HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Fivemile Drain2OOIHR-I Pt'l l: 17
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LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this ~(~ day' of~, 2001, by and
among NAMPA & MERID1AN IRRIGATION DISTRICT, an irrigation district organized ~tnd existing under
and by virtue oftbe 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, ldaho 83642
party or parties of the second part, hereinafter collectively referred to as the "Licensee".
WITNESSETH:
WHEREAS, Licensee is the owner of real property/right-of-way (burdened with the easement of the
District hereinafter mentioned) particularly described ill the "Legal Description" attached hereto as Exhibit A
and by this reference made a part hereof; and,
WHEREAS, tim District owns the irrigation ditch or canal known as FIVE MILE DRAIN (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
tiao ditch or canal for those purposes; and,
WI4EREAS, said ditch or cm~al and easement crosses and intersects Licensee's real property as shown
on Exhibit B attached hereto and by this r~ference made a part hereof; and,
WHEREAS, the Licensee desires a license to engage in construction or activity, affectiag said ditch
or canal or the District's easement in its course across the lands of the Liceusee in the manner and uuder 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 oftbe covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
l. The Licensee shall have the right to modify the said ditch or canal or encroacb upon the
Districfs 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 perforated 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 jn 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 tile 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 hazard to any person or property;
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.
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 nse 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 the
such work shall not be made until ail 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 tbr 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 sach
notice as reasonable under the circumstances. Nothing in this paragraph shall create or support any claim of
LICENSE AGREEMENT - Page 2
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
negligeuce of the District.
8. Neither the terms of this agreement, the permission granted by the District to the Licensee,
the Liceusee'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 ofm~y federal, state, or other
a[2ency or official to the District's ownership, operation, and maintenance of its ditches, caaals, drains,
irrigation works and facilities which did not apply to the District's operations and activities prior to and without
execution of this agreemeat. In the event the District is required to comply with any sucb requirements or is
subject to the jurisdictiou of any such agency as a result of execution of this agreement or the Licensee's
activity autborized hereunder, Licensee shall indemnify, hold harmless and defend the District from all costs
aud liabilities associated with the application of such laws or the assertion ofsucb jurisdiction or, at the option
of the District, this agreement shall be of no force and effect and the Licensee shall cease all activiD' and
remove any facility authorized by this agreement.
9. In addition to all other indemnification provisions herein, Licensee further agrees to
iudemnify, 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
auy facility, structure, plaut, or any other improvement of any kind or nature whatsoever whicb the I,icensee
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
suspeud its use of the said easement area when tbe use of the easement area is required by the District for
maintenauce or repair under this or any other paragraph of this agreement.
11. Licensee shall place no structures or landscaping of any kind above within the District's
easemeut area except as referred to in this agreement or exhibits hereto without the prior written cousent of
the District.
12. Should either party, incur costs or attorney fees in connection with efforts to enforce the
provislous 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 ases and purposes of the irrigation works and system of the District by this agreement, nor to grant any
rights in its irrigation works aad system incompatible with the uses to which such irrigation works and system
are devoted aud dedicated and that this contract shall be at all times construed accordiug to sucb priuciples.
14. Nothing herein contained shall be construed to impair the right of way of the District in tile
LICENSE AGREEMENT - Page 3
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 aud delivery' of irrigation water.
15. hr the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
aud 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 theretbr, which may impede or restrict the maintenance and operation of such ditch or canal by the
District with its equip~nent 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 lees 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.
] 7. 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.
third party.
This agreement is not intended for the benefit of any third party and is not enforceable by any
19. If any provision of this agreement is determined by a court of competent jurisdictiou to be
iuvalid 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 agree~nent, includes the masculine and
feminine genders, the singular number includes the plural, and the plural number includes the singular.
lhe covenm/ts, 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 ,&//M/ERIDIAN IRRIGATION DISTRICT
LICENSE AGREEMENT - Page 4
iITY~
) ss:
County of Canyon )
On this ~,6t day ofd~ 20,01, before me, the undersigned, aNotary Public in and
for said State, personally appeared ~ and Daren R. Coon, known to me to be the
President and Secretary, respectively, ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation
district that executed the foregoing instrument and acknowledged to me that such irrigation district executed
tile same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal. the day
and year ia this certificate first above written.
