216 License Agmt w/ NMID for Fothergill Greenway
RESOLUTION NO~ 2/6
BY: ;alfh ;j1r~
tit]' Ci)td/rl~ me nv/~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MERIDIAN, SETTING FORTH CERTAIN FINDINGS
AND PURPOSES; AUTHORIZING THE MAYOR TO
ENTER INTO, ON BEHALF OF SAID MUNICIPALITY,
AN AGREEMENT ENTITLED "LICENSE AGREEMENT" ,
DATED THE 2~ DAY OF j'Jzafrvh- , 199~, BY
AND BETWEEN THE CITY OF MERIDIAN AND NAMPA
& MERIDIAN IRRIGATION DISTRICT.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF MERIDIAN, IDAHO:
WHEREAS, it is in the best i11terests of the City of Meridian to enter into an
agreelnent with NAMPA & MERIDIAN IRRIGATION DISTRICT denoted as
"LICENSE AGREEMENT" a copy of which is attached hereto marlced as Exhibit
"A" to this Resolution, the reasons and authority for which are as set forth in said
Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL as follows:
1. The Mayor and ClerIc are hereby authorized to enter into and on behalf
of the City of Meridian that certain agreement with NAMP A & MERIDIAN
IRRIGATION DISTRICT entitled "LICENSE AGREEMENT" dated the 2NJl day
of ~ , 1991, by and between the City of Meridian and Nampa &
RESOLUTION OF THE CITY OF MERIDIAN, AUTHORIZING
CERTAIN FINDINGS AND PURPOSES, AUTHORIZING THE MAYOR
TO ENTER INTO A DEVELOPMENT AGREEMENT WITH
NAMPA & MERIDIAN IRRIGATION DISTRICT (FOTHERGIL)
Meridian Irrigation District, a copy of which is attached hereto marlced as Exhibit
"A" to this Resolution and to bind this City to its tenns and conditions.
PASSED BY THE COUNCIL OF THE CITY OF MERIDIAN, IDAHO, this 2#,J) day
of /11~ , 1991'.
APPROVED BY THE MAYOR OF THE CITY OF MERIDIAN, IDAHO, this 2@
dayof Jn~ ,1991'. -
ATTEST:
RESOLUTION OF THE CITY OF MERIDIAN, AUTHORIZING
CERTAIN FINDINGS AND PURPOSES, AUTHORIZING THE MAYOR
TO ENTER INTO A DEVELOPMENT AGREEMENT WITH
NAMP A & MERIDIAN IRRIGATION DISTRICT (FOTHERGIL)
2
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JUSTIN P. AYLSWORTH
JULIE KLEIN FISCHER
WM. F. GIORAY, III
D. SAMUEL JOHNSON
WILLIAM A. MORROW
CHRISTOPHER S. NYE
PHILIP A. PETERSON
STEPHEN L. PRUSS
ERIC S. ROSSMAN
TODD A. ROSSMAN
R. STEPHEN RUTHERFORD
TERRENCE R. WHITE
WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A.
ATTORNEYS AT LAW
200 EAST CARLTON AVENUE, SUITE 31
POST OFFICE BOX 1150
MERIDIAN, IDAHO 83680~1150
TEL (208) 288~2499
FAX (208) 288~2501
NAMPA OFFICE
104 NINTH AVENUE SOUTH
POST OFFICE BOX 247
NAMPA, IDAHO 83653~0247
TEL (20S) 466~9272
FAX (20B) 466~4405
EmaiI viaInternet@vvfg@wppmg.com
PLEASE REPLY TO
MERIDIAN OFFICE
February I, 1999
William G. Berg, Jr.
CITY CLERIC
33 East Idaho
Meridia11, Idaho 83642
RECEIVED
FEB -2 1999
CITY OF lYlERIDLL\N"
Re: FOTHERGILL GREENWAY LICENSE AGREEMENT
Dear Will:
Please find attached the Resolution a11d Certification of the Clerl(, along
with two original License Agreements. Please note that the attached agreements are
duplicate originals and must be returned bacl( to my office after you have secured
the City's signatures ~ along with the original of the Certificate of the Clerl(. I will
then forward the documents to Mr. Steenson for his client's signature, and the
return of their certificate, and an executed duplicate original of the License
Agreement for the City.
Thanlc you for your assistance, and if you should have any questions please
advise.
