Utility License Agreement with Settlers Irrigation District for Settlers Southside Canal CrossingADA CO~U4H0 °~21R 2ER2 49 Pp~ der D. Rich AMOUNT .DO 15
BQISE III IIIIIIIIIIIIIIIIIIIIlIIIIIIIIIIIII
DEPUTY Gail Garreii
RECORQED-REQUEST QF 1120~5~ 1~
Meridian City
RECORDING REQ~ES7'~'D BYAND
WHEN R~'CORI~ED RETCIRN TO:
Moffatt, Thomas, Barrett, Rock &
Fields, Cftartered
1015outh Crrpitoi Boulevard, IOtli Floor
Post Once Box 829
Boise, Idnlio 83701-089
(Sparc Above Eor Recorder's Use)
UTILITY LICENSE AGREEMENT
This Utility License Agreement ~"Agreement"}, is entered into and made
effective this ~ day of ~~^Cvl, , 20 ~ c2 , by and between SETTLERS
IR~IGA'I'IUN I}IST~CT ("District"}, an irrigation district arganazed and existing under and by
virtue of the laws of the State of Naha, whose address is F.O. Box 757, Boise, Idaho ~~7a7,
and City of Meridian ("Licensee"}, whose address is
(narr~ a of lei party
33 East Broadway Avenue, Meridian, Idaho 83642 ,
NOw, T~EF(}l~ in consideration of the mutual benefits to be received by
the District and Licensee, and other .gaol anal valuable consideration, which consideration is
hereby, acknowledged by the parties, and the pramiscs, covel~ants, agreements, and conditions
herena~er set forth, the parties agree with one another as follows:
l . Grant of License, The District hereby grants a License ("License"} t4
Licensee for the purpose of crossing the
Settlers Southside Canal
__ {name of canal., lateral, or ditci'-}
at the location described in Exhibit A., appended. hereto, in order to construct, operate, inspect,
maintain, and repair
sewer line crossing
This grant
(list. crossings},power, gas,. cable, phone, etc:}
of License is subject: and subordinate. to any and all property rights the District. may have in the
Settlers Southside Canal
name of canal, lateral, or ditch}
UTILITY LICENSE AGREEMENT -1 CLIENT:573845.4
Revised 4f3108
Licensee Expressly acknowledges and agrees that this License does not grant
Licensee the right to install any property or equipment, except as ma}~ be described in this
Agreement, or the right to impair any rights of the District or others in the use of the
Settlers Southside Canal
(name of canal, lateral, or ditch)
This grant is expressly conditioned
upon the prior receipt by Licensee of any and all necessary approvals from governmental
entities and private parties for its activities to be performed under the terms of this Agreement,
and is further expressly conditioned upon the District's prior approval of all drawil~gs and pans
concenun~ the activities to be conducted by L%censee under this Agreement.
2. Term of Grant of License. The term of the License shall commence upon
the effective date of this Agreement and shall continue, fox so long as Licensee is in compliance
with the terms of this Agreement.. The District reserves the right to revoke this License,,
effective upon thirty ~30j days' prior written notice to the Licensee thereof, should Licensee. at
any time fail to materially comply with. the terms of this Arccment, and fail to correct such
noncornpliance within thirty (30} da~rs following service of written. notice by the District ("Cure
Period"}. If Licensee begins, but cannot complete, corrective action within the C~~re Period, the
Cure Period may be extended, at the sole discretion of the District, for such amount of time as
may be reasonably required to complete the corrective action.
