Loading...
HomeMy WebLinkAboutNampa Meridian Irrigation District for Five Mile DrainRINGERT CLARK CHARTERED wiiiiam F. Ringer' LAWYERS D. Biair Glark Andrew M. Harringron James G. Reid Jet(reV R. Christenson James P. hautman Patrick D. Furey Laura L. Berri David Hammerquist April 23, 1993 Daniel v. Steenson stevenc.btahafty Samuel haufn,an (1931-ICJ-SGI Gary Smith, City Engineer City of Meridian 33 East Idaho Avenue Meridian, Idaho 83642 Re: License Agreement - Flow Measure Structure in Fivemile Drain Dear Gary: Enclosed is signed duplicate original of License Agreement dated April 20, 1993 regarding the above matter. The agreement was overlooked at the board meeting of April 6 and hence the delay. The agreement is being placed of record. Enclosed also is our statement for legal services in connection with the agreement. Yours very truly, 7 Andrew M. Harrington AMH/llw Encl. E~° tl .~~~~: `_~ ~ 455 South Third Street • P.O. BoX 2773 • E3oise, Idaho 83701 • 208/342-4591 FAX 342-4657 LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this G~~~ day of 1993, by and between NAMPA & MERIDIAN IRRIGATION DI TRICT, 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 municipal corporation 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 easement involved herein (burdened with the easement of the District hereinafter mentioned) is particularly described in the "Legal Description" attached hereto as Exhibit A and by this reference made a part hereof; and, WHEREAS, the District is the owner of the irrigation drain and canal known as FIVEMILE DRAIN (hereinafter referred to as "ditch or canal") together with the easement therefor, including the easement to convey irrigation water in such ditch or canal and the easement to operate, maintain and repair such ditch or canal, and includes an easement of ingress and egress for those purposes, and which ditch or canal is an integral part of the irrigation works and system of the District and which ditch or canal and the said easements therefor cross and intersect said described real property of the Licensee 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 and the District's right of way along said ditch or canal in its course across the lands of the Licensee in the manner hereinafter appearing and under the terms and conditions hereinafter set forth; NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and conditions hereinafter set forth, the parties agree each with the other as follows: 1. The Licensee shall have the right to perform the acts generally referred to in the "Purpose of License" attached hereto as Exhibit C and by this reference made a part hereof. LICENSE AGREEMENT - Page 1 Construction and activity by the Licensee shall be performed in accordance with the "Special Conditions" stated, in Exhibit D attached hereto and by this reference made a part hereof. 2. The flow measurement structure (hereinafter "structure") to be installed by the Licensee shall be constructed, maintained and if necessary replaced by the Licensee and at the cost and expense of the Licensee. 3. The Licensee agrees to install, construct and maintain the structure in a safe condition to the end that the structure or the ditch or canal shall not constitute a hazard to any person or persons, and to indemnify, hold harmless and defend the District from all claims for damages arising out of any hazard or negligence in the construction, operation, maintenance and repair of said structure or the failure of the Licensee to keep the same in safe condition. 4. Construction and activity by the Licensee shall be accomplished by the Licensee at such times and in such seasons and in such manner as not to interrupt or interfere with the flow of irrigation water in said ditch or canal, or with the delivery of irrigation water by the District to any of its landowners. 5. The Licensee agrees to indemnify, hold harmless and defend the District from all claims of any of its landowners or other affected parties for damages from the impairment of the flow of irrigation water or pollution of irrigation water in said ditch or canal which may be caused by said structure, or any use or condition of said structure, or from the failure of the Licensee to construct, install, maintain and keep in repair said structure. 