Very truly yours,
~7~
Wm. F. Gi y, I
cc: file
enclosures
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LICENSE AGREENffiNT
LICENSE AGREENffiNT, made and entered into this _ day of ? 1999, by
and between NAMP A & 11ERIDIAN IRRIGATION DISTRIqT, 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 "Districtff, and
THE CITY OF 11ERIDIAN, a political subdivision and
municipality of the State of Idaho
party of the second part, hereinafter referred to as the "Licensee",
WI TNESSE 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 Descriptionlt 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 JACKSON
DRAIN (hereinafter referred to as the "Drain"), an integral part of the irrigation works and system
of the District, together with easements therefor (the "easement area") which include easements to
convey irrigation water, to operate and maintain the ditch or canal, and for ingress and egress for
those purposes; and,
WHEREAS, a portion of the Drain and easement area crosses and intersects Licensee's real
property as shown on Exhibit B attached hereto an~~ by this reference made a part hereof; and,
WHEREAS, Licensee's predecessor in interest constructed a pathway, placed landscaping,
and constructed or installed other improvements related to the pathway within the portion of the
easement area right of centerline looking downstream (north) in its course across the property
described in Exhibit A; and,
WHEREAS, the Licensee desires a license to approve, authorize, and permit the construction,
installation, and maintenance of the pathway, landscaping and related improvements within the
easement area of the Drain in its course across Licensee's property and to make the pathway available
to the public without charge for recreational activities, in the manner hereinafter appearing and under
the terms and conditions hereinafter set forth; and,
LICENSE AGREENffiNT - Page 1
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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,
NOW, THEREFORE, for and in consideration of the premises and of the covenants,
agreements and conditions hereinafter set forth, the parties agree each with the other as follows:
1. PURPOSE OF THE LICENSE; OWNERSHIP AND CONTROL
THIS LICENSE AGREEl\1ENT PERTAINS ONL Y TO THE PORTIONS OF THE DRAIN
AS SHOWN ON EXHIBIT B AND DOES NOT APPLY TO ANY OTHER PORTION OF THE
DRAIN, ANY TRIB'UTARY TO THE DRAIN OR TO ANY OTHER PART OF THE
IRRIGATION AND DRAINAGE SYSTEM OF THE DISTRICT. THE LICENSEE EXPRESSLY
ACKNOWLEDGES THAT THE DISTRICT7 BY ENTERING INTO THIS LICENSE
AGREE~NT~ IS NOT MAKING A COIvllvfITMENT TO APPROVE, AUTHORIZE OR
PERMIT ANY OTHER ENCROACHMENT, MODIFICATION_ OR ALTERATION OF ANY
OTHER PART OF THE DRAIN OR THE IRRIGATION OR DRAINAGE SYSTEM OF THE
DISTRICT.
The purpose of this License Agreement is to approve, authorize, and permit the constructio~
installatio~ and maintenance of the pathway, landscaping, and related improvements within the
easement area of the Drain in its course across Licensee's property, and permit Licensee to make the
pathway available to the public without charge for recreational activities. The pathway to be used
by the public is hereby designated as the Fothergill Greenway. The authorized uses of the Fothergill
Greenway are limited to walking, jogging, and riding bicycles or other human-powered vehicles or
devices. Authorized uses shall not include horseback riding, fishing, hunting, or any use of motorized
vehicles except for necessary access by law enforcement personnel or for construction, maintenance
or repair work by Licensee of the pathway, landscaping, and related improvements or by the District
for District purposes, or for access by handicapped persons with motorized wheelchairs or
comparable equipment for access by handicapped persons. The License herein provided is at all times
subject and subservient to the commitment of the easement area and the Drain to the drainage and
irrigation needs of the District.
2. REPRESENTATIONS BY THE LICENSEE
The Licensee acknowledges that the covenant by the Licensee to indemnify, hold harmless
and defend the District from claims as hereinafter set forth is an essential and material consideration
for the granting of the license for the Fothergill Greenway. As part of the inducement for the District
to enter into this License Agreement the Licensee represents and warrants unto the District that the
Licensee has the authority, capacity and financial ability to indemnify, hold harmless and defend the
District from all claims arising from the Licensee's operations or activities on or in connection with
the Fothergill Greenway, or arising from the use of the Fothergill Greenway by any member of the
public, and the Licensee expressly agrees to indemnify, hold harmless and defend the District from
all such claims, in addition to or redundant of the indemnification, hold harmless and defense
LICENSE AGREE~NT - Page 2
provisions of sections 4.Q and 7 of this License Agreement. The provisions of this section shall not
apply to uses of the easement area by the District's employees, agents or contractors to access,
operate, maintain or repair the Drain for District purposes.
3. CONSTRUCTION AND REPAIR
Construction and recreational activity by the Licensee and any members of the public shall be
performed or conducted in accordance with the conditions herein stated. Any improvements or
facilities installed or constructed on the easement area by the Licensee shall be constructed,
maintained and kept in repair and kept clean at all times by the Licensee and at the cost and expense
of the Licensee.
