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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Bienville Square Finch Lateral ~~ `~'~ ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT 39.00 13 ~j BOISE IDAHO 11/20107 0217 PM DEPUTY Bonnie OberbilBg { RECORDED-REQUEST OP ~I I I' ll'I'~'I ~ I" I I' I' I Nampa Meridian Irriga0on Dist i 071 ~593s LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this ~ day of , 2007, by and among NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation distric 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 MASON CREEK, LLC, an Idaho limited liability company, 2076 S. Eagle Road, Meridian, Idaho 83642 party or parties of the second part, hereinafter collectively referred to as the "Licensee", WITNESSETH: WHEREAS, Licensee is the owner of real property (burdened with the easement of the District hereinafter mentioned) particularly described in the "Legal Description" and/or deed attached hereto as Exhibit A and by this reference made a part hereof; and, WHEREAS, the District owns the ditch nr canal known as the MILKS LATERAL and FINCH LATERAL (hereinafter collectively referred to as "ditch or canal"}, an integral part of the District's irrigation works and system, together with fee title ownership and/ or the easement therefor to convey irrigation and drainage water, to 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 approve existing construction and engage in construction or activity affecting said ditch or canal or the District's easement in the manner and under the teems and conditions hereinafter set forth; and, WHEREAS, it is necessary that the District protect absolutely its ditch or canal and its right of way along its ditch or canal; NOW, THEREFORE, for and in consideration of the promises 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 ditch or canal or encroach upon the District's easement along the ditch or canal in the manner described in the "Purpose of License" attached hereto as Exhibit C and by this reference made a part hereof. Any modification of the ditch or canal by the Licensee or encroachment upon.thc 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 alter the ditch or canal or perform any construction within or affecting the District's ditch or canal and easement 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; c. an increace~eapage~ran~ other increase-in--the-less-of~vato~frsrn-thg-di-tsh-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 he 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 anyway 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 LICENSE AGREEMENT -Page 2 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 j urisdiction 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 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 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 instal] 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 casts 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 and that this contract shall be at all times construed according to such principles. 14. Nothing herein contained shall he 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 LICENSE AGREEMENT -Page 3 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. 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 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 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 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 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 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. ~~e~,~'~ l~~y~~ ; NAMPA & MERIDIAN IRRIGATION DISTRICT `r . ~ p~~C//s~ ~~ sy / ~~ z `-. ~- C~C1.~S~-~ ,~. Its President" ' ATTEST: 1• : ~ ~~~ Its Secretary LICENSE AGREEMENT -Page 4 MASON CREEK, LLC, an Idaho limited liability company STATE OF IDAHO County of Canyon ss: ~l~l,( ~ ~Y~St`GI~f'lt 0'~ ~ I~ G ~ J V1t ~YY1 t~E:Y ~ ~150Y1 C°t'~°k~ ~.~..~ . On this ~.3~ day of , 2007, before me, the undersigned, a Notary Public in and for said State, personally appeare Henry Weick 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. ,aaaaaauau•s,,~•° O•a ~ ~ ld . ~I p °i°° ~~`°~,a°a~°~ss~~yaO°~~~°~,~ Notary Public for Idaho ~• q °• ,~pq'gR}, °~ Residing at ,Idaho a„ _ My Commission Expires: Z 3 • • G STATE OF IDAHO } ~.° ,~ °•° P U t3 ~t ,~°~O ~'~ County of ~, ~ °°•.•,,F~OFa~9ao` On this ~`3rc_( day of 1~1.LtC ~ 2007, before me, the undersigned, a notary ublic in and For said state, personally appeared ~Y ~ ,known to me to be the F~restaer~tef ~;i;o,-,-,~. ~ n~~,rr,,~ of MASON CREEK, LLC, the entit hat executed the foregoing instrument, and acknowledged to me that said 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. .- C~•41 °s°°°a~•9 °i,. sew }p'>< AR }-~ +~~ G # ~•ti PUB~'~ O~ ~'' • N a Public for .~ota.hy Residing at Meri~.ltcir; ,X~i.