HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Waltman Court Ten Mile Extension`.
' ADA COUNTY RECORDER J. OAVlD NAUARRO AN~UNf x,00 12
BOISE IDAHO 02/17/08 08:22 AM
DEPUTY Bonnie0berbilllq III I'~I'II~~II'I~I~'II~t'I'~~'Ilft'I~
RECORDED-REQUEST OF 1 1~1~~~5~~I~1 II
Nampa A Meridian Irriga0on
LICENSE AGREEMENT
I
LICENSE AGREEMENT, made and entered into this ~ day of Y~~ltld.4~/; 2006, by and
among NAMPA & MERIDIAN IRRTGATION 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,
33 East Idaho, Meridian, Idaho 83042
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
~i/ITNESSETH:
WHEREAS, Licensee is the owner of real property/right-of-way for a sewer lint (burdened 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 TEN MILE DRAIN
(hereinafter collectively referred to as "ditch or canal "), an integral part of the District's irrigation works and
system, togetherwith the easement therefor to convey irrigation and drainagcwatcr, operate, clean, maintain,
and repair the ditch or canal, and access the ditch or canal for those purposes; and,
WHERF,AS, 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 part hcrcol; and,
WHEREAS, the Licensee desires a license to engage in construction or activity affecting said ditch
or canal or the Districts casement in its course across the lands of the Licensee in the manner and under the
terms and conditions hereinafter set f~,rth; 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 the premises and of the covenants, agrecrnents and
conditions hereinafter set forth, the parties agree as follows:
L The Licensee shall have the tight to modify the said ditch or canal or encroach upon the
District's casement 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.
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
shat! 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 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
ofthc Liccnscc.
4. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct
its activities within or affecting the District's casement 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
casement and irrigation works which may he 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 Districts engineer, and that final acceptance of
such work shall not be made until all such work and materials steal} have been expressly approved by the
District. Such approval by the District shall not he unreasonably withheld.
7. The llistricl 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 oi'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 he reasonably expended by the District for
such purposes. Il' 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 Liccnscc agrees to pay to the
District, on demand, the cost or expense which shall he reasonably expended or incurred by the District tier
such purposes. The District shall give reasonable notice to the Liccnscc prior to the Districts 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 Liccnscc 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 oi' or relating to the terms of this paragraph except for claims arising solely
out ol'the negligence of the District.
LICENSE AGREEMENT -Page 2
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 ar
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 llistrict 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, Licenscc shall indemnify, hold harmless and del`end the
llistrict 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 he 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 attorneys 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.
1Q. 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 nawre whatsoever which the
Licensee shall install nn the said easement area ol'the District in the reasonable exercise of the rights of the
District in the course oL' performance of maintenance or repair of said ditch or canal. The Licenscc further
agrees to suspend its use oC 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 Basemen[ without
the prior written consent oi'the District.
12. She>uld 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 party rightfully enforcing ar rightfully
resisting enforcement of the provisions of this agreement, or the prevailing parry in case suit is instituted,
shall he 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 o!' the irrigation works and system of [hc 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 arc devoted and dedicated and that this contract shall be at all times wnstrued according to such
principles.
l4. 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
LTCENSE AtiREEMENT -Page 3
transmission and delivery of irrigation and drainage 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.
lb. The Licensee agrees to pay attorney fees or engineering fees charged by the attorney for the
District or by the engineers liir 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 ices 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.
1.8. 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 he
invalid or otherwise unenforceable, all remaining provisions ol'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 nn each
of the parties hereto and on all parties and al! persons claiming under them or ci.thcr of them, and the
advantages hereof shall inure to the benefit of each of the patties hereto and their respective successors and
assigns.
NAMPA MERIDIAN iRRTG TION DISTRICT
By ~1Z ~~~
Its resident
A EST:
Its Secretary
~~~
~~
LICENSE AGREEMENT -Page 4
CITY OF MERIDIAN
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ATTEST: ~~~~ ~ .~':
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h-c~' C;t~ ("'~oi.~•v~.et.,C dl -Z y -off
STATE OF IDAHO ) ~~~~`~n~;;rna<aaa<<~*`'`~,
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County of Canyon )
On this ~ day of ~.~ -; 2006, before me, the undersigned, a Notary Public in
and for said State, personally appeared ,(% .1 ~ tY,C~r..A .~.t.-and llazcn 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 WHER;?OF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first shove written.
