HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for WWTP Expansion Project
City of Meridian
Public Works Dept.
RECEIVED
FEB 1 0 2006
CJTY OF MERIDIAN
CfTY CLERK OFFICF
Memo
To:
Will Berg; Tara Green
From: Clint Dolsby, Staff Engineer
cc:
Len Grady, City Engineer
Date: 02/09/2006
Re:
Proposed Agenda Item for February 9, 2006 City Council Meeting
The Public Works Department respectfully requests the following items be placed on the
February 14 City Council agenda, under department reports, for Council's consideration:
License AQreement for the Wastewater Treatment Plant Expansion Project. A request for a
license agreement with the Nampa and Meridian Irrigation District for work near the Five Mile
Drain near the southern boundary of the Wastewater Treatment Plant has been received by
the Public Works Department:
Recommended Council Action: The Public Works Department recommends
that City Council approves the License Agreement for work near the Five Mile
Drain near the southern boundary of the Wastewater Treatment Plant and
authorize the Mayor to sign it.
Thank you for your consideration. Please contact me if you have any questions regarding
any of these items.
ePage1
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LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this ~ day of , 2006, by and
amongNAMP 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
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
W I I N.E~ .s..EI H:
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 irrigation ditch or canal known as FIVE MILE DRAIN
(hereinafter collectively 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, 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 ditches and its right of way along its ditches;
NOW, THEREFORE, for and in consideration of the premises and ofthe covenants, agreements and
conditions hereinafter set forth, the parties agree as follows: -
1. The Licensee shall have the right to modify the said ditch or canal or encroach upon the
District's easement along said ditch or canal in the manner generally described in the "Purpose of License"
attached hereto as Exhibit C and by this reference made a part hereof. Any modification of said ditch or
canal by the Licensee or encroachment upon the District's easement along said ditch or canal shall be
performed and maintained in accordance with the "Special Conditions" stated in Exhibit D, attached hereto
and by this reference made a part hereof.
2. This agreement pertains only to the Licensee's modification of said ditch or canal or
encroachment to the District's easement for the purposes and in the manner described herein. The Licensee
- .
shall not change the location of the ditch or canal, bury the ditch or canal in pipe, or otherwise alter the ditch
or canal in any manner not described in this agreement without first obtaining the written permission of the
District.
3. Each facility ("facility" as used in this agreement means any object or thing of any nature
installed in or on the District's easement by the Licensee or the Licensee's predecessor in interest) shall be
constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense
of the Licensee.
4. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct
its activities within or affecting the District's easement so as not to constitute or cause:
a. a hazard to any person or property;
b. - an interruption or interference with the flow of irrigation water in the ditch or canal
or the delivery of irrigation water by the District;
an increase in seepage or any other increase in the loss of water from the ditch or
canal;
the subsidence of soil within or adjacent to the easement;
any other damage to the District's easement and irrigation works.
c.
d.
e.
5. The Licensee agrees to indemnify, hold harmless, and defend the District from all claims
for damages arising out of any of the Licensee's construction or activity which constitutes or causes any of
the circumstances enumerated in the preceding paragraph, 4.a. through 4.e., or any other damage to the
easement and irrigation works which may be caused by the construction, installation, operation, maintenance,
repair, and any use or condition of any facility.
- 6. Licensee agrees that the work performed and the materials used in such construction shall
at all times be subject to inspection by the District and the District's engineers, and that final acceptance of
such work shall not be made until all such work and materials shall have been expressly approved by the
District. Such approval by the District shall not be unreasonably withheld.
