HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Five Mile and Nine Mile DrainADA COUNTY RECORDER Christopher 0. Rich AMOUNT .00 14
BOISE IDAHO 01112/11 08:10 AM
' DEPUTY Bonnie Oberbillig ~II I'll'III'I'I~'III~'I'IIII'I'lll ~II
RECORDED-REQUEST OF 111~i03~6Ey
Nampa Meridian Irrigation Dist
LICENSE AGREEMENT
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This LICENSE AGREEMENT, is made and entered into this 1~_ day of , ~'
by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation d trio org• ized and
existing under and by virtue of the'laws of the State of Idaho, party of the first part, hereinaftea• referred to
as the "District", and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642
hereinafter referred to as the "Licensee",
WITNESSETH:
WHEREAS, the District owns the drainage ditch(es) or drain(s) known as the NINE MI[.E DRAIN
and FIVE M1LE DRAIN, (hereinafter sometimes collectively referred to as "ditch or chain"), an integral part
of the irrigation and drainage works and system of the District, together with the easement therefor to convey
irrigation and drainage water, to operate, clean, maintain, and repair the ditch or drain, and to access the d itch
or drain for those purposes; and,
WHEREAS, the District operates, cleans, maintains, repairs and protects the ditch or drain for the
benefit of District landowners; and,
WHEREAS, the Licensee is the owner of of real property that is servient to the District's ditch or
drain and easement, and is particularly described in the "Legal Description" and/or deed attached hereto as
Exhibit A and by this reference made a part hereof; and,
WHEREAS, the ditch or drain crosses and intersects the real property described in Exhibit A as
shown on Exhibit B, attached. hereto and by this reference made a part hereof; and,
WHEREAS, the Licensee desires a license to cross, encroach upon or modify said ditch i~r drain
and; or the District's easement under the terms and conditions of this License Agreement;
NOW, THEREFORE, for and in consideration ofthe premises and ofthe covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
LICENSE AGREEMENT -
A. Acknowledgment of the District's )casement.
I . Licensee acknowledges that the District's easement for the NINE MILE DRAIN includes
a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the
ditch or drain, and to access the ditch or drain for said purposes, and is a minimum of 100 feet, 50 feet. on
either side of the centerline of the ditch or drain.
2. Licensee acknowledges that the District's easement for the FIVE MILE DRAIN includes
a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the
ditch or drain, and to access the ditch or drain for said purposes, and is a minimum of 100 feet, SU feet on
either side of the centerline of the ditch or drain.
B. Scope of License
I . The Licensee shall have the right to modify the ditch or drain or encroach upon the District's
easement along the ditch or drain in the manner described in the "Purpose of License" attached hereto as
Cxhibit C and by this reference made a part hereof.
2. Any crossing, encroachment upon or modification of the ditch or drain and/or the District's
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easement shall be performed and maintained in accordance with the Special Conditions stated in Cshibit
ll, attached hereto and by this reference made a part hereof Any difference or discrepancy between the
items listed in Exhibit C, "Purpose of License," al7d any plalls Or dl'aWn1gS referenced in or attached to
Exhibit D shall be resolved in favor of Exhibit C. Licensee shall only be permitted to cross, encroach upon
or modify the ditch or drain and/or the District's easement as described in Exhibit C even if any plans or
drawings referenced or attached to Exhibit D provide or shoal otherwise.
3. This License Agreement pertains only to the Licensee's crossing, encroachment upon or
modification ofthe ditch or drain and/or the District's easement for the purposes and in the manner described
herein. The Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the ditch or drain except as referred to in this License Agreement without the prior written
consent of the District.
4. The Licensee recognizes and acla~owledgesthatthe license granted this License Agreement
pertains only to the rights of the District as owner of an easement. The District has no right or po~~-er to
create rights in the Licensee affecting the holder of title to the property subject ro 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 oftitle 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 License
Agreement shall be of no force and effect.
C. Facility Construction, Operation, Maintenance and Repair
Licensee agrees that the wort: performed and the materials used in any construction permitted
LICENSE AGREEMENT - ?
by this License Agreement shall at all times be subject to inspection by the Disri•ict and the District's
engineers, and that final acceptance ofthe such work shall not be made until all such wort: and materials shall
have been expressly approved by the District. Such approval by the District shall not be unreasonably
withheld.
