HomeMy WebLinkAboutThird Party License Agreement with Nampa Meridian Irrigation District NMID and Liberty Development Inc.
City of Meridian
Public Works Dept.
RECEIVED
FEB 2 0 200~
qty Of Meridian
CJty C!erk Office
Memo
To: Mayor de Weerd & City Council
From: Brad Watson, P.E.
CC: File, Gary Smith, PE, City Clerk
Date: 2/19/04
Re:
February 24 City Council Meeting Agenda Item
The Public Works Department respectfully requests that the following item be placed on the
February 24 City Council agenda, on the Consent Agenda, for Council's consideration:
Three Darty License Aareement with NamDS & Meridian lniaation District - Eiaht Mile Lateral
Sewer Crossina. This agreement is for a new sanitary sewer main to serve the serve
Birchstone Subdivision northwest of the intersection of Ustick Road and Black Cat Road. This
is a three party agreement between the Nampa & Meridian Irrigation District, Liberty
Development, and the City of Meridian. The purpose of this agreement is to delineate the
responsibilities among the parties during and after construction. During the construction
period the agreement is between the NMID and Liberty Development. and upon the final
acceptance of the main by the City of Meridian, the developer drops out of the agreement,
and the City becomes the Licensee. This will cut out a necessary step of having to re-license
the crossing to the City of Meridian once it is complete.
Recommended Council Action: Approve the license agreement with
Nampa & Meridian Irrigation District, Liberty Development, Inc. and the
City of Meridian, and authorize the Mayor to sign and City Clerk to
attest.
Thank you for your consideration.
4'~
. Page 1
LICENSE AGREEMENT
. LICENSE AGREEMENT, made and entered into this - day of , 2004, by and
among NAMP A & MERIDIAN IRRIGA TIONDISTRICT, an irrigation district organized and existing under
and by virtue of the laws of the State ofIdaho, party of the first part, hereinafter referred to as the "District",
and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642; and
LIBERTY DEVELOPMENT, INC.,
114 E. Idaho, Meridian, Idaho 83642,
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
}yH.!srH~En:!,
WHEREAS, Licensee is the owner of real property and/or right-of-way for a sanitary sewer line
(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 EIGHT ~E LATERAL
(hereinafter collectively referred to as "ditch or canal"), an integral part of the District's irrigation works and
system, together with the easement therefor to convey irrigation water, operate, clean, maintain, and repair
the ditch or canal, and access the ditch or canal for those purposes; and,
WHEREAS, said ditch or canal and easement crosses Licensee's property and/or right-of-way 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
tenns and conditions hereinafter set forth; and,
WHEREAS, with regard to the sewer facilities only, City of Meridian, by execution of this
agreement, agrees to assume the maintenance and operation offue sewer facilities constructed affecting said
ditch or canal or the District's easement in the manner and under the tenDS and conditions hereinafter set
forth after it provides final approval, in writing, and to be bound by the tenns and conditions of this
agreement and the City of Meridian agrees to assume the obligations and responsibilities as the Licensee
which are imposed by this agreement once it provides final approval of the construction and installation; 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 ofthe covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
;
1. The Licensee shall have the right to moditY the said ditch or canal or encroach upon the
District's easement along said ditch or canal in the manner generally described in the "Pwpose of License"
attached hereto as Exhibit C and by this reference made a part hereof. Any modification of said ditch or
cana] by the'Licensee or encroachment upon the District's easement a]ong said ditcb or canal shall be
performed and maÌJltained 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 modificatiòn of said ditch or canal or
encroachment to the District's easement for the pwposes and in the manner described herein. Tbe Licensee
shall not change the location of the ditch or canal, bury the ditch or canal in pipe, or otherwise alter the ditch
or canal in any manner not described in this agreement without first obtaining the written permission ofthe
District.