It is further acknowledged and agreed that the pathway, landscaping, and improvements
authorized and allowed to be installed or constructed on the easement area by this License
Agreement, were, and have bee~ constructed and installed by Licensee's predecessor in interest when
it o\V11ed the land described in Exhibit A; that the District has had an opportunity to view and inspect
the pathway, landscaping, and improvements, and by entering this Agreement approves and
authorizes their construction, installation, and maintenance within the easement area. The provisions
of this section pertain to construction, maintenance, and repair and otherwise establish a duty owed
by the Licensee to the District only, and this Agreement does not intend nor does it provide that this
duty is owed to any other entity and! or perso~ and specifically this provision does not extend the
duty of the Licensee to the public beyond the provisions of Idaho Code Section 36-1604, which are
incorporated herein by this reference.
4. SPECIAL CONDffiONS AND REQUIREMENTS
In order to protect the District's right and responsibility to access, operate, maintain, and
repair the Drain, and to ensure that the license herein granted does not interrere with that right ~nd
responsibility, the following conditions and requirements of the Licensee are provided.
A. The Licensee shall prepare and install a readily visible sign (the "signs") at each
end of each segment of the Fothergill Greenway, advising the public that the primary use of the
easement area is for drainage and irrigation water and that use for Greenway purposes is by the
consent of the District.
B. The size of the signs, and the material painted, printed or otherwise displayed
thereon, shall be as shown in Exhibit C, attached hereto and by this reference made a part of this
Agreement.
c. License shall take all necessary and reasonable steps to maintain the license
premises so that trash or litter are not deposited and! or remain on the ground within the easement
area or in the Drain.
LICENSE AGREE11ENT - Page 3
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D. The signs shall notify the general public that maintenance activities are necessary
within the easement area and that the Fothergill Greenway may be closed from time to time for
maintenance purposes.
E. The signs shall notify the general public that persistent violations may result in
cancellation of the Licensee Agreement and permanent closure of the Fothergill Greenway to public
use.
F. The Licensee shall adopt and enforce such ordinances as it deems necessary
to protect the safety of the members of the public who use the Fothergill Greenway, ensure that
members of the public comply with the terms of this agreement, and protect against interrerence with
the District's use, operation, and maintenance of the Drain and the easement area.
G. The Licensee shall exercise best efforts to prevent members of the public who
use the Fothergill Greenway from violating the terms of this Agreement or any city ordinance
regarding activity on the Fothergill Greenway.
H. The use of motor vehicles or equipment except for law enforcement, construction,
maintenance or repair by Licensee of the License Premises or by the District for District purposes,
or access by handicapped persons using motorized wheelchairs or comparable equipment, shall not
be permitted on the Fothergill Greenway. ~
I. The Licensee shall construct obstructions to unauthorized vehicles and equipment
at the termini of each segment of the Fothergill Greenway.
J. The hours of use for the Fothergill Greenway shall be from 30 minutes before
sunrise to 30 minutes after sunset, and it shall be closed to use during all other times.
K. The Licensee may spread and level any spoil removed from the Drain and placed
on the easement area or, in the alternative, may transport the spoil to a sanitary landfill or some other
authorized place of disposal. The District shall have no obligation to spread, level, or remove any
spoil removed from the Drain and place on the easement area.
L. For purposes of this License Agreement fences shall be considered as
improvements, and no additional fences shall be installed on the easement area until the proposed
location of any new fence has been staked on the ground and that location has been approved in
writing by the District.
M. This License Agreement does not authorize or give license to any use of the
easement area for fishing, swimming, wading, boating, or any activity in the Drain itself The
Licensee shall take appropriate action to prevent any such use of the easement area and any activity
in the Drain. This Agreement shall not preclude the District from enforcing any prohibition against
fishing, swimming, wading, boating or any other activity in the Drain or easement area that may be
LICENSE AGREEMENT - Page 4
adopted by the District.
N. Licensee shall not excavate, place any structures, plant any trees, shrubs, or
landscaping or perform any other construction or activity within or affecting the Drain or easement
area except as referred to in this License Agreement without the prior written consent of the District.
O. The Licensee acknowledges and agrees that the License Agreement covers
only the portions of the Drain described in Exhibit A, and does not authorize construction or
installation of any facilities or improvements in or on any other portions of the District's drainage
system or irrigation system. As further consideration for the granting of the License for the Fothergill
Greenway, the Licensee agrees that it will obtain from the District a separate license agreement for
the installation of any new improvements or facilities, or for the relocation of any existing
improvements or facilities, in any other portion of the irrigation system or drainage system of the
District, prior to the construction or installation of the applicable improvement or facility.
