License Agreement with ACHD for Zebulon Heights Pathway EasementProperty Management No. - -
City of Meridian
ACHD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32 ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 13
BOISE IDAHO 09/07111 11:14 AM
DEPUTY Lisa Batt III IIIIIIIIIIIIIIIIIIIIIIIIIIII III III
RECORDED—REQUEST OF 111072106
Meridian City
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is made and entered into this
29 day of August, 2011, by and between CITY OF
MERIDIAN ("Licensee") and the ADA COUNTY HIGHWAY DISTRICT, a body politic
and corporate of the state of Idaho, ("ACHD").
WITNESSETH:
For good and valuable consideration, the receipt and sufficiency of which is
acknowledged by the parties:
SECTION 1. RECITALS.
1.1 ACHD owns and has exclusive jurisdiction over the public right-of-way,
located in Ada County, Idaho, municipally described as a portion of land located in the
NE1/a of Section 32, TAN., R.1 E., B.M., Ada County, Idaho more particularly described
and/or depicted on Exhibit "A" attached hereto (the "Right -of -Way").
1.2 Licensee desires a license to use the Right -of -Way for the limited
purposes hereinafter set forth, and, for the consideration and on the terms and
conditions hereinafter set forth, ACHD is willing to extend such license to Licensee.
SECTION 2. LICENSE; LICENSE NOT EXCLUSIVE.
2.1 On the terms and conditions hereinafter set forth, ACHD hereby extends
to Licensee a license on, over, across and under the Right -of -Way for the following uses
and purposes ("Authorized Use") and no others:
Licensee shall have the City's contractor secure a Temporary Highway Use
Permit before construction begins (387-6280). Licensee to construct elevated
pathway in a manner to not interfere with irrigation flow basin and/or ponding
of retention water within the ACHD Parcel. Licensee to submit plans for
review and approval to ACHD prior to construction.
LICENSE AGREEMENT — Page 1
City of Meridian
ACRD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32
2.2 This Agreement does not extend to Licensee the right to use the Right -of -Way to
the exclusion of ACHD for any use within its jurisdiction, authority and discretion or of
others to the extent authorized by law to use public right-of-way. If the Right -of -Way
has been opened as a public Highway (as used in the Agreement the term "Highway" is
as defined in Idaho Code § 40-109(5)) Licensee's Authorized Use is subject to the rights
of the public to use the Right -of -Way for Highway
purposes. Licensee's Authorized Use is also subject to the rights of holders of
easements of record or obvious on inspection of the Right -of -Way and statutory rights
of utilities to use the public right-of-way. This Agreement it is not intended to, and shall
not, preclude or impede the ability of ACHD to enter into other similar agreements in the
future allowing third parties to also use its public rights-of-way, or the ability of ACRD to
redesign, reconstruct, relocate, maintain and improve its public rights-of-way and
Highways as authorized by law and as it determines, in its sole discretion, is
appropriate.
SECTION 3. CONSTRUCTION OR INSTALLATION OF IMPROVEMENTS. Any
repairs or maintenance, of the Licensee's improvements currently located in the Right -
of -Way or the installation or construction of improvements by Licensee in the Right -of -
Way as permitted by the Authorized Use, (the "Improvements"), shall be accomplished
in accordance with designs, plans and specifications approved in advance and in writing
by ACHD as required to satisfy applicable laws, its policies and good engineering
practices. In approving such plans and specifications, ACHD assumes no responsibility
for any deficiencies or inadequacies in the design or construction of the Improvements,
and the responsibility therefore shall be and remain in Licensee.