3. Each faciJity ("faciJity" as used in this agreement means any object or thing of any nature
installed in or on the District's easement by the Licensee or the Licensee's predecessor in interest) shall be
constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense
of the Licensee.
i
4. Licensee agrees to construct, install, operate; maintain and repair each faciJity 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 water in the ditch or canal
or the delivery of irrigation water by the District;
an increase in seepage or any other increase in the loss of water ITOm the ditch or
canal;
the subsidence of soiJ within or adjacent to the easement;
any other damage to the District's easement and irrigation works.
c.
d.
e.
5. The Licensee agrees to indemnifY, hold harmless, and defend the District ITom all c1aims
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, 4.a. through 4.e., or any other damage to the
easement and irrigation works which maybe caused by the construction, installation, operation, maintenance,
repair, and any use or condition of any faciJity.
6. Licensee agrees that the work performed and,the materials used in such construction shall
at all times be subject to inspection by the District and the District's engineers, and that final acceptance of
such 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.
7. The District reserves the right, at the District's,option, to remove any faciJity installed by the
Licensee and to repair any a]teration 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 dèmand. the costs which shall be reasonably expended by the District for
such pwposes. If the Licensee shall faiJ 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,
LICENSE AGREEMENT - Page 2
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 of the District.
8. 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 obligatíons 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 ofthis 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 faciliiy authorized by this agreement.
9. 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
(including reasonable attorney's fees) incurred by, or asserted against, the District by reason of the negligent
acts or omissions of Licensee or its agents, contractors or subcontractors in performing the construction and
activities authorized by this agreement.
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 orrepair 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. Licensee shall place no structures or landscaping of any kind above within the District's
easement area except as referred to in this agreement or exhibits hereto without the prior written consent of
the District.
12. Should either party incur costs or attorney fees in connection with efforts to enforce the
provisions ofthis 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.
The parties hereto understand and agree that the District has no right in any respect to impair
LICENSE AGREEMENT - Page 3
the uses and purposes of the irrigation works and system of the Dis1rict 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. -
14. Nothing herein contained shall be construed to impair the right of way ofthe Dis1rict 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.
15. 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 tenus hereof may be tenninated 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.
16. 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 tenus and conditions of this License Agreement. Licensee also
agrees to pay any fees incurred in connection with the recording of this Agreement.
17. 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.
18. This agreement is not intended for the benefit of any third party and is not enforceable by
any third party.
19. If any provision of this agreement is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, all remaining provisions of this agreement shall remain in full force and
effect.
20. 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.
NAMP A & MERIDIAN lRRIGATION DISTRICT
By
Its President
LICENSE AGREEMENT - Page 4
ATTEST:
Its Secretary
CITY OF MERIDIAN
By
ATTEST,
ATTEST,
n
L.]'.....'.' ..T,. Y. PEVE. LOPM. ENT, INC.
:', /
BY)~
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STATE OF IDAHO
)
) ss,
)
County of Canyon
On this - day of , 2004, before me, the undersigned, a Notary Public in
and for said State, personally appeared Henry Weick and Daren~. Coon, \mown to me to be the President
and Secretary, respectively, ofNAMP A & MERIDIAN IRRlGATION DISTRICT. the irrigation district that
executed the foregoing ins1rument and ac\mowledged to me that such irrigation district executed the same.
INWTINESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
Notary Public for Idaho
~esiding at
My Comrirission Expires:
, Idaho
LICENSE AGREEMENT - Page 5
STATE OF IDAHO
)
)ss.
)
County of Ada
On this - day of ,2004, before me, the undersigned, a notary
public in and for said state, personally appeared and , Imown to
me to be the and , respectively, ofthe CITY OF MERIDIAN,
the political subdivision and municipality that executed the foregoing instrument, and acImowledged to me
that such entity 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.
Notary Public for
Residing at -,
My Commission Expires:
STATE OF IDAHO
)
)ss.
County of fI-rk- )
On this (,o#tday of ¡::::dar-~ 2004, before me, the undersigned, a notary
public in and for said state, personally appeared roaA1 A. Lai.I/ÝiryI&r:- . Imown to
me to be the prt'.sltJ..fl\:/- and .- , respectively, of the LIBERTY
DEVELOPMENT, INC., the entity that executed the foregoing instrument, and acImowledged to me that
such entity 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. ~áL-..'
