HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Five Mile Drain Sewer LineRINGERT
~ CLARK
C H A R T E R E D William F. Bingen
L A W Y E R S D. Blair Clark
James G. Reid
Jeffrey R. Christenson
James P. Kaufman
Laura E. Burri
.Allyn L. Sweeney
Patrick D. Furey
Michael J. Doolittle
David Hammerquist
Daniel v. Steenson
Steven C. Mahaffv
March 23, 1995
Wayne Crookston
Ambrose, Fitzgerald & Crookston
15030 West State Street
Meridian,, ID 83680
Samuel KaUlman (1921-1986)
Re: License Agreement - City of Meridian - isntallation of
a sewer line within NMID's easement for the Fivemile
Drain
Dear Wayne:
Enclosed is a signed duplicate original of the License
Agreement, dated March 21, 1995, between the City of Meridian and
Nampa & Meridian Irrigation District. The License Agreement has
been recorded.
Enclosed also is our statement for legal services in
connection with the agreement.
Yours very truly,
Daniel V. Steenson
DVS/am
Enclosures
455 South Third Street • P.O. Box 2773 • Boise, Idaho 83701 • 208/342-4591 FAX 342-4657
RINGERT CLARK CHARTERED
ATTORNEYS AT LAW
455 SOUTH THIRD ST.,
BOISE, IDAHO 83701 (208) 342-4591
TAXPAYER ID NO. 82-0303288
Page: 1
CITY OF MERIDIAN 03/23/95
C/O WAYNE CROOKSTON ACCOUNT NO: 3374-01M
15030 WEST STATE STREET
MERIDIAN ID 83680
LICENSE AGREEMENT
PREVIOUS BALANCE $1,012.50
HOURS
03/03/95
DVS Telephone conference with Wayne C.; Edit and
revise License Agreement; Letter .30 27.00
03/16/95
DVS Telephone conferences with John Anderson, Wayne
Crookston, and Meridian Engineer; Edit and revise
License Agreement; Letter to Crookston 2.30 207.00
03/17/95
DVS Telephone conferences with Wayne Crookston .20 18.00
2.80 252.00
TOTAL CURRENT WORK 252.00
BALANCE DUE $1,264.50
INCLUDES PAYMENTS RECEIVED THROUGH THE 25TH OF THE MONTH
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this ~ day
of , 1995, by and between NAMPA & MERIDIAN IRRIGATION
DISTR CT, 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, a political subdivision,
and municipality of the State of Idaho
party or parties of the second part, hereinafter referred to as
the "Licensee",
W I T N E S S E T H•
WHEREAS, the Licensee is the owner of certain easements
for purposes constructing, installing, operating, and maintaining
a sewer line and necessary service road within the real property
(burdened with the easement of the District hereinafter
mentioned) described in the "Legal Description" attached hereto
as Exhibit A and by this reference made a part hereof; and,
WHEREAS, the District controls the irrigation ditch or
canal knows as FIVEMILE DRAIN, an integral part of the irrigation
works and system of the District, together with the easements
therefor for each which include easements to convey irrigation
water, to operate and maintain the ditch or canal, and for
ingress and egress for those purposes, and which ditch or canal
and said easements therefor cross and intersect said described
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 and 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 encroach upon
the District's easement in the manner generally described in the
"purpose of License" attached hereto as Exhibit C and by this
reference made part hereof, and in accordance with the "Special
Conditions" stated in Exhibit D, attached hereto and by this
reference made part hereof.
LICENSE AGREEMENT - Page 1
Dewey l,w.a. ~°lwj+.c.-~- IR q 5 ~'
4
2. This agreement pertains only to the Licensee's
encroachment upon 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
on the Licensee's property, or otherwise alter the ditch or canal
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) shall be constructed,
installed, operated, and maintained at all times by the Licensee
and at the cost and expense of the Licensee.
4. The Licensee agrees to construct, install,
operate, and maintain each facility in a safe manner and
condition so that it will not constitute or cause a hazard to any
person or property. The Licensee agrees to indemnify, hold
harmless, and defend the District from all claims for damages
arising out of any hazard or unsafe condition in or arising from
the construction, installation, operation, and maintenance of
such facility.
5. The Licensee agrees to construct, install,
operate, and maintain' each facility at such times and in such
seasons and in a manner that will not interrupt or interfere with
the flow of irrigation water in said ditch or canal or the
delivery of irrigation water by the District. The Licensee
agrees to indemnify, hold harmless, and defend the District from
all claims for damages arising out of any impairment of the flow
or delivery of irrigation water in said ditch or canal which may
be caused by the construction, installation, operation, or
maintenance, and any use or condition of any facility.
6. The Licensee agrees to construct, install,
operate, and maintain each facility in a manner that will not
cause an increase in seepage or any other increase in the loss of
water from the ditch or canal, the subsidence of soil within the
easement, or any other damage to the easement and irrigation
works. The Licensee agrees to indemnify, hold harmless, and
defend the District from all claims for damages arising out of
any increase in seepage or other water loss from the ditch or
canal, subsidence of soil in the easement, or any other damage to
the easement and irrigation works which may be caused by the
construction, installation, operation, and maintenance, and any
use or condition of any facility.