3. Construction, Ins~ectiont Maintenance, Repair, and ~cplacement of
Crossin .Licensee, following execution of this Agreement by the parties, may have access
across the
Settlers Southside Canal
to conduct such construction,
(name of canal, lateral, or ditch)
inspection, maintenance, repair, and. replacement of the
sewer line crossing
as may be reasonably necessary,
{list crossings}, power, gas, cable, phone, etc.)
subject to any restrictions .imposed on .Licensee's activities as may be set forth in this
UTILITY LIC~NS~ AGREEMENT - 2
Revised 413108
CLIENT:573845.4
Agreement. Licensee or its agents and contractors shall perform. any work in ~ workmanlike
manner, and in accordance with the engineering Plans and. Specifications referenced in
Exhibit B.
through the
Any activities by Licensee which may impede or impair the flow of water
Settlers Southside Canal
may only be performed
(name. of canal, lateral ar ditch)
during the non-irrigation season, which is usually between November 1 and March 1 S.
Licensee expressly acknowledges that the District does not relinquish its ownership rights in
anyporton. of the
4.
Settlers Southside Canal
Utlllt~ Cross. Licensed shall not allow any Utilities except
Licensee if it is a Utility} or any private party to attach to Licensee's facilities .governed by this
Agreement, cross any portion of the Settlers Southside Canal , or
(name of canal, latetyal, ar ditch)
otherwise use or encroach. upon the District's easements, without the express written consent
of the District. Said written consent may take the form of an addendum to this existing
Agreement or, the District, in its. discretion, may require that separate licensee agreements
be executed between the District and the tTtility or private party seeking. to cross the
Settlers Southside Canal
5. Express W giver. In the event that any Utilities or private parties do
attach to Licensee's facilities governed by this Agreement, cross .District. facilities and/or
systems, or share in the use Qf District's facility and/or system easements, Licensee, and
Utilities or private parties, waive any and all claims against the District, now and ~ tlae ;future,
concerning the District's water d%stribution, operation, and maintenance activities upon its
facilities and/or systems.
UTILITY LICENSE AGREEMENT - ~ CLIENT:573845.4
Revised 413108
6. Ind~.y. Licensee, and any Utility or private party that attaches to
Licensee's facilities .governed by this Agreement, crosses a District .facility or system, or uses
an exclusive easement, agrees to protect, defend, indemnify, and hold the District and its
officers, directors, employees, members, and agents harmless from and against any and all
liability, suits, losses,. damages, claims, actions, costs.:, and expenses of any nature, .including
litigation costs and :attorney fees, which shall include paralegal fees, arising from or out of any
acts or omissions of the Licensee or any crossing Utility, their agents, or contractors related to
or in connection with their crossing of District facilities, use of the exclusive easements of the
District, any attachments to Licensee's facilities governed by this .Agreement. by a crossing
Utility or private party, or any activity under this Agreement and the exercise of any privileges
or performance of any obligations by the Licensee or crossing Utility hereunder. Furthermore,
the Licensee and any crossing ~Ttility agree to protect, indemnify, and hold the District and its
officers, directors, employees, members, and agents harmless from and against any and all
liability, suits, losses, darr~ages, claims, actions, costs, and expenses of any nature, .including
litigation. costs and :attorney fees, which shall include paralegal fees, arising from or out of
water duality violations, flooding, or any interruption or %nterference with the flow of water in
~1e Settlers Southside Canal
caused by any act or omission of the
Licensee and any crossing Utility or their agents. Notwithstandi~ag .any other provision of this
Agreement, ~,icensee, and any Utility or private party that attaches to Licensee's facilities, shall
be responsib e for their own actions only, .and not the actions of :any other party hereunder.
Each party's liability shall be separate only, and not joint.
7. No Liens. Licensee shall allow no liens as a result. of any labor
performed or materials supplied in connection with the activities of Ltcensee, its agents, or
UTILI'~Y LICENSE AGREEMENT - ~ CLIENT:573845.4
Revised 4l3I08
contractors, to attach to the
Settlers Southside Canal
adj accnt lands held by-the District:.
