HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Thousand Springs No 5R~c~~D
Memo
To: Will Berg, Jr.
From:Gary D. Smith, PE
CC: file
Date: 11 /07/00
Re: Thousand Springs No.5 Subd. -NMID
N 0~ - 8 2000
CITY OF MERIDIAN
Here, for your files, is a copy of a fully executed and recorded License Agreement
between the City of Meridian and NMID. This agreement allowed construction of a
fence and gates at the intersection of a public road crossing the canal and the canal
maintenance road.
The fence and gates were installed by the developer, at his cost, to restrict children
from entering the canal maintenance road from the public road. The City was
involved in this agreement because we own property adjacent to the fence locations.
Regard ,
Gary
/'~'''
From the desk of...
Gary D. Smith, PE
Meridian City Engineer
Meiidianl'ublic Works Department
200 E CarltonSt, Suite 100
Meridian, Idaho 83642 2600
(208) 887-2211
• Page 1 Fa~c (208) 887-1297
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LICENSE AGREEMENT C-yCtck~ad~ I~dtpvdlred
between
NAMPA & MERIDIAN IRRIGATION DISTRICT
and
CITY OF MERIDIAN
Instrument ~~100080185
3 October 2000
RECORG~D-R~QU`S~OE
1. J~l+ _
2~Gi, QC - ~ r. l ~. '.t
LICENSE AGREEMENT
Q O r . T' V
PAMPA & MERIDIAN IRRIGATION DtS~R1GI
~ ~~~~~~
LICENSE AGREEMENT. made and entered into this day of ~ , 2000, 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 tl~e "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 (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 I~ereof; and,
WHEREAS, the District owns the irrigation ditch or canal known as RIDENBAUGH CANAL
(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 tl~e 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:
I. 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 hereot: 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 I~ereto and by this
reference made a part I~ereof.
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. Tl~e 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 il~e
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.
~. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct
its activities within or atecting 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 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
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 leave 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. Tl~e 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 - Paee 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 tl~e 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. Tl~e 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 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 tl~e 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.
I;. 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 in•igation 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 tl~e
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 comply with all of the terms
and conditions of this agreement, the license of the Licensee under the terms hereof may be terminated by tl~e
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 tl~e
District with its equipment for the maintenance of its said ditch or canal may be removed by the District.
16. Tl~e 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 terms and conditions of this License Agreement.
17. Nothing in this agreement shall create or support a claim of estoppel, waiver, prescription or
adverse possession by tl~e Licensee or any third party against District.
18. Tliis 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
invalid or otherwise unenforceable, all remaining provisions of this agreement shall remain in full force and
effect.
20. Tl~e 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
I~ereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns.
NAMPA & MERIDIAN IRRIGATION DISTRICT
By
resid ` t
ATTEST:
C~
Its Secretary
LICENSE AGREEMENT -Page 4
CITY OF114€RIDIAN
By '
` ~~j11N I!// /
ATTEST: `,.~`~~G`,~~( OF '/~''',~~~'..
o~ORar y`~
Fo
= SEAL _=
9G
STATE OF IDAHO ) '~'9~, c~;T ts-t ,'`~ O ;'
.~ ~.
ss: '%;~'% L, J COQ `~..
County of Canyon ) -,, : ~ ` ~i,i~~r``
On this day of_G~~Gr~, 2000, before me, the undersigned, a Notary Public in and
for said State, personally appeared Ralph B. Wissel 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, 1 have hereunto set my hand and affixed my official seal, the da_v
and year in this certificate first above written.
••••~gnaaaaaaaa• GNU C.~
••..90r1N A N, '•.•• 4~
•••• '~l~••, Notary Public for Idaho ,, ~
~' *~ NOp~ ~ Residing at ~~'.11~e~1X~,~,..~~'~.O
'P ~t My Commission Expires: / D O
~ •~ ~
STATE OF IDAHO ) ; AG~L C
)ss.'•.•~
County of Ada ) •••y~A ID A~~
•aan.
On this ~ day of r , 2000, before me, the undersigned, a notary public
in and for said state, personally appeared . (AYY 1$td W tl ltAm (~.~+-q~l mown to me to be the
1~101.(~(iY and (~a-~ LlP.rly ,respectively, of the CITY OF MERIDIAN, the political
subdivision and municipality that executed the foregoing instrument, and acknowledged to me that such entity
executed the same.