7. Any alteration of the District's easement by the
Licensee, and any alteration of property adjoining the District's
easement by the Licensee, including, but not limited to, the
excavation, of soil, shall be performed and maintained in a manner
that will not cause an increase in seepage or any other increase
in the loss of water from the ditch or canal, the subsidence of
LICENSE AGREEMENT - Page 2
soil within the easement, or any other damage to the easement and
irrigation works. The Licensee shall provide the District
reasonable prior notice of any such alteration not identified in
this agreement. The Licensee agrees to .indemnify, hold harmless,
and defend the District from all claims for damages arising out
of any increase in seepage. or other water loss from the ditch or
canal, subsidence of soil in the easement, or any other damage to
the easement and irrigation works which may be caused by the
performance and maintenance, and any use or condition, of any
alteration of the easement by the Licensee, and any alteration of
property adjoining the easement by the Licensee.
8. 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 facility or alteration 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 removal,
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 out of the negligence
or fault of the District, to the extent of such negligence or
fault.
9. The Licensee agrees that the work performed and
the materials used in installation of such facilities shall at
all reasonable times be subject to inspection by the District and
by the engineers for the District, and that final acceptance of
the construction 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
or delayed.
LICENSE AGREEMENT - Page 3
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 construction activities within and use of the said
easement area when the use of the easement area to the extent
such suspension is required by the District for maintenance or
repair under this or any other paragraph of this agreement.
11. The Licensee understands and agrees that Licensee
has no right to drain or waste into said ditch or canal more
surface or ground water than drains or wastes from said property
in its present state or condition (predevelopment flow). The
Licensee expressly agrees that it shall not cause, suffer or
permit any such additional surface or ground water to drain or
waste into said facilities of the District unless the Licensee
shall have (1) obtained all necessary rights of way or easements
for the draining or wasting of such additional water and (2)
created the necessary additional carrying capacity in the
ditches, pipelines or other facilities through which such
additional water is to be carried and (3) complied with all
statutes, regulations, ordinances, and other laws ,regarding the
discharge of drainage or waste water into surface streams,
whether natural or artificial, and into aquifers or other bodies
of ground water and (4) removed all pollutants, contaminants,
debris and other foreign material which in any manner have been
placed in or mixed with such additional water while on the said
property of the Licensee, and in the event of any dispute as to
the source of such pollutants, contaminants, debris or other
foreign material, the burden shall be upon the Licensee to show
that the pollutants,. contaminants, debris or foreign material
does not come from the Licensee's said property. The Licensee
expressly agrees that the District shall be entitled to enforce
compliance with the provisions of this paragraph by injunction
and that violation of the provisions of this paragraph. shall be
sufficient cause for issuance of a preliminary or permanent
injunction. The right to such injunctive relief, and any other
remedies set forth herein,' shall be cumulative of any other
remedies available to the District under the laws of the State of
Idaho. If the Licensee shall cause, suffer or permit any such
additional water to drain or waste into said ditch or canal or
into any other facility of the District without having complied
with the requirements of this paragraph, the District shall have
the right to stop such additional water from draining or wasting
into said ditch or canal or any other facility of the District,
and the Licensee agrees to reimburse the District on demand for
the costs and expenses expended or incurred by the District in
stopping such drainage or wasting.
LICENSE AGREEMENT - Page 4
12. 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 discharge 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..
13. Licensee shall notify the water superintendent of
the District prior to and immediately after construction so that
he or the District's engineers may inspect and approve
construction.
14. Licensee shall place no structures of any kind
above ground on the District's easement area except as referred
to in this agreement or exhibits or plans thereto without the
prior written consent of the District.
15. 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.
16. 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.
17. 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.
18. In the event of the failure, refusal or neglect of
the Licensee to comply with all of the terms and conditions of
this agreement, following reasonable advance notice, 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
LICENSE AGREEMENT - Page 5
equipment for the maintenance of its said ditch or canal may be
removed by the District.
19. 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.
20. 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.
21. 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 easements of the Licensee within the property
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. Unless earlier terminated by agreement
of the parties or as specific herein, this License agreement
shall continue in effect from the date hereof until completion by
the Licensee of the sewer line and related service road, and
thereafter for so long as the sewer line ( and any repair or
replacement thereof) shall remain in the ground.
NAMPA &,M~RIDIAN IRRIGATION DISTRICT
By
ATTEST: ".
~~ ~ ~--~'
Its Secretary
CITY OF MERIDIAN
Its Pres
By vH
ATTES
K
LICENSE AGREEMENT - Page 6
1
STATE OF IDAHO
~ ss:
County of Canyon
On this ~~-day of 1995, before me, the
undersigned, Notary Public in a for sai State, personally
appeared and ~fiLl~ ,~ ~ known to me
to be the Pres dent 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, I have hereunto set my hand and affixed
my official sea++++.fi~g•~ day and year in this certificate first
above written~~~.•`' p . ~0 ~ii~+.
