HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Ten Mile Interchange Project Kennedy LateralOb/04/2~009 MON lb:~l FAg
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RECOROEO-REQUEST OF 1890~tfi58B
Nampa Merldfan Urlpatlon Olet
LICENSE AC.4ELMEI~T
LICENSE AGREEMENT, made and entered 6 nto this ~_ day of , 2(I11~, by and
among NAMPA & MERIDIAN IRRIGATION DISTRI!"T, an irrigation district or nized and existing under
and by virtue oC the laws of [he State of Idaho, party of she first part, hereinafter referred to as the "DislriCl",
and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho B3642
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
WI~IV~~SETFi:
WHEREAS, Licensee is the owner of real prcxpcrty/right•of way Cot a water lint; and reuse mein
(burdened with the easement of the District hcreinaiaer mentipned} particularly described in the "1,.egal
Description" attached hereto as Exhibit A and Uy this reference made a part hereof; and,
WI~REAS, the District owns the irrigation Glitch or canal known a5 KENNEDY LATERAL
{hereinafter collectively referred to as "ditch or canal"), an integral part of the District's irrigation works and
system, tcsgcther with the ca5cmc~tl therefor to convey i^igalivn and drainage water, operate, clean, maintain,
and repair the diech or canal, and access the diech or canal for those purposes; and,
WHEREAS, said ditch or canal and easement crosses and intersects Licensee's real properly as
shown on Exhibit 13 attached hereto and by this reference made a pari hereof; and,
WHEREAS, the Licensee desires a Iicense to engage in eonSlruction or activity, or approve existing
CnnSlruCtic~n nr aCti'Vi[y, affecting said ditch or canal or the District's easement in its cc~ursc across the lands
of the Licensee in the manner and under the terms and conditions hereinafter set forth; and,
WHE1tEAS, it is necessary that the District protect ditches and its right of way slang its ditches;
NOW, T~IEitEFORE, for and in consideration;~f the prenuses and of the covenants, agreements and
conditions hcrcinaftor set forth, the parties agreo as fc~ lows:
1. The Licensee shall have the right to modify the said ditch or canal or encroach upon the
District's easement along said ditch ar eanel in the; manner generally described in the "t'urpose pf License"
attached hereto as Exhibit G and by this reference m:~~Ic a part hereof. ,Any modification of said ditch or
__ canal by the_Licensec or_cncryaahmcnl_upon_lh~ D_i~triCt's easement xlang__said..ditch.~)r c-anal_shall_hc
performed and maintained in accordance with the "Sp~~ial Conditions" stated in Exhibit D, attached hereto
and by Ihis reference made a part hereof Any differenr~ or discrepancy between the items lined in Exhibit
C, "Purpose of License," and any plans or drawings rei;erenced in or attached to Exhibit D shat] be resolved
in favor of Exhibit C. 1,iccnsec shall only be permitted or allowed to modify the ditch or canal or encroach
apon the District's easement as described in Exhibit C 4vcn iF any plans or drawings reierene~~d car attached
to Exhibit D provide or Shaw othorwisa.
05/04/2009 MON 16:31 FAg
2. This agrec;mcnl pertains only to the LieensCe's modification of said ditch or canal or
Pn~achtnent !o the District's e^~~ement ;•t:r the p:Zrp.^,.4:.~ snd iii the manner described hcrrin. ;'hE L1VGIlsI+~
shall not change the location of the ditch or canal, bury ;he ditch or canal in pipe, or otherwise alter the ditch
or ea~nal in any manner not described in this agreement without i9r.;[ obtaining the written permission oI 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 Lleensee's predecessor in intere.5t) shall be
constructed, installed, operated, maintained, and repaired at all tithes by the Licensee at the cost and expcnso
of the LiccnSeE.
4. LieenSCC agrees to construct, install, ~jpcrate, maintain and repair each facility and conduct
its rctivities within or affecting 1hC District's easement so as not to constitute or cause:
a. a hazard to any person or property;
b. an interruption or inlerf~rence 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 an} other increase in the loss oI water Irom the ditch or
canal;
d. the subsidence of soil within r~r adjacent to the easement;
e. any other damage to the Dist: ct's easement and irrigation work.S.