(nameof canal,.lateral, nr ditch)
or to any
8. Permits. Licensee represents that it has obtained all permits, licenses,
and acknowledgments requited to conduct the activities to be performed under the terms of the
Agreement. Additionally, for those projects which fall under the :purview of the Clean Water
Act, 33 [J.~.~.1251, et secs,. prior to commencement of construction im actin the District's
p ~
facilities, Licensee shall deliver to legal counsel for the District a co of a Section 404 Permit
py
it has obtained from the C~nited States Army Corps of Engineers, lh the event that a Section.
404 Permit is not required, Licensee shall certify that its construction impacting the District's
facilities does not fall under the pu~vicw of the dean water Act and a Section 404 pcnnit is not
required, The parties hereby recognize and agree that this Agreement will not be executed by
the District and recorded until legat counsel .for the District is in receipt of the appropriate
Section 404 Permit ar written certification by Licensee that a Section 404 permit is not re wired
for the construction contemplated under this Agreement. Such certification shall.. be attached to
this Agreement as Exhibit ~ and made a path hereof,
~. Operation, Maintenance, and Repair of Crossinprovements. It is
recogniLed by the District that maintenance, repair and/or replacement of the crossing
improvements constructed. by Licensee and which cross the
Settlers Southside Canal
{name of canal, lateral, or clit~h)
under the terms and conditions of dais
Agreement and as identified in Exhibit ~, may be necessary subsequent: to the execution and
recording of this Agreement. 1n the event that Licensee desires to perform .any maintenance,
repair andlor replacement: Qf such crossing impr4ven~ents, they acknowledge and agree :that the
prior written consent. of the District is required prior to commencement of any such
UTILITY LICEI~~E AGR~EMEN~ - 5 CLIENT:573845.4
Revised 413108
maintenance, repairand/or replacement of the crossing improvements, unless an em.~r cnc
g Y
reasonably precludes obtaining prioz written. consent. In such an event, Licensee shall rovide
p
written notice to the District of such emergency repair or replacement, as soon as reasanabl
y
possible after undertal~ing such work. The District agrees that it will consider and act upon all
non-emergency written requests for written consent from Licensee in abusiness-Like manner,
1 ~. .Limitations on Liabilityi Attorney Fees. The parties hereto agree that
nothing herein contained shall be construed to create a joint venture, partnership, or other
similar relationship which might subj ect any pay to liab1lrty for the debts and/or obligations of
the others, except as otherwise expressly a~zeed in this Agreement. ~ the event of any suitor
proceeding by either party herein against the other party arising aut of this Agreement or in
connection with the activities of the Licensee, or their agents or contractors, under this
Agreement, the nonprcvailin~ party in such suit or proceeding. shall pay to the prevailing party
such sum or sums as the court shall adj udge reasonable for attorney fees anti costs, %ncluding
such fees anal costs on appeal,
11. Further Consideration, In further consideration far inducing the District
to grant this License, the Licensee agrees to promptly pay all expenses incurred by the District
relating to the negotiation, preparation, and execution of this Agreement.
12. .Entire A~ree_ment. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter of this Agreement. Amendments
to this Agreement shall be made only by written instrument executed by each of the parties
hereto.
13. Binding Effect. The promises? covenants, conditions,:. and agreements
herein contained shall be binding on each of the parties Hereto and on all parties and all person
UTILITY LICENSE AGREEMENT - ~ CLIENT:573845.4
Revised 4!3108
claiming under them or any of them; and the rights and obligations hereof shall inure to the
benefit of each of the parties hereto and. their respective successors and :assigns. Na third
parties are intended to benefit from, or obtain any rights under, this Agreement.
14. Sebil ty_. If any part of this Agreement is held to be .illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
,given effect. to the fullest extent reasonably possible.
15, No'Waver. The failure of a party to insist on the strict performance of
any provision. of this Agreement or to exercise any right or remedy upon a breach hereof shall
not constitute a waiver of any provision of this Agreement. or limit such party's right to enforce
any prQVision or exercise any right.
1 f . Governing Law. The validity, meaning, and effect of this Agreement
shall be determined in accordance with the laws of the State of :Idaho,
l7. Representations ofParties..