2. Each facility ("facility" as used in this License Agreement means any object or thing
installed by the Licensee on, over or in the vicinity of the District's easement) shat l be constructed, instal led,
operated, maintained, and repaired at all times by the Licensee at the cost and expense of the Licensee.
;. 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 hazard to any person or property;
b. an interruption or interference with the flow of irrigation or drainage water in the
ditch or drain or the District's delivery of irrigation water;
c. an increase in seepage or any other increase in the loss of water from the ditch;
d. the subsidence of soil within or adjacent to the easement;
e, an interference with the District's use of its easement to access, operate, clean,
maintain, and repair the ditch or drain;
f. any other damage to the District's easement and irrigation or drainage vvorla.
4. The Licensee agrees to indemnify, hold harmless, and defend the District ti-om 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, 3.a. through 3.f., or any other damage to the
easementand irrigation workswhich may be caused by the construction, installation, operation, maintenance,
repair, and any use or condition of any facility.
5. The Licensee shall, upon demand ofthe District, remove any facility or repair any alteration
of the District's easement wh ich interferes wi th the Di strict's operation and maintenance of the d itch or d ra i n,
or causes or contributes to any of the circumstances enumerated in the preced ing paragraph, 3.a. through .f.,
or any other damage to the easement and irrigation work. The District shall give reasonable notice to the
Licensee, and shall allow the Licensee a reasonable period of time to perform such maintenance, repair, and
other work, except that in cases of emergency the District shall attempt to give such notice as is reasonable
underthe circumstances. The District reserves the right to perfi~rm any and aJl vvorl: which the Licensee fails
a• refuses to perform within a reasonable period of time after demand by the District. "hhe Licensee agree,
to pay to the District, on demand, the costs which shall be reasonably expended by the District for such
purposes. Nothing in this paragraph shall create or support any claim of any I:ind by the- Licensee or any
third party against the District for failure to exercise the options stated in this paragraph, and the Licensee
shall indemnify, hold harmless and defend the District from any claims made against the District arisin;~ out
of or relating to the terms of this paragraph, except for claims arising fi•om any worl: which unreasonably
exposes the District's employees and agents to the risk of harm from electric power lines, or arising solely
out oi'the negligence or fault of the District.
D. District's Rights Are Paramount
The Licensee understands and agrees that the ditch or drain is a manmade ehannel that was
LICENSE AGREEMENT - 3
constructed and is used and maintained by the District forthe exclusive purpose ofconveying irrigation water
to lands within the District or draining lands within the District. As such, Licensee further acknowledges
and agrees that the ditch or drain does not constitute a natural or navigable watercourse or stream.
2. The parties hereto understand and agree that the District has no right in any respect to impair
the uses and purposes of the irrigation or drainage works and system of the District b_v this License
Agreement, nor to grant any rights in its irrigation or drainage works and system incompatible with the uses
to which such irrigation or drainage works and system are devoted and dedicated and that this contract shat I
be at all times construed according to such principles.
;. Nothing herein contained shall be construed to impair the ditch or drain or the District's
easement, and all construction and use of the District's easement by the Licensee and the license herein
provided therefor shall remain inferior and subservient to the rights of the District to the use ol'the ditch or
drain for the transmission and delivery of irrigation water or transmission of drainage water.
4. The Licensee agrees that the District shall not be liable for any damages ~~-hich shall oec~n-
to any facility in the reasonable exercise of the rights of the District in the course ol• performance u('
maintenance or repair of the ditch or drain. The Licensee further agrees to suspend its use of the said
easement areas when the use of the easement areas is required by the District for maintenance or repair under
this or any other paragraph of this License Agreement.
5. In the event of the failure, refusal or neglect ofthe Licensee to comply with al I of the terms
and conditions of this License Agreement, the license of the Licensee under the terms hereon may be
terminated by the District, and any facility, structure, plant, or any other improvement in or over the ditch.
and the right of way therefor, which may impede or restrict the maintenance and operation of such ditch or
drain by the District with its equipment for the maintenance of the ditch or drain shall be promptly removed
by the Licensee upon demand of the District.
