HomeMy WebLinkAboutNMID Agreement Right-of-way/easement Gander Creek North Subdivision/Five Mile Creek No. 1 (sent for signatures 9-8) DATE: 07 October 2021
TO: Sawtooth Law Offices, PLLC
FROM: NAMPA & MERIDIAN IRRIGATION DISTRICT
License, Easement, Project and/or Crossing Agreement(s)
Approved at Board Meeting of 21 September 2021
Agreement 5 pages
The City of Meridian
Five Mile Drain
Instrument#2021-144220
License Agreement 15 pages
Biltmore Company. LLC
Five Mile Drain
Instrument#2021-144221
License Agreement 13 pages
Quest Corporation dlb/a CenturyLink QC
Ten Mile Drain and
Ten Mile Stub Drain
Instrument#2021-144222
Addendum License Agreement 5 pages
Peterson Children Maple Grove, LLC
Colles Lateral
Instrument#2021-144223
License Agreement 14 pages
Wadsworth Meridian, LLC
Milk Lateral
Instrument#2021-144224
License Agreement 7 pages
Intermountain Gas Company
McFadden Drain
Instrument#2021-144225
Ninth Addendum to License Agreement 5 pages
Sorrento Lactalis, INC
Purdam Drain
Instrument#2021-068901
License Agreement 17 pages
OE Development, LLC
Burke Canal
Instrument#2021-068902
ADA COUNTY RECORDER Phil McGrane
BOISE IDAHO Pgs=15 NIKOI,a OLSON 20 1
NAMPA MERIDIAN IRRIG DIST 10104/2021 01:58 1:58 P PM
NO FEE
1111111111111111111111111111111111111111111111111
01063549202101442210160153
LICENSE AGREEMENT
This LICENSE AGREEMENT, is made and entered into this U day of , 2021,
by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and
existing under and by virtue of the laws of the State of Idaho, hereinafter referred to as the "District",and
BILTMORE COMPANY, LLC,an Idaho limited liability company,
Whose address is: 1580 Cayuse Creek Dr., Meridian, Idaho 83646,
hereinafter referred to as the"Licensee",
WITNESSETH:
WHEREAS, the District owns the drainage ditch or drain known as the FIVE MILE DRAIN,
(hereinafter sometimes referred to as"ditch or drain"),an integral part of the irrigation and drainage works
and system of the District,together with the easement and/or fee title property therefor to convey irrigation
and drainage water,to operate,clean,maintain,and repair the ditch or drain,and to access the ditch or drain
for those purposes (in some locations along this portion of the Five Mile Drain the District owns real
property in fee title); and,
WHEREAS,the District operates,cleans,maintains,repairs and protects the ditch or drain for the
benefit of District landowners; and,
WHEREAS,the Licensee is the owner of real property that is servient to the District's ditch or drain
and fee title property and/or easement,and is particularly described in the"Legal Description"and/or deed
attached hereto as Exhibit A and by this reference made a part hereof; and,
WHEREAS, the ditch or drain 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,
WHEREAS, the Licensee desires a license to cross,encroach upon or modify said ditch or drain
and/or the District's fee title property and/or 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 Property/Easement.
1. In the locations referenced herein and where Licensee proposes construction,the District
owns fee title to a portion of the real property along and adjacent to the Five Mile Drain. To the extent the
District does not own the property in fee, Licensee acknowledges that the District's easement for the Five
Mile Drain includes a sufficient area of land to convey irrigation and drainage water, to operate, clean,
LICENSE AGREEMENT- I
maintain and repair the ditch or drain,and to access the ditch or drain for said purposes,and is a minimum
of 100 feet,50 feet on either side of the centerline of the ditch or drain facing downstream.
B. Scope of License
1. The Licensee shall have the right to modify the ditch or drain or encroach upon the District's
property/easement along the ditch or drain 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 drain 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 part 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 drain and/or the District's property/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 drain and/or the District's property/easement for the purposes and in the manner
described herein. The Licensee shal I not excavate,discharge,place any structures,nor plant any trees,shrubs
or landscaping within the District's property/easement,nor perform any construction or activity within the
District's property/easement for the ditch or drain except as referred to in this License Agreement without
the prior written consent of the District.
4. With respect to the District's ownership of an easement for the ditch or drain, 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 property/easement)shall be constructed,
installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense of the
LICENSE AGREEMENT-2
Licensee.
3. Licensee agrees to construct,install,operate,maintain and repair each facility and conduct
its activities within or affecting the District's propertyreasement 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 drain 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 property/easement;
e. an interference with the District's use of its property/easement to access,operate,
clean,maintain, and repair the ditch or drain; and
f. any other damage to the District's property.'easement 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 3.f., or any other damage to the
property 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 of the District,remove any facility or repair any alteration
of the District's property/easement which interferes with the District's operation and maintenance of the ditch
or drain,or causes or contributes to any of the circumstances enumerated in the preceding paragraph,3.a.
through 3.f.,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 oftime 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
l. The Licensee understands and agrees that the ditch or drain 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 drain 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
LICENSE AGREEMENT- 3
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.