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LICENSE AGREEMENT - Page 6
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WARRANTY DEED
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sa¡ EXHIBIT A ATTACRm> II:E1<ETO AND MADE A PART'HEREOp.
To !'^ V1i! AND TO HOLD the said prenúsos, wlr ¡ their appurtenances limO Ibe said GI81II... his heirs
IßJd ..6igns i_or. Ana tf¡" soia c¡",OIO' does hexeby cov- ro ...d wltb the said Gt=.. that Gramor
is Ifuo owner Jo fee Ðimplo cfsaid premi...; tlW..id promises are fi'oefi'om aU ""eumbnJlcos except"'"'"""
years ""'"", levies, and --",,<s. and OXcept U.S. Pa_t reoervations, reStriCtions"eoseman" of record,
and oo..m..,. vi.ible upon tbe promise.. and tha< Gt-o.o"", will Warn'" and defend ¡¡,. .om. :from an e!ò ,.,.
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PARca DESCRIPTION Pecember23,:W03
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Project:
B¡",bsume SUbòivisìOD
BoundatyLegar
------'
A 1""""1 orland!¡ei¡¡g. porlíon .fth. oocl!¡OIISt 14 of rile .0....11. ofSocdon33. Town.h¡~ 4 North, Ronge 1 West, Bo;""
Mendllln, Ada Coumy.,ldahe, mar. parti""larl~ desc"Õ=<! as foUow.,
COMMENCING m:. '518" lObar -I: the south- corne¡- ofsaki '""the..! 10 ofth.
s.utbeost>lofScction33i . ,
Thenœ'North OO~6'08" Woot, 61.41 root coincide., with th. west Une of said south'¡¡'¡ Yo 0(,11. southeast!<i ofS.c'¡OfI 33:
Thence North 88"56'00" ~ 50.00 è", 10 " 5/8" rebar/cop PLS 5461 e.nd ,h. oosœrly line of the Rigbt Mile Lat.ruI as
described '" lbo' eertain WIimlIIty dOFÕ reccrrded III ImtnuTI"'" No. 3209S ...d 1/1. POINT OF BEGJNNJ1' G; ,
Thonco Nardi 00'16'08" Wêst (formerly North) parollol tÐ.nd 50.00 ".teastofaaid wast Ii". of"'. 5out.b...t ~ efme
, soUtheasl". dismnce of 1253.86 fUt(furro..ly 1248.8 feet) "'.. S/8" robar/o.p PLs 5461 ""d rho north line or..id.oUt!teas< I<i of'
'l1e southeas, YO; .
Thenc. Nortb 89'57'(18" !:!ast coincidentwhh "'"north lill.ofsaid southeasl if< of lb. "",the..., >I a disla."" of 1343.77 roe(
to . 518" rebar nO ""p on the west right-of-WaY (iDe of\'!- alack Cat Road;
Then.. South 00'17'12" East, 1291.04 iè--ecomofd", will¡ ..íd we"righ..or-way lin. ofN. alacl¡ Cat Road 1291.04 fool.
'S/6" ,*or/cap I'LS 546100 tbeDorthrigb'-pf-_yliDeofW. Ustlck Road¡ .
Thone. South &9'56'56' West CQ;Dçidem with said ",mil ri8hl-of-"",y lin. orw. lJ"tlok ROad 636. ¡ S f=! to . 5/S" rebar/cap
PLS 546J¡
Th"""" No"" 00'37'56" es,I (fOtmerIyNorth 00'37'50. 5sst), 190.00 lloetlD. 518" rebar/cap PLS 545J;
~ce S~fh 89"6'56' Weat (formerly Swill 89'56'20" West) parallel wiIh the "oUrb Ii.. of said southeast Yo of the
"",be..t v. adis<an.. of 229-00 feer", 8518" rebarlœp PLS 5461;
-J
Thence South 00":37'56" W- (formerly Solid, 00'37'50" West), 14ó.021ætto a srs- rebar/cap PLS 5461;
Thence South 88"55'(10" West (f"""edy South 88'56' West), 379.74 - t. the POINT OF BEGINNING.
