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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Lanark Evans Drain LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this ~ day of , Z00~ by and among NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation distric organize and existing under and by virtue of the Iaws 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 coIIectively referred to as the "Licensee", WITNESSETH: WHEREAS, Licensee is the owner of real property/right-of-way for a water line (buzdened 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 EVANS DRAIN AND GRUBER LATERAL (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, or approve existing 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 thepremises and of the 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. 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 or allowed to modify the ditch or canal or encroach upon the District's easement as described in Exhibit C even if any plans or drawings referenced or attached to Exhibit D provide or show otherwise: 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 oz 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; c. an increase in seepage or any other increase in the loss of water from the ditch or canal; , d. the subsidence of soil within or adjacent to the easement; e. 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 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 LICENSE AGREEMENT -Page 2 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. 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 oz is subject to the jurisdiction 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 alI 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. alI 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, costand/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 parry 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 and that this contract shall be at all times construed according to such principles. LICENSE AGREEMENT -Page 3 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 transmission and delivery of irrigation and drainage water. I5. 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 terminated by the District, and any facility, structure, plant, oz 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 foz 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. 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 parry 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 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. ~ _ ~_ ~ ~ ~ „ ®~` ~~ ~~ NAMP & MERIDIAN IRRIGA ION DISTRICT ,-~ ~ r ~~ ~~• ~. BY -' -~~~'~ Its President ATTEST: ~~~~ ~„~ ~~~~~ C~~.~-- Its Secretary LICENSE AGREEMENT -Page 4 CITY OF MERIDIAN ~~ ~~y,d;s ~ss:,t, tixj ~n ~_-L~~ ~yf, ATTEST: 44~ ~h . ~.~w x~w r~=~. ' ;~scct° C~G~.y"..~ ~~d~~-Q~ d'f~~ ~ ~~ STATE OF IDAHO ) ~~~,~' ~~~~-, County of Canyon ) On this ~ day of , 200, before me, the undersigned, a Notary Public in and for said State, personally appeare and Daren R. Coon, known to me to be the President and Secretary, respectively, of NAMPA & M RIDIAN 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. °`°°arc°ercerrrr°d eee° ~ A N . ~ °°°° S .-. ~ L • ~ ~ STATE OF IDAHO ) ? :~ ?°UB LtG County of Ada ) °'°,1F Og I~Po•°° °°ereara®eoroy°1® ~~ Notary Public for I aho Residing at , .Idaho My Commission Expires: J D ~OlZ On this ~ ZS ' day of ~('e p'~1~~ , 2007, before me, the undersigned, a notary public in and for said state, personally appeared `14rr<mu c~ ~J~ and V41~ l I r' Arts G. ,''known to me to be the. and r_- ~ ,respectively, of the CITY OF RIDIAN, the political subdiv on and municipality tha 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. ,~~~® ~~ "°° ~~ ~~ ~ ~ ~ a t ~ I 6 FS a I I ~ ~ ~ ~ ~ £ ``~ {~ ~q~~ ~'~ 1r'o LICENSE AGREEME~~~A ®~ ~' otary Public for ~~, ((~ ~(j Residing at (1(1 IC` t 1 1 f 1 t~ My Commission Expires: ~ ©- ((--~ ~ EXHIBIT A Leal Description Aright of way fora 10 inch water line in or near Lanark Stireet located between Franklin Road and the Union Pacific Rail Road in SW1/4 Section 8, T.3N, R.1E, B.M., Ada County Idaho. EXHIBIT C Purpose of License The purpose o~ this License Agreement is to permit and approve Licensee to: 1. construct, install, maintain and repair a 10 inch water line across and under the Evans Drain and within the District's easement; 2. construct, install, maintain and repair a 10 inch water line across and under the Gruber Lateral and within the District's easement, all within Licensee's right-of--way, located within or adjacent to Lanark Street, located between the Union Pacific Rail Road and Franklin Road in Meridian, Ada County, Idaho. No other construction or activity is permitted within or affecting the Evans Drain, Gruber Lateral or the District's easements. 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 by this reference incorporated herein. ~ The water line shall be located a minimum of three feet below the bottom of the District's ditches. b. 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. c. 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 or 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 from the discharge or other activity by Licensee which is the subject of this agreement. LICENSE AGREEMENT -Page 6 d. Licensee hereby indemnifies, holds harmless and shall defend the District from any and all penalties, sanctipns, 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 zesponsible for the condition or activity which gives rise to any such penalty, sanction, directive, claim ,action or requirement. e. 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. f. The parties to this agreement recognize this Ticense 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. g. 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 easements for the Evans Drain and Gruber Lateral except as referred to in this agreement or exhibits thereto without the prior written consent of the District. h. Licensee acknowledges and confirms that the District's easement for the Evans Drain includes a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Evans Drain, and to access the Evans Drain for said pua~oses and is a minimum of 60 feet, 30 feet to either side of the centerline. Licensee acknowledges and confirms that the District's easement for the Gruber Lateral includes a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Gruber Lateral, and to access the Gruber Lateral for said purposes and is a minimum of 30 feet, 15 feet to either side of the centerline. i. Construction shall be completed one year from the date of this Agreements Time is of the essence. f LICENSE AGREEMENT -Page 7 Exhibit B ,.~ 4 ~~ r°~55 R ~ ~:ggC° g 9e° ~°° ~° 9 ~ X89 paR 3~ 'g 3~ ~ ~.$ E~ ;o S~ , ' $Ze~ Rgs ~ €g oR 9s £ cq ~ ~ Qg E °~ E %3 $ ~ ~ ~ y >;~R ~°p €~ g 3 3 ss' ~¢ p~R ~1J o5 ~s:;g. ~' ye9 %~,E ~^% ~sgP~ ~.~ gfl4 a n€ ~..§ B ~', $g ~£ g' ~.me ~~ ~~~¢ppS g8gS ~~ SII ~ _ og. 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