation of water quality or the environment resulting from the
discharge or other activity by Licensee which is the subject of this agreement.
e. Licensee hereby indemnifies, holds harmless and shall defend the District from any and all
penalties, sanctions, directives, claims or any action taken or requirement imposed by any party or entity,
public or private, with respect to environmental matters relating to the subject matter, terms or performance
LICENSE AGREEMENT - Page 6
of this agreement unless the District shall be solely responsible for the condition or activity which gives rise
to any such penalty, sanction, directive, claim, action or requirement.
f. In the event the District is required by any governmental authority to acquire or comply with
any permit or other operational requirements associated with Licensee's activity which is the subject of this
agreement, Licensee shall indemnify, hold harmless and defend the District form all costs and liabilities
associated with such permit and other requirements, including but not limited to all costs associated with all
permit acquisition, construction, monitoring, treatment, administrative, filing and other requirements.
g. The parties to this agreement recognize this license agreement is an accommodation to
Licensee. The District by this agreement does not assume, create, or exercise legal or other authority, either
express or implied, to regulate control, or prohibit the discharge or contribution of pollutants or contaminants
to the District's facilities or to any groundwater, waters of the State of Idaho or the United States, or any
other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental
environmental agencies.
h. The pathway constructed by Licensee within the District's easement, and permitted by this
Agreement, shall be operated and maintained by the City of Meridian. An express condition of this
Agreement, and the District permitting said pathway within its easement, is that the City of Meridian enter
an Agreement with the District in which it assumes operation, control and maintenance of the pathway. If
the City of Meridian declines to accept the pathway and enter into said Agreement then said pathway is no
longer authorized within the District's easement.
i. The fence to the south of the pathway shall be chain link. The following shall apply if
either of the fences are now or in the future in whole or in part constructed of wood or plastic: Because of
the location of the fence and the fact that the fence will be constructed wholly or partly of wood or plastic,
the District shall not be responsible for weed control in the area of the fence and gates. Without affecting
the foregoing exemption of the District from weed control obligations, Licensee hereby indemnifies, holds
harmless and shall defend the District from any claims for damages to said fence because of weed-burning
except where the District intentionally burns the fence or is guilty of gross negligence in burning the fence.
j. 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 Finch Lateral except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Finch Lateral is 80 feet, 40 feet to either side
of the centerline.
k. Construction shall be completed not later than one year from the date of this agreement.
Time is of the essence.
LICENSE AGREEMENT - Page 7