SECTION 4. WAIVER AND ESTOPPEL STATEMENT BY LICENSEE. Licensee
acknowledges and agrees that the license granted herein is temporary, and merely a
permissive use of the Right -of -Way pursuant to this Agreement. Licensee further
acknowledges and agrees that it specifically assumes the risk that the license pursuant
to this Agreement may be terminated before Licensee has realized the economic benefit
of the cost of installing, constructing, repairing, or maintaining the Improvements, and
Licensee hereby waives and estops itself from asserting any claim that the license is in
any way irrevocable because Licensee has expended funds on the Improvements and
the Agreement has not been in effect for a period sufficient for Licensee to realize the
economic benefit from such expenditures.
SECTION 5. TERM.
5.1 The term of this Agreement will commence on the 29 day of August, 2011,
and will continue until terminated by ACHD, with or without cause, which termination
shall be effective following THIRTY (30) DAYS advance written notice of termination
given to Licensee. Upon expiration of the THIRTY (30) DAYS, ACHD shall record a
LICENSE AGREEMENT - Page 2
City of Meridian
ACRD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E See 32
Revocation of License Agreement in the Official Real Property Records of Ada County,
Idaho.
5.2 If Licensee defaults in the performance of any obligations incumbent upon
it to perform hereunder ACHD may terminate this Agreement and the rights extended to
Licensee hereunder at any time, effective at the end of THIRTY (30) days following the
date ACHD shall provide written notice of termination to Licensee, which notice shall
specify such default(s). Licensee shall have such THIRTY (30) day period to correct
and cure the specified defaults, and if so corrected and cured, to the satisfaction of
ACHD, this Agreement shall not be terminated but shall continue in full force and effect.
SECTION 6. FEE. There is no annual fee for the Licensee's Authorized Use of the
Right -of -Way under this Agreement.
SECTION 7. MAINTENANCE; FAILURE TO MAINTAIN; RELOCATION OF UTILITIES.
7.1 At its sole cost and expense, Licensee shall maintain the Improvements in
good condition and repair and as required to satisfy applicable laws, the policies of
ACHD and sound engineering practices. Licensee shall have access over, across and
under the Right -of -Way for the purposes of accomplishing such repair and
maintenance.
7.2 If the Highway on and/or adjacent to the Right -of -Way is damaged as a
result of:
(i) the performance by Licensee of the maintenance required by section 7, or
the failure or neglect to perform such maintenance; and/or
(ii) Licensee's design, installation or use of the Improvements, regardless of
cause;
at its sole cost and expense Licensee shall forthwith correct such deficiency and restore
the Highway and the surface of the Right -of -Way to the same condition it was in prior
thereto, and if Licensee shall fail or neglect to commence such correction and
restoration within twenty-four (24) hours of notification thereof, ACHD may proceed to
do so, in which event Licensee agrees to reimburse ACHD for the costs and expenses
thereof, including, without limitation, reasonable compensation for the use of staff and
equipment of ACHD.
7.3 Notwithstanding the provisions of section 7.2, should an emergency exist
related to the Licensee's use of this license which threatens the stability or function of
the Highway on or adjacent to the Right -of -Way or the safety of the public use thereof,
LICENSE AGREEMENT - Page 3
City of Meridian
ACHD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32
ACHD shall have the right to immediately perform, on behalf of, and at the cost of
Licensee necessary emergency repairs.
7.4 Licensee will be responsible for the relocation of any existing utilities
located on the Right -of -Way as may be required in connection with any construction or
installation of Improvements by Licensee in the Right -of -Way.
SECTION 8. RELOCATION OF IMPROVEMENTS. If during the term of this
Agreement ACHD requires, in its sole discretion, at any time, and from time to time, that
the Highway on and/or adjacent to the Right -of -Way be widened and/or realigned,
redesigned, improved and/or reconstructed, Licensee hereby accepts responsibility for
all costs for relocating, modifying or otherwise adapting the Improvements to such
realignment and/or relocation and/or reconstruction if required by ACRD, which shall be
accomplished by Licensee according to designs, plans and specifications approved in
advance by ACHD in writing; provided ACHD gives Licensee adequate written notice as
necessary to allow Licensee to redesign, relocate, modify or adapt the Improvements to
the realignment and/or relocation and/or reconstruction of the Highway and also
licenses Licensee such additional area of its right-of-way, if any, as may be necessary
for the proper operation of the Improvements. Licensee has the right to terminate said
agreement if the cost of relocating the improvements as outlined in section 8 is found to
be unacceptable to the Licensee.