• OT A I, ~tA .~
,$ : R
s •~
• .*
s *~ ~.o =
'~ G
~~ ' ~ f' UB L1 •• 0 s
STATE OF IDA~T ~'•....~.••'• Q~,'~
County of Ada '••~~~~+~++•
6!~/L.~
Notary Public for daho
Residing at Nampa, Idaho
My Commission Expires: / ~ aooa
On this ~7 ~ day of ~uy~h 1995, before me, the
undersigned, a Notary Public in and ~ State, personally
appeared GRANT P. KIN~Q~D, and ':ri ~-~aFt6~~-. , known to
me to be the Mayor ~ City Clerk, respectively, of CITY OF
MERIDIAN, the political subdivision and municipality that
executed the foregoing instrument and acknowledged to me that
such corporation 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.
,~~. y,
Z ~OSARy Notary lic for Idaho
Residing at Boise, Idaho
~c ~ '0V B `~G *? My Commission Expires: ~D~'Z1-~18
Z
.,~',~~~ ®F tdQ;~O `` EXHIBIT A
'~~~-~«~Fr..
Lecxal Description
SE~,SE~, and NE~,SE~, Section 7, Township 3 North, Range 1
East, B.M., Boise, Ada County, Idaho, and NW~NW~ and SE~NW~,
Section 17, Township 3 North, Range 1 East, B.M., Meridian, Ada
County, Idaho.
LICENSE AGREEMENT - Page 7
ViC~NITY MAP
N.%S.
XF?IBIT B
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee
to install and maintain a sewer line and construct and maintain a
gravel service road within the District's easement along the
Fivemile Drain within or near section 7 and section 17, township
3 north, range 1 East of the Boise Meridian, Meridian, Ada
County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with certain plans
consisting of 13 sheets,. each entitled "Sanitary Sewer Extension
- 5 Mile Drainage Area," sheets 1, 2, 3, and 13 bearing engineers
stamp dated January 20, 1995. sheets 4, 6, 8, 9, 12 bearing
engineers stamp dated January 21, 1995, and sheets 5 and 7
bearing engineers stamp dated January 25. These plans have been
delivered to the District's water superintendent, are in his
possession in his offices, and are hereby incorporated herein by
this reference.
b. The Licensee recognizes
license granted in this agreement
to the rights of the District as
District has no right or power to
affecting the holder(s) of title t
District's easement. Any such righ
acquired by the Licensee from th
property.
and acknowledges that the
by the District pertains only
owner of an easement. The
create rights in the Licensee
o the property subject to the
is affecting fee title must be
e holder(s) of title to the
c. The Licensee represents to the District that Licensee
will obtain suitable easements from the record owners of the real
property described in Exhibit A for and prior to the
construction, operation, and maintenance of the sewer line and
service road generally described in Exhibit C. Should Licensee
fail to obtain such rights from the holder(s) 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 Licensee shall have the right to perform all work
necessary or advisable for the construction, installation,
operation, and maintenance of the sewer line and related service
road, including, but not limited to, surveying, excavation,
grading, installation, repair, maintenance, alteration, support,
lowering or raising, and inspection or testing of the sewer line,
LICENSE AGREEMENT - Page 8
necessary or advisable to complete construction of, and to place
in operation, the sewer line and related service road. Licensee
shall perform said work subject to the terms of this agreement
and in a manner so as not to interfere with the District's
operation and maintenance of the Fivemile Drain. The 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 out of the
negligence or fault of the District, to the extent of such
negligence or fault.
e. The Licensee shall have right of access to the sewer
line for purposes of construction, installation, operation, and
maintenance by means of the related service road constructed
within or near the District's easement for the Fivemile Drain.
The Licensee shall exercise its right of access over the
District's easement for the Fivemile Drain subject to the terms
of this agreement and in a manner and at times so as not to
interfere with the District's operation and maintenance of the
Fivemile Drain. The 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 out of the negligence or fault of the
District, to the extent of such negligence or fault.
f. The Licensee shall have right to trim and to cut down
and clear away any and all trees and brush within the District's
easement for the Fivemile Drain which may interfere with the
sewer line and related service road. The Licensee shall perform
such work subject to the terms of this agreement and in a manner
and at times so as not to interfere with the District's operation
and maintenance of the Fivemile Drain. The 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 out of the negligence
or fault. of the District, to the extent of such negligence or
fault.
g. The Licensee shall have the right to exercise the
rights granted to the Licensee by this agreement and. perform the
obligations of the Licensee under this agreement through the
employment or other arrangement for employees, agents,
consultants, independent contractors and other persons engaged
for any portion of the Construction Work or in connection with
the Sewer Line and related service road.
h. Licensee shall not place or cause to be placed any
structures of any kind above ground on the District's easement
area except as referred to in this agreement or exhibits or plans
thereto without the prior written consent of the District. The
easement along this section of the Fivemile Drain is 100 feet, 50
feet on either side of centerline.
LICENSE AGREEMENT - Page 9
i. Construction shall be completed not later than March
15, 1997. Time is of the essence.
LICENSE AGREEMENT - Page 10