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On this ! day of i L ~ ~~ L~~L L~~' , 2006, before me, the undersigned, a notary
public in and for said state, personally appeared tti,.,..et„~,,,I~ L.-'~'~ ~d and .~-, lt..~? ~; known to
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the political subdivision and municipality that executed the foregoing instrument, and acknowledged to me
that such entity executed the same.
IN WITNESS WHEKEOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above wrijt~n.
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LICENSE AGREEMENT -Page 5
11 '
Exhibit "A". Legal escription of Sewer Easement
An easement for sanitary sewer located in the NW '/a of the SE 1/a of Section 13, Township 3
North, Range 1 West, Boise Meridian, Idaho, and more particularly described as follows:
Commencing at a 5/8 inch diameter marking the northeast corner of said NW '/a of the SE 1/<
(CE 1/16"' Corner), from which a 518 inch diameter iron pin marking the northwest corner of said
NW Va of the SE ~/. bears N 89°52'22" W a distance of 1321.56 feet;
Thence S 0°19'56" W along the easterly boundary of said NW '/a of the SE ~/a a distance of
20.99 feet to a point on the southerly right-of-way of Waltman Lane;
Thence N 89°41'56" W along said southerly right-of-way a distance of 60.88 feet to the POINT
OF BEGINNING;
Thence leaving said southerly right-of-way S 63°46'05" W a distance of 83.31 feet to a point;
Thence N 23°39'48" W a distance of 40.72 feet to a point on the southerly right-of-way of
Waltman Lane;
Thence S 89°41'56" E along said southerly right-of-way a distance of 91.07 feet to the POINT
OF BEGINNING.
This parcel contains 1,695 square feet and is subject to-any other easements existing or in use
Clinton W. Hansen, PLS
Land Solutions, PC
Revised January 4, 2006
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altman Lane -Ten Mile Sewer Extension
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EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
1. construct, install, maintain and repair a sewer line across and under the Ten Mile Drain and
within the District's easement;
2. construct, install, maintain and repair manholes for said sewer line within the District's
casement for the Ten Milc Drain,
all within Licensee's right-of-way, located south of the intersection of the Ten Milc Urain and Waltman Lane
in Meridian, Ada County, Idaho.
EXHIBIT D
Spcc~al Conditions
a. Construction shall be in accordance with Exhibit D-l, attached hereto and by this reference
made a parr hereof.
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 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 Licenscc 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 properly.
Should Licensee fail to obtain such rights from the holder of title to the property or should the rights obtained
prove legally ineffectual, Licenscc 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 al the option of the District this agrccment
shall he of no force and effect.
d. 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 he applicable under the subject matter, terms
or performance of this agreement broadly construed. Licensee recognizes its continuingduly 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 o1' water
quality or the environment resulting from the discharge or other activity by Licensee which is the subject of
this agrccment.
e. 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 ur private, with respect tv environmental matters relating to the subject matter, terms or performance
of this agrccment unless the District shall he solely responsible for the condition ar activity which gives rise
LICENSE AGREEMENT -Page 6
to any such penalty, sanction, directive, claim ,action or requirement.
f. In the event the District is required by any governmental authority to acquire or comply with =i
any permit or other operational requirements associated with Licensee's discharge and other activity which
is the subject oi' 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 casts
associated with all permit acquisition, construction, monitoring, treatment, administrative, filing and other
requirements.
g. 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, orprohibit 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 Stales, or any
other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental
environmental agencies.
h. 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
easement for the Ten Mile llrain except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Ten Mile Drain is l00 feet, 50 feet to either
side of the centerline.
i. Construction shall be completed one year from the date of this Agreement. Time is of the
essence.
LICENSE AGREEMENT -Page 7
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Exhibit D-1, page 2