7. The District reserves the right, at the District's option, to remove any facility installed by the
Licensee and to repair any alteration by the Licensee of said ditch or canal and the easement therefor which
does not comply with the terms of this agreement, and to remove any impediment to the flow of water in said
ditch or canal and any unsafe condition or hazard caused by the Licensee, at any time, and the Licensee
agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for
such purposes. If the Licensee shall fail in any respect to properly maintain and repair such facility, then the
District, at its option, and without impairing or in anywise affecting its other rights and remedies hereunder,
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 jurisûiction 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 anè 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 and drainage 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 terllÚnated 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 Licens~ 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 claillÚng 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
, '
CITY OF MERIDIAN
By
ATTEST:
STATE OF IDAHO
)
) ss:
)
County of Canyon
On this - day of , 2006, before 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 NAMP A & MERIDIAN IRRIGATION DISTRICT, the irrigation
district that executed the foregoing instrument and acknowledged to me that such irrigation district executed
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
Notary Public for Idaho
Residing at
My Commission Expires:
,Idaho
STATE OF IDAHO
)
)ss.
)
County of Ada
On this - day of , 2006, before me, the undersigned, a notary
public in and for said state, personally appeared and , known to
me to be the and , respectively, of the CITY OF MERIDIAN,
the political subdivision and municipality that executed the foregoing instrument, and acknowledged to me
that such entity executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
Notary Public for
Residing at
My Commission Expires:
LICENSE AGREEMENT - Page 5
,. .
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WARRANTY DEED
FOR VALUE RECEIVED, HEBER J. SPENCER, a widower, the Grantor,
does hereby grant, bargain, sell and convey unto the CITY OF
MERIDIAN, a municipal cDrporation, 728 Meridian Street, Meridian,
Idaho 83642, the Grantee, the fallowing described premises,
to-wi-t:
A parcel of land lying in the SE 1/4 of Section 34, T. 4N.,
R. lW., B.M., Ada County, Idaho, and more particularly described
as follows:
Beginning at the Southeast corner of the said. SE 1/4 of Sec. 34;
thence North 0°53'14" East 1,107.89 feet along the Easterly
boundary of the said SE 1/4 of Section 34, which is also the
centerline of Ten Mile Road, to a point on the centerline of
Fivemile Creek, also said point being the REAL POINT OF BEGINNING;
thence continuing North 0°53'14" East 100.88 feet along the said
Easterly boundary of the SE 1/4 of Section 34 to a point on the
centerline of Creason Lateral; thence North 48°43'20" West 199.25
fe_et along the said centerline of Creason La'teral to a poin-t of
curve; thence Northwesterly along the said centerline of Creason
Lateral along a curve to the left 57.46 feet, said curve having a
central angle of 10°47'40", a radius of 305.00 feet, tangents of
28.82 feet, and a long chord of 57.38 feet bearing North 54°07'
10" West to a point of tangent; thence North 59°31'00" west 41.06
feet along the said centerline of Creason Lateral to a point of
curve; thence Northwesterly along the said centerline of Creason
Lateral along a curve to ~he left 167.00 feet, said curve having
a central"angle of 31°10'00", a radius of 307.00 feet, tangents
of 85.62 feet and a long chord of 164.94 feet bearing North 75°
06'00" West to a point or reverse curve; thence continuing North-
westerly along the said centerline of Creason Lateral along a
curve to the right 107.40 feet, said curve having a central angle
of 10°08'00", a radius of 607.25 feet, tangents of 53.84 feet and
a long chord of 107.26 feet bearing North 65°37'00" West to a
point of tangent; thence North 60°33'00" West 141.23 feet along
the said centerline of Creason Laterai to a point of curve; thence
Northwesterly along the said centerline of Creason Lateral along