SECTION 9. PERMIT. If the proposed construction and installation of the
Improvements, or any reconstruction, relocation or maintenance thereof requires
Licensee to obtain a permit under ACHD policies, Licensee shall first obtain such permit
from ACRD (Construction Services Division) before commencing such work, and pay
the required fees and otherwise comply with the conditions set forth therein.
SECTION 10. NO TITLE IN LICENSEE. Except as expressly provided herein, the
terms and conditions of this Agreement shall not create any type of property right, title
or interest in Licensee in or to the Right -of -Way other than the right to temporarily use
the same pursuant to the terms of this Agreement.
SECTION 11. NO COSTS TO ACHD. Any and all costs and expenses associated with
Licensee's Authorized Use of the Right -of -Way, or any construction or installation of
Improvements thereon, or the repair and maintenance thereof, or the relocation of
Improvements or utilities thereon, or the restoration thereof at the termination of this
Agreement, shall be at the sole cost and expense of Licensee.
SECTION 12. TAXES AND ASSESSMENTS. Licensee agrees to pay all special
assessments and personal property taxes that may be levied and assessed on the
Improvements during the term of this Agreement.
LICENSE AGREEMENT - Page 4
City of Meridian
ACHD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32
SECTION 13. RESTORATION ON TERMINATION. Upon termination of this
Agreement, Licensee will promptly remove all Improvements and restore the Right -of -
Way to at least its present condition. Should Licensee fail or neglect to promptly
remove the Improvements and restore the Right -of -Way, ACRD may do so, and assess
Licensee for the costs thereof. Provided, ACHD and Licensee may agree in writing that
some or all of such Improvements are to remain on the Right -of -Way following
termination, and by entering into such an agreement Licensee thereby disclaims all
right, title and interest in and to the same, and hereby grants such Improvements to
ACRD, at no cost. Further provided, if the Authorized Use of the Right -of -Way under
this Agreement is for landscaping in ACHD right-of-way and the irrigation and
maintenance thereof, and the general purpose government with jurisdiction has adopted
ordinances, rules and regulations governing the landscaping and maintenance of such
right-of-way by owners of the adjacent property, to the extent such owners are obligated
to maintain and irrigate the landscaping Licensee need not remove the same from the
Right -of -Way.
SECTION 14. INDEMNIFICATION. Licensee hereby indemnifies and holds ACHD
harmless from and against any and all claims or actions for loss, injury, death,
damages, mechanics and other liens, arising out of the failure or neglect of Licensee,
Licensee's employees, contractors and agents, to properly and reasonably make
Authorized Use of the Right -of -Way or properly construct, install, plant, repair or
maintain the Improvements thereon, or that otherwise result from the use and
occupation of the Right -of -Way by Licensee, and including any attorney fees and costs
that may be incurred by ACHD in defense of such claims or actions indemnified against
by Licensee hereunder. For claims or actions arising out of failures or neglect occurring
during the term of this Agreement, Licensee's obligations pursuant to this section shall
survive the termination of this Agreement.
SECTION 15. COMPLIANCE WITH LAW! WASTE AND NUISANCES PROHIBITED.
