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Temporary License Agreement with ACHD for Landscaping City HallCity of Meridian C/O City Clerk 33 East Idaho Meridian, ID 83642 Dear Property Owner: ACHD G'ommv`�`ul �o June 6, 2008 Carol A. McKee, President Sherry R. Huber, 1st Vice President Dave Bivens, 2nd Vice President John S. Franden, Commissioner Rebecca W. Arnold, Commissioner RECEIVED, JUN I ®'NIR) CITY OF rAEADIAN CITY CI_FR,K I(:i The License Agreement to construct, install and maintain landscaping consisting of pavers, tree grates, planter pots, street lamps, benches, trees, shrubs, grass, boulders, lighted bollards, monument sign and landscape irrigation system per Exhibit A, ACHD approved civil drawings, within ACHD right of way along Broadway Avenue, Meridian Road and the North Union Pacific RR Tracks was considered and approved by the Ada County Highway District. Please remember to call Construction Services at 387- 6280 to verify if any additional Construction Permits are required. Enclosed is your copy of the License Agreement outlining all the terms and conditions and assigned #0731-2074-0608. Please use this number in all future correspondence regarding this matter. Sincerely, ADA COUNTY HIGHWAY DISTRICT Karen L. Arnold Right of Way Account Clerk Enclosure Property Management No. 0731 - 2074- 0608 Street: 33 E. Broadway Ave., Meridian T 3N, R1 E, Sec.07 TEMPORARY LICENSE AGREEMENT THIS TEMPORARY LICENSE AGREEMENT (the "Agreement') is made and entered into this day of ZUVLZ, , 2008, by and between the ADA COUNTY HIGHWAY DISTRICT, a body politic and corporate of the state of Idaho, ("ACHD") and CITY OF MERIDIAN, an Idaho Municipal Corporation (collectively "Licensee"). 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, more particularly described and/or depicted on Exhibit "A" attached hereto (the "Right -of -Way"). 1.2 Licensees desire 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 Licensees. SECTION 2. LICENSE: LICENSE NOT EXCLUSIVE. 2.1 On the terms and conditions hereinafter set forth, ACHD hereby extends to Licensees a license on, over, across and under the Right -of -Way for the following uses and purposes ("Authorized Use") and no others: Licensee is to construct, install and maintain landscaping consisting of pavers, tree grates, planter pots, street lamps, benches, trees, shrubs, grass, boulders, lighted bollards, monument sign and landscape irrigation system per Exhibit A, ACHD approved civil drawings within ACHD Right -of -Way along Broadway Avenue, Meridian Road and the North Union Pacific RR Tracks. Final grading of landscaped areas shall slope away from Right of Way "hardscape" improvements including the edge of pavement, curbing and sidewalks. In general, licensee to install landscaping and sprinklers in a manner to eliminate irrigation flows and/or ponding of irrigation water within the ACHD Right of WayLicensee will not install landscaping or irrigation lines between edge TEMPORARY LICENSE AGREEMENT - Page 1 (3/29/06) of pavement and flow line of ditch. Any perennial trees or plants that will extend roots deeper than 18 inches shall be prohibited over ACHD underground seepage beds, infiltration facilities or piping systems. Trees shall be offset from the seepage beds a minimum of 10 feet to allow for future root pruning, if necessary, and maintenance access for heavy equipment over beds. Infiltration areas shall not be covered with sod or non -free draining materials/soil. Access to inlets and outlets of ACHD Drainage Areas shall not be planted with trees, shrubs or any landscaping that would impede heavy equipment vehicle access. Licensee to observe the 40' sight triangle within the development and will not plant any shrubs or trees within the area or over any utility lines. All trees in the public Right of Way to be maintained by Licensee for clearance of 14' over all roadways measured at gutter plate and 8' over all sidewalks. Licensee to contact Digline Inc., prior to start of construction. Licensee to contact Construction Services at 387-6280 to verify if a construction permit is required. 2.2 This Agreement does not extend to Licensees 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)) Licensees' Authorized Use is subject to the rights of the public to use the Right -of -Way for Highway purposes. Licensees' 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 ACHD 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 Licensees' improvements currently located in the Right - of -Way or the installation or construction of improvements by Licensees 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 therefor shall be and remain in Licensees. SECTION 4. WAIVER AND ESTOPPEL STATEMENT BY LICENSEES. Licensees acknowledge and agree that the license granted herein is temporary, non -transferable, and merely a permissive use of the Right -of -Way pursuant to this Agreement Licensees further acknowledge and agree that it specifically assumes the risk that the license TEMPORARY LICENSE AGREEMENT - Page 2 (3/29/06) pursuant to this Agreement may be terminated before Licensees have realized the economic benefit of the cost of installing, constructing, repairing, or maintaining the Improvements, and Licensees hereby waive and estop themselves from asserting any claim that the license is in any way irrevocable because Licensees have expended funds on the Improvements and the Agreement has not been in effect for a period sufficient for Licensees to realize the economic benefit from such expenditures. SECTION 5. TERM. 5.1 The term of this Agreement will commence on the (� day of 2008, and will continue until terminated by either party, with or without ca'u'se, which termination shall be effective following THIRTY (30) DAYS advance written notice of termination given the other party. 