6. The District reserves the right, at its option, to remove the structure or take corrective action because of structure rupture, impairment of flow of water, or such other condition which in the judgment of the District is hazardous or constitutes interference with flow of irrigation water. Prior to any such structure removal, the District shall give notice to the Licensee and provide the Licensee a reasonable period of time under the circumstances to correct such condition. With respect to such notice and to such reasonable period of time, the circumstances of emergency shall be taken into consideration. If Licensee fails thereafter to correct the condition to the satisfaction of the District, the Licensee shall reimburse the District for any costs reasonably expended by the District in correcting the condition. If the Licensee shall fail in any respect to properly maintain and repair the structure, 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. LICENSE AGREEMENT - Page 2 7. The Licensee agrees that the work performed and the materials used in constructing and installing the structure in said ditch or canal at all times shall 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. 8. The Licensee agrees that the District shall not be liable for any damages which shall occur to any plants, structures or any other improvements of any kind or nature whatsoever which the Licensee shall place, raise, construct or 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. 9. 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. 10. The parties hereto understand and agree that the District has no right to in any respect 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. 11. 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 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. 12. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms and conditions of this contract, then the license of the Licensee under the terms hereof may be terminated by the District, and all structures 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. 13. The Licensee agrees to pay attorney fees or engineering fees charged by the attorney for the District or by the engineers for LICENSE AGREEMENT - Page 3 the District in connection with the preparation of or services in connection with this License Agreement or in connection with negotiations covering the terms and .conditions of this License Agreement. 14. 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. IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the Licensee has hereunto subscribed his name, or if a corporation, has hereunto caused its corporate name to be subscribed and its seal to be affixed by it officers first thereunto duly authorized by resolution of its Board of Directors, all as of the day and year herein first above written. NAMPA &'MER~DIAN IRRIGATION DISTRICT `', y B f ..1c.,c.{~ Y Its President ATTEST: ~"' Its Secretary ATTEST: CITY OF MERIDIAN f B ~_~= ~; CENSE AGREE ENT - Page 4 STATE OF IDAHO County of Canyon ss: On this ~~ day of , 1993, before me, the undersigne a Nota y P blic i d for s d State, personally appeared and ~dT,~i'~~~, known to me to be the Presiden 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, official •••~,e~l~;..,,~~he day written•..• ~, N. M '•,, • s ~ ors ~-•~ S7~ G ! . ~* •.....•• 4• •~• STATE OF IDAHO County of Ada ss: I have hereunto set my hand and affixed my and year in this certificate first above Notary Public for Idaho Residing at L,~e'~~, .~,~~-® My Commission Expires: On this ~0~ day of ~IIGYcI~. , undersigned, a Notar Public in and for appeared ~yav-1' ~C~'y1AS~ord and ~'ack view, be the _ and Ci~k. Glerk CITY OF MER DIAN, the municipal corpora foregoing instrument and acknowledged to corporation executed the same. IN official written. 1993, before me, the said State, personally ~-~n known to me to respectively, of tion that executed the me that such municipal WITNESS WHEREOF, I have hereunto set my hand and affixed my seal, the day and year in this certificate f~~st above Notary blic for Idaho Residin at Boise, Idaho My Commission Expires: ., ~`~~`l~N.,~M~T•,, ~ '~.y ' ~ y 'c' \G ~ ;, ,~`rl,4T O~~O.