a 'curve to the right 39.74 feet, said curve having a central angle
of 34Q30'OO", a radius of 66.00 feet, tangents of 20.49 feet and a
long chord of 39.14 feet bearing North 63°18'00" ,West to a point
of tangent; thence North 46°03'00" West 96.38 feet along the said
centerline of Creason Lateral to a point of curve; thence North-
westerly along the said centerline of Creason Lateral along a
curve to the left 57.08 feet, said curve having a central angle
of 19°28'00", a radius of 168.00 feet, tangents of 28.82 feet
and a. long chord of 56.81 feet bearing North 55°47'00" West to
a point of tangent; thence North 65°31'00" West 115.81 feet along
the s.aid centerline of Creason Lateral to a point of cu:çve; thence
Exhibit A,
page 1
> ,'I.',;,: i, '~:: ,\\'.::':':<\i'X,
Northwesterly along the said centerline of Creason Lateral along
a curve to the left 70.57 feet, said curve haying a central angle
of 15°44'00", a radius of 257.00 feet, tangents of 35.51 feet and
a long chord of 70.35 feet bearing North 59°02'00" West to a point
of tangent, thence North 66°54'00" West 146.38 feet along the
said centerline of Creason Lateral to a point of curve; thence
Northwesterly along the said centerline of Creason Lateral along
a curve to the right 34.62 feet, said curve having a central angle
of 21°06'00", a iadius of 94.00 feet, tangents of 17.51 feet and
a long chord of 34.42 feet bearing North' 56~2l'OO" West to a point
of tangent; thence North 45°48' 00" West 1251.65 feet along the said
centerline of; Creason Lateral to' a point of curve; thence North-
westerly along the said centerline of Creason Lateral along a
curve to the right 114.76 feet, said curve having a central angle
of 37°18'00", a radius of 176.28 feet, tangents of 59.50 feet and
~ long chord of 112.74 feet bearing 'North' 27°09'00" West to a
point of reverse curve; thence Northwesterly along the said
centerline of Creason Lateral along a curve to the left 145.77
feet, said curve having a central angle of 46°24'00", a radius
of 180.00 feet, tangents of 77.15 feet and a long chord of
141. 82 feet bearing North 3P42' 00" West to a point of tangent;
thence North 54°54'00" West 98.65 feet along the said center-
line of Creason Lateral to a point of curve; thence Northwesterly
along the said centerline of Creason Lateral along a curve to the
right 31.65 feet, said curve having a central angle of 11°20'00",
a radius of 160.00 feet, tangents of 15.88 feet and a long chord
of 31.60 feet bearili.g'North 49°14'00" West to a point of tangent;
thence North 43°34'00" West 154.36 feet along the said centerline
of Creason Lateral to a point of curve¡ thence Northwesterly
along the said centerline of Creason Lateral along a curve to the
left 143.46 feet, said curve having a central angle of 14°36'00",
a radius of 563.00 feet, tangents of 72.12 feet and a long chord
of 143.07 feet bearing North 50°52'00" West to a point of tangent¡
thence North 58°10'00" West 138.17 feet along the said centerline
of Creason Lateral to a point of curve; thence Northwesterly.along
the said centerline of Creason Lateral along a curve to the right
28.43 feet, said curve having a central angle of 40°43'00", a
radius of 40.00 feet, tangents of 14.84 feet and a long chord of
27.83 feet bearing North' 37°48'30" West to a point of tangent;
thence North 17°27'00" West 137.18 feet along the said centerline
of Creason Lateral to a point on the Northerly boundary of the.
said SE 1/4 of Section 34; thence North 8'9°16'09" West 650.10
feet along the said Northerly boundary of the SE 1/4 of section 34
to a point marking the Northwest corner 'of the said SE 1/4 of
Section 34¡ thence South 0°46'49" West 1,347.70 feet along the
Westerly boundary of the said BE 1/4 of section 34 to a point on
the said centerline of Fivemile Creek; thence pouth 89°04'20"
East 433.18 feet along the said centerline of Fivemile Creek to a
point of curve; thence Southeasterly along the said centerline of
Fivemi1e Creek along a curve to the right 98.64 feet, said curve
having a central angle of 16°46'20", a radius of 337.00 feet,
tangents of 49.68 feet, and a long chord of 98.30 feet bearing
South 80°41'10" East to a point of tangent;' thence South 72°18'
00" East 182.16 feet along the said centerline of Fivemi1e Cree].::.
