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HomeMy WebLinkAboutettlers Irrigation District for Meridian Fire Station 5 (2)RECQRDING REQUESTED BYAND WHEN RECORDED RETURN TO. Moffatt, Thomas, Barrett, Rock & Fields, Chartered 101 S. Capitol Boulevard, 10th Floor Post Office Box 829 Boise, Idaho 83701-0829 (Space Above For Recorder's Use) UTILITY LICENSE AGREEMENT This Utility License Agreement ("Agreement', is entered into and made effective this day of , 20 , by and between NORTH SLOUGH LATERAL USERS ASSOCIATION ("Association"), a duly organized lateral ditch association, acting under the authority of Idaho Code section 42-1301, et seq., whose address is 2685 W. Chinden Boulevard, Meridian, Idaho 83642, and ("Licensee"), whose address is (name of other party) NOW, THEREFORE, in consideration of the mutual benefits to be received by the Association and Licensee, and other good and valuable consideration, which consideration is hereby acknowledged by the parties, and the promises, covenants, agreements, and conditions hereinafter set forth, the parties agree with one another as follows: Grant of License. The Association hereby grants a License ("License") to Licensee for the purpose of crossing the North Slough No. 1 Lateral, also known as the Simpson Lateral (hereinafter the "North Slough No. 1 Lateral") at the location described in Exhibit A, appended hereto, in order to construct, operate, inspect, maintain, and repair (list crossing(s) -power, gas, cable, phone, etc.) UTILITY LICENSE AGREEMENT -1 Revised 8/10/06 This grant of BOI MT2:573390.2 License is subject and subordinate to any and all property rights the Association may have in the North Slough No. 1 Lateral. Licensee expressly acknowledges and agrees that this License does not grant Licensee the right to install any property or equipment, except as may be described in this Agreement, or the right to impair any rights of the Association or others in the use of the North Slough No. 1 Lateral. This grant is expressly conditioned upon the prior receipt by Licensee of any and all necessary approvals from governmental entities and private parties for its activities to be performed under the terms of this Agreement, and is further expressly conditioned upon the Association's prior approval of all drawings and plans concerning the activities to be conducted by Licensee under this Agreement. 2. Term of Grant of License. The term of the License shall commence upon the effective date of this Agreement and shall continue fog so long as Licensee is in compliance with the terms of this Agreement. The Association reserves the right to revoke this License, effective upon written notice to the Licensee thereof, should Licensee at any time fail to comply with the terms of this Agreement, and fail to correct such noncompliance within ten (10) days following service of written notice by the Association. 3. Construction, Inspection. Maintenance. Repair, and Replacement of Crossinf?. Licensee, following execution of this Agreement by the parties, may have access across the North Slough No. 1 Lateral to conduct such construction, inspection, maintenance, repair, and replacement of the (type of crossing) as may be reasonably necessary, subject to any restrictions imposed on Licensee's activities as maybe set forth in this Agreement. Licensee or its agents and contractors shall perform any work in a workmanlike UTII.ITY LICENSE AGREEMENT - 2 BOI MT2:573380.2 Revised 8/10106 manner, and in accordance with the Engineering Plans and Specifications referenced in Exhibit B. Any activities by Licensee which may impede or impair the flow of water through the North Slough No. 1 Lateral may only be performed during the non-irrigation season, which is usually between November 1 and Mazch 15. Licensee expressly acknowledges that the Association does not relinquish its ownership rights in any portion of the North Slough No. 1 Lateral. 4. Utili Crossings. Licensee shall not allow any Utilities (except Licensee if it is a Utility) or any private party to attach to Licensee's facilities governed by this Agreement, cross any portion of the North Slough No. 1 Lateral, or otherwise use or encroach upon the Association's easements, without the express written consent of the Association. Said written consent may take the form of an addendum to this existing Agreement or, the Association, in its discretion, may require that separate license agreements be executed between the Association and the Utility or private party seeking to cross the North Slough No. 1 Lateral. 5. Express Waiver. In the event that any Utilities or private parties do attach to Licensee's facilities governed by this Agreement, cross Association facilities and/or systems, or shaze in the use of Association's facility and/or system easements, by such crossing or use Licensee, and Utilities or private parties, waive any and all claims against the Association, now and in the future, concerning the Association's water distribution, operation, and maintenance activities upon its facilities and/or systems. 