HomeMy WebLinkAboutEvans Development LLC Ridenbaugh Canal and Eight Mile Drain Movado Subdivision No. 6 LADATE: 17 OCTOBER 2019
TO: Sawtooth Law Offices, PLLC
FROM: NAMPA & MERIDIAN IRRIGATION DISTRICT
License, Easement, Project and/or Crossing Agreement(s)
Approved at Board Meeting 17 September and 1 October 2019
License Agreement
Syringa Networks, LLC
Creason Lateral and
Five Mile Drain
Instrument #2019-089387
Agreement
Meridian, City of
Eight Mile Lateral
Instrument #2019-089388
License Agreement
Evans Development, LLC
Ridenbaugh Canal and
Eight Mile Drain
Instrument #2019-089389
License Agreement
Qwest Corporation dba
CenturyLink
Perkins Drain
Instrument #2019-047592
License Agreement
EZELL, D. Allen and Larona R.
Orr Drain
Instrument #2019-047593
License Agreement
Intermountain Gas Company
Eagle Lateral
Instrument #2019-047594
Addendum to License Agreement
Lake Shore Drive Development, LLC
Ridenbaugh Canal
Instrument #2019-047595
License Agreement
Corey Barton
Ridenbaugh Canal and
Savage Lateral
Inctri imant *9n1 Q-n47I;QR
11 pages
9 pages
17 pages
7 pages
11 pages
5 pages
6 pages
17 pages
ADA COUNTY RECORDER Phil McGrane 2019_089389
BOISE IDAHO Pgs=17 NIKOLA OLSON 09/20/2019 09:1$ AM
NAMPA MERIDIAN IRRIG DIST NO FEE
11111111111111111111111111111111111111111111111111
0067637820/900893890170179
LICENSE AGREEMENT
This LICENSE AGREEMENT, is made and entered into this _�#day of 2019,
by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation distract organized and
existing under and by virtue of the laws of the State of Idaho, hereinafter referred to as the "District", and
EVANS DEVELOPMENT LLC, an Idaho limited liability company,
whose address is: 7761 W. Riverside Drive, Ste. 100, Garden City, Idaho 83714,
hereinafter referred to as the "Licensee",
WITNESSETH:
WHEREAS, the District owns the irrigation/drainage ditches or canals known as the RIDENBAUGH
CANAL AND EIGHT MILE DRAIN (hereinafter collectively referred to as "ditch or lateral"), an integral
pari of the irrigation and drainage works and system of the District, together with the easement therefor to
convey irrigation and drainage water, to operate, clean, maintain, and repair the ditch or lateral, and to access
the ditch or lateral for those purposes; and,
WHEREAS, the District operates, cleans, maintains, repairs and protects the ditch or lateral for the
benefit of District landowners; and,
WHEREAS, the Licensee is the owner ofreal property that is servient to the District's ditch or lateral
and easement, and is particularly described in the "Legal Description" and/or deeds allacbed hereto as
Exhibit A and by this reference made a part hereof; and,
WHEREAS, the ditch or lateral crosses and intersects the real property described in Exhibit A as
shown on Exhibit B, attached hereto and by this reference made a part hereof; and,
WIMREAS, the Licensee desires a license to cross, encroach upon or modify said ditch or lateral
and/or the District's easement under the terms and conditions of this License Agreement;
NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
A. Acknowledgment of the District's Easement.
1. Licensee acknowledges that the District's easement for the ditch or lateral includes a
sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the ditch
or lateral, and to access the ditch or lateral for said purposes, and is a minimum of 100 feet, 50 feet to either
side of the centerline for the Ridenbaugh Canal, and also includes the bank and slope which supports the
Ridenbaugh Canal and the District's easement therefor, and a minimum of 60 feet, 30 feet to either side of
LICENSE AGREEMENT - 1
the centerline for the Eight Mile Drain.
B. Scope of License
1. The Licensee shall have the right to modify the ditch or lateral or encroach upon the
District's easement along the ditch or lateral in the manner described in the "Purpose of License" attached
hereto as Exhibit C and by this reference made a part hereof.