5. The Licensee agrees tp indomnii'y, hold harmless, and defend the District from all claims
for daznages arising out of any of the Licensee's construction or activity which c:.onslilutes or causes any of
the circumstances enumerated in the preceding para~*raph, 4.a. through 4.e., or any other damage to the
easement and'inigation works which may be caused by;he construction,installalion, operation, riaainlenance,
repair, and any use or condition of any facility. ;
6. Licensee agrees that the work pcri'orn~ed and the materials used in such construction shall
at all times be subjec! to inspection by the ®islriet and;the District's engineers, anti lha! final acceptance of
such work shall not be made until all such work and t1atcrials 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 allerrrtion by the Licensee ai'said ditch or canal and thn easement therefor which
ddcs not comply with the tertns of this agreement, and tr t remove any impediment tp the flow ol'wa[er in said
ditch or canal and any unsafe condition or hazard csz.s@d by the Licensee, al any dme, and the 1Liecnsec
agrees to pay to the District, on dCmBnd, the costs which shall be reasonably expended by the District for
such purposes. If the Licensee shall Lail in any respect la properly maintain and repair such racility, then the
District, at its option, and without impairing or in Anyvrise affecting its other rights and renrredie.~ 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 Aislriet shall give reasonable nonce to the Licensee prior ~o 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 ~r sunpprt any
claim of any land by Licensee or any [laird party again.l thy: 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
X003/010
LICENSE AGREEMENT -Page Z
06/04/2409 MON ib:31 FAS
against the District arising out of or relating to the terms of this paragraph except For claims arising solely
^t.'t of the t:eeln~~nc2~ ^vf the D:stmt.
$. 1~Ieilher the terms of this agreement, lh„~ permission granted by the Dislricl to the Licensee,
the Licensee's activity which is the subject of this agreement, nor the parties exercise of any rights or
perfortnanee C1I' ens obligations of this agreement, Sht~~hl be construed or asserted to Cxtend the application
of any statute, rule, regulation, directive orother requirement, or the jurisdiction of any federal, state, or other
agency or official to the pistric!'S ownership, operation, and maintenance of its ditches, canals, drains,
irrigation works and facilities which did not apply ta; the District's operations and activities prior to and
without rxccution of this agreement. In the event the District is rc.tYuired to comply wish any such
requirements or is subject to the jurisdiction of any su':h agency as a result ol` 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 oC the Dlstrlct, this agecn~ertt shall be of no force and effect and the Licensee
shall cease all activity and remove any facility aulhori~:_ed by this agreement.
9. In addition to all other indemnifiettjion provisions herein, Licensc:c li~rlhar agrees to
indemnify, hold harmless and defend the District from luny injury, damages, claim, lien, cast andlnr expense
(ncludirtl; reasonable attorney's fees) incurred by, or asserted against, the District by reason of the neglibrenl
acts or omisgionR of I:,icer-see or its agents, contraetorS car subcontractors in perTorrning the construction and
activities authorized by this agreemen[.
10. The Licensee agrees that the DistrIcl shall not be liable for tiny damages which shall occur
eo any facility, structure, plant, or any other improvement oP 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 rr repair of said ditch or canal. Tho Licensee further
agrees to suspend its use of the scud easement area when the uSc or the easement area is required by the
Dislricl for maintenance or repair under lltis or any other paragraph of this agreement.
I, l . Licensee shall place no structures, pathways or landscaping of any kind shove or within the
District's casement area except as refen•ed to in this agreement car exhibits hereto without the prior written
consent of the District. Nor shall Licensee permi t, aulF;orize or grant any other person or entity to excavate,
discharge, construct or place any structures, Pathways ur landscaping within the District casement without
the prior written consent of the District. ;
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12. Should either party incur costs or aity~rney fees in connection with efforts to enforce the
provisions of this agreement, whether by institution oF~uit or not, lheparty rightfully eni'orcting or rightfully
resisting enforc;emenl of the provisions of this agreement, pr the prevailing party in caso sui[ is instituted,
shall be entitled to reimbursement for its costs and reasonable attorney tens from the other party.