3. Nothing herein contained shall be construed to impair the ditch or drain or the District's
easement, and all construction and use of the District's property/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 drain 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 drain. The Licensee further agrees to suspend its use of the said
property/easement when the use ofthe property/easement 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
drain by the District with its equipment for the maintenance of the ditch or drain 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
drains,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.
LICENSE AGREEMENT- 4
G. Fees and Costs
1. The Licensee agrees to pay attorney fees and engineering fees charged by the 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. 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. Assignment. 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. Interpreted. 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:
LICENSE AGREEMENT - 5
Nampa& Meridian Irrigation District See page 1 for Licensee
5525 East Greenhurst
Nampa, ID 83686
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.
NAMPA&MERIDIA IRRIGATION ISTRICT
By
Its resident
ATTEST:
-A-AA-1.� --O"44�v
Its Sec tary
STATE OF IDAHO )
ss:
County of Canyon )
On this day of , 2021,before me,the undersigned,a Notary Public in
and for said State, personally appeared Clinton C. Pline and Michael Comeskey, 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. immsymm
S Notary Public for Idaho
Glp; ••••�'��p'• Residing at uarr�� , Idaho
**1'•IOTA R f,% My Commission Expires: 9, ZOV)
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LICENSE AGREEMENT- 6
BePAJY,LLC,an Idaho limited liability
c
Br_ Its:
STATE OF IDAHO }
)ss.
County of )
On this,1§ y of ,2021,before me,the undersigned,a notary public in and
for said state,personally appeared known to me to be the i
of BILTMORE COMPANY,LLC,the entity that executed the foregoing instrument,and acknovedged to
me that said entity executed the same.
IN WITNESS WHEREOF,I have hereunto set my h and affixed my offic' seal,the day and year
in this certificate first above written.
`%%%111111111ryf otary Public for
�pEE IOHAis/�4 Residing at
%WY pui �i� MY Commission Expires:
MY COMMISSION
EXPIRES 3.14-2023
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LICENSE AGREEMENT- 7
ACCOMMODATION RECORDING
ADA COUNTY RECORDER Phil McGrane 2021-078237
BOISE IDAHO Pgs=5 DAN RYALLS 0511812021 10:10 AM
TITLEONE BOISE $15.OD
TitleOne
2 title A escrow ea
Order Number.21414156
Warranty„Deed
For Value Received,
Union Square,LLC,an Idaho limited liabllity company and Hearttand Tmmhomes Property Management,
LLC,an Idaho limited Ilabllity company,the Grantor,does hereby grant,bargain sell and convey unto,Blltmom
Company,LLC,an Idaho limited Iiabl lty company,whose current address is 15M Cayuse Creek Dr.,Ueddiian,
10 8",the Grantee,the following described premises,In Ada County,Idaho,To Wit
See Exhibit A,attached hereto and incorporated herein.
TO HAVE AND TO HOLD the said premises,with their appurtenances unto the said Grantee,its heirs and assigns
forever. And the said Grantor does hereby covenant to and with the said Grantee,that Grantor is the owner in fee
simple of said premises;that they are free from all encumbrances EXCEPT those to which this conveyance is
expressly made subject and those made,suffered or done by the Grantee;and subject to all existing patent
reservations,easements,right(s)of way,protective covenants,zoning ordinances,and applicable building codes,
laws and regulations,general faxes and assessments,including irrigation and utility assessments(d any)for the
current year,which are not due and payable,and that Grantor will warrant and defend the same from all lawful claims
whatsoever. Whenever the context so requires,the singular number includes the plural.
Remainder of this page intentionally left blank.
Order Number.21414156 Warranty Deed(4-09)-Page 1 of 3
Exhibit A, page 1
Dated: 6�/7A d3/
Union Square,LLC,an dah m ed liability company
John A.Laude Sr.,
By.Heartland Townhomt
rty Management,LLC,an Idaho limited liability company
By:
John A.Laude Sr., ana
State of Idaho,County o ss.
On this In _ day of May,2021,before me,the undersigned,a Notary Public in and for said State,
personally appeared John A.Laude Sr.,known or identified to me to be a Manager of the limited liability company
that executed the within Instrument and acknowledged to me that he executed the same for and on behalf of said
limited liability company and that such limited flabliity company executed it.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the day and year in this
certificate first above written.
V-.f%
Notary Public for IdahoResiding In: r TAR}► .
