HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District for Well #17
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this 15th day
of April 1997, by and among 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
THB 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",
WHEREAS, the Licensee represents to the District that it
owns the real property 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
ditch or canal known as NINEMILE DRAIN (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 are
located 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 t$ 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;
LICENSE AGREEMENT - Page 1
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 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
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.
LICENSE AGREEMENT - Page 2
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 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
LICENSE AGREEMENT - Page 3
r
the circumstances. Nothing in this p
support any claim of any kind by Lic
against the District for failure to exer
this paragraph, and Licensee shall ind
defend the District from any claims
arising out of or relating to the terms
for claims arising solely out of the n
District.
aragraph shall create or
ensee or any third party
cise the options stated in
emnify, hold harmless and
made against the District
of this paragraph except
egligence or fault of the
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
LICENSE AGRBEMENT - Page 4
i
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.
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. 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.
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
LICENSE AGREEMENT - Page 5
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.
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 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
X
Its President
LICBPTSE AGREFsMENT - Page 6
r-
ATT$S'14 ~ ,~
1• s,~-
~ ~, ~~~~
i
~~~ '~.`° ~ "•+ ~ ~ ~ Its Secretary
'~ t ~ A ~
w ~
/•R 7
' ~ ~ THE CITY OF MERIDIAN
~-^
.~' . ~'.
., , .
~ ~ 1 r 1 G ~ By ~~ ~c~>~ ~ L
rt D. Corrie -`mayor
i
~ Approved by the City Council 2-18-97
ATTE6T : ```,``~~~a~~~ngr+rrr+++~,i
i11ia~~~' Jr C1~'k ~~ `:
5
SEAL
_ ,~ `_
yj~~h `~Y y'Y • ~``,`~x
~+r+rer,rr~ ~i~tt~~~~~
LICBNSE AGREEMENT - Page 7
STATE OF IDAHO )
ss:
County of Canyon )
On this ~~~' day of ~ ~~`J~f~Y 1996, before me, the
undersi ed, Not lic in and for said S t ersonall
appeared /Pt.~ ~.~.Qd,[.Q and__~ ~ ~/'~~ y
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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal, the day and year in this certificate first above
written . ~~.••~""'~••,~~~
.•• N • •
•
$: }OTAJQ~'.~~w'y,Notary Public for I aho
$2esiding at Nampa, Idaho
*'; ~'~ _~' ~Iy Commission Expires : ///C~~/L4OO
'• ~~ AUBL1G:~0 :`
STATE OF IDAHO ••,~~~~~~•n•p`~~``~,,
5' s s
County of Ada )
199 7
On this /S~ day of ~eb+'Kary ~~, before me, the
undersigned, a Notary Public in and 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,
official seal, the day
written.
~~ ,~~~•GE L. '•.,~
~~ q ~,
.~
~pT ~~~
I' '~ ~~~`,G ~:
I have hereunto set my hand and affixed my
and year in this certificate first above
.~
No a Public ~or Idaho
R si 'ng at t~:~%~~ Idaho
M ommission 8xpires : O~Q.'t/'y
LICENSE AGREEMENT - Page 8
i -
.JAN 2E X97 15~i3 FR CITY OF I~RtDiAN 20E 6B7 aEi3 TO 3a2a657 P.02i02
i
~ The Well No. 17 by-pass system will include Well No. 17 itself approximately 1140 lineal feet of
8-inch PVC pipe to a discharge point into Nme Mile Crcek
WeU No. 17 is located in~I.ot 1, Block Z of Los Alamitos Subdivision No. 1 situated in the North
I/2 of the Southwest 1/4 of Section 20, Township 3 North, Range 1 Fast, Boise Meridian. This
lot is designated as reserved for a well lot to the City of Meridian on the final subdivision plat.
The pipeline leaves the well lot described above and enters the public right-of-way directly south
of the well lot. It then travels west 78 lineal feet to a point approximately 36 feet east of the
center Gne of South Locust Grove Road. The pipeline then toms north and runs approximately
426 feet parallel to the centerline of South Locust Grove Road. The pipeline then turns and
travels approximately 593 feet east 10 feet north of the centerline of Raven Hill Drive is Raven
FLII Subdivision No. 1. The pipeline then turns south ami runs approamately Z 1 feet to the
south boundary of Raven Hr~l Drive right-of--way. The pipeline continues its afigamem
approximately another 24 feet though Lot 1, Block 5 ofRavee Hill Subdivision, a lot designated
as a Nme Mile Creek drainage lot owaed by the Raven HiII Homeowner's Association. It then
discharges in Nme Mrk Creek at the end of this run. this discharge point lies approximately on
the quarter section line approximately 1702 feet east of the 1/4 section point of the west section
lice of Section 20.
c:lbwlw3~bypaC;
EXHIBIT A
EXHIBIT B
..-
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit the
Licensee to discharge by-pass water flow from a domestic water
supply well through a by-pass pipeline into the Ninemile Drain in
or near Raven Hill Subdivision located south of the intersection of
Locust Grove Road and Overland Rbad in Meridian, Ada County, Idaho.
EXHIB~'~ D
Special Conditions
a. Construction shall be in accordance with certain plans
consisting of one sheet, sheet 10 of 10 entitled "City of Meridian,
Well No. 17, Well By-Pass Piping," bearing engineers stamp dated
November 8, 1996. These plans have been delivered to the
District's engineer, 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. The Licensee agrees to notify the District orally 24
hours prior to any discharge from the domestic water supply well
identified in Exhibit C into the Ninemile Drain. The Licensee
shall cease discharging water into the Ninemile Drain immediately
upon the request of the District, and shall not resume its
discharge until the District notifies the Licensee that the
discharge may resume. The District may transmit such request to
the Licensee orally or in writing. Licensee agrees to indemnify,
hold harmless and defend the District from any claims made against
the District which arise from the Licensee's failure to cease and
discontinue its discharge upon the District's request.
LICENSE AGREEMENT - Page 9
fr
d. Licensee represents that Licensee has complied with all
federal, state or other laws, rules, regulations, directives or
other requirements in any form regarding 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 broadly 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 any and all penalties, sanctions,
directives, claims or any action taken or requirement imposed by
any party or entity, public or private, with respect to
environmental matters relating to the subject matter, terms or
performance of this agreement 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 discharge 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, ar
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.
h. 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 plans thereto without the prior
written consent of the District. The District's easement along
this section of the Ninemile Drain is 80 feet, 40 feet on either
side of centerline.
i. Installation shall be completed not later than April 30,
1997. Time is of the essence.
LICENSE AGRSBMENT - Page 10