5.2 If Licensees default in the performance of any obligations incumbent upon it to perform hereunder ACHD may terminate this Agreement and the rights extended to Licensees hereunder at any time, effective at the end of thirty (30) days following the date ACHD shall provide written notice of termination to Licensees, which notice shall specify such default(s). Licensees 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 fee for the Licensees' 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, Licensees shall maintain the Improvements in good condition and repair and as required to satisfy applicable laws, the policies of ACHD and sound engineering practices. Licensees 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 Licensees of the maintenance required by section 6.1, or the failure or neglect to perform such maintenance; and/or (ii) Licensees' design, installation or use of the Improvements, regardless of cause; at its sole cost and expense Licensees 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 Licensees shall fail or neglect to commence such correction and restoration within twenty-four (24) hours of notification thereof, ACHD may proceed to TEMPORARY LICENSE AGREEMENT - Page 3 (3/29/06) do so, in which event Licensees agree 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 Licensees' 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, ACHD shall have the right to immediately perform, on behalf of, and at the cost of Licensees necessary emergency repairs. 7.4 Licensees 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 Licensees 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, Licensees hereby accept responsibility for all costs for relocating, modifying or otherwise adapting the Improvements to such realignment and/or relocation and/or reconstruction if required by ACHD, which shall be accomplished by Licensees according to designs, plans and specifications approved in advance by ACHD in writing; provided Licensees may elect to terminate this Agreement in lieu of complying with this responsibility, and further provided ACHD gives Licensees adequate written notice as necessary to allow Licensees to redesign, relocate, modify or adapt the Improvements to the realignment and/or relocation and/or reconstruction of the Highway and also licenses Licensees such additional area of its right-of-way, if any, as may be necessary for the proper operation of the Improvements. SECTION 9. PERMIT. If the proposed construction and installation of the Improvements, or any reconstruction, relocation or maintenance thereof requires Licensees to obtain a permit under ACHD policies, Licensees shall first obtain such permit from ACHD (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 LICENSEES. Licensees shall have no right, title or interest 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 Licensees' 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 Licensees. TEMPORARY LICENSE AGREEMENT - Page 4 (3/29/06) SECTION 12. TAXES AND ASSESSMENTS. Licensees agree to pay all special assessments and personal property taxes that may be levied and assessed on the Improvements during the term of this Agreement. SECTION 13. RESTORATION ON TERMINATION. Upon termination of this Agreement, Licensees will promptly remove all Improvements and restore the Right-of- Way to at least its present condition. Should Licensees fail or neglect to promptly remove the Improvements and restore the Right-of-Way, ACHD may do so, and assess Licensees for the costs thereof. Provided, ACHD and Licensees 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 Licensees thereby disclaim all right, title and interest in and to the same, and hereby grants such Improvements to ACHD, 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 Licensees need not remove the same from the Right-of-Way. SECTION 14. INDEMNIFICATION. Licensees hereby indemnify and hold 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 Licensees, Licensees' 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 Licensees, and including any attorney fees and costs that may be incurred by ACHD in defense of such claims or actions indemnified against by Licensees hereunder. For claims or actions arising out of failures or neglects occurring during the term of this Agreement Licensees' obligations pursuant to this section shall survive the termination of this Agreement. SECTION 15. COMPLIANCE WITH LAW: WASTE AND NUISANCES PROHIBITED. In connection with Licensees' use of the Right-of-Way, throughout the term of this Agreement Licensees covenant and agree 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) 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. Licensees covenant and agree to indemnify and hold ACHD harmless from and against any and all claims, demands, damages, liens, liabilities and expenses (including without TEMPORARY LICENSE AGREEMENT - Page 5 (3/29/06) 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. Licensees cannot sell, assign or otherwise transfer this Agreement, the license herein extended, or any of its rights hereunder except with the prior written consent of ACHD, which consent will not be granted unless the assignee assumes all obligations, warranties, covenants and agreements of Licensees 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: If to Licensees: Ada County Highway District 3775 Adams Street Garden City, Idaho 83714 Attn: Right of Way Division City of Meridian C/O City Clerk 33 E. Idaho Meridian, Idaho 83642 888-4433 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, Licensees assigns. SECTION 20. EXHIBITS. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. SECTION 21. NO RECORDATION. This Agreement shall not be recorded in the Official Real Property Records of Ada County, Idaho. TEMPORARY LICENSE AGREEMENT - Page 6 (3/29/06) 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 Licensees are not a natural person, the person executing the Agreement on behalf of Licensees represent and warrant due authorization to do so on behalf of Licensees, and that upon execution of this Agreement on behalf of Licensees, the same is binding upon, and shall inure to the benefit, of Licensees. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. ADACOUNTYHIGHWAY DISTRICT 1 By: anon B. Romo Its: Right of Way Supervisor LICENSEE: CITY OF MERIDIAN By: Tammy""rd Its: Mayor EXHIBITS Exhibit A - Description and Depiction of Right -of -Way TEMPORARY LICENSE AGREEMENT - Page 7 (3/29/06)