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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Eight Mile LateralRINGERT CLARK CHARTERED LAWYERS March 23, 2001 Gary Smith, P.E. City of Meridian 200 East Carlton, Suite 100 Meridian, Idaho 83642 MAR 2 , ~I, ~. Laura G. Burri Jeffrey R. Christenson D. Blair Clark Michael J. Doolittle S. Bryce Farris Patrick D. Furey David Hammerquist Charles L. HOnSinger Joseph B. JOnes James P. Kaufman Jennifer Reid Mahoney James G. Reid William F. Ringert Daniel v. Steenson Allyn L. Sweeney Samuel Kaufman (1921-1956) Re: License Agreement with Nampa & Meridian Irrigation District to construct water line within the Eight Mile Lateral Dear Gary: Enclosed is a signed duplicate original of the license agreement dated March 20, 2001, between the City of Meridian and Nampa & Meridian Irrigation District. The agreement has been placed of record. Enclosed also is our statement for legal services in connection with the agreement. Yours very truly, SBF:kw Enclosures ,. S. Bryce Farris BAR ~ 7 200 ~N~liii~ '. 455 South Third Street . P.O. Box 2773 • Boise, Idaho 83701 • 208/342-4591 FAX 342-4657 ~~ LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into thisp~~day of , 2001, 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/right-of--way (burdened with the easement of the District hereinafter mentioned) particularly described in the "Legal Description" attached hereto as Exhibit A and by this reference -nade a part hereof; and, WHEREAS, the District owns the irrigation ditch or canal known as EIGHT MILE LATERAL (hereinafter 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 water, operate, clean, -naintain, 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 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 absolutely its right to control any modiEcation or alteration of its watercourses and its right of way along its watercourses; NOW, THEREFORE, for and in consideration of the premises and of the covenants, agree-nents 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 [.,icense" attached hereto as Exhibit C and by this reference made a part hereof. Any modification of said ditch or canal by the Licensee or encroach-nent 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 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 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 LICENSE AGREEMENT -Page 2 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 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 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. ] 0. Except for damages arising solely out of the negligence of the District, 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. 1 1. Licensee shall place no structures or landscaping of any kind above within the District's easement area except as referred to in this agreement or exhibits hereto 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 water. 15. In the event of the failure, refusal or neglect of the Licensee to co-nply with all of tl~e terms and conditions ofthis 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 ofthis License Agreement or in connection with negotiations covering the terms and conditions ofthis License 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 ofthis agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions ofthis agreement shall remain in full fiorce 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. NAMPA & MERIDIAN IRRIGATION DISTRIC"T ATTEST: Its Secretary By ,. %Its Presiden LICENSE AGREEMENT -Page 4 ', CITY OF MERIDIAN Y Y~ ~ ~ Ip -11~ U. p~f,YG)~ el ~ . C l Y'~ ~. ' 9 ~'J r •* ~~ fi.) STATE OF IDAHO ) M '~a `~:~,~~T Z~~ •~~ .~;.-' ~,P ss: r ~~ ~~~,`,, . '"°r.., qtr... ~i ,~,f ~ *`,~*,, County of Canyon ) ~.f~,., , ; ~~• ,,~~~,~~+~ ~ ~ ~,~+ D ~ Go rY~ Vhy o r ATTEST: ~4`';~'~l ~~ 'r.,~`, ~ ~'1 . =~ +ti` ,~ .~ ~a~Q~~ `fi'r--~~ ~~271~~ ~~ iGC~ ~ ~ ~~ ~~ - for said State, President and S district that exec the same. ~~~ Notary Public or Idaho Residing at ,Idaho My Commission Expires: ~ DD~o On this ~ ~ -day of b tr , 2001, before me, the undersigned, a notary public in and for said state, personally appeared and ~ ~ ~ Ip WI I~E IrA fY', known to me to be the MQ~Q Y' and G~ ~,~[ V'~4 ~ respectively, ofthe CITY OF MERIDIAN, the political subdivis »oi and municipality that executed the foregoing instrument, and acknowledged to me that such entity executed the same. On thisp~ day of , 2~~0~~1;;,~~before me, the undersigned, aNotary Public in and personally appeared _~~~'lL~~ and Daren R. Coon, known to me to be the ecretary, respectively, of NA PA & MERIDIAN IRRIGATION D[STRICT, the irrigation uted the foregoing instrument and acknowledged to me that such irrigation district executed IN WI"1T(ESS WHEREOF, 1 have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. O~~tNA ly, ~i A ~-„~ ~ N STATE OF IDAHO ) A ~BLIC *~ County of Ada ) ~i~.bp ~DA~•••`~ IN WITNESS Wj-~BAFgfy I have hereunto set my hand and affixed my official seal, the day and year in this certificate fi~~t~a1Qo~ ~v~i't~~.'