Heartland Homes.10milestubdrain.LADATE: 12 June 2013
SawtoothOffices,
License Agreement(s) Approved
Board Meeting 21 May 2013
License Agreement 16 pages
Heartland Homes LLC
Ten Mile Stub Drain
Instrument #113056905
ADA COUNTY RECORDER Christopher D
BOISE IDAHO 05124/13 08:50 AM
DEPUTY Nikola Olson
RECORDED—REQUEST OF II I
Nampa Meridian Irrigation Dist
LICENSE AGREEMENT
Rich AMOUNT .00 16
IIIIIIIIIIIIIIIIIIIIIIIIIIII III III
113056905
This LICENSE AGREEMENT, is made and entered into this day of t2013,
by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district oilganized and
existing under and by virtue of the laws of the State of Idaho, hereinafter referred to as the "District", and
HEARTLAND HOMES L.L.C., an Idaho limited liability company,
2358 S. Titanium Pl., Meridian, Idaho 83642,
hereinafter referred to as the "Licensee",
WITNESSETH:
WHEREAS, the District owns the drainage ditch or drain known as the TEN MILE STUB DRAIN,
(hereinafter sometimes referred to as "ditch or drain"), an integral part of the irrigation and, drainage works
and system of the District, together with the easement therefor to convey irrigation and drainage water, to
operate, clean, maintain, and repair the ditch or drain, and to access the ditch or drain forthose purposes; and,
WHEREAS, the District operates, cleans, maintains, repairs and protects the ditch or drain for the
benefit of District landowners; and,
WHEREAS, the Licensee is the owner of of real property that is servient to the District's ditch or
drain and easement, and is particularly described in the "Legal Description" and/or deed attached hereto as
Exhibit A and by this reference made a part hereof; and,
WHEREAS, the ditch or drain crosses and intersects the real property described in Exhibit A as
shown on Exhibit B, attached hereto and by this reference made apart hereof, and,
WHEREAS, the Licensee desires a license to cross, encroach upon or modify said ditch or drain
and/or the District's' easement under the terms and conditions of this License Agreement;
NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and
conditions hereinafter set forth, the parties agree as follows:
A. Acknowledgment of the District's Easement.
I . Licensee acknowledges that the District's easement for the Ten Mile Stub Drain includes
a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the
ditch or drain, and to access the ditch or drain for said purposes, and is a minimum of 60 feet, 25 feet to the
left and 35 feet to the right of the centerline facing downstream.
LICENSE AGREEMENT - I
D. Scope of License
I . The Licensee shall have the right to modify the ditch or drain or encroach upon the District's
easement along the ditch or drain in the manner described in the "Purpose of License" attached hereto as
Exhibit C and by this reference made a part hereof.
2. Any crossing, encroachment upon or modification of the ditch or drain and/or the District's
easement shall be performed and maintained in accordance with the "Special Conditions" stated in Exhibit
D, attached hereto and by this reference made a part hereof. Any difference or discrepancy between the
items listed in Exhibit C, "Purpose of License," and any plans or drawings referenced in or attached to
Exhibit D shall be resolved in favor of Exhibit C. Licensee shall only be permitted to cross, encroach upon
or modify the ditch or drain and/or the District's easement as described in Exhibit C even if any plans or
drawings referenced or attached to Exhibit D provide or show otherwise.
3. This License Agreement pertains only to the Licensee's crossing, encroachment upon or
modification of the ditch or drain and/or the District's easement for the purposes and in the manner described
herein. The Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the ditch or drain except as referred to in this License Agreement without the prior written
consent of the District.
4. The Licensee recognizes and acknowledges that the license granted this License Agreement
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 from the holder of title to the property.
Should Licensee fail to obtain such rights from the holder oftitle to the property or should the rights obtained
prove legally ineffectual, Licensee shall hold harmless, indemnify and defend the District from any claim
by any party arising out of or related to such failure of rights and at the option of the District this License
Agreement shall be of no force and effect.
C. Facility Construction, Operation, Maintenance and Repair
1. Licensee agrees that the work performed and the materials used in any construction permitted
by this License Agreement shall at all times be subject to inspection by the District and the District's
engineers, and that final acceptance ofthe 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.
2. Each facility ("facility" as used in this License Agreement means any object or thing
installed by the Licensee on, over or in the vicinity of the District's easement) shall be constructed, installed,
operated, maintained, and repaired at all times by the Licensee at the cost and expense of the Licensee.