P. The Licensee acknowledges that the construction of facilities and
improvements on the easement area pursuant to this License Agreement, and the opening of the
easement area to limited public use in accordance with the terms and conditions of this License
Agreement, inevitably will cause an increase in the numbers of people present on the easement area
and a concomitant increase in the opportunity for damage to the Drain and for depositing or
discharging trash and other pollutants in the waters of the Drain. The parties acknowledge and agree
that some of the conditions in Section 3, above, are intended to minimize potential impacts resulting
from the anticipated increased usage of the easement area.
Q. The Licensee agrees to construct and maintain any improvements or facilities
installed or constructed by the Licensee on the easement area pursuant to this agreement in a safe
condition to the end that the Drain and the facilities installed or constructed by the Licensee shall not
constitute a hazard to any person or persons, and to indemnify, hold hannless and defend the District
from all claims for damages of any nature arising out of the use of the Fothergill Greenway or any
obstructio~ hazard or negligence in the construction, operation, maintenance and repair of said
facilities or the failure of the Licensee to keep the same in a safe condition. The Licensee agrees to
indemnify, hold hannless and defend the District from any damages the District or its landowners may
suffer arising frOIl\ related to or in any way connected with the construction and maintenance of the
facilities installed or constructed by the Licensee, or the use of the easement area by members of the
public.
5. PRIOR APPROVAL FOR CONSTRUCTION OR INSTALLA nON
The Licensee shall not construct or install any improvements or facilities on the easement area
without first having obtained the written authorization of the District for each such improvement or
facility. For purposes of this License Agreement, any activity which changes the then-existing
physical condition or appearance of the Drain or the land within the easement area, or which adds to
the easement area material of any kind from an external source, shall be deemed either an
LICENSE AGREE1ffiNT - Page 5
improvement or a facility. In that regard, since the Licensee has located the path and completed
construction thereofwithin the easement area and the District has had an opportunity to review and
inspect them, the District hereby approves of their location, design and construction. However,
construction or installation of any additional improvements or facilities shall not commence until the
location of the applicable improvement or facility has been marked on the easement area with stakes,
and such location has been approved in writing by the District.
6. NON-INTERFERENCE WITH DRAINAGE OR FLOW OF WATER
Construction activity by the Licensee shall be accomplished at such times and in such seasons
and in such manner as not to interrupt or interfere with the drainage of water into, or the flow of
water in, the Drain, or with the carriage of water to any landowners of the District or other parties
who might be entitled to the use of water flowing in the Drain. All operations of the Licensee within
the Fothergill Greenway, including but not limited to maintenance and repair of the Drain, shall be
conducted in such manner as not to intenupt or interfere with the drainage of water into, or the flow
of water in, the Drain, or with the caniage of water to any landowners of the District or other parties
who might be entitled to the use of water Bowing in the Drain.
7 . INDEMNIFICATION - DISTRICT LANDOWNERS AND THIRD PARTIES
The Licensee agrees to indemnify, hold harmless and defend the District from .a11 claims of any
of its landowners or third parties for damages from the impairment of drainage into, or the flow of
water in, the Drain which may be caused by the construction and related activity of the Licensee or
by the condition of any facilities constructed or installed by the Licensee or by any use by the Licensee
or by members of the public at any time, or from the impairment of drainage into, or the flow of
water from, the Drain resulting from the failure of the Licensee to maintain and keep in repair the
facilities or improvements constructed by it in the Drain or on the easement area.
8. POSSffiLE FUTURE MAINTENANCE OF DRAIN BY LICENSEE;
MAINTENANCE BY DISTRICT BEFORE GREENWAY PLACED IN USE
The Licensee acknowledges and agrees that for various reasons the District has deferred
certain maintenance work on the Drain for a number of years, including, but not limited to, removal
of deposits of silt or sand from the channel of the Drain and removal of trees and bushes. The District
will complete any deferred maintenance work it now or hereafter deems appropriate on any segment
of the Drain before the applicable segment is placed in use as part of the Fothergill Greenway. No
portion of the Fothergill Greenway shall be placed in use until the District has notified the Licensee
in writing that the maintenance work for that segment has been completed by the District. It is
expressly understood and agreed that this License Agreement does not modify or in any way affect
the District's right to fully maintain the Drain and the easement area, including removal of trees and
bushes and removal of spoil, and the Licensee agrees that it will not interfere with or attempt to
prevent any such maintenance work by the District. The Licensee may submit comments to the
District concerning any such maintenance work, but the District shall not be bound to any extent by
LICENSE AGREENlENT - Page 6
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those comments and shall not be required to take any specific action to consider those comments.