STATE OF IDAHO )
County of Ada )
On this ~'~- day of
Notary Public for Idaho
Residing at ~r.~, Idaho
My Commission Expires: l'/~/~
.2001, before me, the undersigned, a notao' pnblic
in and for said state, personally appeared ~2tllM4~-~~.0~1'6 and ¢/tiltam & ~,3-~'- , knowu to me to be
the _~f~qfl.~Pv' and ~ iNI ~P_AR.. , respectively, of the CITY OF MERIDIAN, the political
snbdMsion and mumc~pahty that executed the foregoing instrument, and acknowledged to me that such entity
executed the same.
IN WITNESS WHEREglFo I have hereunto set my hand and affixed my official seal. the day
and year m tlus cemflcate first .a~i~v__J'~'%
, , Res~d ngat~dx~ ~0
~.~XQ.,~ ~ My Commission Expires: q-2b~O~
LICENSE AGREEMENT - Page 5
Engineers Surveyors Planners
Project No.:
Date:
5/Rite ReUef Sewer (11616-03)
January 3, 2001
CITY OF MERIDIAN
EXHIBIT "A-1-1"
A CENTER LINE DESCRIPTION OF THE PROPOSED
PHASE 1, REACH 1,5/RILE RELIEF SEWER
FALLING INSIDE THE 5/RILE DRAIN RIGHT-OF-WAY
A center line description being within a portion of the South Yz of Section 35, T.4N., R.1W., B.M., Ada
County, Idaho. more particuiarty described as foUows:
Commencing at a brass cap marking the Southwest corner of Section 35, T.4N., R.1W., B./R., Ada
County, Idaho, from said cap a Y2" iron pin marking the West ~4 comer of said Section 35 bears North 00°53'21"
East, 2,643.52 feet; thence North 00°53'21" East, 1,172.72 feet atong the Westerty boundary of said Section 35
to a point; thence tearing said Westerty boundary South54°30'35'' East, 51.50 feet to a point; thence
South 59052'40'' East, 446.77 feet to a point; thence South 80°21 '43" East, 412.45 feet to a point; thence-
South 80°33'17" East, 446.64 feet to a point; thence South 80°29'11" East, 37.59 feet to a point on the
Westerly boundary of certain Parcet No. 435346619, marking the REAL POINT OF BEGINNING;
thence continuing South 80°29'11" East, 337.68 feet to a point;
thence South 63°00'45" East, 424.73 .feet to a point;
thence South 61°49'50'' East, 399.12 feet to a point;
thence South 62°31'49" East, 308.52 feet to a point;
thence South 64004'59'' East, 290.07 feet to a point;
thence South 88016'0t'' East, 16.60 feet to a point on the Northerty right-of-way of the Five/Rile Drain,
the POINT OF TER/RINUS of this description.
From said point, a 5/8" iron pin marking the South ~ of said Section 35 bears South 72009'50'' West,
317;44 feet.
See Attachment "A-1-1"
END OF DESCRIPTION
Prepared by:
J-U-B ENGINEERSj Inc.
LNK:ihc Lawrence H. Koemer, P.L.S.
F:\projects\11616~admin\easements\center line description phase 1 reach 1.doc
Exh~:bit: A,: Page '1 ' ' ; .: .' ·
Engineers Surveyors Planners
Project No.:
Date:
5 Mite Relief Sewer (11616-03)
JanuapJ 5, 2001
CITY OF MERIDIAN
EXHIBIT "A-1-2"
A CENTER LINE DESCRIPTION OF THE PROPOSED
PHASE 1, REACH 2, 5 MILE RELIEF SEWER
FALLING INSIDE THE 5 MILE DRAIN EASEMENT
A center line description being within a portion of Government Lot 1 Of Section 2, T.3N.,
R. 1W., B.M., Ada County, Idaho, more particularly described as follows:
Commenting at an aluminum cap marking the Southwest corner of Section 2, T.3N., R;lW.,
B.M., Ada County, Idaho; thence North 89014'54'' West, 410.97 feet along the Northerly boundary
of said Section 2 to a point', thence tearing said Northerly boundary South 00o45'06" West~ 45.00
feet to a point on the Southerly right-of-way of West Ustlck Road, marking the REALPOINT OF
BEGINNING;
thence South 33°43'07'' East, 193.55 feet to a point;
thence South 34°22'08" East, 485.40 feet to a point;
thence South 00°55'43" East, 65.91 feet to a point on the Southerly easement line of Five
Mite Drain, the POINT OF TERMINUS of this description.