E. Applicable Law and Jurisdiction Unaffected.
1. Neither the terms of this License Agreement, the permission granted by the District to the
Licensee, the Licensee's activity which is the subject of this License Agreement, nor the parties exercise of
any rights or performance of any obligations of this License 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 oi• its
drains, drains, irrigation works and facilities which did not apply to the District's operations and activities
prior to and without execution of this License 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 License Agreement or the Licensee's
activity authorized hereunder, Licensee shall indemnify, hold harmless and defend the District from al I costs
and liabilities associated with the application of such laws or the assertion of such jurisdiction or, at the
option of the District, this License Agreement shall be of no force and effect and the Licensee shall cease
all activity and remove any facility authorized by this License Agreement.
LICENSE AGREEMENT -
F. Indemnification
1. 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
(inchiding reasonable attorney's fees) incurred by, or asserted against, the District by reason of the negl igent
acts or omissions of Licensee or its agents, contractors or subcontractors in perform ing the construction and
activities authorized by this License Agreement.
G. Fees and Costs
1. The Licensee agrees to pay attorney fees and engineering fees charged by the attorney for
the District or by the engineers for the District in connection with the negotiation and preparation ofthis
License Agreement.
?. Should either party incur costs or attorney tees in connection with efforts to enforce the
provisions ofthis License Agreement, whether by institution of suit or not, the party rightfully enforcing or
rightfully resisting enforcement of the provisions of this License Agreement, or the prevailing party incase
suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other
party.
H. Miscellaneous
1. No Claims Created. Nothing in this License Agreement shall create or support a claim of
estoppel, waiver, prescription or adverse possession by the Licensee or any third party against the District.
2. Assignment. Neither this License Agreement nor any agreement entered p~n•s~iant to this
License Agreement may be assigned or transferred without the prior written approval of the Parties, which
approval shall not be unreasonably withheld.
3. Amendment and Modification. Any amendment or modification ofthis License Agreement
must be in writing and signed by all parties to be enforceable.
4. Interpreted. This License Agreement shall be interpreted and enforced in accordance with
the laws ofthe State of Idaho. This License Agreement is not intended for the benefit of any third party and
is not enforceable by any third. party. If any provision ofthis License Agreement is determ fined by a cixu•t
of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this License
Agreement shall remain in full force and effect. The parties represent and warrant to each other that they
each have authority to enter this License Agreement. The catchlines or section headings herein set forth are
provided only for the convenience of the parties in locating various provisions ofthis License Agreement,
and are not intended to be aids in interpretation of any provision ofthis License Agreement with aspect to
which the parties might disagree at some future time, and shall not be considered in any way in interpreting
or construing any provision of the License Agreement.
5. Binding Effect. The covenants, conditions and agreements herein contained steal I constitute
covenants to run with, and running 4vith, the easement of the Licensee within the real propert~% clcscribecl in
LICENSE AGREEMENT - 5
Cxhibit A, and shall be binding on each ofthe parties hereto and on all parties and al I persons claim ing 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.
6. Notices. Any and all notices, demands, consents and approvals required pursuant to this
License Agreement shall be delivered to the parties as follows:
Nampa & Meridian Irrigation District City of Meridian
5525 East Greenhurst 33 E. Idaho
Nampa, ID 83686 Meridian, Idaho 83642
Notices shall be deemed to have been delivered upon hand deposit in the United States mail as
provided above.
7. Counterparts. This License Agreement may be executed and delivered in counterparts, each
of which shall be deemed to be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the District has hereunto caused its name to be subscribed by its oflicers
first hereunto duly authorized by resolution of its Board of Directors and the Licensee has caused its
corporate name to be subscribed by its duly authorized officer, all as of the day and year herein first above
written.
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ATTEST: ~~'~°~
NAMPA & MERIDIAN IRRIGA'f(ON DISTRIC"f
By
It Aresident
Its Secretary
ATTEST:
CITY OF MERIDIAN
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LICENSE AGRErMENT~~,~ ~~ -- ~OP~.~'~
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STATE OF IDAHO )
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County of Canyon )
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On this ~ day of _ ia9-1-8, before me, the undersigned, a Notary Public in
and for said State, personally appeare ~ W1onfe ~a`~idrDaren Coon, 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.
and
1N WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal. the day
certificate first above written.
