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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Linder Rd Water Line Extension` i r'~ ~ECEIVEL~ lin ~r ~~ • ~J~n L~.e, '.~.~~ 1 ? 19 ~c~kr~,uov- /pro% e c f -. ,,S~E~~®~~r~ w Y ENGU~IEE:~; LICENSE AGREEMENT LI ENSE AGREEMENT, made and entered into this ~~ day of 1996, by and between NAMPA & MERIDIAN IRRIGATION DISTRIC 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 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", W I T N E~ S E T H: WHEREAS, the Licensee is the owner of the 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 EIGHTMILE LATERAL (hereinafter referred to as "ditch or canal"), an integral part of the irrigation works and system of the District, together with an easement therefor which includes 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 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 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: LICENSE AGREEMENT - Page 1 . i 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 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 on the Licensee's property, 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 f 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 LICENSE AGREEMENT - Page 2 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 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 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 or fault of the District. LICENSE AGREEMENT - Page 3 9. The Licensee agrees that the work performed and the materials used in installation of such facilities shall at all 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. 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. 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 LICENSE AGREEMENT - Page 4 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. 12. 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 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. 13. 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. 14. 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. 15. 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 5 16. 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 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. 17. 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. 18. 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. 19. 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 gy ~~~-.~ Ceti--~~-n...---~' Its President ATTEST: ~. ~~ --~~.~~~ ~_ Its Secretary LICENSE AGREEMENT - Page 6 ~, T ~' ' ~~~ ~~~ 4~~ ~ .~ ATTEST: ~~~~/.~~G`t~~ii°~ ''`~~~`~~ ~!/!l/t~lf; tttttt;~~ William G. Berg, - Clerk STATE OF IDAHO County of Canyon ss: THE CIT OF MERIDIAN By .~ ob rt D. Corrie - Mayor On this ~~- day of 1996, before me, the IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, th~•" year in this certificate first above written. ,~~`•`,~~;.....;~Op~'•. *? ~~~ ~ tary Public for Idaho S l~siding at Nampa, Idaho A G : ley Commission Expires : /l ~ ~ '•, s •.~ UB LZ ~.• O ~~. . $ STATE OF IDAHO +~~OThT~ ~~ 19A~~`,, undersigned a Nota P bl'c in and for said St to personally appeared ~D~i9B.F~~~ll®~PA®.~ and~~~~L1~~i~r~-R , 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. County of Ada On this o2•>~ day of d 1996, before me, the undersigned, a Notary Public in d for said State, personally appeared Robert D. Corrie and William G. Berg, Jr., known to me to be the Mayor and City Clerk, 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 c~~~~~~ c~y.,,and year in this certificate f first above written . ~~yj ~ LICENSE _~ DoT AR~ti = _ Notary ~ ~'0V8 `~G ~: Residi My Com .dJ, AGREENfE' 4F ~~'e 7 ~,~~~~~~ '(z~lic oz Idaho /at Idaho ssion Expires : /h - 2~- ~~ EXHIBIT A Legal Description A portion of the SE1/ SEl/, Boise Meridian, and a portion 3N, Range 1W, Boise Meridian, Section 11, Township 3N, Range 1W, of the SWl/ SWl/, Section 12, Township all in Meridian, Ada County, Idaho. LICENSE AGREEMENT - Page 8 '. • r ~i ~ Y A A ~'~ :. {. r~~~e1 ~f t ~ . ~ x~'~~370+~ ~' ' F r K :. ~ vj+:.a . , .•.. ~ ~r d. s w`k V 7E O~ ~ ~ '' S4)NO~IA OFt. ~r ~ , ' ~ ~ ~~ .. • . ~ ~ ': ST " (H. '~.. " HIGH ; SCt1001 ,:.: , STA 1E AV V - :` WARRID(t OR . - PINE .AVE ~i A ~ ~ 4 - PMIE A{IE: ~~~, & BROADWAY CT OR ~CK CT _ . UMON . PACIFIC. RAgROAD . PRQ.~CT SITE its ~T ~t iL~ TAnoR Av ~ . G.iE TES t ~ • FRArdcuN ROAD ,. FRANIMI ROAD . e,~,~ ~ . • ~N~ ~ ~ NT5 • • EXHIBIi6 EXHIBIT C Purpose of License The purpose of this License Agreement is t Licensee to cross under the Eightmile Lateral with within the public right-of-way for Linder Road, intersection of Linder Road and Franklin Road in County, Idaho. EXHIBIT D Special Conditions o permit the a water line north of the Meridian, Ada a. Construction shall be in accordance with certain plans consisting of one sheet entitled "Victor Warr, Linder Road Water Plan & Details," bearing engineers stamp dated April 12, 1996. 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 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. c. 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. The District's easement along this section of the Eightmile Lateral is 60 feet, 30 feet on either side of centerline. d. Construction shall be completed not later than November 30, 1996. LICENSE AGREEMENT - Page 9