-J~v _ My Commission Expires: t)~{- ~ ~~ LICENSE AGREEMENT -Page 5 A PARCEL OF LAND BEING A PORTION OF THE NE 1/4 OF SECTION 5, TOWNSHIP 3 NORTH, RANGE 1 EASI OF THE BOISE MERIDIAN, MERIDIAN, ADA COUNTY, IDAHO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SECTION 5, T 3 N., R.1 E , B M, THENCE S 00°00'00" E 677.5? FEET ALONG THE EAST LINE OF SAID SECTION 5 TO A POINT; 'THENCE N 83°S4'00" W 57.36 FEEI TO A POINT ON THE WEST RIGHT OF WAY OF N. EAGLE ROAD, IHE REAL POINT OF BEGINNING OF THIS SUBDNISION; THENCE S O1°14'39" W 597,37 FEET ALONG SAID RIGHT OF WAY I O A POINT; THENCE S 00°00'00" E 38S 96 FEET ALONG SAID RIGHI OF WAY TO A POINT ON IHE NORTH BOUNDARY OF CAROL'S SUBDNISION EXTENDED; THENCE N 44°OS`18" W 239 42 FEET ALONG SAID NORIH BOUNDARY TO A POINT; THENCE N 72°24'04" W 221 28 FEET ALONG SAID NORIH BOUNDARY IO A POINT; THENCE S 77°26'30" W 667.38 FEET ALONG SAID NORTH BOUNDARY TO A POINT; THENCE N 72°3S'42" W 233.35 FEEI IO A POINT ON IHE EASI BOUNDARY OF CAROL'S SUBDIVISION NO.2; THENCE N 00°15'11" W 1129 3S FEEI ALONG SAID EASI BOUNDARY TO A POINI; THENCE S 71°28'10" E 803 90 FEET TO A PO1NI; THENCE S 83°54'00" E S 10.21 FEEI IO IHE REAL POINT OF BEGINNING OF THIS SUBDNISION; THIS PARCEL CONIAIlVS 27.40 ACRES, MORE OR LESS, AND IS SUBJECT TO ALL EXISTING EASEMENTS AND RIGHTS OF WAY Exhibit A ~~~ ~~~un~y, i~~~ 4t r, , i ,. t~~g~t ~~y~~ Exhibit B ~/ EXHIBIT C Purpose of License The purpose of this License Agreement is to permit Licensee to: 1. construct and install roadway ,including roadway improvements, across the Milks Lateral and within the District's easement; 2. construct and install water line within said roadway across and under the Milks Lateral and within the District's easement; 3. construct and install a fence 18 feet from the top of bank of the Finch Lateral and within the District's easement; and 4. construct and install a pathway, to be operated and maintained by the City of Meridian, on the north side of said fence and within the District's easement for the Finch Lateral, all within Licensee's property described in Exhibit A, Bienville Square Subdivision, located southwest of the intersection of Eagle Road and Ustick Road in Meridian, Ada County, Idaho. No other construction or activity is permitted within or affecting the Milks Lateral, Finch 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 asExhibit D-1 and incorporated herein by this reference. With respect to the water line, said water line shall be a minimum of three feet below the bottom of the pipe for the Milks Lateral. With respect to the fence, said fence shall be a minimum of 18 feet from the top of bank of the Finch Lateral. With respect to the pathway, said pathway shall be on the north side of said fence and also a minimum of 18 feet from the top of bank of the Finch Lateral. 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 may pertain in -some locations only to the rights of the District as owner of an easement. Accordingly, at said locations 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. The pathway constructed by Licensee within the District's easement, and permitted by this Agreement, shall be operated and maintained by the City of Meridian. An express condition of this Agreement, and the District permitting said pathway within its easement, is that the City of Meridian enter an Agreement with the District in which it assumes operation, control and maintenance of the pathway. If the City of Meridian declines to accept the pathway and enter into said Agreement then said pathway is no longer authorized within the District's easement. e. Licensee represents that Licensee has complied with all federal, state ar aher laws, rules, LICENSE AGREEMENT -Page 6 regulations, directives or other requirements in any form regarding environmental matters, 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. f. 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 to any such penalty, sanction, directive, claim ,action or requirement. g. 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. h. 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. i. The following shall apply if the fence is now or in the future in whole or in part constructed of wood or plastic: Because of the location of the fence and the fact that the fence will be constructed wholly or partly of wood or plastic, the District shall not be responsible for weed control in the area of the fence and gates. Without affecting the foregoing exemption of the District from weed control obligations, Licensee hereby indemnifies, holds harmless and shall defend the District from any claims for damages to said fence because of weed-burning except where the District intentionally burns the fence or is guilty of gross negligence in burning the fence. j. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or landscaping within the District's easements, nor perform any construction or activity within the District's easements for the Milks Lateral or Finch Lateral except as referred to in this agreement without the prior written consent of the District. k. Licensee acknowledges and confirms that the District's easement For the Milks Lateral includes a sufficient area of land to convcy irrigation and drainage water, to operate, clean, maintain and repair the Milks Lateral, and to access the Milks Lateral for said purposes and is a minimum of 50 Feet, 25 feet to either side of the centerline. Licensee acknowledges and confirms that the District's easement for the Finch Lateral includes a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Finch Lateral, and to access the Finch Lateral for said purposes and is a minimum of 80 feet, 40 feet to either side of the centerline. LICENSE AGREEMENT -Page 7 the essence. Construction shall be completed within one year of the date of this Agreement. Time is of LICENSE AGREEMENT -Page 8 NOT A PART /~~ I II!! III I E ~I f 4 L s ~~(~~ 3 ~~~~~ ~ ~ ~ ~ M a ~~~~ ~~ ~ ~ ( ~ ¢~ jjj~~}ieij! aaa~~~FFF l i~~~ ~ a ~ o ~~, A~qa~ ~~~ @q~gA ~~ ~ P~~AQA4 APPROVED FOR CWVSIRUC110N reeaaAN Pueuc reties ~ gg~~ A~ ~~~~ A BIENVILLE SQUARE SUB q GRADING PLAN ~ ~ SHEET10F3 ~ ~ ~~~ I i ~j~A a oa~~S~ ~ yyl I a~~~ ~ ~~laa y ~~~~~~ ~ ~ iBg~Q~ i i ~~ S n coca s aaa. sey w StdTl~@y C011S11h81LtS we ~ ~j ~ ~~ r~ lmst Ae•osn me teatnwm s.~m - .vane. 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