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HomeMy WebLinkAbout1990 Nampa Meridian Irrigation District Eightmile Lateral LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this 7th day of August , 19901 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, party of the first part, hereinafter referred to as the "District" , and CITY OF MERIDIAN, a municipal corporation, party or parties of the second part, hereinafter referred to as the "Licensee" , W I T N E S S E T H: WHEREAS, the Licensee desires to place a sewer line in public right of way (burdened with the easement of the District hereinafter mentioned) particularly described in the "Description of Licensee' s Lands" attached hereto as Exhibit A and by this reference made a part hereof; and, WHEREAS, the District is the owner of the irrigation ditch or canal known as EIGHTMILE LATERAL together with the easement therefor, including the easement to convey irrigation water in such ditch or canal and the easement to operate, maintain and repair such ditch or canal, and includes an easement of ingress and egress for those purposes, and which ditch or canal is an integral part of the irrigation works and system of the District and which ditch or canal and the said easements therefor cross and intersect said described real property of the Licensee as shown on Exhibit B attached hereto and by this reference made a part hereof; and, WHEREAS , the Licensee desires a license to cross said ditch or canal in its course across the lands of the Licensee in the manner hereinafter appearing and under the terms and conditions hereinafter set forth; NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and conditions hereinafter set forth, the parties agree each with the other as follows: 1. The Licensee shall have the right to cross said ditch or canal in the manner specified in the "Purpose of License" attached hereto as Exhibit C and by this reference made a part hereof. Any alteration, modification or change in location of said ditch or canal by the Licensee shall be performed in LICENSE AGREEMENT - Page 1 accordance with the "Special Conditions" stated in Exhibit D, attached hereto and by this reference made a part hereof. 2 . Any facilities constructed by the Licensee in altering, modifying or changing the location of said ditch or canal shall be constructed, maintained and kept in repair and kept clean at all times, by the Licensee, and at the cost and expense of the Licensee, and the conduit therein shall be maintained and kept in repair and kept clean at all times, for the full flow of water therein, by the Licensee, and at the cost and expense of the Licensee. 3 . The Licensee agrees to construct and maintain any facilities constructed by the Licensee in said ditch or canal pursuant to this agreement in a safe condition to the end that the ditch or canal shall not constitute a hazard to any person or persons, and to indemnify and keep indemnified the District from all claims for damages arising out of any hazard or negligence in the construction, operation, maintenance and repair of said facilities or the failure of the Licensee to keep the same in safe condition. 4 . The alteration, modification or change in location of said ditch or canal shall be accomplished by the Licensee at such times and in such seasons and in such manner so as not to interrupt or interfere with the flow of irrigation water in said ditch or canal, or with the delivery of irrigation water by the District to any of its landowners. 5 . The Licensee agrees to indemnify and keep indemnified the District from all claims of any of its landowners for damages from the impairment of the flow of irrigation water in said ditch or canal which may be caused by said crossing of said ditch or canal, or any use or condition of any such facilities constructed by the Licensee at any time, or from the impairment of the flow of irrigation water therein from the failure of the Licensee to maintain and keep in repair the said ditch or canal and such facilities or to maintain and keep clean the conduit in said facilities for the full flow of irrigation water through said ditch or canal and the facilities, if any, constructed therein by the Licensee. 6. The District reserves the right, at its option, to remove any impediment to the flow of water through said ditch or canal and any facilities installed therein by the Licensee, and to remove any hazards to person or property which may arise by reason of the alteration, modification or change in location made by the Licensee, at any time, and the Licensee agrees to pay to the District, on demand, the costs which shall be reasonably LICENSE AGREEMENT - Page 2 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 altered, modified or relocated portion of said ditch or canal, 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. 7. The Licensee agrees that the work performed and the materials used in altering, modifying or changing the location of said ditch or canal, at all times shall be subject to inspection by the District and by the engineers for the District, and that final acceptance of the construction work shall not be made until all such work and materials shall have been expressly approved by the District. 8 . The Licensee agrees that the District shall not be liable for any damages which shall occur to any plants, structures or any other improvements of any kind or nature whatsoever which the Licensee shall place, raise, construct or 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. 