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Ada County Highway District
John S. Franden, President
David E. Wynkoop, 1 st Vice President
Susan S. Eastlake. 2nd Vice President
Sherry R. Huber, Commissioner
David Bivens. Commissioner
3775 N Adams Street
Garden City ID 83714
Phone (208)387-6100
FAX (208) 387-6391
E-maii: tellus@ACHD.ada.id.us
June 21, 2004
City of Meridian Parks Department
Mr. Elroy Huff
11 W Bower
Meridian, Idaho 83642
RECEIVED
JUN 2 9 2004
City of Meridian
City Clerk Office
Dear Mr. Huff:
Enclosed is the License Agreement you requested. Please sign the Agreement and return it to the Ada
County Highway District for signature.
Upon ACHD signature, a copy of the License Agreement will be returned to you.
Should you have anyquestions, please call me at 859-2675.
Sincerely,
~
Jennifer Li es
Ada County Highway District
Enclosure
RECEIVED
JUN 2 3 2004
CITY OF MERIDIAN
,
Property Management No.
Street: E Idaho & E 3'd Street
T.3N., R.1 E., Sec. 7
TEMPORARY LICENSE AGREEMENT
THIS TEMPORARY LICENSE AGREEMENT (the "Agreement") is made and
entered into this day of , 2004, by and between the ADA
COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho,
hereinafter referred to as "ACHD" and CITY OF MERIDIAN PARKS DEPARTMENT,
hereinafter referred to as "Licensee";
WITNESSETH:
FOR GOOD AND SUFFICIENT CONSIDERATION IT IS AGREED:
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 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 to construct, install and maintain diagonal public parking along E
Idaho Street and E 3rd Street. Licensee is responsible for stripping of the parking
stalls.
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 S 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
LICENSE AGREEMENT - Page 1
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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, INSTALLATION OF IMPROVEMENTS. Any
construction and/or installation by Licensee of improvements, including, without
limitation, buildings, fixtures and landscaping (the "Improvements"), on, over, across
and under the Right-of-Way 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 Licensee.
SECTION 4. TERM.
4.1 The term of this Agreement will commence on the _ day of
, 2004, and will continue until terminated by either party, with or without
cause, which termination shall be effective following THIRTY (30) DAYS advance
written notice of termination given the other party.
4.2 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 5. FEE. There is no fee for the Licensee's Authorized Use of the Right-of-
Way under this Agreement.
SECTION 6. MAINTENANCE: FAILURE TO MAINTAIN: RELOCATION OF UTILITIES.
6.1 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.
6.2 If the Highway on and/or adjacent to the Right-of-Way is damaged as a
result of:
LICENSE AGREEMENT - Page 2
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(i) the performance by Licensee of the maintenance required by section 6.1,
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.
6.3 Notwithstanding the provisions of section 6.2, 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,
ACHD shall have the right to immediately perform, on behalf of, and at the cost of
Licensee necessary emergency repairs.
6.4 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 7. 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 ACHD, which shall be
accomplished by Licensee according to designs, plans and specifications approved in
advance by ACHD in writing; provided Licensee may elect to terminate this Agreement
in lieu of complying with this responsibility, and further 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.
SECTION 8. 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 ACHD (Construction Services Division) before commencing such work, and pay
the required fees and otherwise comply with the conditions set forth therein.
LICENSE AGREEMENT - Page 3
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SECTION 9. NO TITLE IN LICENSEE. Licensee 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 10. 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 11. 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.
SECTION 12. 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, ACHD 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
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 Licensee need not remove the same
from the Right-of-Way.
SECTION 13. 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 neglects
occurring during the term of this Agreement Licensee's obligations pursuant to this
section shall survive the termination of this Agreement.
SECTION 14. 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,
LICENSE AGREEMENT - Page 4
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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.
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 15. ASSIGNMENT. Licensee 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 Licensee herein
contained.
SECTION 16. 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 17. 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
318 East 37th Street
Garden City, Idaho 83714
Attn: Right of Way Division
If to Licensee:
City of Meridian Parks Department
Mr. Elroy Huff
11 W Bower
Meridian, Idaho 83642
(208) 895-5501
LICENSE AGREEMENT - Page 5
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SECTION 18. 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 15, Licensee's assigns.
SECTION 19. EXHIBITS. All exhibits attached hereto and the recitals contained herein
are incorporated herein as if set forth in full herein.
SECTION 20. NO RECORDATION. This Agreement shall not be recorded in the
Official Real Property Records of Ada County, Idaho.
SECTION 22. Warrantv of Authoritv to Execute.
22.1 The person(s) executing this Agreement on behalf of ACHD represent(s)
and warrant(s) 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(s) executing the Agreement
on behalf of Licensee represent(s) and warrant(s) 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,
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed the day, month and year first set forth above.
ADA COUNTY HIGHWAY DISTRICT
Randy Lane, Right of Way Supervisor
CITY OF MERIDIAN PARKS DEPARTMENT
By:
EXHIBITS:
Exhibit "A"-Description and depiction of Right-of-Way
LICENSE AGREEMENT - Page 6
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