13, The parties hereto understand and agru: that the District has no right In any respect to impair
the uses and purposes of the irrigation works and syslzm of the District by this agreement, nor to grant any
rights in its irrigation works and system incompalibl~s with t_h_C uses to which such. irrigation works and __
system arc devoted and dedi~tled and that this eontra~~t shall be at a]1 times construed according io such
principles.
LIC>~T5E AGREEMENT - pab0 3
Ob/04/2009 MON 16:2 FAg
14. Nothing herein c:ontainEd shall be construed to impair the right of way of the Disulct in [he
sai!I ~ti!ch or canal and ail uses of said dilelt er canal by :he ? ~eensee u^.~ the lie~nse herein: ^rcvidad there!`cr
r
shall rern,ain inferior and subservient to the rigHts of the District to the use tf said ditch qr canal for the
transmission and delivery of irrigation and drainage w?~tler.
15. Itt the cvCnl of the failure, refusal or n~:glect of the Licensee to comply wills all oC the leans
and conditions or' this agreement, the license of the Licensee under the terms hereof may be tCrminettcd by
the District, and any facility, structure, plant, or any piper improvement in or over said ditch or canal, and
the right of way therefor, which mdy impede or restrict the mannlenance 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 fc~~s 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 Agreettlen[ oT
in connection with negotiations covering the terms and conditions of this LieenseAgreement. 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 o£ estoppel, waiver, proscription
or adverse possession by l1~e Licensee or any third parity against District_
lt3_ This agreement is not intended tot thN benefit of any third early and is no! cnforccahle by
any ehird party.
y. Ir any provision of this agreement is d•:termined by a court of competent j urisdietion to he
invalid or otherwise unanfcnrcoabte, all remaining provisions of this agreement shalt remain in full farce and
effect.
2A. The word "Licensee", if used in the muter in this agreement, includes the masculine and
feminine genders, the singular number includes the plural, and the plural number includes the singular.
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The covenants, conditions and agreements herein contained shall constitute Oovonanls to run with,
and running with, all of the lands of the Licensee de,SCfibed in said Exhibit A, and shall be binding on each
of the parties hereto and on all parties and alI persr~rts claiming under them or either of them, and the
advantages herentshall inure to the benefit of each of the parties hereto and their respective successors and
assigns.
f
NAMPA & MERIDIAN IRRIGATION 17ISTRII'rf'
By C„
II ~ Presiden[
TTI;.'ST:
1 --- - -
I[s Secretary ~ Q~(~t '~
LICENSE AGREEMENT -Page 4
Ob/04/2009 MON lb: a2 FA%
CITY OF MERIDIAN
ATTEST:
STATE OF IDAHO
Cnun[y pf Canyon
ss:
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On this~[_ day of ~, ~'J09, before me, the w~dersigncd, a Notary Public in
and for said State, personally appeared Clinton C. Plinc and Daren R. Coon, known to me to be t]tc President
and Secretary, respectively, ofNAMPA & MERIDIAI~~IRRIGATION DISTRICT', the irriaPalion district that
executed the foregoing instrtument and acknowledged to me that such irrigation district executed the Same.
IN WITNESS WHEREOF, I have herc:tnto se[ my hand and affixed my official seal, the day
and year in this ecKiiiiritle first ~~~•rrs~ j~en.
STATE OF IDAHO
County of Ada
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Notary Public or Idaho
Residing at Idaho
My Commission fixpireg: '~ .~®(a.
On this ~J day of , 20Q9, Ilefore me, the undersigned, a notary
public in and for said slate, personally appeared'Tex ~, 11~rdan known lA
ma to lie ihb and respectively, o l]ie CITY OF MERIDIAN,
the political subdivisi nand municipality that e~ eeutcc: t e foregoing instrument, and acknowledged to m®
that such entity executed the same.
lave herc~nto set my hand and affixed my ot<fieiat scat, thc: day
and ycar in this
ary Public for
Residing. at
My Commission Expires: ICS ' ~ l1
17J 006/010
LICENSE AGREEMEN'T' -page 5
Ob/04/$009 MON 1b:32 FA%
~~
Legai Descri~iion,
Aright-of-way for a potable water main and a Class A Reuse main located within the road right-of-
way for Ten Mile Road in the NW1l4 of Section 14, ~'ownship 3 North, Range 1 Well and the NE 1!4 of
Section 15, Township 3 North, Range 1 West, B.M., .~~da County, Idaho.