6. Indemni .Licensee, and any Utility or private party that attaches to Licensee's facilities governed by this Agreement, crosses a Association facility or system, or uses an Association easement, agrees to protect, defend, indemnify, and hold the Association and UTILITY LICENSE AGREEMENT - 3 BOI MT2:573390.2 Revised 8H 0106 its officers, directors, employees, members, and agents harniless from and against any and all liability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including court costs and attorney fees, arising from or out of any acts or omissions of the Licensee or any crossing Utility, their agents, or contractors related to or in connection with their crossing of Association facilities, use of the easements of the Association, any attachments to Licensee's facilities governed by this Agreement by a crossing Utility or private party, or any activity under this Agreement and the exercise of any privileges or performance of any obligations by the Licensee or crossing Utility hereunder. Furthermore, the Licensee and any crossing Utility agree to protect, indemnify, and hold the Association and its officers, directors, employees, members, and agents harmless from and against any and all liability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including court costs and attorney fees, arising from or out of water quality violations, flooding, or any interruption or interference with the flow of water in the North Slough No. 1 Lateral caused by any act or omission of the Licensee and any crossing Utility or their agents. Notwithstanding any other provision of this Agreement, Licensee, and any Utility or private party that attaches to Licensee's facilities, shall be responsible for their own actions only, and not the actions of any other party hereunder. Each party's liability shall be separate only, and not joint. 7. No Liens. Licensee shall allow no liens as a result of any labor performed or materials supplied in connection with the activities of Licensee, its agents, or contractors, to attach to the North Slough No. 1 Lateral or to any adjacent lands held by the Association. 8. Permits. Licensee represents that it has obtained all permits, licenses, and aclrnowledgments required to conduct the activities to be performed under the terms of the Agreement. Additionally, for those projects which fall under the purview of the Clean Water UTILITY LICENSE AGREEMENT - 4 Revised eH0/05 BOI MT2:b73390.2 Act, 33 U.S.C. 1251, et seq., prior to commencement of construction impacting the Association's facilities, Licensee shall deliver to legal counsel for the Association a copy of a Section 404 Permit it has obtained from the United States Army Corps of Engineers. In the event that a Section 404 Permit is not required, Licensee shall certify that its construction impacting the Association's facilities does not fall under the purview of the Clean Water Act and a Section 404 Permit is not required. The parties hereby recognize and agree that this Agreement will not be executed by the Association and recorded until legal counsel for the Association is in receipt of the appropriate Section 404 Permit or written certification by Licensee that a Section 404 Permit is not required for the construction contemplated under this Agreement. Such certification shall be attached to this Agreement as Exhibit C and made a part hereof. 9. Limitations on Liability: Attorney Fees. The parties hereto agree that nothing herein contained shall be construed to create a joint venture, partnership, or other similaz relationship which might subject any party to liability for the debts and/or obligations of the others, except as otherwise expressly agreed in this Agreement. In the event of any suit or proceeding by either party herein against the other party arising out of this Agreement or in connection with the activities of the Licensee, or their agents or contractors, under this Agreement, the nonprevailing party in such suit or proceeding shall pay to the prevailing party such sum or sums as the court shall adjudge reasonable for attorney fees and costs, including such fees and costs on appeal. 10. Further Consideration. In further consideration for inducing the Association to grant this License, the Licensee agrees to promptly pay all expenses incurred for the benefit of the Association relating to the negotiation, preparation, and execution of this Agreement. UTILITY LICENSE AGREEMENT - 5 BOI MT2:573380.2 Revised 8/10/06 11. Entire A Bement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter of this Agreement. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 12. Bindin Effect. The promises, covenants, conditions, and agreements herein contained shall be binding on each of the parties hereto and on all parties and all person claiming under them or any of them; and the rights and obligations hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. 13. Severabilitv. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 14. No Waiver. The failure of a party to insist on the strict performance of any provision of this Agreement or to exercise any right or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit such party's right to enforce any provision or exercise any right. 1 S. Governing_Law. The validity, meaning, and effect of this Agreement shall be determined in accordance with the laws of the State of Idaho. 