9. The Licensee acknowledges that its use of its said property hereinbefore described might, either now or at some future time, cause an increase in the amount of surface water or ground water draining or wasting into said ditch or canal or some other ditch or canal of the District. The Licensee understands and agrees that it has no right to drain or waste into said facilities of the District more surface or ground water than drains or wastes from said property of the Licensee in its present state and condition. The Licensee expressly agrees that it shall not cause, suffer or permit any such additional surface or ground water to drain or waste into said facilities of the District unless the Licensee shall have (1) obtained all necessary rights of way or easements for the draining or wasting of such additional water and (2) created the necessary additional carrying capacity in the ditches, pipelines or other facilities through which such additional water is to be carried and (3) complied with all statutes, regulations, ordinances, and other laws regarding the discharge of drainage or waste water into LICENSE AGREEMENT - Page 3 surface streams, whether natural or artificial, and into aquifers or other bodies of ground water and (4) removed all pollutants, contaminants, debris and other foreign material which in any manner have been placed in or mixed with such additional water while on the said property of the Licensee, and in the event of any dispute as to the source of such pollutants, contaminants, debris or other foreign material, the burden shall be upon the Licensee to show that the pollutants, contaminants, debris or foreign material do not come from the Licensee' s said property. The Licensee expressly agrees that the District shall be entitled to enforce compliance with the provisions of this paragraph by injunction and that violation of the provisions of this paragraph shall be sufficient cause for issuance of a preliminary or permanent injunction. The right to such injunctive relief, and any other remedies set forth herein, shall be cumulative of any other remedies available to the ❑istrict under the laws of the State of Idaho. If the Licensee shall cause, suffer or permit any such additional water to drain or waste into said ditch or canal or into any other facility of the District without having complied with the requirements of this paragraph, the District shall have the right to stop such additional water from draining or wasting into said ditch or canal or any other facility of the District, and the Licensee agrees to reimburse the District on demand for the costs and expenses expended or incurred by the District in stopping such drainage or wasting. 10. The Licensee agrees to reimburse the District for any costs and expenses incurred by the District in enforcing any of the provisions of this agreement, including reasonable attorney' s fees. 11. The parties hereto understand and agree that the Licensee has no right to in any respect impair the uses and purposes of the irrigation works and system of the District, by this contract, 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. 12 . Nothing herein contained shall be construed to impair the easement and right of way of the District in the said ditch or canal and all uses of said ditch or canal and the said altered, modified or changed location of said ditch or canal 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. LICENSE AGREEMENT -- Page 4 13 . In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms and conditions of this contract, then the license of the Licensee under the terms hereof may be terminated by the District, and all structures 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. 14 . The Licensee acknowledges that the license herein granted is for his or its benefit, and not for the benefit of the District, and, for that reason, the Licensee agrees to pay any 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. 15. 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. IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the Licensee has hereunto subscribed his name, or if a corporation, has hereunto caused its corporate name to be subscribed and its seal to be affixed by it officers first thereunto duly authorized by resolution of its Board of Directors, all as of the day and year herein first above written. NAMPA & MERIDIAN IRRIGATION DISTRICT By 9 Its President LICENSE AGREEMENT - Page 5 ATTEST: Its Secretary CITY OF MERIDIAN By ATTEST: LICENSE AGREEMENT - Page 6 STATE OF IDAHO ) ss: County of Canyon ) On this 7th day of August 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared J. A. Bob Williams 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. Notary Public f r Idaho Residing at Caldwell, Idaho My Commission Expires: 11/04/94 STATE OF IDAHO ) ss: County of Ada } On this day of �H� -, 1990, before me, the undersigned, a Notary Public in and fob said State, personally appeared Grq►lf �Cli�I,T rd and Zltck n1cYh4h , known to me to be the pr and G C/tr , respectively, of CITY OF MERIDIAN, the mlinicipal core ration that executed the foregoing instrument and acknowledged to me that such municipal corporation 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 writ � r4,���, y sf v `• y = Notary Public for Idaho fF y Residing at Idaho My Commission Expires: 'i1rliLLi441 LICENSE AGREEMENT - Page 7 r • o `� •�^ - - '�/ EXHIBIT A Legal Description NWT , Section 11, Township 3 North, Range 1 West, B.M. , Ada County, Idaho. LICENSE AGREEMENT - Page 8 r EXHIBIT B There is no Exhibit B attached to this Agreement. LICENSE AGREEMENT - Page 9 EXHIBIT C Purpose of License The purpose of this License Agreement is to permit Licensee to install a 10 inch sewer line encased in 18 inch steel casing under Eightmile Lateral on Ten Mile Road approximately one quarter mile south of Cherry Lane Road, Meridian, Idaho. LICENSE AGREEMENT -- Page 10 EXHIBIT D Special Conditions 1. Construction shall be in accordance with certain plans consisting of five sheets numbered 1 through 5 dated May 1, 1990, prepared by Hubble Engineering, Inc. and entitled 111990 Ten Mile Road Sewer and Water Extension. " These plans have been submitted to the water superintendent for the District, are in his possession in his offices, and are hereby incorporated by this reference. 2 . 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. If the District' s engineers perform such inspection, Licensee shall pay the District's engineers any fee charged in connection therewith. 3 . Licensee shall place no structures of any kind above ground on the District's easement area except as referred to in this agreement or exhibits thereto without the prior written consent of the District. The District' s easement along this section of Eightmile Lateral is 60 feet, 30 feet on each side of centerline. LICENSE AGREEMENT - Page 11