HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Mallard Landing, LLCLICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this 4th day
of February 1997, by and between NAMPA & MERIDIAN IRRIGATION
DISTRICT, 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
MALLARD LANDING, L.L.C., a limited liability company,
3350 Americana Terrace, Suite 100, Boise, Idaho 83706
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 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 is the owner of the irrigation
ditch or canal known as KENNEDY LATERAL (hereinafter referred to as
"ditch or canal"), an intzgral part of the irrigation works and
system of the District, together with an easement therefor which
includes easements to convey irrigation water, to operate ar_d
maintain the ditch or canal, and for ingress and egress for those
purposes, and which ditch or canal and 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 or the
District's easement in its course across the lands of the Licensee
in the manner and under the teens 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 ar_d 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 bar 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 ali 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 harnless, ar_d 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 constrsction, 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 an~r 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
LICENSE AGREEMENT - Page 3
support any claim of any kind by Licensee or ary 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.
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
aria 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 cvaste 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 Taater 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, wrether 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
LICENSE AGREEMENT - Page 4
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. 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 performance of the
terms of this agreement, shall be construed or asserted to extend
the application of any federal, state, or other law, 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 and at the option of the District
this agreement shall be of no force and effect.
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.
1?. 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.
LICENSE AGREEMENT - Page 5
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 ar_d 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 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.
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~~~CENSrc `AGREEMENT - Page 6
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NAMPA & MERIDIAN IRRIGATION DISTRICT
By ;~~~ ~~ ~~ ~ .~~` ~ !,~,"~_
Its President
MALAR LANDING, L.L.C,
a limited liability company
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Its President
ATTEST
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STATE OF IDAHO
ss:
County of Canyo/n/ )
On this `t ~ day of ~ 1997, before me, the
undersigned, a Notary Public in and or said State, personally
appeared ~~.T.11~_~-!~-~ and _~n~ vr~ .P. ~~ ,
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~,.~~ "~n~} years in this certificate first above
STATE OF IDAH
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Lary Public for Idaho
siding at Nampa, Idaho
Commission Expires: ~ o0
County of Ada '•-•. ,-~~~t,,•••`'
On this ~ day of 1997, before me, the
undersigned, a Notary Publi in a for said State, personally
appeared A. LEON BLASER, known to me to be the President of MALAR
LANDING, L.L.C, the limited liability company that executed the
foregoing instrument and acknowledged to me that such limited
liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal, the day and year in this cer .iricate first above
written. ~.• ,i ?~IcK~Na _+,+
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N tart' Publi f ~~ OT`~R~-
R sid' g at Bois ? ,~d ~ ° ~'
My Commission Expired : °
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LICENSE AGREEMENT - Page 7 I%~~' ••'•a•~•°•°•o~`SO+,
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PROJECT • 649033
DATr: June 3-t. 1996
DESCRIPTION FOR
IN i~RWEST DEVELOPMENT
THE LANDING SUBDMSION NO. 9
A PORTION OF T:~ SOUT'riW~ST QUART'~r.R AND 1Y-r. NORTrIWEST QUARTER
SECTION li
TOWt~TSHIP 3 NORT:~. RANGE 1 WEST, BOISE MERIDIAI`
MERIDIAN. AD A C OUNTl', IDAHO
A parcel of land being a portion of the Southwest Quartet and ehe.Northwest Quarter of Section
li, Township ~ North. Range 1 West. Boise Meridian. Meridian, Ada Count<', Idaho. and more
particularly described as follows:
Beginning at an iron pin marking the Southwest corner of the said Northwest Quarter of Section
13. Township 3 North. Range 1 West Boise Meridian:
thence along the Southerty boundary of the said Northwest Quarter of Se.^tion li, said Southerly
boundary also being the Southerly boundan' of The Landing Subdivision No. 7 as pled for record in the
office of the .Ada CounR~ Recorder, Boise Idaho. in Book 69 of Plats at Pages 7085 and 7086, North
89°69'33" East 1326.82 feet to a ?" Galvanized iron pipe marking the Southwest corner of the Southeast
Quartet of the Northwest Quarter of Section 13. said 2" Galvanized iron pipe also being the REAL
POli~~I' OF BEGINNING (Initial Point);
thence continuing along said Southerly boundaries, South 89°50'04" East 1"r 7.46 feet to an iron
ptn;
thence leaving said Southerly boundaries. and along the ~asteriy boundary of the said, The
Landing Subdivision No. 7. North 00°09'56" East 36.15 feet to an iron pin on the Southerly boundary of
The Landing Subdivision No. 8 as tiled for record in the office of the Ada Cotutty Recorder, Boise Idaho,
in Book 70 of Plats at pages %230 and 7231;
thence leaving said Easterly boundan' of The Landing Subdivision No. 7. and along the said