In connection with Licensee's use of the Right -of -Way, throughout the term of this
Agreement Licensee covenants and agrees to: (i) comply and observe in all respects
any and all, federal, state and local statutes, ordinances, policies, rules and regulations,
including, without limitation, those relating to traffic and pedestrian safety, the Clean
Water Act and/or to the presence, use, generation, release, discharge, storage or
disposal in, on or under the Right-of-way of any Hazardous Materials (defined as any
substance or material defined or designated as hazardous or toxic waste, material or
substance, or other similar term, by any federal, state or local environmental statute,
regulation or occurrence presently in effect or that may be promulgated in the future), (ii)
LICENSE AGREEMENT - Page 5
City of Meridian
ACRD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32
obtain any and all permits and approvals required by ACHD or any other unit of
government; and (iii) commit no waste or allow any nuisance on the Right -of -Way.
Licensee covenants and agrees to indemnify and hold ACHD harmless from and
against any and all claims, demands, damages, liens, liabilities and expenses (including
without limitation, reasonable attorneys' fees), arising directly or indirectly from or in any
way connected with the breach of the foregoing covenant. These covenants shall
survive the termination of this Agreement.
SECTION 16. ASSIGNMENT. Licensee, upon the prior written consent of ACHD, may
sell, assign or otherwise transfer this Agreement. Upon execution of the Assignment,
the assignee assumes all obligations, warranties, covenants and agreements of
Licensee herein contained.
SECTION 17. ATTORNEYS' FEES. In any suit, action or appeal therefrom to enforce
or interpret this Agreement, the prevailing party shall be entitled to recover its costs
incurred therein, including reasonable attorneys' fees.
SECTION 18. NOTICE. Any notice under this Agreement shall be in writing and be
delivered in person, or by United States Mails, postage prepaid, or by public or private
24-hour overnight courier service (so long as such service provides written confirmation
of delivery), or by facsimile verified by electronic confirmation. All notices shall be
addressed to the party at the address set forth below or at such other addresses as the
parties may from time to time direct in writing by notice given the other. Any notice shall
be deemed to have been given on (a) actual delivery or refusal, (b) three (3) days
following the day of deposit in the United States Mails, (c) the day of delivery to the
overnight courier, or (d) the day facsimile delivery is electronically confirmed.
If to ACHD: Ada County Highway District
Attn: Right-of-way Division
3775 Adams Street
Garden City, Idaho 83714
If to Licensee: City of Meridian
Attn: Tim Curns, City of Meridian (489-0342)
33 East Broadway Avenue
Meridian, Idaho 83642
SECTION 19. SUCCESSORS AND ASSIGNS. This Agreement, the license herein
extended, and the covenants and agreements herein contained shall inure to the benefit
of and be binding upon the parties hereto and their successors and, if consented to by
ACHD under section 16, Licensee's assigns.
SECTION 20. EXHIBITS. All exhibits attached hereto and the recitals contained herein
are incorporated herein as if set forth in full herein.
LICENSE AGREEMENT - Page 6
City of Meridian
ACRD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E See 32
SECTION 21. RECORDATION. This Agreement will be recorded in the Official Real
Property Records of Ada County, Idaho.
SECTION 22. Warranty of Authority to Execute.
22.1 The person executing this Agreement on behalf of ACHD represents and
warrants due authorization to do so on behalf of ACHD, and that upon execution of this
Agreement on behalf of ACHD, the same is binding upon, and shall inure to the benefit
of, ACHD.
22.2 If Licensee is not a natural person, the person executing the Agreement
on behalf of Licensee represents and warrants due authorization to do so on behalf of
Licensee, and that upon execution of this Agreement on behalf of Licensee, the same is
binding upon, and shall inure to the benefit, of Licensee.
LICENSE AGREEMENT - Page 7
City of Meridian
ACHD Pond Site E McMillan Road, Meridian, Idaho
T4N R1 E Sec 32
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
the day, month and year first set forth above.
LICENSEE:
Tammy a eerd
Mayor o eridian
STATE OF IDAHO )
ss.
County of Ada )
On this Co day of 20 m before me,
�-2SS cc` , a Notary Public in and for the State of Idaho,
personally appeared =j'�mm� Ae Ukl-e-�rA , known or identified to me
to be the person(s) who executed this instrument, and acknowledged to me that they
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
1GA JON•.
tS tart' P lic daho
Residing at: _ e� ,� � -y . 11)
My commission expires: 4r
!'E 01 •.