3. Licensee agrees to construct, install, operate, maintain and repair each facility 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;
LICENSE AGREEMENT - 2
b. an interruption or interference with the flow of irrigation or drainage water in the
ditch or drain or the District's delivery of irrigation water;
C. an increase in seepage or any other increase in the loss of water from the ditch;
d. the subsidence of soil within or adjacent to the easement;
e. an interference with the District's use of its easement to access, operate, clean,
maintain, and repair the ditch or drain;
f. any other damage to the District's easement and irrigation or drainage works.
4. The Licensee agrees to indemnify, hold harmless, and defend the District from all claims
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, 3.a. through 31, or any other damage to the
easement and irrigation or drainage works which may be caused by the construction, installation, operation,
maintenance, repair, and any use or condition of any facility.
5. The Licensee shall, upon demand of the District, remove any facility or repair any alteration
ofthe District's easement which interferes with the District's operation and maintenance of the ditch or drain,
or causes or contributes to any of the circumstances enumerated in the preceding paragraph, 3.a. through 3.f,
or any other damage to the easement and or drainage works. The District shall give reasonable notice to the
Licensee, and shall allow the Licensee a reasonable period of time to perform such maintenance, repair, and
other work, except that in cases of emergency the District shall attempt to give such notice as is reasonable
under the circumstances. The District reserves the right to perform any and all work which the Licensee fails
or refuses to perform within a reasonable period of time after demand by the District. The Licensee agrees
to pay to the District, on demand, the costs which shall be reasonably expended by the District for such
purposes. Nothing in this paragraph shall create or support any claim of any kind by the Licensee or any
third party against the District for failure to exercise the options stated in this paragraph, and the 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 from any work which unreasonably
exposes the District's employees and agents to the risk of harm from electric power lines, or arising solely
out of the negligence or fault of the District.
D. District's Rights Are Paramount
I The Licensee understands and agrees that the ditch or drain is a manmade channel that was
constructed and is used and maintained by the District for the exclusive purpose of conveying irrigation or
drainage water to lands within the District. As such, Licensee further acknowledges and agrees that the ditch
or drain does not constitute a natural or navigable watercourse or stream.
2. The parties hereto understand and agree that the District has no right in any respect to impair
the uses and purposes of the irrigation or drainage works and system of the District by this License
Agreement, nor to grant any rights in its irrigation or drainage works and system incompatible with the uses
to which such irrigation or drainage works and system are devoted and dedicated and that this contract shall
be at all times construed according to such principles.
3. Nothing herein contained shall be construed to impair the ditch or drain or the District's
easement, and all construction and use of the District's easement by the Licensee and the license herein
LICENSE AGREEMENT - 3
provided therefor shall remain inferior and subservient to the rights of the District to the use of the ditch or
drain for the transmission and delivery of irrigation or drainage water.
4. The Licensee agrees that the District shall not be liable for any damages which shall occur
to any facility in the reasonable exercise of the rights of the District in the course of performance of
maintenance or repair of the ditch or drain. The Licensee further agrees to suspend its use of the said
easement areas when the use of the easement areas is required by the District for maintenance or repair under
this or any other paragraph of this License Agreement.
5. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
and conditions of this License 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 the ditch,
and the right of way therefor, which may impede or restrict the maintenance and operation of such ditch or
drain by the District with its equipment for the maintenance of the ditch or drain shall be promptly removed
by the Licensee upon demand of the District.
E. Applicable Law and Jurisdiction Unaffected.
I . Neither the terms of this License Agreement, the permission granted by the District to the
Licensee, the Licensee's activity which is the subject of this License Agreement, nor the parties exercise of
any rights or performance of any obligations of this License 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
drains, drains, irrigation or drainage works and facilities which did not apply to the District's operations and
activities prior to and without execution of this License Agreement.
2. 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 License 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 License Agreement shall be of no force and effect and the Licensee shall cease
all activity and remove any facility authorized by this License Agreement.
F. Indemnification
1. 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 License Agreement.
G. Fees and Costs
1. The Licensee agrees to pay attorney fees and engineering fees charged by the attorney for
the District or by the engineers for the District in connection with the negotiation and preparation of this
LICENSE AGREEMENT - 4
License Agreement.
2. Should either party incur costs or attorney fees in connection with efforts to enforce the
provisions of this License Agreement, whether by institution of suit or not, the party rightfully enforcing or
rightfully resisting enforcement of the provisions of this License 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.
H. Miscellaneous
I . No Claims Created. Nothing in this License Agreement shall create or support a claim of
estoppel, waiver, prescription or adverse possession by the Licensee or any third party against the District.
