HomeMy WebLinkAboutLicense Agreement— - — — - - - — -Lynwood p
Ger1�.FIle
ADA COUNTY RECORDER J. DAVID NAVARRO 10
BOISE IDAHO 021i3104 10:10 AM
DEPUTY Bonnie Oberbillig
RECORDED -REQUEST OF
Nampa Meridian Irrigation Dist 1�401555
AMOUNT 30.00
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this&V day of , 200a, by and
among NAMPA & 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
OAKWOOD ENTERPRISES, LLC, an Idaho limited liability company,
114 E. Idaho Ave., Ste. 230, Meridian, Idaho 83642
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
WITNESSETH:
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 RUTLEDGE LATERAL (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 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, 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
terms and conditions hereinafter set forth; 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 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.
i�'
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;
C. an increase in seepage or any other increase in the loss of water from the ditch or
canal;
d. the subsidence of soil within or adjacent to the easement;
e. any other damage to the District's easement and irrigation works.
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 maybe 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
LICENSE AGREEMENT - Page 2
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 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
LICENSE AGREEMENT - Page 3
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.
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
B
Y
Its President
ATTEST:
Its Secretary
LICENSE AGREEMENT - Page 4
OAKWOOD ENTERPRISES, LLC,
an Idaho limited liability company
STATE OF IDAHO )
ss:
County of Canyon ) _,
On this 3"e'o day of , 200fbefore me, the undersigned, a Notary Public in and
for said State, personally appeared and Daren R. Coon, known to me to be the President and
Secretary, respectively, of NAMPA & 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.
N.
,#OTA*�.
�.4M
STATE OF IDAHO 'OGDL-G
)Ss. �i�tB 1D�+Ao
County of ado- ) ��
Notary Public for Idaho
Residing at ; Idaho
My Commission Expires: �z04
�- — `it &-
Onthis a� �� day of_,j lA.X1Uaf U . 200/, before me, the undersigned, a notary public
in and for said state, personally appeared hn a. Crude . known to me to be the jr
of OAKWOOD ENTERPRISES, LLC, the entity that executed the foregoing instrument, and ahl owledged
to me that such entity executed the same.
IN WITNES S WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
a OJXRY ••• #
•. .0
TA TE Of �'•••``P
''"...o... 00
LICENSE AGREEMENT - Page 5
�-L'J- a�
Notary Public for _Lo ttjj n
Residing at NO-M0 _ j>
My Commission Expires: T p9 -p,.4 -Qj
423 NJAnLes
ling No)-_ I West, L LC
PIace, Suite 180 Boise, Idaho 83704
Project No. 02-061-01
(208) 376-5000 . Fax (208) 376-5556
Date: March 5, 2003
HEARTLAND - CHERRY LANE COXIM[ERCAL
FINAL PLAT DESCRIPTION
A parcel of land located in the SE 1/4 of the SW 1/4 of Section 2, T. 3 N., R. 1 W., B-M.,
Meridian, Ada County, Idaho, more particularly described as follows:
Comrnencing at the section corner common to Sections 2, 3, 10 and l l of said T. 3 N.,
R. 1W.;
Thence South 88°38'31" East, 1326.75 feet on the section line common to said Sections 2
and I I to the southwest comer of the SE 1/4 of the SW 1/4 of said Section 2;
Thence leaving said section line, North 00°l7'24" East, 45.01 feet on the westerly boundary
line of the SE 1/4 of the SW Ii4 of said Section 2 to a point on the southerly right-of-way line of
West Cherry Lane, said point being the REAL POINT OF BEGINNING;
Thence North 00117'24" East, 299.00 feet on the westerly boundary line of said SE 1/4 of
the SW 1/4 to the southwest corner of Devlin Place Subdivision No. 2, as same is filed in Book 83
of Plats at Page 9136 of Ada County Records;
Thence South 89°42'36" East, 414.65 feet on the southerly boundary line of said Devlin
Place Subdivision No. 2 to the southeast comer of said Subdivision, said point also being on the
westerly boundary line of Sunnybrook Farms No. 1, a Subdivision; as same is filed in Book 44 of
Plats at Page 3609 of Ada County Records;
Thence South 00'17'24" West, 306.73 feet on the westerly boundary line of said
Sunnybraok Farms No. I to a point on the northerly right -of --way line of West Cherry Lane;
Thence North 88°38'31" West, 414.73 feet on the northerly right-of-way line of West
Cherry Lane, said line bainc parallel with and 45.00 feet northerly of the section line common to
slid ee. �;en.� 2 wnrd :1, - the :eal 11-1- - �zinuing. S'"_ P �cc1; : ^tams 2.88 acres more or less.
PREPARED BY:
Engi-veering NalrthWest, LLC
00
James R. Washburn, FLS
Exhibit A
Heartland -Cherry Lane Commercial Final Piat.doc. Page 1 of I
^ m Cl) J?
0Cr.3
MmriW
w _z
�OccD
I DOZ
Cn = C)
00 rn
Oco ---I
w O
J X
CD
-A '.0
r
C
Exhibit B, page 2
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
1. pipe a portion of the Rutledge Lateral; and
2. construct and install two buildings and building improvements within the District's
easement for the Rutledge Lateral,
all within Licensee's property described in Exhibit A, Lynwood Plaza Subdivision, located northeast of the
intersection of W. Cherry Lane Road and N. Ten Mile Road in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with certain plans consisting of two sheets: sheet 2
entitled "Lynwood Plaza Subdivision, Grading, Drainage and Pressure Irrigation Plan," bearing engineer's
stamp dated August 21, 2003; and sheet SP-1 entitled "Lynwood Plaza Subdivision, - Building No. 3,"
revision dated November 17, 2003. 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. Licensee acknowledges
that although indicated on the above -referenced plans, no trash enclosures are allowed within the District's
easement.
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 pipe, installation, and backfill shall, at a minimum, meet the requirements of the District
and 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 pipe is to be placed.
d. With respect to the piping of the Rutledge Lateral, the District shall continue to have the
right and responsibility for operation and maintenance of the Rutledge Lateral, however, Licensee shall be
responsible for operation, maintenance, and repair associated with the Licensee's piping of the Rutledge
Lateral, including rehabilitation orreplacement ofthe pipe, ditch and rehabilitation of the District's easement,
and the Licensee shall be responsible for any increased operation, maintenance and repair costs associated
with the Licensee's piping of the Rutledge Lateral, including any increased operation, maintenance and repair
costs associated with landscaping, trees and tree roots installed within the District's easement. Maintenance
shall include, but not be limited to, the removal and disposal of silt, gravel, plant material, and all trash and
debris which may accumulate in the ditch. Repairs shall include, but not be limited to, all repairs necessary
to preserve the structural integrity and unobstructed flow of water through the Rutledge Lateral and prevent
the unreasonable loss of water from the Rutledge Lateral. If the Licensee shall fail in any respect to properly
operate, maintain and repair such portion of the Rutledge Lateral, 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
LICENSE AGREEMENT - Page 6
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 or fault of the
District.
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 Rutledge 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 Rutledge Lateral is 40 feet, 20 feet to either
side of the centerline.
f Piping of the Rutledge Lateral shall be completed not later than March 15, 2004. All other
construction shall be completed within one year of the date of this agreement. Time is of the essence.
LICENSE AGREEMENT - Page 7