The Licensee is authorized at any time during the existence of this Agreement to trim
vegetation that the water superintendent of the District and the city engineer of the Licensee mutually
agree is obstructing the use, enjoyment or safety of the Fothergill Greenway.
9. LICENSEE TO PAY ITS OWN EXPENSES; NO LIEN AGAINST
DISTRICT'S PROPERTY
All costs and expenses of every kind and nature whatsoever involved in the construction,
installation, or maintenance of the Fothergill Greenway, landscaping, and related improvements or
in the operations of the Licensee pursuant to this License Agreement, or in the public use authorized
by this License Agreement, shall be paid by the Licensee and the District shall have no obligation or
responsibility whatsoever for payment of any such costs or expenses. The Licensee shall have no
right, power or authority to grant, allow or suffer any lien or any other charg~ or encumbrance of any
kind against the District's right, title and interest in the Drain or the easement area.
10. REMOVAL OF HAZARDS OR Il\1PEDl1\1ENTS BY DISTRICT
The District reserves the right, at its option, to remove at any time any impediment to
drainage of water into, or the flow of water through, the Drain, including any facilities constructed
or installed on the easement area by the Licensee, and to remove at any time any hazards to persons
or property which may arise by reason of any construction or installation by the Licensee or the
recreational activity by the public.
11. INSPECTION AND APPROVAL BY DISTRICT
The Licensee agrees' that the work performed and the materials used in any construction or
improvement by the Licensee shall be subject at all times to inspection by the District and by the
engineers for the District, aild that final acceptance of any item of construction work or installation
or improvement shall not be made until all such work and materials shall have been expressly
approved by the District.
12. DAMAGE TO INSTALLATIONS OR IMPROVEMENTS
The Licensee agrees that the District shall not be liable for any injury or damage which might
occur to the Fothergill Greenway, landscaping or any other improvements in the reasonable exercise
of the rights of the District in the course of performance of maintenance or repairs by the District.
The Licensee further agrees to suspend its use and public use of the easement area when the use of
the easement area is required by the District for maintenance or repair under this or any other section
of this agreement.
LICENSE AGREEMENT - Page 7
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13. SURFACE DRAINAGE; POLLUTANTS; INJUNCTION; TERMINATION
The Licensee acknowledges that its use of its interest in the property described in Exhibit ~
or public use of the Licensee's interest therein, might, either now or at some future time, cause an
increase in the amount of surface water or ground water draining or wasting into the Drain. The
Licensee understands and agrees that it has no right to drain or waste into the Drain more sutface or
ground water than drains or wastes from the described property in its present state and condition.
The Licensee further understands and agrees that neither it nor the public in general has any right to
discharge pollutants, contaminants, debris or foreign material into the Drain, and the Licensee
expressly agrees that it shall not cause, suffer or pennit any additional surface or ground water to
drain or waste into the Drain nor discharge into the Drain any pollutants, contaminants, debris or
foreign material. The Licensee expressly agrees that the District shall be entitled to enforce
compliance with the provisions of this paragraph by tennination of this Agreement or by injunction
and that violation of the provisions of this paragraph constitute irreparable damage to the District and
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 or any member of the
public using the Fothergill Greenway shall cause, suffer or permit any such additional water to drain
or waste into the Drain or discharge pollutants, contaminants, debris or foreign material into the
Drain, the District shall have the right to stop such additional water from draining or wasting into the
Drain or stop the discharge of water containing such pollutants, contaminants, debris or foreign
material into the Drain 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 or discharge of
such pollutants, contaminants, debris or foreign material, or water containing the same, into the
Drain.
If the public using the Fothergill Drain shall cause, suffer or pennit any additional water to
drain or waste into the Drain or if the public shall discharge pollutants, contaminants, debris or
foreign material into the Drain, the District shall have the right to stop such additional water from
draining or wasting into the Drain or to stop the discharge of water containing such pollutants,
contaminants, debris or foreign material, into the Drain, and the Licensee agrees to support the action
of the District, and if necessary take criminal or civil action to stop such drainage, wasting, or
discharge of such pollutants, contaminants, debris or foreign material, or water containing the same,
into the drain
14. ATTORNEY FEES FOR ENFORCEMENT
Should either party incur costs or attorney fees in connection with efforts to enforce the
obligations of the other party under 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.
LICENSE AGREEMENT - Page 8
15. NO Il\1PAIRMENT OF DISTRICT'S RIGHTS
The parties hereto understand and agree that the District has no right to in any respect impair
the uses and purposes of the inigation and drainage works and system of the District, by this contract,
nor to grant any rights in its irrigation and drainage works and system incompatible with the uses to
which such inigation and drainage works and system are devoted and dedicated and that this contract
shall be at all times construed according to such principles.
