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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Creason Lateral Sewer CrossinLICENSE AGREEMENT LICENSE AGREEMENT, made and entered into. this ,/.S~ day of ~~f 2000, by and among NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing under and by virt~re of the laws of the State of Idaho, parry 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 collectivelyreferred to as the "Licensee", ~~T~~~~~T~: WHEREAS, Licensee is ,the owner of real property (burdened with the easement of the District hereinafter mantioned) 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 CREASON 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, 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 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 modification 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, agreements and conditions hereinafter set forth, the parties agree as follows: 1. The Licensee shall have the right to modify the said ditch ~ canal or encroach upon the District's easement al~g 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 encro~hment 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 agreemem 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 arty 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 arty 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 entmmrated 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. Licensce agre~.s that the work Formed 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 the 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 Licensce and to repair arty 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 arty unsafe condition or hazard caused by the Licensee, at arty 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 incases 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 arty 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. 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 arty rights or performance of arty 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 arty 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 a~ such requirements or is subject to the jurisdiction of arty such agency as a result of execution of this agreement or the Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmless and deferyd the District fnxn all cysts 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 ~tivity and remove any f~ility authorized by this agreement. 9. In addition to all other indenmification provisions herein, Licensee further agrees to indemnify, hold harmless and defend the District from arty 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 arty damages which shall occur to arty facility, st<uctlrre, plant, or arty other itnpmverrrerrt of arty 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 Disttict for maintenance or repair under this or arty other paragraph of this agreement. 11. 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 u~ and pwposes of the imgation 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 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 faihrre, 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, LICENSE AGREEMENT -Page 3 ANNEXATION DESCRIPTION FOR THE CITY OF MERIDIAN WASTEWATER TREATMENT SITE A parcel located in the SE 1/4 of Section 34, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the southeasterly corner of said SE 1/4; thence N 0°53' 14" E along the easterly boundary of said SE 1/4 a distance of 1107.89 feet to the POINT OF BEGINNING; thence continuing N 0°53' 14" E a distance of 100.88 feet to a point on the centerline of the Creason Lateral; thence along said centerline of the Creason lateral the following described courses: thence leaving said easterly boundary N 48°43'20" W a distance of 199.25 feet to a point; thence 57.46 feet along the arc of a 305.00 foot radius curve left, said curve having a central angle of 10°47'40" and a long chord bearing N 54°07' 10" W a distance of 57.38 feet to a point; thence N 59°31'00" V~? a distance of 41.06 feet to a point; thence 167.00 feet along the arc of a 307.00 foot radius curve