2. Any crossing, encroachment upon or modification of the ditch or lateral and/or the District's
easement shall be performed and maintained in accordance with the "Special Conditions" stated in Exhibit
D, attached hereto and by this reference made a pari hereof. Any difference or discrepancy between the
items listed in Exhibit C, "Purpose of License," and any plans or drawings referenced in or attached to
Exhibit D shall be resolved in favor of Exhibit C. Licensee shall only be permitted to cross, encroach upon
or modify the ditch or lateral and/or the District's easement as described in Exhibit C even if any plans or
drawings referenced or attached to Exhibit D provide or show otherwise.
3. This License Agreement pertains only to the Licensee's crossing, encroachment upon or
modification of the ditch or lateral and/or the District's easement for the purposes and in the manner
described herein. The Licensee shal l 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 ditch or lateral except as referred to in this License Agreement without the prior written
consent of the District.
4. The Licensee recognizes and acknowledges that the license granted this License Agreement
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 License
Agreement shall be of no force and effect.
C. Facility Construction, Operation, Maintenance and Repair
1. Licensee agrees that the work performed and the materials used in any construction permitted
by this License Agreement shall at all times be subject to inspection by the District and the District's
engineers, and that final acceptance of the 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.
2. Each facility ("facility" as used in this License Agreement means any object or thing
installed by the Licensee on, over or in the vicinity of the District's easement) shall be constructed, installed,
operated, maintained, and repaired at all times by the Licensee at the cost and expense of the Licensee.
3. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct
LICENSE AGREEMENT - 2
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 or drainage water in the
ditch or lateral or the District's delivery of irrigation water;
C. an increase in seepage or any other increase in the loss of water from the ditch;
d. the subsidence of soil within or adjacent to the easement;
e. an interference with the District's use of its easement to access, operate, clean,
maintain, and repair the ditch or lateral;
f. any other damage to the District's casement and irrigation or drainage works,
4. 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, 3.a. through 31, or any other damage to the
easement and irrigation or drainage works which may be caused by the construction, installation, operation,
maintenance, repair, and any use or condition of any facility.
5. The Licensee shall, upon demand ofthe District, remove any facility or repair any alteration
of the District's casement which interferes with the District's operation and maintenance of the ditch or
lateral, or causes or contributes to any of the circumstances enumerated in the preceding paragraph, 3.a.
through 31, or any other damage to the easement and or drainage works. The District shall give reasonable
notice to the Licensee, and shall allow the Licensee a reasonable period of time to perform such maintenance,
repair, and other work, except that in cases of emergency the District shall attempt to give such notice as is
reasonable under the circumstances. The District reserves the right to perform any and all work which the
Licensee fails or refuses to perform within a reasonable period of time after demand by the District. The
Licensee agrees to pay to the District, on demand, the costs which shall be reasonably expended by the
District for such purposes. Nothing in this paragraph shall create or support any claim of any kind by the
Licensee or any third party against the District for failure to exercise the options stated in this paragraph, and
the 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
or fault of the District.
D. District's Rights Are Paramount
I . The Licensee understands and agrees that the ditch or lateral is a manmade channel that was
constructed and is used and maintained by the District for the exclusive purpose of conveying irrigation or
drainage water to lands within the District. As such, Licensee further acknowledges and agrees that the ditch
or lateral does not constitute a natural or navigable watercourse or stream.
2. The parties hereto understand and agree that the District has no right in any respect to impair
the uses and purposes of the irrigation or drainage works and system of the District by this License
Agreement, nor to grant any rights in its irrigation or drainage works and system incompatible with the uses
to which such irrigation or drainage works and system are devoted and dedicated and that this contract shall
be at all times construed according to such principles.
Nothing herein contained shall be construed to impair the ditch or lateral or the District's
LICENSE AGREEMENT - 3
easement, and all construction and use of the District's easement by the Licensee and the license herein
provided therefor shall remain inferior and subservient to the rights of the District to the use of the ditch or
lateral for the transmission and delivery of irrigation or drainage water.
4. The Licensee agrees that the District shall not be liable for any damages which shall occur
to any facility in the reasonable exercise of the rights of the District in the course of performance of
maintenance or repair of the ditch or lateral. The Licensee further agrees to suspend its use of the said
easement areas when the use of the easement areas is required by the District for maintenance or repair under
this or any other paragraph of this License Agreement.
5. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
and conditions of this License 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 the ditch,
and the right of way therefor, which may impede or restrict the maintenance and operation of such ditch or
lateral by the District with its equipment for the maintenance of the ditch or lateral shall be promptly
removed by the Licensee upon demand of the District.
E. Applicable Law and Jurisdiction Unaffected.
1. Neither the terms of this License Agreement, the permission granted by the District to the
Licensee, the Licensee's activity which is the subject of this License Agreement, nor the parties exercise of
any rights or performance of any obligations of this License 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
canals, drains, irrigation or drainage works and facilities which did not apply to the District's operations and
activities prior to and without execution of this License Agreement.
2. 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 License 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 License Agreement shall be of no force and effect and the Licensee shall cease
all activity and remove any facility authorized by this License Agreement.
F. Indemnification
1. 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 License Agreement.
G. Fees and Costs
The Licensee agrees to pay reasonable attorney fees and engineering fees charged by the
LICENSE AGREEMENT - 4
attorney for the District or by the engineers for the District in connection with the negotiation and preparation
of this License Agreement_
2. Should either party incur costs or attorney fees in connection with efforts to enforce the
provisions of this License Agreement, whether by institution of suit or not, the party rightfully enforcing or
rightfully resisting enforcement of the provisions of this License 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-
H.
ly
H. Miscellaneous
1. No Claims Created. Nothing in this License Agreement shall create or support a claim of
estoppel, waiver, prescription or adverse possession by the Licensee or any third party against the District.
2. Assignmcnt. Neither this License Agreement nor any agreement entered pursuant to this
License Agreement may be assigned or transferred without the prior written approval of the Parties, which
approval shall not be unreasonably withheld.
3. Amendment and Modification. Any amendment or modification of this License Agreement
must be in writing and signed by all parties to be enforceable.
4. Inte reted. This License Agreement shall be interpreted and enforced in accordance with
the laws of the State of Idaho. This License Agreement is not intended for the benefit of any third party and
is not enforceable by any third party.. If any provision of this License Agreement is determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this License
Agreement shall remain in full force and effect. The parties represent and warrant to each other that they
each have authority to enter this License Agreement. The catchlines or section headings herein set forth are
provided only for the convenience of the parties in locating various provisions of this License Agreement,
and are not intended to be aids in interpretation of any provision of this License Agreement with respect to
which the parties might disagree at some future time, and shall not be considered in any way in interpreting
or construing any provision of the License Agreement.
5. Binding Effect. The covenants, conditions and agreements herein contained shall constitute
covenants to run with, and running with, the real property described in 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.
6. Notices. Any and all notices, demands, consents and approvals required pursuant to this
License Agreement shall be delivered to the parties as follows:
Nampa & Meridian Irrigation District See page 1 for Licensee
5525 East Greenhurst
Nampa, ID 83686
LICENSE AGREEMENT - 5
Notices shall be deemed to have been delivered upon hand deposit in the United States mail as
provided above.
7, Counterparts. This License Agreement may be executed and delivered in counterparts, each
of which shall be deemed to be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the District has hereunto caused its name to be subscribed by its officers
first hereunto duly authorized by resolution of its Board of Directors and the Licensee has caused its name
to be subscribed, all as of the day and year herein first above written.
ATTEST:
Its Secretary
STATE OF IDAHO }
ss:
County of Canyon )
NAMPA & MERIDIAN IRRIGATION DISTRICT
By -
ts Presider - - —
�FFIC�AL
06
d
On this day of&VIM
d; 2019, before me, the undersigned, a Notary Public in
and for said State, personally appeared Donald Barksdale and Daren 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.
otary :�blic for o
ResidinIdaho
CHANEI`GRANT My Commission Expires: 6k gt�K
COMMISSION #63457
NOTARY PUBLIC
STATE OF IDAHO
LICENSE AGREEMENT - 6
EVANS DEVELOPMENT LLC, an Idaho limited liability
company,
By
STATE OF IDAHO )
)ss.