•,~ ~~ ~®......e® ~, ,~ ~~~° °~ ti ~oTARy s s ~ Notary Public or p, z ~t ~ '~(~ B `~G S ~ ~ Residing at ~e(CyY1. , Z`~~_ ~',~~~~,,~;' My Commission Expires /~~$ ~¢_ LICENSE AGREEMENT -Page 5 ,02/10,!2001 SAT 08:17 FA% ~~ BOUNDARY I~ESCRLPTION FOR TAT CITY OF 1VIlJRIDYAN WELL 21 PARCEL ~ 002/002 A, parcel located in the NE '/a of the NW % of Section 1S, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, mere particularly described as follows: Commencing at a 5/8 inch diameter iron pin marking the southwesterly corner of Government Lot 1 of said Section 18 (N 1/16 comer) from which an aluminum cap monument marking the northwesterly corner of said Government Lot 1 (Section Corner) bears N 0°48'52" E a distance of 1326.90 feet; Thence N 89°31'UO" ) a distance of 1156.26 feet to the POINT OF BEGINNING; Thence continuing N 89°31' 00" E a distance of 120.00 feet to a point; Thence N 0°37'33" E a distance of 120.00 feet to a point; Thence S 89°31'00" W a distance of 120.00 feet to a point; Thence S 0°37'33" W a distance of 120.00 feet to the POINT OF BEGINNING. This parcel contains 0.33 acres and is subject to any easements existing or in use. Prepared by: Glenn K. Bennett, PT.S Civil Survey Consultants, Incorporated \~~~,RE February 7, 2001 ~~ ~~ ~ 502 0 \r~~~F o F ~ ~~~~ ~(. BE~ Exhibit A X ~ .';,~, r ~~~~ x t ti ~"`' a:~ .r?? Q fir. Eight Mile Lateral in N1 }4, n : - .1 ~, T.~N, R.1 E, B.I., Ada I~~ad ~~, Jaunty, Idaho August 1 ~94~. -1st tret Ea ~ ~, ~~~; ~. '' i 4 .:-: ~, .' - "' ~: ti' t ~ ~ ..:~ .~. ~:.~ ,. 'a~erka~rer Lane T~ ~ r~ .~ ~.y. ~ ~~,~. ~ ~'~: ~- Eight Mile Lateral ~- ., ~ ,p ~~~ tratfard ~ri~re -= !'Mf 4~ ~T tr ";~ '~`"'`wl '~ ? --. _~} i i~'- Exhibit B EXHIBIT C Purpose of License The purpose of this License Agreement is to permit Licensee to: 1. construct and install a by-pass pumping pipe for the purpose of discharging into the Eight Mile Lateral; 2. construct and install a water line within the District's easement for the Eight Mile Lateral; and 3. construct and install an ingress/egress roadway over the District's existing easement for the purpose of accessing Licensee's well and pump station, all within Licensee's property, located northeast of the intersection of Watertower Lane and Meridian Road in Meridian, Ada County, Idaho. EXHIBIT D Special Conditions a. Construction shall be in accordance with Exhibit D-1, attached hereto and by this reference made a part hereof. The maximum rate of discharge into the Eight Mile Lateral shall be 4.5 cubic feet per second. 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 discharge into the Eight Mile Lateral permitted and authorized by this Agreement shall be according to the following conditions: (i) the Licensee shall provide at least forty-eight (48) hours notice to the District prior to any by-pass pumping into the Eight Mile Lateral; and (ii) the Licensee cannot discharge into the Eight Mile Lateral while the District is doing operation and maintenance work on the Eight Mile Lateral or the District's easement. d. As an accommodation to Licensee, the District agrees to allow Licensee to participate in the hauling and removal of spoils when the District is performing its maintenance and operation of the Eight Mile Lateral so that Licensee can make arrangements to have the necessary equipment available to haul and remove any spoils. If Licensee shall fail to provide the necessary equipment to haul and remove the spoils, the District shall deposit said spoils on the property next to the Eight Mile Lateral. Nothing in this paragraph shall impair the District's right-of--way, easement or right to deposit spoils on Licensee's property. e. 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 uo 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 ho'Ider 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. LICENSE AGREEMENT -Page 6 fi. 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 Eight Mile Lateral except as referred to in this agreement or exhibits thereto without the prior written consent of the District. The District's easement for the Eight Mile Lateral is 80 feet, 40 feet to either side of the centerline. g. Construction shall be completed one year from the date of this Agreement. Time is of the essence. LICENSE AGREEMENT -Page 7 f ~ _ CITY OF MERIDI. _.N WELL No. 21 WATER LINE AND INGRESS/EGRESS EASEMENT 12 7 13 18 PROPOSED WELL BUILDING LEGEND EXISTING EASEMENT ~ '-- • • -- PROPOSED EASEMENT - - sT,,KE E ' - ~ J NEW WEl . - -~V--- - PROPOSED WATER LINE `~° 13 MERIDIAN \~'~~ w WATERTOWER wow'eR ~ .; i I ~ 'I ~~ ~ ; I ~ ~ ~ J! PWR DROP w 5 B' PPI RLS 4998 F t/1 X i ~A` ~~ E. WATERTOWER LANE I I - I i E. WATERTOWER LANE i _--'--~~ GARRACE ;~ ` Tr- ~! ~.~ _L____--.~_--~ o MERIDUW WP INSTRUMENT BLDG i __ - _- i i I i PREPARED BY OWNER PROJECT CIVIL SURVEY CONSULTANTS. INC THE CITY OF MERIDIAN WELL No. 21 100 South Adkins way City Hall WATER UNE AND suns tot 200 E Carlton INGRESS/EGRESS EASEMENT MERIDIAN, ID 83642 ADA COUNTY, IDAHO (2oa)eee-43t2 Meridian, ID 83642 FILE: EASEMENTt DATE: 1 3 2001 SHEET: 1 OF 1 Exhibit D-1 i 0 20 40 80 j /* 4 i!JT.J1'{'C~TiIE ~~--'7f IE~--~-~ v -PDI -- .F ._BE IN IN i~ v wIE TRu i ~ ~ _Y.._ __ _ _I ._ _~ __ _ -_ LS 4998 S/8' PI 1 L3,4998 r 5/8 PIN ~~~p LI~~ ~ ~ ~- .0' IRON f / / I /^ PI C, INV-= 9.0?' wIER Box ' I 1~ ~I I I (~ I ~~ . F.. ,