left, said curve having a central angle of 31°10'00" and a long chord bearing N 75°06'00" W a distance of 164.94 feet to a point; thence 107.40 feet along the arc of a 607.25 foot radius curve right, said curve having a central angle of 10°08'00" and a long chord bearing N 85°37'00" W a distance of 107.26 feet to a point; thence N 80°33'00" W a distance of 141.23 feet to a point; thence 39.74 feet along the arc of a 66.00 foot radius curve right, said curve having a central ang~e of 34°30'00" and a long chord bearing N 63°18'00" W a 3istance of 39.14 feet to a point; thence N 46°03'00" W a distance of 96.38 feet to a point; Exhibit A, page 1 thence 57.08 feet along the arc of 168.00 foot radius curve left, said curve having a central angle of 19°28'00" and a long chord bearing N 55°47'00" W a distance of 56.81 feet to a point; thence N 65°31'00" W a distance of 115.81 feet to a point; thence 29.80 feet along the arc of a 119.00 foot radius crave right, said curve having a central angle of 14°21'00" and a long chord bearing N 58°20'30" W a distance of 29.73 feet to a point; thence N 51°10'00" W a distance of 149.86 feet to a point; thence 70.57 feet along the arc of a 257.00 foot radius curve left, said curve having a central angle of 15°44'00" and a Iong chord bearing N 59°02'00" W a distance of 70.35 feet to a point; thence N 66°54'00" W a distance of 146.38 feet to a point; thence 34.62 feet along the arc of a 94.00 foot radius curve right, said curve having a central angle of 21°06'00" and a long chord bearing N 56°21'00" W a distance of 34.42 feet to a point; thence N 45°48'00" W a distance of 125.65 feet to a point; thence 114.76 feet along the arc of a 176.28 foot radius curve right, said curve having a central angle 37°18'00" and a long chord bearing N 27°09'00" W a distance of 112.74 feet to a point; thence 145.77 feet along the arc of a 180.00 foot radius curve left, said curve having a central angle of 46°24'00" and a long chord bearing N 31°42'00" W a distance of 141.82 feet to a point; thence N 54°54'00" W a distance of 98.65 feet to a point; thence 31.65 feet along the arc of a 160.00 foot radius curve right, said curve having a central angle of 11°20'00" and a long chord bearing N 49°14'00" W a distance of 31.60 feet to a point; thence N 43°34'00" W a distance of 154.36 feet to a post; thence 143.46 feet along the arc of a 563.00 foot radius curve left, said curve having a central angle of 14°36'00" and a long chord bearing N 50°52'00" W a distance of 143.07 feet to a point; thence N 58°10'00" W a distance of 138.17 feet to a point; z Exhibit A, page 2 thence 28.43 feet along the arc of a 40.00 foot radius curve right, said curve having a central angle of 40°43'00" and a long chord bearing N 37°48'30" W a distance of 27.83 feet to a point; thence N 17°27'00" W a distance of 137.18 feet to a point on the northerly boundary of said SE '/,; thence leaving said centerline of the Cresson Lateral N 89°16'09" W along the northerly boundary of said SE '/, a distance of 650.10 feet to the northwesterly corner of said SE '/.; thence S 0°46'49" W along the westerly boundary of said SE '/. a distance of 1347.70 feet to a point on the centerline of Five Mile Creek; thence along said centerline of Five Mile Creek the following described courses: thence S 89°04'20" E a distance of 433.18 feet to a point; thence 98.64 feet along the arc of a 337.00 foot radius curve right, said curve having a central angle of 16°46'20" and a long chord bearing S 80°41' 10" E a distance of 98.30 feet to a point; thence S 72°18'00" E a distance of 182.16 feet to a point; thence 117.40 feet along the arc of a 458.00 foot radius curve left, said curve having a central angle of 14°41;10" and a long chord bearing S 79°38'35" E a distance of 117.07 feet to a point; thence S 86°59' 10" E a distance of 940.67 feet to a point; thence 99.31 feet along the ar of a 229.00 foot radius curve left, said curve having a central angle of 24°50'50" and a long chord bearing N 80°35'25" E a distance of 98.53 feet to a point; thence N 68°10'00" E a distance of 147.95 feet to a