Tl1e porœl above descòbod contain; 35.52 acres more or les..
,Togcrl\er with end Sllbject 10 Çßven!lllls, oallemOtlI1l, ODd ....,.ic:IÌODS ofrecord.
Basis ofBBerings is S 89'56'56" Wb.",,- the 3" brass CO > ",orkin¡;be 'oatheaslearner Dfsaid Secti"" 33 'Dd *,0 5/8" "ebar/no
""p marl<ing!he South ~ com.r of said SeedoD 33, rownship'4 North, Rsnge ¡ West, Boise Moridien.
ÎÚjeÆ'IU" with v~ht- of wdU( for BrtftX Cp:: 'KDrJ¿j tULd ~LS{-r'ck RlJo.d.
o.vid S. ShOrT J-t.. P.!..S
end ofDesoripti""
Lice.seNo.5461
"-'"
Exhibit A, page 2
~ 4-ø~ . .
',',roj"""""'Mdlb""""""""""IIoà-."""", ""~!.03
""lop
"=1°'
Eight Mile Lateral in SE1/4, .
8.33, TAN, R.1W, 8.M., Ada
County, Idaho (August 1994)
Exhibit B
EXHIBIT C
Purnose of License
The purpose of this License Agreement is to permit Licensee to:
1. construct, install and maintain a sanitary sewer line within and across the District's
easement for the Eight Mile Lateral; and
construct and install a pressure irrigation line across the Eight Mile Lateral,
2.
all within or near Licensee's real property described in Exhibit A and the right-of-way for Black Cat Road
and Ustick Road,located northwest of the intersection of Black Cat Road and Ustick Road in Meridian. Ada
County, Idaho.
EXHJBIT D
Special Conditions
a. Construction shall be in accordance with certain plans consistingofthree sheets, sheetCl.O
entitled "Birchstone Creek Subdivision, Cover Sheet," bearing engineer's stamp dated November 14, 2003;
sheet C4.2 entitled "Birchstone Creek Subdivision, Off-Site Improvement Plan," bearing engineer's stamp
dated December 10,2003; and sheetC11.0entitled "Birchstone Creek Subdivision, IrrigationPlan,"bearing
engineer's stamp dated December 10, 2003. These plans have been delivered to the District's water
superintendent, are in his possession in his offices, and are hereby incorporated by this reference.
b. Licensee shall notifY the water superintendent ofthe District prior to and immediately after
construction so that he or the District's engineer's may inspect and approve the construction.
c. The Licensee recognizes and aclmowledges 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 ITOm 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 hann1ess, indemnifY and defend the District ITom 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. With respect to the sewer line crossing, the parties expressly agrees that the City of Meridian
shall not be considered the Licensee under the tenns of this agreement until the City of Meridian provides
final approval, in writing, of the construction and installation of the sewer line described in Exhibit C of this
agreement and takes over the operation and maintenance of said sewer line. Until such time as the City of
Meridian provides fmal approval in writing, the covenants, conditions and obligations of this agreement shall
be binding upon Liberty Development, Inc. and its agents. At such time as the City of Meridian does provide
final approval of the construction and installation of the sewer line. the parties agree that Liberty
Development, Inc. shall be released ITom any obligations, conditions or covenants of this agreement, and
Liberty Development, Inc. shall no longer be considered the Licensee under the tenns of this agreement.
e.
Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
LICENSE AGREEMENT - Page 7
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the Eight Mile Lateral except as referred to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Eight Mile Lateral is 50 feet, 25 feet to either
side of the centerline. .
f
Construction shall be completed one year from the date of this Agreement. Time is of the
essence.
LICENSE AGREEMENT - Page 8