My Commission Expires: �' UBLtC
State of Idaho,County of Ada,ss. •'•',� -9j:;OF44�`���•
On this L day of May,2021,before me,the undersigned,a Notary Pubfic in and for said State,
personalty appeared John A.Laude Sr.,(mown or Identified to me to be a Manager of the limited liability company
that executed the within Instrument and acknowledged to me that he executed the same for and on behalf of said
limited liability company and that such limited liability company executed it.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the day and year in this
certificate first above written. ��`u+++a�.q•
"now
'now
1406
Notary Public for ld§ho = -0TARy =
Residing In: 14n D a �•�G 3
My Commission Expires: 's AUBL1 o:`O
Order Number.21414156 Warranty Deed(4-M)-Page 2 of 3
Exhibit A, page 2
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
Order Number.21414156 Warranty Deed(4-09)-Page 3 of 3
Exhibit A, page 3
Lac
A parcel of land located in to Northeast 114 of Section 32,TAN.,RAW.,B.M.,
Ada County,Idaho more particularly described as follows;
Commencing at a brass cap monument marking the Northeast comer of said
Section 32 from which an aluminum cap markng the North 114 corner of said Section
32 beers, North 89'22'01"West,2642.73 feet;thenoe along the North boundary line of
said Section 3Z North 89022'01"West, 1025.82 feet to the REAL POINT OF
BEGINNING.
thence leaving said North boundary fare,South 0003TSW West,61.17 feet;
thence South 82'04'I East 112.00 feet;
thence South 07055'41"West, 110.00 feet;
thence South 82.04'19"East, 12.97 feet;
thence South 07'55'41"West,57.00 feet
thence south 5rO(49"West, 19.85 teed
thence South Or55'41"West,36.84 feel:
thence 10.86 be along the arc of curve to the left having a radius of 90.00 feet,
a central angle of 06*5900"and a long chord which bears South 04.28'11"West,
10.06 feet;
thence South 01'00'41"West,317.34 feet;
thence 22.98 feet along the arc of curve to the right having a radius of 110.00 '
feet,a central angle of 11'58'13"and a long chord which bears South 066574T'West, I
22.94 feet;
thence South 29'51'33"East,21.93 feet;
thence South 1301T47"West,67.00 feet; }
the North 76'42'13"West, 10.64 feet
thence South I W 1 T47"West, 110 00 feet to the North right-f-ray line of Five
Mile Creek as described In a Deed recorded May 1811, 1917 as Instrument No.69135,
records of Ada County, Idaho; i
Page 1 of 2 •:�a. . ,
I
Exhibit A, page 4
thence along said North right-of-way lime the foiluMng three(3)courses and
distances:
North 76-42'13"West,287.68 feet;
243.79 feet along the arc of curve to the left having a radius of 673.70 feet,
a central angle of 20'44'00"and a long chord which bears North 87'04'13'
West,24246 feet:
South 82W47"West,194.89 feet~
thence leaving sold North right-of-way line, North 00'36'35"East,668.26 feet;
thence North 89°27W West. 121.97 That
thence North 00*3759"East, 107.05 feet to the North boundary Me of said
Section 32;
thence along sold North boundary line,South 89022'01"East,797.83 Beet to the
REAL POINT OF BEGINNING.
Containing13.57 acres,more or less.
End of Description.
l
3
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Page 2 of 2
Exhibit A, page 5
EXHIBIT B
Location of Property/Drain
See Exhibit D-1 attached hereto.
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
l. construct and install a 10 foot wide pedestrian pathway on the north side of the Five Mile
Drain and within the District's easement/fee title property(the pathway is being constructed
as part of Gander Creek North No. 1 Subdivision and is also be constructed on the District's
fee title property to the south of Gander Creek North No. 3 Subdivision and to connect to
N.Owyhee Storm Avenue); and
2. construct and install landscaping consisting of grass, rock mulch and low lying shrubs
(specifically excluding trees) within the District's easement/fee title property (the
landscaping shall be located on the north side of the above-referenced pathway),
all within or near Licensee's real property described in Exhibit A,Gander Creek North No. 1 Subdivision,
located southwest of the intersection of McMillan Road and McDermott Road in Meridian, Ada County,
Idaho. No other construction or activity is permitted within or affecting the Five Mile Drain or the District's
easement/fee title property.
EXHIBIT D
Special Conditions
a. The construction described in Exhibit C shall be in performed in accordance with certain
plans attached hereto as Exhibit D-1 and incorporated herein by this reference.
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 Five
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 Five Mile Drain.
d. The pathway constructed by Licensee within the District's easement/fee title property,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/fee title property,
is that the City of Meridian enter an Agreement with the District in which it assumes operation,control and
LICENSE AGREEMENT- 8
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/fee title property.
e. Construction shall be completed within one year of the date of this Agreement. Time is of
the essence.
LICENSE AGREEMENT -9
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Exhibit D-1