HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Booster Pump Station'~
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LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this ~ ~ day of , 1999, by and
among NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district ganized 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 referred to as the "Licensee",
~ITNESS~TH:
WHEREAS, the 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 hereof; and,
WHEREAS, the District owns the irrigation ditch or canal known as FINCH STUB DRAIN (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 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 maiification 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.
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 hazazd 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 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 fmal 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 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 hazazd 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 airy respect to properly maintain and repair such facility, then the District, at its option, and
without impairing oa~ in arrywise 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 arty 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
pazagraph 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 any 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 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 iridemcufy, hold harmless and defend the District fiom 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 airy injury, damages, claim, lien, cost and/or expense (including
reasonable attorney's fees) incun:ed by, or asserted against, the District by reason of the negligent acts or
omissions of Licensee or its agents, contractors or subeontractors 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, structure, plant,, or arty 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 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.
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 irrigation water.
LICENSE AGREEMENT -Page 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 agreemer, 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 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 airy third parry and is not enforceable by any
third party.
19. If aYry provision of this agreement is determined by a court of competent jurisdiction to be invalid
or otherwise unenforceable, all rerna;ning provisions of this agreement shall remain in ftt11 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
LICENSE AGREEMENT -Page 4
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ATTE T:
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STATE OF IDAHO )
ss:
County of Canyon
On this ~ day o~' 1999, before me,,~l-e undersigned, a Notary Public in and
for said State, personally appeared~~~~~~ ~ni Viand .Q/,~~J~ ~~~, known to me to be
the President and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the imgation
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 first above written.
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STATE OF IDAHO ) w',''°UB LZ ~' r
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County of Ada ) •'•. T 8 O F 1~~,~`~
G'U[~
Notary Public for Idaho
Residing at Nampa, Idaho
My Commission Expires: !6 00
On this Z ~-~ day of ~ ~ ~+ , 1999, before~ me, th~undersigned, a notary public
in and for said state, personally peared,~0 f YIYB and ~~II pN9 ,known to me to be the
6h~Y~P and ~.i car respectively, of the CITY O 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 aboy~ written.
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LICENSE AGREEMENT ='$ ~p~ `® ~~.~'
Notary Public or ~ t ~i ~( ~11.Pdil Ail Ati-
Residing at ~i /qn •~. ~ t7
My Commission Expires: !2 /S ~
FEE 19 '99 09 47 FR PUELIC WORKS 20EEE71297 TO 3424657 P.02i03
Description For
City of Meridian
Ustick Reservoir ;g Booster Pump Station
Ada County, Idaho
A portion of a parcel owned by the City of Meridian located in the SE 114 of
Section 36, Township 4 North, Range 1 West, Boise Meridian, Ada County,
Idaho, more particularly described as follows:
Beginning at the southeasterly corner of said SE 114;
thence North 89°20'5'!" West along the southerly boundary of said SE 1I4 a
distance of 360 feet to a point;
thence leaving &aid southerly boundary North 0°39'09° East a distance of 25.00
feet to a point on the northerly right-of-way of Ustick Road and the POINT OF
BEGINNING;
thence leaving said leaving said right-of-vway North 0°39'09" East 237 feet;
thence North 8~°20'51 "West 330 feet;
thence South 0°39'09" West 237 feet to a point on the northerly right-0f--way of
Ustick Road;
thence South 89°20'51" East along the northerly right-of--way of Ustick Road 330
feet to the POINT OF BEGINNING.
This area contains 1.62 acres, more or less, and is subject to existing
easements.
This description was prepared from the annexation Ordinance #783 and
approved construction plans for the Ustick Reservoir and Booster Pump Station.
No field survey was performed and a field survey may disclose discrepancies.
The description describes a portion of a complete parcel owned by the City of
Meridian.
c:lbwlwNeservoir.legaldesc~iptio~.21999.doc
Page 1 of 1
Exhibit A
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Exhibit B, page 1
FEE 19 '99 09 47 FR PUELIC IJORKS 20EEE71297 TO 3424657
DESCRIPTIONS FOR THE CITY OF
MERIDIAN, ADA COUNTY, IDAHO, LOCATED IN
SECTION 36, TOWNSHIP 4 NORTH, RANGE 1 WEST;
SECTION 31, TOWNSHIP 4 NORTH, RANGE l EAST;
SECrION 6, TOWNSHIP 3 NORTH, RANGE ~ EAST;
SECTION 1, TOWNSHIP 3 NORTH, RANGE 1 WEST,
BOISE MERIDIAN.
Exhibit B, page 2
P.03i03
SCALE: 1"=4.00'
y- ~ ~ - ~
EXHIBIT C
P se of License
The purpose of this License Agreement is to permit Licensee to:
1. construct and install an emergency outfall drain line within the District's easement for the Finch
Stub Drain; and
2. discharge emergency outfall from Licensee's Ustick Reservoir into the District's easement for
the Finch Stub Drain,
all in or near the property described in Exhibit A, located northwest of the intersection of Meridian Road and
Ustick Road in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be performed in accordance with certain plans consisting of three sheets: sheet
1 entitled "Reservoir Drain Line, Plan and Profile, Sta. 0+00 to Sta. 5+50" bearing engineer's stamp dated July
20, 1998; sheet 2 entitled "Reservoir Drain Line, Plan and Profile, Sta. 5+50 to Sta. 11+00" bearing engineer's
stamp dated July 20, 1998; and sheet 3 entitled "Reservoir Drain Line; Plan and Profile, Sta. 11+00 to Sta.
16+18.5" bearing engineer's stamp dated July 20, 1998. These plans have been delivered to the District's water
superintendent, aze in his possession in his offices, and aze incorporated herein 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 aclaiowledges 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 properly 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 represents that Licensee has complied with all federal, state or other laws, rules,
regulations, directives or other requirements in any form regazding 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 bro~ily 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.
e. Licensee hereby indemnifies, holds harmless and shall defend the District from a~ and all
LICENSE AGREEMENT -Page 6
,.,~„.
penalties, sanctions, directives, claims or arry action taken or requirement imposed by arty party or entity, public
or private, with respect to environmental matters relating to the subject matter, terms or performance of this
agreement which arise out of the actions or omissions of the Licensee or its agents, employees or representatives,
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.
f. 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 dischazge and other activity which is the
subject of this agreement, Licensee shall indemnify, hold harmless and defend the District from 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.
g. 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 dischazge or contribution of pollutants 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.
h. 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 for any flooding or damages arising from
Licensee's emergency outfall being dischazged into the Finch Stub Drain.
i. Licensee shall not excavate, place arty structures, plant any trees, shrubs, or landscaping or
perform any other construction or activity within or affecting the District's easement for the Finch Stub Drain
except as referred to in this agreement or exhibits hereto without the prior written consent of the District.
j. The .District's easement for this portion of the Finch Stub Drain is 50 feet, 35 feet to the left and
IS feet to the right of the centerline looking downstream. Construction shall be completed not later than April
15, 1999. Time is of the essence.
LICENSE AGREEMENT -Page 7