IN WITNESS WHEREOF. I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
Notary ub for
Residin `_
My Commission Expires:
~~ ld~o
LICENSE AGREEMENT -Page ~
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WArtRAN'i"Y• DEAD ~ ~.
rile No,
FOR YALIJE RECEIVED
• FARWEST, L LC., an Idaho Limited Liabiiity Company '
GRANTOit(S), does(do) hereby GRANT, BARGAIN, SPLL and CONVEY unto:
. CITY OF MERIDIAN .
GRANTEE(S), whose curcent address is: 33 fi. Idaho Meridian;.ID. 83G42~
the following described real property located in Ada County, State of Idaho, more partieularily described se follows, to
wit:
LOTS 1 AND Z IN BLOCK 4 TKOUSAND SPRINGS SU$DIVISION NO.1 ACCORDING TO THI: OFFICIAL
PLAT T1•ifiREOF FILED IN BOOK 78 OF PLATS AT 1'A4E 8248 and 8249 ItECOIIDS OF ADA COUNTY.
T:OT,•;3?!IN HGOCIC 4tAIV1D iL01Y3~tri1'~LOC~C;~'4~0_,,I~JSA QBPRiNQ3~):TBD,~~~j~,~ CCORDINt3
........
TO THE OI:FICIAL PLAT THEREOF rILIsD IN BOOK 79 OF PLATS AT PAGES 8534 THRU 853 ,RECORDS Ol~
ADA COUNTY.
TO HAVE AND HOLD the said premises, with their appurtenances unto the Grantee(s), and the drantee(s) heirs and
assigns forever. And the said~Grantor(s) does (do) hereby covenant to and with the said Grantee(s), that Grantor(s) is/arc
the Owner(s) in fee simple afsaid premises; that said premiacs arc free from ail encumbrances, EXCL•1'T those to whielt
this conveyance is expressly made subject a,~d thane made, suffered or done by the Grantee(s); end subject to reservations,
restrictions, dedications, casements, rights of way and agreements, (if any) of record, and general taxes and assessmcnls,
(including irrigation and utility assessments, if any) for the current year, which are not yet due and payable, and•he
Grantor(s) will warrant and defend the same from all lawful claims whatsoever.
Dated: June 19, 2000
FARWEST, LLC, an Idaho Ltrnited Liabtltty Company
By
Marty uldamith, Managing Member
STATL OC IDAHO, County of Ada ss.
On this -•------ day of June, in the year of 2000, before me,
a Notary Public in and for Said Stale, personally appeared
MAkTV r:~~ ncr-,rtr» I
L~ .. L.. l., ~ ~
~ ` . r-.,
~~•~~
~ w
EXHIBIT C
Purgose of License
Tl~e purpose of this License Agreement is to permit Licensee to:
construct and install a fence within the District's easement for the Ridenbaugh Canal; and
construct and install a 16 foot gate with locks within the District's easement for the
Ridenbaugh Canal,
all within Licensee's property described in Exhibit A, located northwest of the intersection of Victory Road
and Eagle Road in Meridian, Ada County, Idaho.
EXHIBIT D
~ecial Conditions
a. Construction shall be in accordance with Exhibit D-I, attached hereto and by this reference
made a part hereof. The fence and gates which shall be constructed on each side of E. Three Bars Drive shall
be set back 20 feet from E. Three Bars Drive so as to allow the District to open the gate while not being parked
in the public street. Said gates shall be locked and the District shall have its own set of keys for access,
maintenance and operation of the Ridenbaugh Canal.
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. The fence and gates shall be constructed of chain link. The following shall apply for that
portion of the fence or gates which erected is now or in the future in whole or in part constructed of wood:
Because of the location of the fence and the fact that the fence will be constructed wholly or partly of wood.
tl~e District shall not be responsible for weed control in [he area of the fence. Without affecting the foregoing
exemption of the District from weed control obligations, Licensee hereby indemnifies, holds harmless and shall
defend the District from any claims for damages to said fence because of weed-burning except where the
District intentionally burns the fence or is guilty of gross negligence in burning the fence.
e. 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 Ridenbaugh Canal except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Ridenbaugh Canal is 100 feet, 50 feet to either
LICENSE AGREEMENT -Page 6
side of the centerline.
f. Construction shall be completed prior to September 30, 2000. Time is of the essence.
LICENSE AGREEMENT -Page
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Exhibit D-1
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Ridenbaugh Canal in SE114,
S.2Q T.3N, R.11N, B.M., Ada
County, Idaho (August 1994).
Exhibit B