2. Assignment. Neither this License Agreement nor any agreement entered pursuant to this
License Agreement may be assigned or transferred without the prior written approval of the Parties, which
approval shall not be unreasonably withheld.
3. Amendment and Modification. Any amendment or modification of this License Agreement
must be in writing and signed by all parties to be enforceable.
4. Interpreted. This License Agreement shall be interpreted and enforced in accordance with
the laws of the State of Idaho. This License Agreement is not intended for the benefit of any third party and
is not enforceable by any third party. If any provision of this License Agreement is determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this License
Agreement shall remain in full force and effect. The parties represent and warrant to each other that they
each have authority to enter this License Agreement. The catchlines or section headings herein set forth are
provided only for the convenience of the parties in locating various provisions of this License Agreement,
and are not intended to be aids in interpretation of any provision of this License Agreement with respect to
which the parties might disagree at some future time, and shall not be considered in any way in interpreting
or construing any provision of the License Agreement.
5. BindingEffect. ffect. The covenants, conditions and agreements herein contained shall constitute
covenants to run with, and running with, the real property described in 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.
6. Notices. Any and all notices, demands, consents and approvals required pursuant to this
License Agreement shall be delivered to the parties as follows:
Nampa & Meridian Irrigation District
525 East Greenhurst
Nampa, ID 83686
LICENSE AGREEMENT - 5
See page I for Licensee
Notices shall be deemed to have been delivered upon hand deposit in the United States mail as
provided above.
7. Counterparts. This License Agreement may be executed and delivered in counterparts, each
of which shall be deemed to be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the District has hereunto caused its name to be subscribed by its officers
first hereunto duly authorized by resolution of its Board of Directors and the Licensee has caused its
corporate name to be subscribed by its duly authorized officer, all as of the day and year herein first above
written. I
ATTEST:
I?
Its Secretary
ATTEST:
STATE OF IDAHO )
ss:
County of Canyon )
NAMPA & MERIDIAN IRRIGATION DISTRICT
By
Its President
HEARTLAND HOMES, L.L.C., an Idaho limited
liability company,
On this day of M Vit,v�, 2013, before me, the undersigned, a Notary Public in
and for said State, personally appeared Graham Paterson and Daren Coon, known to me to be the President
and Secretary, respectively, ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that
executed the foregoing instrument and acknowledged to me that such irrigation district executed the same.
LICENSE AGREEMENT - 6
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and year in this certificate first above written.
KU
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STATE OF IDAHO ) ��� O
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County of A-dpr )
Onthis 04 day of I ® _, 2013, before me, the undersigned, a notary public in and
for said state, personally appeared john @.M Sr and 44 WA B rm wev%-t , known to me to be
the MVj ha ! and �� y�� �r,���r,r �rjq� respectively, of HEARTLAND HOMES, L.L.C., the entity
that execute the foregoing instrument, and acknowledged to me that said 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.
(m �/111?
Notary Public for �do �
Residing at [s o ► y , z 0
My Commission Expires: V -11/W p'?,
LICENSE AGREEMENT - 7
Legal Description
Canterbury Commons Subdivision No. 1
A parcel located in the SW % of Section 11, Township 3 North, Range 1:West, Boise Meridian, City of
Meridian, Ada County, Idaho, and more particularly described as follows`.