16. Representations of Parties. (a) The Association. The Association represents and warrants that: (i) it is an irrigation Association organized and existing under and by virtue of the laws of the State of Idaho; (ii) it has the capacity to enter into and perform the Association's obligations under this Agreement; (iii) all organizational and other actions required to authorize the Association to enter into and perform this Agreement have been properly taken; and (iv) this Agreement has UTILITY LICENSE AGREEMENT - 6 BOI MT2:573390.2 Revised 8H0/OB been properly executed and delivered by the Association and is valid and binding upon the Association in accordance with its terms. (b) Licensee. Licensee represents and warrants that: (i) it has the capacity to enter into and perform its obligations under this Agreement; (ii) all actions required to authorize Licensee to enter into and perform this Agreement have been properly taken; (iii) it has obtained all permits, licenses, and acknowledgments required to conduct the activities to be performed under the terms of the Agreement; (iv) this Agreement has been properly executed and delivered by the Licensee and is valid and binding upon the Licensee in accordance with its terms; and (v) (check one of the following, if applicable): ^ Licensee is an Idaho municipal corporation incorporated and in good standing in the State of Idaho. ^ Licensee is a partnership established and is in good standing in the State of ^ Licensee is a incorporated or organized and in good standing in the State of 17. Notices. All notices permitted or required to be given under the terms of this Agreement shall be in writing and shall be deemed effective upon receipt if sent by first class mail, postage prepaid, and addressed to the respective party hereto as follows, or at such other address as a party designates in writing. NORTH SLOUGH LATERAL USERS ASSOCIATION 2685 W. Chinden Boulevard Meridian, Idaho 83642 Licensee Name Address City, State & Zip Code ~JTILITY LICENSE AGREEMENT - 7 BOI MT2:573390.2 Revised 8/10/05 18. Recordine. This Agreement shall be recorded at the Ada County Recorder's Office. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date first set forth above. NORTH SLOUGH LATERAL USERS ASSOCIATION By-= ~~~ ~ Writte Name: Its President Attest: Writt ~ Name• O l Its Vi e-Presid t (name of Licensee) sy Written Name: Its UTILITY LICENSE AGREEMENT - 8 BOI MT2:573390.2 Revised 8/10/05 STATE OF IDAHO ) ss. County of Ada ) On this day of , 20 ,before me, the undersigned Notary Public in and for the said state, personally appeared known or identified to me to be the President of NORTH SLOUGH LATERAL USERS ASSOCIATION, the person who executed the instrument on behalf of NORTH SLOUGH LATERAL USERS ASSOCIATION, and acknowledged to me that NORTH SLOUGH LATERAL USERS ASSOCIATION 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 STATE OF IDAHO ) ss. County of Ada ) On this day of , 20 ,before me, the undersigned Notary Public in and for the said state, personally appeared known or identified to me to be the Vice-President of NORTH SLOUGH LATERAL USERS ASSOCIATION, the person who executed the instrument on behalf of NORTH SLOUGH LATERAL USERS ASSOCIATION, and acknowledged to me that NORTH SLOUGH LATERAL USERS ASSOCIATION 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 UTILITY LICENSE AGREEMENT - 9 801 MT2:573380.2 Revised 8H 0/OS STATE OF IDAHO ) ss. County of ) On this day of , 20_ ,before me, the undersigned Notary Public in and for said state, personally appeared ,known or identified to me to be the of ,who is the person who executed the instrument on behalf of ,and acknowledged to me that ,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 UTILITY LICENSE AGREEMENT -10 BOI MT2:573380.2 Revised BHOl05 ' EXHIBIT A Legal Description of Crossing EXHIBIT A BOI MT2:573390.2 EXHIBIT B Engineering Plans and Specifications EXHIBIT B BOI MT2:573390.2 EXHIBIT C Clean Water Act Section 404 Permit Certification The undersigned represents he/she is a duly authorized representative of ("Licensee"), and hereby certifies that a {name of Licensee) Clean Water Act Section 404 Permit is not required for Licensee's crossing(s) of the North Slough No. 1 Lateral, for (description of crossing(s)) the following reason: ^ Licensee's crossing of the North Slough No. 1 Lateral is overhead and will not include any excavation in or azound or any dischazge of dredged or fill material into the North Slough No. 1 Lateral. ^ Licensee will use the "boring" method of construction which will not include any excavation in or around or any discharge of dredged or fill material into the North Slough No. 1 Lateral. ^ The North Slough No. 1 Lateral is an existing piped facility; thus, any construction impacting the facility will not include any dischazge of dredged or fill material into the facility. ^ Licensee is in receipt of a Clean Water Act Section 404 Permit non- jurisdictional determination from the United States Army Corps of Engineers (attached hereto). DATED THIS day of , 20 (name of Licensee) By Written Name: Authorized Title: EXHIBIT C BOI MT2:573390.2