16. LICENSE INFERIOR TO DISTRICT'S RIGHTS
Nothing herein contained shall be construed to impair the easements of the District, or to limit
its rights of access to the Drain or the easement area for all purposes, and all uses of the Drain or the
easement area for the construction and recreational activity of the Licensee and the public, and the
license herein give~ shall remain inferior and subseIVient to the rights of the District to the use of the
Drain and the easements for the purposes for which the Drain was constructed and the easements
were obtained.
17. WATER RIGHTS; TERMINATION
Nothing in this agreement shall create or support any claim to a water right in Licensee or any
other party or the general public for use of the waters of the Drain for any purpose. The filing of an
application for a permit to appropriate the waters of the Drain or any tributary thereot: whether
surface water or ground water, or the filing of a request for the Idaho Water Resource Board to
consider the appropriation of a minimum stream flow under ~ 42-1504, Idaho Code, for the portion
of the Drain covered by this License Agreement, shall constitute absolute and unconditional grounds
for immediate, unilateral, and complete termination of this License Agreement by the District, without
prior notice to the Licensee. Licensee acknowledges that the District does not regard the Drain or
any portion thereof as a natural stream whose waters are subject to appropriation and Licensee
acknowledges and agrees that all sources of the waters flowing in the Drain are fully appropriated. .
The Licensee recognizes the right of the District to reclaim any surface waters or ground
waters within the boundaries of the District for use or reuse within the irrigation system of the
District, and acknowledges that the flow of water in the Drain may be diminished as a result of any
such reclamation by the District. The Licensee shall not in any manner attempt to require the District
to maintain any flow of water in the Drain.
It shall be the responsibility of any adjacent or underlying landowner, of which the Licensee
is one, who claims a stock water right to establish- his, her or its own water right, and the approval
by the District of the installation of stock watering facilities shall not be construed as obligating the
District to make water available from or in the Drain for livestock.
LICENSE AGREENlENT - Page 9
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18. DEFAULT; NOTICE; TERMINATION
In the event of the failure, refusal or neglect of the Licensee to cure any default in compliance
with any term or condition of this License Agreement, within 30 days after service of written notice
from the District stating the.particular default or breac~ then the license of the Licensee under the
terms of this Agreement may be terminated by the District, and all facilities or improvements on the
easement area shall be removed promptly by the Licensee following such termination, and if not so
removed by the Licensee within 30 days after terminatio~ the District may remove those facilities or
improvements and shall be entitled to reimbursement from the Licensee for the reasonable cost of
such removal, to be paid within 30 days after written notice of the amount of such costs.
19. NO ASSIGNMENT; SUB-LICENSE
The Licensee shall have no right, power or authority to assign this Agreement or any
privileges hereunder to any person or entity. The Licensee shall have no right, power or authority
to issue a sub-license to any person or entity without the prior written approval of the District, which
approval shall be entirely and unconditionally optional with the District.
20. APPLICABLE LAW AND JURISDICTION UNAFFECTED BY LICENSE
Execution of this License Agreement does not extend the application of any statute, rule,
regulation, directive or other requirement (collectively "regulation"), or the jurisdiction of any
Federal, State, or other agency or official (collectively "agency") to the District's ownership,
operation, and maintenance of its ditches, canals, drains, irrigation works and facilities.
In the event the District is required to comply with any regulation or is subject to the
jurisdiction of any agency as a result of execution of this agreement or the Licensee's activity
authorized hereunder, the Licensee shall indemnify, hold harmless and defend the District from all
costs and liabilities associated with the application of such regulation or the assertion of such
jurisdiction. The District shall give the Licensee notice prior to invoking the provisions of this
sectio~ including whether the regulation and/or jurisdiction should be challenged. The Licensee shall
give written notice to the District within 21 days thereafter of its intent to challenge. If the Licensee
elects to challenge, then the Licensee shall be allowed to assert all legal rights of the District and/or
the Licensee'to challenge subject to the Licensee's duty herein to defend and hold the District
harmless.
The parties agree that, in the event the Licensee does not elect to challenge, each shall then
have the option to elect to tenninate this License Agreement. If this termination option is exercised,
the party seeking to terminate the agreement shall give the other party 30 days written notice of
intention to terminate. During the 30 day period, the parties shall discuss their positions on the
matter. This Licensee shall then be terminated at the end of the 30 day period unless the party
exercising the option provides a written notice of retraction of the notice to terminate within the 30
day period.
LICENSE AGREE:MENT - Page 10
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21. WAIVER; CATCHLINES; CONSTRUCTION; BINDING EFFECT
The Licensee expressly waives and disclaims any right to assert estoppel or waiver against the
District with respect to any act, course of conduct or omission by the District concerning the Drain,
the easement area, or the activities of the Licensee or the general public pursuant to this License
Agreement. 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.