~, , .,,E pF ~ .~ LICENSE AGREEMENT - Page 5 EXHIBIT A Legal Description SW ;SE ;, Section 34, Township 4 North, Range 1 West, B.M., Ada County, Idaho. EXHIBIT C Purpose of License The purpose of this License Agreement is to permit. Licensee to place a flow measurement structure in Fivemile Drain approximately one-half mile northwest of the intersection of Ten Mile Road and Ustick Road, Ada County, Idaho. EXHIBIT D Suecial Conditions 1. Construction shall be in accordance ,with certain plans consisting of three sheets, Sheet 1 being Plan Index, Sheet 2 being Flow Measurement Structure and Sheet 3 being Flow Measurement Structure Detail, dated stamped in red February 9, 1993. 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. 2. 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. If the District's engineers perform such inspection, Licensee shall pay the District's engineers any reasonable charged in connection therewith. 3. 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 thereto without the prior written consent of the District. The District's easement along this section of Fivemile Drain is 100 feet, 50 feet on either side centerline. 4. 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 LICENSE AGREEMENT - Page 6 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. b,. 5. Construction shall be completed not later than ~~'} 1, 1993. LICENSE AGREEMENT - Page 7 ~ 'r : _ , ' ; ~ a ~ ~ :. SHEET D~~CR~t~ ~'~ ; - ~ ~ ~ . .. TI:ON .. . , : ~ ~.. ~,~..~. , P~.AN...fNO~•X . . '? ~TRIIC:TIJRE;.:gc~ L-O~~T(ON - f~LAN,. •. t :A t 1' w~ K t ~ t ~Y~~ ~ ~ ~ ~r'•. ~~~k ,f' a*•~, A. •e, 1 ` ~ ~ ~ ~r fy., ~i .'r ~~1+ ~~ Itt i; ~.\}~ ,"1 1t ~+I-p}R. ~~, ~I <~. ~5:.. *..' .. .•. r•~~ ~ ~Y~,,,yi~ „4~ ' ~if~ Ia ."'$! ~a- l G:~r s`1. ~~ s.. [rr' Yn n .w ~: u~ •~ r•, `. i~' ~ r4 1 ~ jg ~ '.`~' •jM ~ Si ~ r".•Y5'•; 1' ~ ~, ~4F ^~ ~: t ° ' g ~ ' •v~1~• • •~ r i 4( ?' f ~',c";' I iy; t Xr ~ ~• ~'!} ,~ •,} 1~n+ ~..~j N k f.'~j p'.^!' t . ,..- •Wi t r e~ f ~ .. w • pig f ..., ~ ~ 't:,1 INi j "' ~ .,,Y ~ f, ~}. ~, a.!iF +.+ • ' } .*,', ti, 4r, ~ ~ } ~i'-y ( t tF. e.y i-.. ~ . ,` ~ 'M.~ !'ti~zi i., ~,~ ~ :;,5.s f f,~ t ~ r`li~: ~~y'FVt"~ ''~~,i ~ ~ Aye ~' !. a~ ":~ ~'y _` ~ s ' t- ~ t wv: K., i'i_ `4~'.. 4` •' •.i i~'/ ••~ Fi~yn~ va- Ya. a~ 'Iq i ~Y. r. ~ ' '4f. `+ ~ '•' a v - ~~o- ~rtr~ :v+Rj "ri ~ N '~ ti - R;~ t*~ t t..+~, }y, i , 4 , . } a .~~, ~,~~A ~ f .4L:i .., ~~~~}~1. `r ~1~j•.1}'p,~i~ .~~ ~~f `:+'~~1~",r ~~l ~'~~"-µ*~ k~~ ~~t ~ a v `i~ ~ !'; f '..`r+ 11,,.. ~ ~' ~~.'w 6 .'+ii !'~. ~i~7 ;}i.` i ~~/ ~; ~4 @.~~ }-~~In Lg•~, `~.a e,•~: ! r y, ' ~ * ~ .~'Fk. y ,} ':s. '~ k`,~ 7'•f.Q. t ~'r ~ ~ b ~'' `-+ ~•r I '~~`~ t E•.: }. 1 .' ~} ~ :. ~ ,~~• ~~'Gd `I~; .. -r ~. ..r,`k~: ,• r'b~r. V'iy' ~~;,> .,.~,j~„~ Ci..") a~ 'is t '' " •Y. . ~( . "`` L cry ~ ~ ?, ~. ~ { yy~ * r h ~ :. 'rr ~,~ ' a r +r. ~'f r . . ' 1'k t• •~ lK kk~~ ~1 ~., `rr ) s+~~~~ ~~rsf1tr ~ .~_r r'~ T e•.^~'L- )'' , J f y t. .. ' 1R ~-,~ .1• 1: .~ V~ 'C'.~, 5', ~.a~Y ~'t~'.. ~ ~~~ 'R ~M{~~S J` r,'~/ ytiiT l~'~'Y`~ t• ' •y t J~yS7,~ r'. f -r L •' `3'I •.' ! ~Ij •.'` Y4~ ! S~ .y~"_~•• F 1l .a`~~X - ..;l ~ " t.3xlr+. I. :t O ~~.F ~~ `'" ~: S}S~ai aw4: + {fa+,- k' ~ ti ~ .fir t rf ~, ~: 't+ rj~".t ~ ". i ~t~ `+H ti~~~-; •~ - 7i 'M1 yy~-~.,~(~i a ~tM~~ 1+' .;'t A ti ~ •,, .iI, 1•• k{, ~ J,~~ ~'~ .F •~. .l~r +nM1 ~i• r~~ .,.~r1 ~rr¢ r~f4~i VV ~~3F"'~Y^~ H k~~~ ~ .. t .6 ~.. ~• ~ .. st~ ~y. s -` ~~r~. _~ 1 ~ t' ~4 •., I.;~I.v •.s~ ~ ~v C~ k .tf.T.'Y r,3 a. }i~tirti .Y :~', d•' Y •f'~ .7:71 «*. . t 7~,' ` .•.~~4Ft! ~ V~ ~' K~~ ~r~. ~ ~}1~. 1 r , }. 7 ' . ~ • . I ~ • :'x µ• ~~.. t ~~' 'i •m,'Ti. 4,~ •r„rj' a ,~ ~ ~r'~' •~ !4 't t.1 ~)a•wi-M~a.~~. '< <} h~k'~~.M r~t, ~ay ya•~ ~ ` y .` ` F* t,~[Y11, •~ ~'~1/ fit.. '~. JY. x. I ".. t r ; r ' + s ~F Y, ~a4'"j ~ .~q (^ ~ ~s e .T - ~ ~ `: f + ~~.~ ~!r' " ss; '~ ~ Gr~~ • 1~4~~ , - ` .•~r1 ~•~ I yl 'ti .t `'v ~t~..,r~ K y ..~ ,/ 4 t•_ •. l.t , , tc I ~ ~` ~ Fa, ~~ sa.~ . • tµ'1 .. t, ~ .y ~ w +. ~ • ~ ~. ,' it '6} ^7,, k^~ I..` Y'. .r;: ~ .. _uICLNITY ~K~T~H: ~ ~ •a . '