Commencing at a Brass Cap monument marking the northwest corner of said SW %, from which a Brass
Cap monument marking the southwest corner of said SW '/4 bears S 0°51'57" W a distance of 2646.33
feet;
Thence S 89°11'20" E along the northerly boundary of said SW % a distance of 496.21 feet to a 5/8 inch
diameter iron pin;
Thence leaving said northerly boundary S 0°51'34" W a distance of 32.00 feet to a 5/8 inch diameter iron
pin on the southerly right-of-way of W. Pine Ave. and the POINT OF BEGINNING;
Thence S 89°11'20" E along said southerly right-of-way a distance of 436.57 feet to a 5/8 inch diameter
iron pin;
Thence N 0049'25" E a distance of 32.00 feet to a 5/8 inch diameter iron pin on the northerly boundary of
said SW %;
Thence S 89°11'20" E along said northerly boundary a distance of 548.01 feet to a 5/8 inch diameter iron
pin;
Thence leaving said northerly boundary S'0°10'53" W a distance of 144.01 feet to a 5/8 inch diameter iron
Pin;
Thence S 25°12'42" W a distance of 52.70 feet to a'5/8 inch diameter iron pin;
Thence S 0°06'21" E a`distance of 249.92 feet to a 6/8 inch diameter iron pin; "
Thence S 41°19'20" E a distance of 305.46 feet to a 5/8 inch diameter iron pin;
Thence S 88028'15" E a distance of 8,93 feet to a 5/8 inch diameter iron pin;
Thence S 0049'43" W a distance of 94.01 feet to a 5/8 inch diameter iron pin;
Thence S 4°11'25" W a"distance of 48.05.00 feet to 5/8 inch diameter iron pin;
Thence S 1031'45" W a distance of 110.00 feet to a 5/8 inch diameter iron pin on the northerly right-of-
way of the Union Pacific Railroad;
Thence N 88028'15" W along said northerly right-of-way ,a distance of 236.62 feet to a point on the
centerline of the Ten Mile Stub Drain;
Thence'N 2055'40" E along said centerline a distance of 47.88 feet to a point;
Thence continuing along said centerline'N 20°46'20" W a distance of 98.82 feet to a point;
Thence continuing along said centerline N 41099'20" W and along the easterly boundary and the
prolongation thereof of The Courtyards at Ten Mile Subdivision as shown in Book 89 of Plats on Page
10414, records of Ada County, Idaho, a distance of 515.84 feet to a point;
i Canterbury Commons Subdivision No. 1:
Q_,.,.. "Land Surveying and consulting JOb,NO. 11 85
Exhibit A, pager1
Thence N 59027'20" W along said centerline and easterly boundary a distance of 645.83 feet to a 5/8 inch
diameter iron pin;
Thence leaving said centerline N 0051'34" E along said easterly boundary and the prolongation thereof a
distance of 42.94 feet to the POINT OF BEGINNING.
This parcel contains 10.39 acres.
Clinton W. Hansen, PLS`
Land Solutions, PC
March 27, 2013
I , ,- Land Surveying and Consulting
Canterbury Commons Subdivision No. 1
A
Exhibit: ' Job No. 11-85'
Page 2
EXHIBIT B
Location of Property/Drain
See Exhibit D-1 attached hereto,
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
I . construct and install a 10' pedestrian pathway within the District's easement for the Te n
Mile Stub Drain; and
2. discharge storm water from Licensee's property into the Ten Mile Stub Drain and construct
and install a discharge pipe within the District's easement,
all within Licensee's real property described in Exhibit A, Canterbury Commons Subdivision No. 1, located
southeast of the intersection of Ten Mile Road and W. Pine Ave. in Meridian, Ada County, Idaho. No other
construction or activity is permitted within or affecting the Ten Mile Stub Drain or the District's easement.
EXHIBIT D
Special Conditions
a. The construction described in Exhibit C shall be in performed in accordance the plans
attached hereto as Exhibit D-1 and by this reference incorporated herein.
b Licensee shall notify the District prior to and immediately after construction so that he or
the District's engineer's may inspect and approve the construction.
LICENSE AGREEMENT - 8'i
or performance ofthis agreement broadly construed. Licensee recognizes its continuing duty to comply with
all such requirements that now exist or that may be implemented or imposed in the future. By executing this
agreement the District assumes no responsibility or liability for any impact upon or degradation of water
quality or the environment resulting from the discharge or other activity by Licensee which is the subject of
this agreement.
f. Licensee hereby indemnifies, holds harmless and shall defend the District from any and all
penalties, sanctions, directives, claims or any action taken or requirement imposed by any party or entity,
public or private, with respect to environmental matters relating to the subject matter, terms or performance
of this agreement unless the District shall be solely responsible for the condition or activity which gives rise
to any such penalty, sanction, directive, claim , action or requirement.
g In the event the District is required by any governmental authority to acquire or comply with
any; permit or other operational requirements associated with Licensee's discharge and other activity which
is the subject of this agreement, Licensee shall indemnify, hold harmless and defend the District form all
costs and liabilities associated with such permit and other requirements, including but not limited to all costs
associated with all permit acquisition, construction, monitoring, treatment, administrative, filing and other
requirements.
to this agreement recognize this license agreement is an accommodation to
s agreement does not assume, create, or exercise legal or other' authority, either
e control, or prohibitthe discharge or contribution ofpollutants or contaminants
to any groundwater, waters of the State of Idaho or the United States, or any,
iority, to the extent that it exists, is possessed and exercised by governmental
i., Construction shall be completed' within one year of the date of this Agreement. Time is of
the essence.
LICENSE, AGREEMENT - 9
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