point; thence 53.16 feet along the arc of a 143.00 foot radius curve right, said curve having a central angle of 21°18'00" and a long chord bearing N 79°49'00" E a distance of 52.86 feet to a point; thence N 89°28'00" E a distance of 360.49 feet to a point; thence 42.03 feet along -he arc of a 65.00 foot radius curve right, said curve Navin; a central angle of 37°03'00" and a long chord bearing S 72°00'30" E a distance of 41.30 feet to a point; 3 Exhibit A, page 3 thence S 53°20'00" E a distance of 243.60 feet to the POINT OF BEGINMNG. AND ALSO: A parcel located in the SE '/. of Section 34 and the SW % of Section 35, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho, and being that part of North Ten Mile Road more particularly described as follows: BEGINNING at the southeasterly comer of said SE '/,; Thence N 89°06'36" W along the southerly boundary of said SE '/. a distance of 25.00 feet to a point; Thence N 0°53' 14" E along the westerly right-of--way of said North Ten Mile Road a distance of 1125.82 feet to a point on the centerline of Five Mile Creek; Thence leaving said westerly right-of--way S 53°29'00" E along said centerline a distance of 30.76 feet to a point on the easterly boundary of said SE '/.; Thence N 0°53' 14" E a distance of 100.87 feet to a point; Thence leaving said easterly boundary S 89°06'46" E a distance of 25.00 feet to a point on the easterly right-of--way of said North Ten Mile Road; Thence S 0°53' 14" W along said easterly right-of--way a distance of 547.86 feet to a point; Thence leaving said easterly right-of--way N 89°14'43" W a distance of 25.00 feet to a point on the westerly boundary of said SW '/.; Thence S 0°53' 14" W a distance of 660.85 feet to the point of beginning. These parcels contain a combined total of 47.58 acres and are subject to any easements existing or in use. Exhibit A, page 4 ~o ~^~g~ ~~~ _ off. ~ ~~~ ~~~ ~~oN~ ~ 9 1~ ~ .~. Exhibit A, page 5 tr V `\,` Five Mile Drain --> Exhibit B EXHIBIT C Pose of License The purpose of this License Agreement is to permit Licensee to: 1. construct and install a 36 inch trunk sewer extension from the City of Meridian's wastewater treatment facility under the District's easement for the Creason Lateral; and 2. construct and install a potable water line under the District's. easement for the Creason Lateral, all within Licensee's property described in Exhibit A, located northwest of the intersection of Ustick Road and Ten Mile Road in Meridian, Ada County, Idaho. EXHIBIT D Special Conditions a. Construction shall be in accordance with certain plans consisting of one sheet: sheet 1 of 1 entity "City of Meridian, WWTP Trunk Sewer Extension, Plan and Profile," bearing engineer's stamp dated January 20, 2000. These plans have been delivered to the District's water superintendent, are in his possession in his offices, and are hereby incorporated by this reference. 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 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. Licensee shall not excavate, discharge, place arty structures ,nor plant any trees, shrubs or landscaping within the District's easemant, nor perfc~m airy cmnshvction or activity within the District's easement for the Cresson Lateral except as referred to in this agreemant or exhibits thereto without the prior written consent of the District. The District's easement for the Cresson Lateral is 60 feet, 20 feet to the right and 40 feet to the left of the centerline facing downstream. e. Construction shall be completed prior to March 15, 2000. Time is of the essence. LICENSE AGREEMENT -Page 6 RESOLUTION NO 2 BY: ~! l ~v ~Ye~- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN, SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING THE MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AN AGREEMENT ENTITLED "LICENSE AGREEMENT", DATED THE 1 ~~ DAY OF ~,6~2LGr~. ~ , 2000, BY AND BETWEEN THE CITY OF MERIDIAN AND N A SL MERIDIAN IRRIGATION DISTRICT, AN IRRIGATION DISTRICT ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF IDAHO. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF MERIDIAN, IDAHO: WHEREAS, it is in the best interests of the CITY OF MERIDIAN to enter into an agreement with NAMPA SL MERIDIAN IRRIGATION DISTRICT, denoted as "LICENSE AGREEMENT", a copy of which is attached hereto marked as Exhibit "A" to this Resolution, the reasons and authority for which are as set forth in said Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL as follows: 1. The Mayor and Clerlc are hereby authorized to enter into and on behalf of the CITY OF MERIDIAN that certain agreement with NAMPA SL MERIDIAN IRRIGATION DISTRICT, entitled "LICENSE AGREEMENT", RESOLUTION (CREASON LATERAL TRUNK -PAGE 1 OF 2 SEWER CROSSING LICENSE AGREEMENT WITH NAMPA SL MERIDIAN IRRIGATION DIST. dated the ! J~h day of / ~ ~ru ~c 2000, by and between the City of Meridian and Nampa St Meridian Irr gation District, a copy of which is attached hereto marked as Exhibit "A" to this Resolution and to bind this City to its terms and conditions. PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN, IDAHO, this ~•%~ day of ~~~~"/~c-~'~-~-~ , 2000. APPROVED BY THE MAYOR OF THE CITY OF MERIDIAN, IDAHO, this ~s~ day of .26ji'zccz~c, , 2000. ATTEST: ``~,~,,~artn~r~r~~ryi M ~ ~~o r ~ ~ f CITY CLERK - ~,~,, - 9~ 1~~~ :~ msg/Z:\Work\M\Meridian 15360M\Public Works\12'~ reiI~~eral'. ~f~~-Jea~ai a:a~e~~`~~~ OR YunIcXINGAgmt.12ES RESOLUTION (CREASON LATERAL TRUNK -PAGE 2 OF 2 SEWER CROSSING LICENSE AGREEMENT WITH NAMPA ~ MERIDIAN IRRIGATION DIST. CERTIFICATE OF CLERK OF THE CITY OF MERIDIAN 1, the undersigned, do hereby certify: 1. That I am the duly appointed and elected Clerlc of the City of Meridian, a duly incorporated City operating under the laws of the State of Idaho, with its principal office at 33 East Idaho, Meridian, Idaho. 2. That as the City Clerlc of this City, I am the custodian of its records and minutes and do hereby certify that on the S~ day of ctti , 2000, the following action has been taken and authorize . A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN, SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING THE MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AGREEMENT ENTITLED "LICENSE AGREEMENT", DATED THE ~ DAY OF -ebru~ v1 , 2000, BY AND BETWEEN THE CITY OF MERIDIAN AND AMPA & MERIDIAN IRRIGATION DISTRICT, AN IRRIGATION DISTRICT ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF IDAHO. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF MERIDIAN, IDAHO: WHEREAS, it is in the best interests of the CITY OF MERIDIAN to enter into an agreement with NAMPA ~ MERIDIAN IRRIGATION DISTRICT, denoted as "LICENSE AGREEMENT", a copy of which is attached hereto marked as Exhibit "A" to this Resolution, the reasons and authority for which are as set forth in said Agreement. CERTIFICATE OF CLERK OF THE CITY OF MERIDIAN - 1 ~• NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL as follows: 1. The Mayor and Clerlc are hereby authorized to enter into and on behalf of the CITY OF MERIDIAN that certain agreement with NAMPA ~ MERIDIAN IRRIGATION DISTRICT, entitled "LICENSE AGREEMENT", dated the l s~ day of .~ ~ , 2000, by and between the City of Meridian and Nampa Sz Meridian Irri tion District, a copy of which is attached hereto marked as Exhibit "A" to this Resolution and to bind this City to its terms and conditions. e`A,`~~,a~r,~`++~~"",,,~ f,,~'•t ~ ~'~~: ~~aa`~, WILLIAM G. BERG, 9 0`~ CITY CLERK ~ ~ STATE OF IDAH~~,,,~~C~~.~..,~ . ~~~,.~` ~O~d~AS4~~a9t~i County of Ada, (~' On this St day of ~YG~Lf , in the year 2000, before me, Jrul ~, G~ ~ ZGt,- , a Notary Public, appeared WILLIAM G. BERG, JR., known or identified to me to be the City Clerlc of the City of Meridian, Idaho that executed the said instrument, and acknowledged to me that he executed the same on behalf of the City of Meridian. ~w~~~~•• • U' •• • • ~O ,~„`. •,c~; ~' (SEAL) :~; ~ ~ ~ ;~; Nota blic for Idaho ~ ~ ~ ~/~~~ Commission Expires: ~~ •~a'q~E _ _ ~ • •~~ OF~~. msg/Z:\WorIcUVlWteridian 15360M\Public Worlcs\RESOLUTIONS\CertifClerlcResCreasnLateral RESOLUTION (CREASON LATERAL TRUNK -PAGE 2 OF 2 SEWER CROSSING LICENSE AGREEMENT WITH NAMPA ~ MERIDIAN IRRIGATION DIST.