Southerly boundan' of The Landing Subdivision No. 8 [he following courses and distances:
thence South 61°37'44" East 146.69 feet to an trop ptn;
thence North 28°32' 16" East 86.30 feet to an iron pin:
thence South 61°3 7'~4" East 671.35 feet to an iron pin;
thence North 3S°32'16" East -19'9 feet to an iron pin:
thence North 89°67'06" East 103.82 feet to an iron pin:
thence North S1°66'33" East 60.-*9 feet to an iron pin:
thence North 59°:7'06" East ! OU.00 feet to an iron pin;
thence !eaving said Southerl~~ boundan•. South 00°02'6" East 96.00 fee: to an iron pin:
SYHIBIT ~
thence North 89°59'22-" East 200.00 feet to an iron pin on the Easterly boundar<' of the Southwest
Quarter of said Section 13:
thence aiong said Easte:l}• boundarti'. South 00°02'54" East 695.12 feet to an iron pin:
thence lea~~ng said .=asterl~~ boundar`', South 89°5706" West 115.00 feet to an iron pin:
thence North 86°30'19" West 50.10 feet to an iron pin:
thence South 79°59'39" West 106.61 feet to an iron pin:
thence North 62°07'22" West -16.87 feet to an iron pin:
thence North 27°52'38" East 115.03 feet to an iron pin:
thence North 18°12':1" West 72.05 feet to an iron pin:
thence North 00°02'54" West 268.11 feet to an iron pin:
thence South 89°59'2'_" West''-17.85 feet to an iron pin:
thence North 77°37'27" West 56.44 feet to an iron pin:
thence North 66°33'34" West 107.02 feet to an iron pin:
thence South S9°55' 12" West 420.00 feet to an iron pin;
thence South 00°04'4S" East 115.00 feet to an iron pin:
thence South O1°17'40" West 50.01 feet to an iron pin;
thence South 00°04'18" East 115.00 feet to an iron pin:
thence South 89°»' 12" West 80.00 feet to an iron ptn:
thence Notch 53°50'37" West 6L80 fe°t to an iron pin:
thence North 89°50'04" West 125.06 feet to an iron pin on the Westerly boundar<~ of the
Northeast Quarter of the Southwest Quaver of Section 13;
thence along said Westerl}~ boundar<~. North 00°01'36" West 714.55 feet to the point of
beginning. Comprising 15.94 acres. more or less.
SUBJECT TO:
All existing easements and road rights-of-u~av of record or appearing on the above~escribed
parcel of land.
Prepared b}':
PACIFIC LAND SUR~YORS
john T. (iom} Edd}~. P.L.S.
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EXriIB IT B - Page 2
EXHIBIT C
Duroose of License
The purpose of this License Agreement is to permit Licensee
to:
1. pipe a portion of the Kennedy Lateral,
2. construct a fence within a portion of the Kennedy Lateral
after relocation,
all in or near the Landing Subdivision No. 9, located northeast of
the intersection of Linder Road and Interstate Highway I-84 in
Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with certain plans
consisting of one sheet, sheet 1 of 1 entitled "Kennedy Lateral
Piping Plan, The Landing Subdivision No. 9," bearing engineers
stamp dated October 2, 1996. 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. The District shall perform all work associated with the
piping of the Kennedy Lateral and the Licensee shall pav the costs
of the pipe for ali materials associated with the piping of the
Kennedy Lateral. Supplementing paragraph 3 of this agreement, the
District shall be responsible for operation and maintenance of the
pipe identified in Exr.ibit C.
c. The District's easement for this section of the Kennedy
Lateral is 55 feet, 20 feet to the left of centerline looking
downstream and 35 feet to the right.
d. The fence identified in Exhibit C shall be installed on
the portion of the District's easement for the Kennedy Lateral to
the right of the centerline of the ditch looking downstream, and no
closer than 23 feet to the right of centerline. The District does
not object to Licensee's proposed construction of the fence prior
to excavation and installation of the pipe, however,- the Licensee
agrees to remove the fence upon notice from the District that it
will initiate excavation for the piping of the Kennedy Lateral, and
agrees not to reconstruct the fence until the District completes
installation of the pipe.
e. The fence shall be constructed of chain link. The
following shall apply if the fence erected is now or in the future
in whole or in part constructed of wood: Because of the location
of the fence and the fact that the fence will be constructed wholly
or partly of wood, the District shall not be responsible for weed
LICENSE AGREEMENT - Page 8
control in the area of the fence. Without affecting the foregoing
exemption of the District from weed control obligations, Licensee
hereby indemnifies, holds harmless and shall defend the District
from any claims for damages to said fence because of weed-burning
except where the District intentionally burns the fence or is
guilty of gross negligence in burning the fence.
f. Supplementing paragraph 10 of this agreement, the
Licensee agrees that the District shall not be liable for anv
damages which shall occur to the facilities identified in Exhibit
C and in the construction plans referenced in Exhibit D, paragraph
a, in the reasonable exercise of the rights of the District in the
course of performance of maintenance or repair of said ditch or
canal, and specifically in the course of maintenance, repair, or
replacement of the pipe to be installed under this agreement. 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, repair, or replacement of the pipe.
g. 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 thereto without the prior
written consent of the District. Licensee shall not been over anv
portion of the Kennedy Lateral after it is relocated. All plants
shall be planted so that the drip line of such plants dos not
e-xtend over any portion of the piped portion of the Kennedy
Lateral.
h. Installation of the pipe shall nct commence prior to
QCtober 15, 1997, and shall be completed not later Chan Mareh 15,
1398. Installation of the fence shall occur as described in
Exhibit D, paragraph d. Time is of the essence.
LICENSE ~EBMENT - ?age 9