County of Q' }
On this i daype t,1 , 20
forsaid state, personally appeared
before me, the undersigned, a notary public in and
ared known to me to be the
of EVANS DEVELOPMENT LLC, the entity that executed the foregoing instrument, and ac l iowledged to
me that said 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
0... Residing t,S�
-
`.•�.•'�0�DA ng at
..«•�5�� My Commission Expires:_ 5
_
PUBLIC
•� OF
LICENSE AGREEMENT - 7
Sawtooth Land Surveying, LLC
P: (208) 398-8104 F. (208) 398-5 r 05
2030 5 Washington Ave., Emmett: ID 83G r 7
Movado 6
Boundary Legal Description
June 19, 2019
A parcel of land located in the E1/2 of Section 21, T. 3 N., R. 1 E., B.M., City of Meridian, Ada
County, Idaho, more particularly described as follows;
COMMENCING at a brass cap marking the N1/4 corner of said Section 21;
Thence South 0011'04" West, coincident with the West line of the NE1/4 of said section 21, a
distance of 2502.84 feet;
Thence leaving said West line of the NEI/4 of Section 21, South 89048'56" East, 1233.00 feet
to a 5/8" rebar PLS 14221 marking the southeast corner of Movado Subdivision No. 3, as
shown on file in Book 112 of Plats, at Page 16387 through 16389, Ada County Records and the
northeast corner of Movado Subdivision No. 4, as shown on file in Book 115 of Plats, at Page
17224 through 17226, Ada County Records, and the POINT OF BEGINNING;
Thence coincident with the east boundary line of said Movado subdivision
No. 3, the following courses and distances to 5/8" rebar, PLS 14221:
North 0111'04" East, 422.46 feet to the south right of way line of East Goldstone Drive;
North 27050'59" East, 44.00 feet to the north right of way line of said East Goldstone Drive
and the beginning of a non -tangent curve to the left;
27.52 feet coincident with the arc of said curve and said north right of way line of East
Goldstone Drive, having a central angle of 4018'27`, a radius of 366.00 feet, subtended by a
chord which bears, North 64018'15" West, 27.51 feet;
Thence leaving said north right of way line and non -tangent to said curve,
North 35016'51" East, 162.65 feet to the northeast corner of said Movado Subdivision No. 3,
which is coincident with the centerline of Eight Mile Creek, which bears, North 35°1651" East,
40.00 feet from a 5/8" rebar, PLS 14221, witness corner;
Thence leaving said east boundary line of said Movado Subdivision No. 3,
South 54043'09" l=ast, coincident with said centerline of Eight Mile Creek, 165.49 feet to the
beginning of a tangent curve to the left from which a reference monument bears
South 35016'51" West, 40.00 feet to a 5/8" rebar PLS 14221;
N2018118409-100VADO 615urveylDrawingslDescriplions118409FP BNDRY docx
Page 11
Exhibit A, page 1
Thence 204.17 feet coincident with the arc of said curve and said centerline of Eight Mile
Creek, having a central angle of 63°13'56", a radius of 185.00 feet, subtended by a chord
which bears, South 86120'07" East, 193.96 feet, which bears, North 24044'29" East, 40.05 feet
from a 5/8" rebar, PLS 14221, witness corner;
Thence leaving said centerline of Eight Mile Creek and non -tangent to said curve,
South 24044'29" East, 40.05 feet to a 5/8" rebar, PLS 14221;
Thence South 36032'49" East, 121.97 feet to a 5/8" rebar, PLS 14221;
Thence South 41014'59" East, 44.00 feet to a 5/8" rebar, PLS 14221, marking a non -tangent
curve to the right and said south right of way of East Goldstone Drive;
Thence 13.78 feet coincident with the arc of said curve, having a central angle of 202706", a
radius of 322.00 feet, subtended by a chord which bears, South 49°58'34" West, 13.78 feet to
a 5/8" rebar, PLS 14221;
Thence non -tangent to said curve, South 13037'04" East, 89.91 feet to a 5/8" rebar, PIS
14221;
Thence South 0011'04" West, parallel with said west line of the NE1/4 of Section 21, a
distance of 407.14 feet to a 5/8" rebar, PLS 14221;
Thence South 83042'30" East, 4.71 feet to a 5/8" rebar, PLS 14221;
Thence South 601.7'30" West, 207.03 feet to the centerline of the Ridenbaugh Canal, which is
coincident with the north boundary line of Muir Woods Subdivision No. 1, as shown on Ole in
Book 80 of Plats, at Page 8553 through 8554, Ada County Records, which bears
South 6111730" West, 50.02 feet from a 5/8" rebar, PLS 14221, witness corner;
Thence North 84003'21" West, coincident with said centerline of the Ridenbaugh Canal, and
said north boundary line of Muir Woods Subdivision No. 1, a distance of 526.32 feet to the
southeast corner of said Movado Subdivision No. 4, which bears South 0011'04" West, 53.76
feet from a 5/8" rebar PLS 14221, witness comer;
Thence leaving -said centerline of the Ridenbaugh Canal and said north boundary line of Muir
Woods Subdivision No. 1, North 0011'04" East, coincident with the east boundary of said
Movado Subdivision No. 4, a distance of 204.52 feet to a 5/8" rebar, PLS 14221;
Thence North 89°48'56" West, coincident with said east boundary of Movado Subdivision No.