From said point, an aluminum cap marking the Northeast corner of said Section 2 bears
North 02°29'19" East, 667.79 feet.
See Attachment "A.1-2"
END OF DESCRIPTION
Prepared by:
J-U-B ENGINEERS. Inc.
LHK:thc Lawrence H. Koerner, P.L.S.
F:\proJects\11616\admin\easements\center line description phase 1 reach 2.doc
Exhibit A, page 3
. ~',~_ /
SUBDI~SION NO.4 ~ ~ / X k k '~ ~ ~' J
SCALD [ =tOO '
A ACH NT A- -2
. LEGEND
CITY OF MERIDIAN PROPOSED PHASE
REACH 2, 5 MILE RELIEF SEWER
O~ BY: LH.K. DA~ 1/~/01 ~G~ A P~ ~ ~V ~T 1. ~ J~ NO. 11616-~
~ B~ R.M.H. ~A~ 1'=100' ~ T~., ~W., B.M,, ~A ~N~. ID~ ~ 1
Engineers Surveyors Planners
Project: 11616-03
Date: January 8, 2001
CITY OF MERIDIAN
EXHIBIT "A-1-3"
A CENTER LINE DESCRIPTION OF THE PROPOSED
PHASE 1, REACH 3, 5 MILE RELIEF SEWER
FALLING INSIDE THE § MILE DRAIN EASEMENT
A center tine description bein8 within a portion of the NW ~, Section 1, T.3N., R.IW., B.M., Ada
County, Idaho, and more particuLarLy described as foLLows:
Commencing at an aluminum cap marking the West ~ corner of Section 1, T.3N., R.1W., B.M., Ada
County, Idaho, from said cap, an aluminum cap marking the Northwest corner of Section 1 bears
North 00000'58'' West, 2,699.18 feet; thence North 00°00'58" West, 882.67 feet along the Westerly boundary
of said Section 1 to a point; thence te~vin8 said WesterLy boundary North 89°59'02'' East, 78.90 feet to a point
marldng the intersection of the SoutherLy easement tine of 5 MiLe Drain and the proposed center line of the 5
MiLe ReJief Sewer, the REAL POINT OF BEGINNING;
thence South 78016'57" East, 21.67 feet to a point;
thence South 56°11'13'' East, 457.24feet t os point;
thence South 59°14'18" East, 258.56 feet to a point;
thence South 56°54'25" East, 450.00feetto a point;
thence South 56054'25'' East, 450.00 feet to a point;
thence South 11°12'46" East, 14.07 feet to a point on the NOrtherLy boundary of Meadow View No. 1
Subdivision as filed in Book 50 at page 4100, Records of Ada County, the POINT OF TERMINUS of this
description.
From said point, an aluminum cap marking the West '/4 of said Section 1- bears North 89°27'57'~ West,
1,458.77 feet.
See Attachment "A-1-3"
END OF DESCRIPTION
Prepared by:
J-U-B ENGINEERS, Inc.
LHK:thc Lawrence H. Koemer, P.L.S.