The catchlines or section headings herein set forth are provided only for the convenience of
the parties in locating various provisions of the Agreement, and are not intended to be aids in
interpretation of any provision of the 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 Agreement.
This agreement is not intended for the benefit of any third party and is not enforceable by any
third party.
If any provision of this agreement is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, all remaining provisions of this agreement shall remain in full force
and effect.
The covenants, conditions and agreements herein contained shall constitute covenants to run
wi~ and running with, all interests of the Licensee in the lands 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 the~ and the advantages hereof shall inure to the benefit of each of the parties hereto and their
respective successors and assigns. This Agreement ~oes not create or confer any rights for any
individual member of the general public or any group within the general public.
IN WITNESS WHEREOF, the District has hereunto caused its corporate name to be
subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and
the Licensee has hereunto caused its municipal name to be subscribed and its seal to be affixed by it
officers first thereunto duly authorized by resolution of its City Council, all as of the day and year
herein first above written.
LICENSE AGREENlENT - Page 11
(
NAMPA & rvtERIDIAN IRRIGATION DISTRICT
By
Its President
ATTEST:
Its Secretary
THE CITY OF rvtERIDIAN
ATTEST:
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\,\ C ~.tr- III
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approved by City Council 3~2- Q ~ 0 ~
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LICENSE AGREErvtENT - Page 12
(-
(
STATE OF IDAHO )
) S5:
County of Canyon )
On this _ day of , 1999, before me, the undersigned, a Notary Public in and
for said State, personally appeared and
, known to me to be the President and Secretary, respectively, of
NAMP A & ~RIDIAN IRRIGATION DISTRICT, the rogation 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 day
and year in this certificate first above written.
Notary Public for Idaho
Residing at Nampa, Idaho
My Commission Expires:
STATE OF IDAHO )
) 58:
County of Ada )
(ld tlvt .
On this L day of '1 ' ~J.. , 1999, before me, the undersigned, a Notary Public in
and for said State, personally appeared Robert D. Corrie and William G. Berg, Jr~, known to me to
be the Mayor and City Clerk, respectively, of THE CITY OF MERIDIAN, the political subdivision
and municipality that executed the foregoing instrument and acknowledged to me that such 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,,~. st above written. ~..' t; ~~ ~ ~
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LICENSE AGREENlENT - Page 13
'--
9YOSr< 38
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A Plpneo( Caplpany
t : .
J~ D li ~. C;. r\ t COR D E R
j. D A './ I D i 1;\ V /\ ~ R 0
B 0 I S E III :n.E cO.
NE.E.R 1\
Telephone (208) 377...2700 ?\O
'9~ SEP 30 o. PPl 3 18
FEE '3 '~_i)i..~tf)
RECORDED :.r lliE ~~
PIONEER TfI:LE C()MP ANY
OF ADA COUNlY
888 North Cole Road I
Boise, Idaho 83704 /
DP
ACCOMMODATION
WARRANTY DEED
(INDIVIDUAL)
FOR VALUE RECEIVED SARA L. EWING, AN UNMARRIED PERSON; AND JOHN R. EWING, A MARRIED
PERSON AS HIS SOLE AND SEPARATE PROPERTY.
Grantor S ., do
hereby grant, bargain, sell and convey unto CITY OF MERIDIAN
the Grantee , whose current address is: 33 E . IDAHO, ME RID IAN, I D 83642
the following described real property in ADA' County, State of Idaho, more particulary described as
foIIows, to-wit:
LOT 1 BLOCK 13 OF FOTHERGILL POINTE SUBDIVISION NO.1 ACCORDING TO THE PLAT
THEREOF. FILED IN BOOK 65 AT PAGES 6639 AND 6640, RECORDS OF ADA COUNTY, IDAHO.
TO HAVE AND TO HOLD the said premises, with their appurtenances unto the said Grantee , and Grantee heirs
and assi gns forever. And the said Grantor sio hereby covenant to and wi th the said Grantee , the Grantor s are the
owner s in fee simple of said premises; that said premises are free from all encumbrances, EXCEPT those to which this
conveyance is expressly made subject and those made. suffered or done by the Grantee ; and subject to reservations,
restrictions, dedications, casements. rights of way and agreements. (if any) of record, and general taxes and assessments,
(includes irrigation and utility assessments, (if any). for the current year, which are not yet due and payable, and that Grantor s
will warrant and defend the same from an lawful claims whatsoever.
Dated: MAY~.3. ~ 1994
~4l' /: ~~/
SARA L. EWING
STATE OF -IDAHO
, County of ADA
, S5.