ADA COUNTY HIGHWAY DISTRICT
LICENSE AGREEMENT - Page 8
City of Meridian
ACHD Pond Site E
T4N R1 E Sec 32
McMillan Road, Meridian, Idaho
Bir: KevoyJohn Tdaham
Its: Rig t of Way Supervisor
STATE OF IDAHO )
ss.
County of Ada )
O this _ day of ��^tel ; 20 before me,
('� re- C, ) k i t , a Notary P blic in and for the State of Idaho,
personally appeared, Kevin John Graham known or identified to me to be the Right of
Way Supervisor for the Ada County Highway District, the person who executed this
instrument on behalf of said District, and acknowledged to me that the Ada County
Highway District executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written,
� l
Notary Public for Idah
Residing at: Inti T
My commission expires:
MICHELE WHITE
NOTARY PUBLIC
STATE OF IDAHO
� � . " , �.�
EXHIBITS
Exhibit A - Depiction of Licensee's Use
Exhibit B - Depiction of ACHD's Right -of -Way
Exhibit C - Legal Description of Authorized Use of Right -of -Way
Exhibit D - Description of Licensee's Use
LICENSE AGREEMENT - Page 9
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EXHIBIT "B"
Description for Off-site Meridian City Multi -Use
Pathway License Agreement Lying in ACH® Parcel
A Meridian City Multi -Use Pathway License Agreement, located in
the NE'/4 of Section 32, TAN., R.1 E., RM., Ada County, Idaho, being a
strip of land 14.00 feet in width, right of and adjacent to the following
described easement line; Commencing at the North 1/4 corner of said
Section 32, from which the Northeast corner of said Section bears North
89°54'46" East, 2655.65 feet; thence along the west boundary of said NE
'/4 South 00°33'22" West, 264.56 feet to the BEGINNING POINT of this
pathway line description;
Thence South 89°26'38" East, 10.76 feet;
Thence North 84008'32" East, 66.72 feet to a point of curvature;
Thence 110.49 feet along the arc of a curve to the right, having a
radius of 134.00 feet, a delta angle of 47014'29", and a long chord bearing
South 72"14'14" East, 107.38 feet to the ending Point of this pathway line.
Said pathway containing 2,445 SF, more or less.
EXHIBIT "C"
AUSTIN CREEK SUBDIVISION NO. 1
29 1/4W, MoIv91LLAN RD. BASIS OF BEARING
. . . . . N 89,54'46" E 2655.65'
32
uJ 0
c�
—t� Z UNPL•ATTED
m
z Qg
W '" BEGINNING POINT
J > S 89'26'38"E M87'
N 84'08'32"E 66.83'
��'{/�
YLcA
ENDING,.POINT /
PATH WAY
h
7,747 SF +/— / �pN
I PRoag 1v �p5 /N NO
PS503
— —1GN�y5u
U RT
CURVE RADIUS DELTA RRC CMORD CHARD BRG
Cl 132,00 46'14'57" 106.55 103.68 S 72'43'59"E
29 28
32 33
SCALE 1"100' OFF-SITE MERIDIAN CITY
RUM 07/29/10 bkI3 MULTkUSE PATHWAY EfGINEERING
PiHE NO, 100412
PROPOSED ZEBULON HEIGHTS SUSD, NO. 3
SHEET _SOLUTIONS"
1 OF 1 LOCATED IN THE NE 1/4 OF SECTION 321 1028 N. ROSARIO ST., STE, loo
T.4N., R.1E., 0,M, MERIDIAN, IDAHO 83642
/100412-AODPATHEASC.W MERUAN. ADA COUNTY- inAHO Phgne (208) 838-0980 Fax (208) 938-0941
EXHIBIT "D„