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otary Public for Idaho
Residing at~'r,.QAti,.,o,QP ,Idaho
My Commission Expires:_~~~o l 2
On this ~ day of N~V~rn{7~ , ?010, before me, the i ndersianed, a notary
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public in and for said state, personally appeared"~~y~g~_~nown to ii-e to be the
r-1~yor A_ ~ C~-Ft,( C~~r1L of ~2r+< ~~ ,the entity that executed the foregoin~~ instrument, and
acknowledged to me that such entity executed the same.
IN W ITNESS W1-IEREOF, 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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LICENSE AGREEIvIENT - 7
EXHIBIT A
Legal Description
A right-of--way fora 16" Class A Reuse Main, located on Ten Mile Road between Usticl: Road and
Cherry Lane, in the NEl /4 of Section 3, Township 3 North, Range 1 West, B.M., and in the SE 1 /4, Section
34, Township 4 North, Range 1 West, B.M., Meridian, Ada County, Idaho.
EXHIBIT C
Purpose of License
The purpose ofthis License Agreement is to permit Licensee to:
construct and install a 16" Class A Reuse Main under and across the Nine Mile Drain and
the Five Mile Drain and the within the District's easement.
all within Licensee's right-of-way where Ten Mile Road intersects the Nine Mile Drain and the f ive Nlile
Drain in Meridian, Ada County, Idaho.
EXHIBIT D
~ecial Conditions
a. The construction described in Exhibit C shall be in performed in accordance with Exhibit
D-1 attached hereto and by this reference incorporated herein.
b. Licensee shall notify the District prior to and immediately after construction so that he or
the District's engineer's may inspect and approve the construction.
c. Licensee represents that Licensee has complied with all federal, state or other laws, rules.
regulations, directives o--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 ofthis agreement broadly construed. Licensee recognizes its continuing duty to comply with
al I such requirements that now exist or that maybe 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.
d. 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 enviro~unental matters relating to the subject matter, terms or performance
ofthis agreement unless the District shall be solely responsible for the condition or activih~ which ~_ives rise.
to any such penalty, sanction, directive, claim ,action or requirement.
e. In the eventthe District is required by any governmental authority to acquire orcomply with
any permit or other operational requirements associated with Licensee's discharge and other activity which
is the subject ofthis agreement, Licensee shall indemnify, hold harmless and defend the District form all
I_IC'ENSE AGREEMENT - 8
costs and liabilities associated with such permitand other requirements, including but not limited to all costs
associated with all permit acquisition, construction, monitoring, treatment, administrative, tiling and other
requirements.
f. 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 imp) ied, to regulate control, or prop ibit the discharge or contribution of pol lutants or contain inants
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.
g. Construction shall be completed within one year of the date of this Agreement. Time is of
the essence.
L1C1/NSC AGRI/EML-'NT - 9
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RINGERT
<~LAW
Laura E. Burri
Adam S. Christenson
Jeffrey R Christenson
David P. Claiborne
S. Bryce Fazris
Jon C. Gould
David Hammerquist
January 18, 2011 JahneseP)~Hr~omnsaznger **
Jennifer Reid Mahoney
James G. Reid *
Daniel V. Steenson
CoJ-ey Peacock, P.E.
Civil Sl~rvev Consultants. Inc.
1400 E. Watertower Street
Meridial~, Idaho 83642
Re: License Agreement with Nampa & Meridian Irrigation District
Dear Corey:
P;nclosed is a copy of the recorded License Agreement dated .lanuaJy 4, 2011, between the
City of Meridian and Nampa & Meridian Irrigation District.
Yours very truly,
fir- '~
~<.
~~~ S. Bryce Farris
SBF:kw
Enclosure
ec: Jacy Jones
455 South Third Street PO Box 2773 Boise, Idaho 83701 208.342.4591 FAX 208.342.4657
* also licensed in OR
www.r i n g e r t l a w.com ** also licensed in CO