On this 01 ~ day of MAY
LESJ.TR n POTT~
sonally apPlN"rd'..:i~--EWTNa ANn .JOHN R RtJTNa
known QI'lt\IRifJl:.dp:AfiPtJ,to be the person BJYhose name 1L- Rt'A
ackn~~itM~.ftts4!~~exccuted the same.
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"trrell"
, in the year of 1994
, before me
, a notary public, pcr-
subscribed to the within instrument. and
Exhibit A.
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page 2
3.Lr .9l..00 N
JACKSOR DRAlR
FOftBRGILL GRBBB1fAY
PUBLIC ACCESS PBRMI~ FROM 30
HIBU'rES BBPORB StJIIRISB ~ 30
HIBItnBS U"rBR susSS':
RO H~RIZBD VBBICLBS
(BXCBPr FOR BABDICAP USE)
110 LI~HG
NO FISHING, SWIMMING, BOATING, OR WADING
80 HORSES
USE OF mE GREBBlfAY IS BY COHSBB'J! OF mE
RAMPA & MBRIDIAR IRRIGA~IOR DIS~IC~
ABD
~ CIn OF MBRIDIJUI
fte priJaary Purpose of ftis Area Is Por Drainage and
Irriga~ioD Wa~.r and Periodic MaiD~.Dance Hay R.8ul~ in
Closure of the FotJl.rgil~ Greell1faY frail ~t.e t.o ~iJae
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PBRSIS~ VI~OBS or Dr ROLBS. MAX
PORCB A pmum.I5.~ CLOSURB 01' ~
FO:I:JU5KGILL GKSbftar m PUBLIC tJ8K
Exhibit C
,~
(
(
CER TIFI CA TE 0 F CLERI(
OF
THE CITY OF MERID IAN
I, the undersigned, do hereby certify:
1. That I am the duly appointed and elected Clerk of the City of Meridian,
a duly incorporated City operating under the lavvs of the State of Idaho, with its
principal office at 33 East Idaho, Meridian, Idaho.
2. That as the City Cleric of this City, I am the custodian of its records and
minutes and do hereby certify that on the 2~/.J day of hlMdt-, ,1999, the
following action has been tal<.en and authorized:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MERIDIAN,
SETTING FORTH CERTAIN FINDINGS AND PURPOSES; AUTHORIZING
THE MAYOR TO ENTER INTO, ON BEHALF OF SAID MUNICIPALITY, AN
AGREEMENT ENTITLED "LICENSE AGREEMENT", DATED THE 2tVtJ DAY
OF frz,tVLd-, , 1999, BY AND BETWEEN THE CITY OF MERIDIAN
AND NAMPA & MERIDIAN IRRIGATION DISTRICT.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
MERIDIAN, IDAHO:
WHEREAS, it is in the best interests of the City of Meridian to enter into an
agreement with NAMPA & MERIDIAN IRRIGATION DISTRICT, denoted as
"LICENSE AGREEMENT" a copy of which is attached hereto marlced as Exhibit
"A" to this Resolution, the reasons and authority for which are as set forth in said
Agreement.
CERTIFICATE OF CLERK OF THE
CITY OF MERIDIAN
(
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL as follows:
1. The Mayor and ClerIc are hereby authorized to enter into on behalf of
the City of Meridian that certain agreement with NAMPA & MERIDIAN
IRRIGATION DISTRICT entitled "LICENSE AGREEMENT" a copy ofyvhich is
attached hereto marl(ed as Exhibit "A" to this Resolution and to bind this City to its
terlTIS and conditions.
. \ \ \ \' \ \\1 If ; r 11 f!f II,
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~ WILLIAM G. BERG, J
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STATE OF IDAHO~/"'/'>I?O~rri · \:~\''''''
I111 t~: \' s~ ~H\\
County of Ada, )
iSS-H- day of lfYb.Acl--
, in the year 1 999, before me,
, a Notary Public, appeared
WILL G. BERG, JR., l<novvn or identified to me to be the City Clerk of the City
of Meridian, Idaho that executed the said instrument, and acknowledged to me that
he executed the same on behalf of the City of Meridian.
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!~) -.- ! * : Notary P lie for Ida:llilho t
\ \. .PUBL\C; j Commission Expires: 0 IS ;).()()'\
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msg~~.$1~M~{ji)ti~'{y File\Resoultions\LICENSE AGREEMENT NAMPA & MERIDIAN IRRIGATION DIST.wpd
, 4t##1 U pn}.. ,,~~
~ "8'".."",
CERTIFICATE OF CLERK OF THE
CITY OF MERIDIAN
2