HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Sewer line Evan's Drain
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LICENSE AGREEMENT
between
~~~~~ ~~~
NAMPA & MERIDIAN IRRIGATION DISTRICT ~~~ ~ ~ 199
and
CITY OF MERIDIAN
IVIE~I~INN
F:;~TY EPFGRdEEF~'
22 January 1999
Instrument.#99012587
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D> CG~~1~!T`l RECO'tDFR
1999 FE -9 ~~ 3~ ~
RcCORC~D-;~LOt,}cSr OF
NAMPA & MERIDIAN IRRI TIO DISTRICT
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LICENSE AGREEMENT
a
LICENSE AGREEMENT, made and entered into this day of 199,1, by and
among NAMPA & MERIDIAN IRRIGATION DISTRICT, an imgation district 6rganized ' d 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
THE CITY OF MERIDIAN, a political subdivision
and municipality of the State of Idaho
party or parties of the second part, hereinafter referred to as the "Licensee",
WITNESSET$:
WHEREAS, the Licensee is the owner of the sewer line easements particularly described in the legal
descriptions 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 EVANS DRAIN (hereinafter
sometimes referred to as "ditch or canal"), an integral part of the District's irrigation works and system, together
with the easements 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 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.
LICENSE AGREEMENT -
MJ
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 interested) 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 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 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 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 - 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 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, imgation 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.
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 or landscaping of any kind above ground on 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 parry 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 Distract 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 easement and 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 imgation water.
LICENSE AGREEMENT - 3
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 wav 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 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 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
invalid 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.
NAMPA & MERIDIAN IRRIGATION DISTRICT
Its President
FATTEST:
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LICENSE AGREEMENT - 4
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THE CITY OF MERIDIAN
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STATE OF IDAHO ) ~a ~' l R`"~-~-r"~ ~"~
ss: ~~r~r+rrr,:: ~itzs~~~`~y
County of Canyon )
On this ~ day of I 199 ,before me,~ the undersigned, a Notary Public in and
for said State, personally appeared ,l ,/aA,~p,~e,aud. ~~Evi ~. (~'-,~ ,known to me to be
the President and Secretary, respectively, of NAMPA 8t MERIDIAN IRRIGATION DISTRICT, the irrigation
district that executed the foregoing instrument and acknowledged to me that such imgation 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 first abovo o~un~~~y~ ^
g qua qty T A R ~ ~~t~ ~~ Notary Public for Idaho
° o ~ Residing at Nampa, Idaho
~ ® "' ° ~ * ~ My Commission Expires: // ~ ~/ ~GGU
STATE OF 2~E1~ ) ~ e
COUIlty Of F~ 1SS. ~i~, l+ •~y~~~~~~~ Q+ ~~~,
On this l7'I''-' day of , 1998; before me, the undersigned, a Notary Public in and
for ~ State, perso ly ~~ared ~fe~ D. CCR W E. and~li~iAM C,. BC~t6. JR., known to me to be
the and ~ , respectively, of THE CITY OF MERIDIAN, the political subdivision and
municipality that executed the foregoing inslnmient 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.
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LICENSE AGREEMENT - 5
290 North Maple Grove Road Boise, ID 83704 (208) 378-6380 Fax (208) 378-0025
PROJECT: 515109
DATE: APRIL 18, 1996
RE: EVANS DRAIN
Easement No. ZO
PERMANENT SEWER LINE EASEMENT
LOCATED IN
THE SOUTI~AST QUARTER OF SECTION 8
T. 3 N., R 1 E., B.M.
ADA COUNTY, IDAHO
A parcel of land located in the Southeast Quarter of Section 8, T. 3 N., R 1 E., B.M., Ada County, Idaho
and more particularly described as follows:
Beginning at a brass cap marking the Southeast comer of the Southeast Quarter of Section 8, T. 3 N.,
R 1 E., B.M., Ada County, Idaho;
thence along the Easterly boundary of said Southeast Quarter of Section 8, North 1°27'05" East
1098.46 feet to a point on the Southerly right-of--way line of the Union Pacific Railroad;
thence along said Southerly right-of--way line North 88°30'37" West 1614.57 feet to a point, said point
being the REAL POINT OF BEGINNING;
thence continuing along said Southerly right-of--way line, North 88°30'37" West 20.00 feet to a point;
thence leaving said Southerly right-of--way line, South 1°34' 16" West 55.00 feet to a point;
thence South 88°30'3T' East 20.00 feet to a point;
thence North 1°34' 16" East 55.00 feet to the point of beginning.
SUBJECT TO:
All existing easements and road rights-of--way of record or appearing on the above-described parcel of
land.
Prepared by:
DGP
Don G. Payne, R.L.S.
Exhibit A, page Z
Pacific Land Surveyors, a division of POWER Engineers, Inc., an Idaho Corporation
Pacific Land Surveyors
290 North Maple Grove Road Boise, ID 83704 (208) 378-6380 Fax (208) 378-0025
PROJECT: 515109
DATE: APRIL 18, 1996
RE: EVANS DRAIN
Easement No. 21
TEMPORARY SEWER LINE EASEMENT
LOCATED IN
THE SOUTHEAST QUARTER OF SECTION 8
T. 3 N., R 1 E., B.M.
ADA COUNTY, IDAHO
A parcel of land located in the Southeast Quarter of Section 8, T. 3 N., R 1 E:, B.M, Ada County, Idaho
and more particulazly described as follows:
Beginning at a brass cap marking the Southeast corner of the Southeast Quarter of Section 8, T. 3 N.,
R 1 E., B.M, Ada County, Idaho;
thence along the Easterly boundary of said Southeast Quarter of Section 8, North 1°27'05" East
1098.46 feet to a point on the Southerly right-of--way line of the Union Pacific Railroad; _
thence along said Southerly right-of--way line North 88°30'37" West 1634.57 feet to a point, said point
being the REAL POINT OF BEGINNING;
thence continuing along said Southerly right-of--way line, North 88°30'37" West 50.00 feet to a point;
thence leaving said Southerly right-0f-way line, South 1°34' 16" West 55.00 feet to a point;
thence South 88°30'37" East 50.00 feet to a point;
thence North 1°34' 16" East 55.00 feet to the point of beginning.
SUBJECT TO:
All existing easements and road rights-of--way of record or appearing on the above~escribed parcel of
land.
Prepared by:
DGP
Don G. Payne, RL.S.
Exhibit A, page 2
Pacific Land Surveyors, a division of POWER Engineers, Inc:, an Idaho Corporation
Pacific Land Surveyors
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Exhibit B, page 1
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EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to cross under the Evans Drain with a
sewer line west of the intersection of Eagle Road and the Union Pacific Railroad, and northwest of the
intersection of Eagle Road and Franklin Road in Meridian, Ada County, Idaho.
EXHIBIT D
~ecial Conditions
a. Construction shall be in accordance with certain plans consisting of two sheets: sheet 1 of 15
entitled: "Cover Sheet, Ronald W. Vanauker, Inc., bearing engineers stamp dated March 24, 1998, and sheet 6
of 15 entitled "Sewer Plan and Profile, Ronald W. Vanauker, Inc.," bearing engineers stamp dated September
15, 1998. 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. 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 oftitle 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, 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 shall not excavate, place any structures nor plant any trees, shrubs, or landscaping
within the District's easement areas except as referred to in this agreement or exhibits hereto without the prior
written consent of the District.
d. The District's easement for this portion of the Evans Drain is 60 feet, 30 feet on either side of
centerline.
e. Construction shall be completed no later than December 31, 1999. Time is of the essence.
LICENSE AGREEMENT - 6