F:\projects\11616\admin\easements\center tine descHptt0n phase 1 rea~ 3.doc
Exhibit A, page 5
/
/
Exhibit A,
Exhibit B
EXHIBIT C
Puroose of License
The purpose of this License Agreement is to permit Licensee to construct and install a sanitary sewer
line within and parallel to the District's easement for the Five Mile Drain, all within Licensee's right-of-way
for Phase 1. described iu Exhibit A, located northwest and southeast of the intersection of Linder Road and
Ustick Road in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with certain plans consisting of fifteen sheets: sheet 1
entitled "Five Mile Relief Sewer, City of Meridian, Title Sheet," bearing engineer's stamp dated December
28. 2000; sheet 2 of 15 entitled "Five Mile Relief Sewer, City of Meridian, Sheet Index, General Notes, and
Legend," bearing engineer's stamp dated December 28, 2000; sheet 3 of 15 entitled "Five Mile Relief Sewer,
City' of Meriditm, Staging and Phasing Plan," bearing engineer's stamp dated December 28, 2000; sheet 4 of
15 entitled "Five Mile Relief Sewer, City of Meridian, Temporary Erosion and Sedimentation Control Plan,"
bearing engineer's stamp dated December 28, 2000; sheet 5 of 15 entitled "Five Mile Relief Sewer. City of
Meridian. Relief Sewer Plan and Profile, Phase 1, Sra. 100+00 to Sta. 108+00," bearing engineer's stamp dated
December 28, 2000; sheet 6 of 15 entitled "Five Mile Relief Sewer, City of Meridian, Relief Sewer Plm~ and
Profile, Phase I, Sra. 108+00 to Sra. 117+50 ,' bearing engineer's stamp dated December 28, 2000; sheet 7
of 15 entitled "Five Mile Relief Sewer, City of Meridian, Relief Sewer Plan and Profile, Phase l, Sta. 117+50
to Sra. 130+50," bearing engineer's stamp dated December 28, 2000; sheet 8 of 15 entitled "Five Mile Relief
Sewer, City of Meridian. Relief Sewer Plan and Profile, Phase 1, Sta. 130+50 to Sra. 136+33.36," bearing
engineer's stamp dated December 28, 2000; sheet 9 of 15 entitled "Five Mile Relief Sewer, CiD of Meridian,
Relief Sewer Plan and Profile, Future Phase 2, Sra. 10+19 to Sta. 22+00," bearing engineer's stamp dated
December 28, 2000; sheet 10 of 15 entitled "Five Mile Relief Sewer, City' of Meridian, Relief Sewer Plan aud
Profile, Phase l and Future Phase 2, Sm. 22+00 to Sta. 35+00,' bearing engineer's stamp dated December 28,
2000; sheet 11 of 15 entitled "Five Mile Relief Sewer, City of Meridian, Relief Sewer Plan and Profile. Phase
1. Sta. 35+00 to Sta. 47+89 ,' bearing engineer's stamp dated December 28, 2000; sheet 12 of 15 entitled
"Five Mile Relief Sewer, City of Meridian, Diversion Structures No. 2 and 3 Plan," bearing engineer's stamp
dated December 28, 2000; sheet 13 of 15 entitled "Five Mile Relief Sewer, City of Meridian, Diversion
Structures No. 2 and 3 Details and Sections," bearing engineer's stamp dated December 28, 2000; sheet 14
of 15 entitled "Five Mile Relief Sewer, City of Meridiau, Trench and Snrface Repair Details," bearing
engineer's stamp dated December 28, 2000; sheet 15 of 15 entitled "Five Mile Relief Sewer, City of Meridian,
Miscellaneoos Details," bearing engineer's stamp dated December 28, 2000: and the Project Manual entitled
"City of Meridian, Five Mile Relief Sewer Project, Phase 1, Specifications and Contract Documents." bearing
engineer's stamp dated January 11, 2001. These plans have been delivered to the District's water
superiatendent, are in bis possession in his offices, and are hereby incorporated by this reference. The
construction and installation of the sewer line authorized and permitted by this Agreement is limited to Phase
I. The sewer line shall be a minimum offset of 10 feet from the top of bank of the Five Mile Drain to the
centerline of the sewer line. All work and maintenance shall be out of the channel section of the Five Mile
Drain.
b. Licensee shall notify the water superintendent of the District prior to and itmnediately after
LICENSE AGREEMENT - Page 6
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 properly 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 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. lhe District's easement for the Five Mile Drain is 100 feet, 50 feet to either
side of the centerline.
essence.
Construction shall be completed one year from the date of this Agreement. Time is of the
LICENSE AGREEMENT - Page 7