Exhibit A,
page 2
. ,
curve having a ceritral angle of 24°50'50", a radius of 229.00 .
feet, tangents of 50.45 feet, and a long chord of 98.53 feet bear-
ing North 80°35'25," East to a point of tangent; thence North
68°10'00" East 147.95 feet along the said centerline of Fivemile
Creek to a point of curve; thence Northeasterly along the said
centerline of Fivemile Creek along a curve to the right 53'.16 feet,
said curve having a central angle of 21°18'00", a r~dius of 143.00
feet, tangents of 26.89 feet, and a long .chord of 52. 86 feet .
bearing North 79.°49'00" East to a point of tangent; thence North
89°28'00" East 360.49 feet along the said cen~erline of Fivemile
Cree]c to a point of curve; thence Southeasterly along the said
centerline of Fivemile Creek along a curve to the right 42.03 feet,
said curve having a central angle of 37°03'00", a radius of 65.00
feet, tangents of 21.78 feet, and a long chord of 41.30 feet
bearing South 72°00'30" East to a point of tangent; thence South
53°29'00" East 24.3.60 feet along the said centerline of Fivemile
Creek to the point of beginning.
Together with all water, water rights, ditches and ditch
rights of way appurtenant thereto or connected therewith.
This conveyance. includes all oil,. gas and mineral rights and all
of the Grantor's right, title and interest under that Lease
dated August 20,1973 between H. J. Spencer and Standard oil
Company of California, recorded under recorder's fee no. 868393,
records of Ad~ County, Idaho.
TO HAVE AND TO HOLD the said premises, with their
appurtenances unto the said G~antee, its successors and assigns
forever.
And the said 'Grantorc',dóes hereby covenant to and with
the said Grantee, that he is the owner in fee simple of said
premises; that said premises are free from all encumbrances, and
that he will warrant and defend the same from all lawful claims
whatsoever.
DATED September
/{,'
, ,
.
, 1975.
I .
il L-'{~-1-,rl ¿:;/..,,;!;>::í<>,.:¡ r'-."""
Exhibit A,
page 3
, ,
" ,
STATE OF IDAHO)
: 55.
'county of Ada
On this
/ít;
day of September, 1975, before me, the
undersigned, a Notary Public in and for said State, personally
appeared HEBER J.. S:{'ENCER, a widower, known to me to be the person
whose name is subscribed to the foregoing instrument, and acJ<::now-
ledged to me that he executed the same.
IN WITNESS wHEREOF, I have hereunto set my hand and
. affixed my official seal, the day and year in this certificate
firs"t above written.
. rC2 p,;<;/ ¿pJ. £~ pZ
Notary Pub ,ic for Idaho "
Residence: Meridian, daho.
Cornm. expires: . ',"'----' /t:' '7 (;,
. (SEAL)
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Exhibit A,
page 4
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Exhibit B
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
1.
construct, install, mai-iltain and repair two conduits, for purposes of providing power to the
entrance gate on Licensee's property, panllel to and within the District's easement for the
Five Mile Drain,
all within Licensee's real property, the Meridian Wastewater Treatment Plant, located northwest of the
intersection of Ten Mile Road and Ustick Road in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with Exhibit D.l, attached hereto and by this reference
made a part hereof. The conduits shall be two inches and shall be located parallel to the Five Mile Drain and
36 inches below grade.
b. Licensee shall notify the water superintendent of the District prior to and immediately after
construction so that he or the District's engineer's may inspect and approve the construction.
C. The Licensee recognizes and acknowledges that the license granted in this agreement by the
District pertains only to the rights of the District as owner of an easement. The District has no right or power
to create rights in the Licensee affecting the holder of title to the property subject to the District's easement.
Any such rights affecting fee title must be acquired by the Licensee 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, and specifically
those relating to pollution control and water quality, 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 ~r 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 frc>m 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
of this agreement unless the District shall be solely responsible for the condition or activity which gives rise
LICENSE AGREEMENT - Page 6
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 discharge and other 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. 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 Five Mile Drain except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Five Mile Drain is 100 feet, 50 feet to either
side of the centerline.
1.
essence.
Construction shall be completed one year from the date of this Agreement. Time is of the
LICENSE AGREEMENT - Page 7
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Exhibit D-1