4, a distance of 7.00 feet to a 5/8" rebar PLS 14221;
Thence North 0011'04" East, coincident with said east boundary of Movado Subdivision No. 4,
a distance of 120.00 feet to the POINT OF BEGINNING.
The above described parcel of land contains 10.53 acres more or less. lht�
c
P:12o18118409-MOVADO61Surveyk0rawingslDescriptions%18409FP BNDRY.docx
Page 12
L...0 -L -L
EXHIBIT B
Location of PronertvlDitch
See Exhibit D-1 attached hereto.
EXHIBIT -C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
1. construct and install a 10 foot wide asphalt pathway within the District's easement for the
Eight Mile Drain;
2. construct and install landscaping consisting of grass, sprinklers, small shrubs and class 1
ornamental trees within the District's easement for the Eight Mile Drain (any trees and
shrubs must be located on the south side of the proposed pathway and only grass shall be
allowed between the pathway and the Eight Mile Drain); and
3. excavate adjacent to the Ridenbaugh Canal for the purpose of allowing Licensee to construct
and install building lots, residences and other improvements for Movado No. 6 Subdivision
adjacent to the Ridenbaugh Canal,
all within Licensee's real property described in Exhibit A, Movado Subdivision No. 6, located southwest of
the intersection of Overland Road and Cloverdale Road in Ada County, Idaho. No other construction or
activity is permitted within or affecting the Eight Mile Drain, Ridenbaugh Canal or the District's easements.
EXH BIT D
SSuccial Conditions
a. The construction described in Exhibit C shall be in performed in accordance the plans
attached hereto as Exhibit D-1 and by this reference incorporated herein.
b. Licensee shall notify the District's Superintendent prior to and immediately after
construction so that he or the District's engineers may inspect and approve the construction.
C. Licensee acknowledges and agrees that should the pathway, landscaping or other
encroachments need to be removed in order for the District to access, operate, maintain or repair the Eight
Mile Drain, it shall be Licensee's obligation and cost of removing or replacing the pathway, landscaping
and/or encroachments. Licensee further agrees that the District shall not be liable for any damages which
shall occur to the pathway, landscaping or other encroachments in the reasonable exercise of the rights of
the District in the course of performance of maintenance or repair of the Eight Mile Drain.
d. 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 casement.
LICENSE AGREEMENT - 8
e. Licensee acknowledges and agrees that should any seepage, loss of water, subsidence of soil
or other damage occur as a result of the excavation adjacent to the Ridenbuagh Canal or the removal of said
bank then Licensee 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 excavation or removal of the bank. Licensee further acknowledges and agrees
should any seepage, loss of water, subsidence of soil or damage occur as a result of the removal of said bank
that the repairs to the Ridenbaugh Canal, as determined at the discretion of the District, may include concrete
lining the portion of the Ridenbaugh Canal which has been excavated and Licensee will be responsible for
all costs incurred in doing so.
f. Construction and installation of the pathway, landscaping and other encroachments shall
be completed within one year of the date of this Agreement. Time is of the essence.
LICENSE AGREEMENT - 9
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