EXHII3lT C
Purpose of I~irense
't'he purpose of this License Agreement is to 1)etmil and approve Licensee to:
1. construct, install, maintain and rcpai~ a 12 inch pr,table water main aeroSS stnd under the
Kennedy Lateral and within the Aistri::t's easement; and
2. construct, install, rgainlain and repair a 12 inch Class A Reuse main across and under the
Kennedy Lateral and within the District's easement,
all within Licensee's right-of--way described in Erchibit,A~ located within the road right-of=way forTen Mile
Road, between the lmerstate $4 and firanldin Road in luieridian, Ada County, Idaho. No other construction
or activity is permitted within or affecting the Kennedy Lateral or the District's easement.
F.XHIIIIT D
5•pecial Conditions
a. The construction described in Exhibit C shall be in performed in accordance with certain
plans consisting oFone sheet attached hereto as Exhih~t D-1 and by this reference incorporated herein.
b. The Licensee recd fmizes and aelrnowle:dges that the license granted in Chis agreement by the
District pertains only to the rights of the District as owTier of an easement. The District has no right or power
to create rights in the Licensee affecting the holder of title to the property subject to the District's easement_
A.ny such rights dffeoting feC title must be acquired b4 the Licensee from the holder of title to the properly.
Should Licensee fail io obtain such rights from the holcltr of fitlC !o the property or should the rights obtained
prove legally ineffectual, Licensee shall hold harmless, indemtufy and defend the District from any elaimi
by any party arising out of or related to such failure of rights and at the option of the District this agreement
shall be of no force and effect.
c. Licensee represents that Licensee has, complied wish all federal, stab or other laws, rules,
regulations, directives s,r other requirements in any form regarding environmental matters, and specifically
those relating to pollution control and water quality, cIs may be applicable under the sutjecl matter, terms
or performance of this agreement broadly construed. Licensee recognizes its continuing duty to comply with
all such requirements that now exist or that maybe imp?emented or imposed in the suture. B~ executing this
__
agreement the District assumes no responsibility or Ii.ihilily for any impact upon or degradation of wafer
qualify or [ltc envimnment resulting from the discltarg~ ar other activity by Liccnsee.which is the subject of
this agreement.
[~ 007/010
C,.ICEN$Ir A.GI2IrEMENT - Pagc 6
06/04/2009 MON 16:32 FAg
~ 008/010
d_ Licensee hereby iedctnnities, holds harmless and shall defend the District from any and al!
perin]ue.Ai, f-anE't~i+na, dir PCti`v'@S, iiafii~~ fSr gTiy aCt3i3n tTi]ieii f-r r~YiirClllG~ttt iSafiosed liy any pfLrty or etttity,
public or private, with respect to environmental matters relating to the subject mailer, terms or perCArmance
of t[tis agreemen! un]esa the District shall be solely responsible for the condition or activity which ,gives rise
to any such.penalty, sanction, directive, claim ,action or tequirement.
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 elf
casts and liabilities associated with such permit and other requirements, including ftut not limited to all costs
associated with all permit acquisition, construction, monitoring, treatment, edrainistralive, filing and other
requaremcnis.
f. The parties to this agreement rccagnize 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 orimpIied, to regulate control, orprohibit the discharge orcontribution of pollutants orcontaminants
to the DistrictYs facilities or to any groundwater, waters of the State of Idaho or the Cfnited 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 planC any frees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the Kennedy 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 Cor the Kennedy Lateral
includes a sufficient area of land to convey irrigation and drainage water, to operate, Clean, maintain and
repair the Kennedy Lateral, and to access the Kennedy T„.aieral for said purposes and i~ a minimum of 55 feet,
ZO feet to the Ieft of the centerline, and 35 feet to the right of the centerline facing downstream.
i. Construction shall be completed one pear from the date of this Agreement. T]mo is of the
essence.
LICENSE AGREEMENT -Page 7
05/04/2009 MON 15:2 FAg
I~j009/010
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06/04/2009 ffiON 16:33 FAg
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Exhibit D-1