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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Split Corridor Irrigation Pump Eight Mile Lateral1 CHARTERED LAWYERS - Laura E. Bum Adam S. Christenson Jeffrey R Christenson David P. Claiborne S. Bryce Farris Jon C. Gould David Hammerquist Charles L. Honsinger *' James P. Kaufman September 14, 2009 Jennifer Reid Mahoney James G. Reid * Daniel V. Steenson Elroy Huff City of Meridian Department of Parks & Recreation 33 E. Broadway Meridian, Idaho 83642 Re: Request for License Agreement with Nampa & Meridian Irrigation District Dear Mr. Huff: Enclosed for review and signature is the original of the above -referenced License Agreement you requested on behalf of the City of Meridian. The License Agreement must be signed and notarized as indicated. Do not date page one of the License Agreement. If the original is executed and returned tome by September 30, 2009, I will be able to submit the license agreement to the District's Board of Directors for approval and signature at the Board's next meeting on October 6, 2009. The District will have the original recorded and I will return a copy to you. Please contact me if you have any questions or comments regarding this matter. SBF:kw Enclosure Yours very truly, �y S. Bryce Farris 455 South Third Street PO Box 2773 Boise, Idaho 83701 208.342.4591 FAX 208.342.4657 * also licensed in OR www.r i n g e r t l a w.com `* also licensed in Co ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 12 BOISE IDAHO 10009 02:43 PM DEPUTY Bonnie Oberbillig III IIIIIIIIilllllllllllllllllll III III RECORDED—REQUEST OF 109120498 Nampa Meridian Irrigation Dist LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this AQ day of Qeta1,01— , 2009, by and among NAMPA & MERIDIAN IRRIGATION 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 83642 party or parties of the second part, hereinafter collectively referred to as the "Licensee", WITNESSETH: WHEREAS, Licensee is the owner of real property/easement and/or right of way for a waterline and pump station (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 the EIGHT MILE 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 the premises 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 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 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 maybe 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 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 J urisdiction 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 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 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. 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. 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 terns 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 inval id 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...✓. )1AN6 NAMPA & MERIDIAN IRRIGATION DISTRICT ®FRC13 By ° Its President ATTEST: " "" Its ecretary LICENSE AGREEMENT - Page 4 ATTEST: STATE OF IDAHO ) ss: County of Canyon CITY OF MERIDIAN By /Co; G�A r SEAQ, = 76C� 1�0� Tb sr tsc • .rC •� C On this 01jD _ day of (>–t>— , 2009, before me, the undersigned, a Notary Public in and for said State, personally appeared Clinton C. Pline 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 oo_ `�' ' ' ", * C, eee o�em•eps p U B 1.tC' s66 �O 00. • STATE OF IDAHO )ss. County of Ada ss Coe r Notary Public for Idaho Residing at , Idaho 0 My Commission Expires: 1 � e• On this itday of Oe4n.2 , 2009, before me, the undersigned, a notary public in and for said state, personally appeared,)aa«< nacLy, and'ra..n§g d. In)ugA , known to me to be the �, C ��,,rt u_ and Vllla., cna , respectively, of the CITY OF MERIDIAN, the political subdivision and municipality that exe ed 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. ®©®0®©00 Oc LJO a . o Q � D 0 1 1 D © 1 ; D a 1 1 0 00 rte, t� �1ra LICENSE AGRlf�T - Page aryPublic lda,ht) Residing at Kuna jcial,.o My Commission Expires: Jana- ao1 t� EXHIBIT A Legal Description A right-of-way/easement for a 12" water line and pump station more particularly described as attached Exhibit A-1. EXHIBIT C Purpose of License The purpose of this License Agreement is to permit and approve Licensee to construct, install, and maintain a 12 inch water line and a pump station within the District's easement for the Eight Mile Lateral, located south east of the intersection of Main Street and Franklin Road, all within Licensee's right-of- way/easement described in Exhibit A, in Meridian, Ada County, Idaho. No other construction or activity is permitted within or affecting the Eight Mile Drain or the District's easement. EXHIBIT D Special Conditions a. The construction described in Exhibit C shall be in performed in accordance with certain plans consisting of two sheets, all of which are attached hereto as Exhibit D-1 and by this reference incorporated herein. 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. d. 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. LICENSE AGREEMENT - Page 6 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 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 ofpollutants 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 easements, nor perform any construction or activity within the District's easements for the Eight Mile 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 easements for the Eight Mile Lateral include a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Eight Mile Lateral, and to access the Eight Mile Lateral for said purposes and is a minimum of 80 feet, 40 feet to either side of the centerline for the Eight Mile Lateral. i. All construction shall be completed within one year of the date of this Agreement. Time is of the essence. LICENSE AGREEMENT - Page 7 IRRIGATION EASEMENT DESCRIPTION FOR THE CITY OF MERIDIAN An easement for irrigation purposes located in the NW % of Section 18, Township 3 North, Range 1 East, Boise ]Meridian, Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the southwesterly corner of said NW '/ from which a brass cap monument marking the northwesterly corner of said NW '/4 bears N 0°48'48" E a distance of 2654.31 feet; Thence N 0°48'48" E along the westerly boundary of said NW i4 a distance of 138791 feet to a point; Thence leaving said westerly boundary S 89°11'12" E a distance of 549.71 feet to the POINT OF BEGINNING; Thence N 89'55'16" E a distance of 15.00 feet to a point; Thence S 1'15'51" W a distance of 25.00 feet to a point; Thence S 89'55'16" W a distance of 15.00 feet to a point on the easterly right-of-way of Main Street; Thence N 1°15'51" E along said easterly right-of-way a distance of 25.00 feet to the POINT OF BEGINNING. This parcel contains 0.09 acres (375 square feet) and is subject to any other easements existing or in use. Prepared by: Glenn K. Bennett, PLS Civil Survey Consultants, Inc. June 23, 2009 REVI BY ROVAI JUN 24 2009 MERIDIAN PUBLIC WORKS DEPT. Exhibit A-1, page 1 r. SKETCH TO ACCOMPANY IRRIGATION EASEMENT DESCRIPTION FOR THE CITY OF MERIDIAN L OCA TED IN THE NW 1/4 OF SECTION 18, TOWNSHIP 3 NORTH, RANGE 1 EAST, 290/SE MERIDIAN, CITY OF MERIDIAN, ADA COUNTY, IDAHO. 12 7 13 18 O POINT OF BEG/NN/NG SCALE- l`--10' S 89'11 N 89 55'16+ E NORTHERLY 8OUNQARY OF 549.71 ' 15.00' EIGHT M2£ LATERAL EASEMENT IRRIGATION EASEMENT .375 SO. FT. �o N h LAJ o 15.00' S 89'55'16' W f a m m EIGHT MILE LAT£R4L I 615 �\ 114 REV( "70VAL BY F#/j JUN 24 2009 VERIDIAN PUBLIC WORKS DEPT. Exhibit .A-1, page 2 i ms Noll" -- Eir: r # r .. Vgliiiii! Mile laleiallp N W 114 1 .74 _ � .-A� S.18 TrA RIE B.M.,Ada )Stre�fl Caupt�, Idaliiiio Augusl 19N) a Zi q WJL�� iii. es Exhibit B iff"-wiii r MERIDIAN R❑AD r)7, 1" 11 ,_6„ V ,lie —BANK EDGE SPLIT CORRIDOR PUMP STATION SCALE 1' = 10' 0 10 20 30 40 Z SCALE IN FEET Exhibit D-1, page 1 EXISTING IRRIGATI❑N BOX ikk A low,