(a) District.. The District represents and warrants :that: (i) it is an irrigation
district organized and existing under and by virluc of the laws of the State of Idaho; (ii) it has
the capacity and al legal rights necessary to enter into and perform the Di trio's obligations
under this Agreement; (%ii) all organizational and other actions required to authorise the District
to enter into and perfor~. this Agreement have been properly taken; and (iv) this Agreement has
been properly executed and delivered by the District and is valid and binding upon. the District
in accordance with its terms,
{b) Licensee. Licensee represents and warrants that: (i) it has the capacity to
enter into. and perform its obligations under this Agreement, (ii) all actions required to authorize
Licensee to enter into and perform th%s Agreement have been properly taken; (iii) it has
U'TTLITY LICENSE AG~tEEN~ENT ~ ~ CLIENT:573845.4
RevisEd 413f08
obtained all permits, licenses, and acknowledgments required to conduct the activities to be
performed under the terms of the Agreement; (iv) this Agreement has been ro erl executed
p p Y
and delivered by the Licensee and is valid and binding upon the Licensee in accordance with its
terms; and (v) (check one of the following, if applicable):
[~ Licensee is an Idaho municipal corporation incorporated and in good
standing in the State of Idaho.
D
Licensee is a
and is in good standing in the State of
Licensee is a
and in good standing in the State of
incorporated or organized
18. Notices. All notices permitted or required to be given under the terms of
this Agreement shall be in writing and shall be deemed effective upon receipt if sent by first
class mail, postage prepaid, and addressed to the respective party hereto as follows, or at such
other address as a party designates in writing.
SETTLERS IRRIGATION DISTRICT
Post Office Box 7571
Boise, Idaho 83707
City of Meridian
Name
33 East Broadway Avenue
Address
Meridian, Idaho 83642
City, State & Zip Code
19. Recordin .This Agreement shall be recorded at the Ada County
Recorder's Office.
partnership established
[Signature Page Follows]
UTILITY LICENSE AGREEMENT - 8 CLIENT:573845.4
Revised 4/3108
ZN V~ITNESS w~IE~F, the parties hereto have executed this Agreement the
date first set fortih :above.
SETT ERS IRRIGATION ISTRICT
F r
By
Attest:
Secretary
City of Meridian
(name ~f ,icensee}
~/'
'~~'~''/
y
Tammy de W
its Mayor
President of its Board o~Directors
UT~.,ITY LICENSE AGREEMENT - ~ CLIENT:573845.4
Revised 413108
STATE OF IDAHO )
ss.
County of Ada )
On this da of h~C 20
..~... Y ~, before me, th undersi ed
Notary Public in and for the said state, personally appeared
known or identified to me to be the President of. SETTI.~RS IRRI~ATx(?N DISTRICT the erson
p
who e~ecutcd the instrument on behalf of SETTLERS YRRIGATIQN DISTRICT, and
acknowledged. to me that SETTLES IItRY~ATY(}N DYS'i'1tIC'1' executed the same.
IN WITNESS U4'HEREt~F, I have hereunto sc~ my hand and affixed my official
seal the day and year in this certiCcate first .above written.
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STATE OF 1DAH0 )
ss.
County of Ada )
(Jn this " da of ~~U~ .
y , 2Q~~, be re mc, the undersigned
Notary Public in and for the said state, personally appeared a l'~6 ,
known or idcnti~ed to me to be the Secretary of SETTLERS IRIIY~ATIQN DISTRICT, the erson
P
who executed the instrument on behalf of sETTLERS IRRI~ATI~N DISTRICT, and
acknowledged to me that ~ETTL~RS IR1IhGAT101~ DISTRICT executed the same.
IN '~UITNI~SS wHEREC3F, I have hereunto set my hand and affixed my official
seal tho day and year in this certificate first above written.
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UTIIIITX LICENSE A,GREEIVIENT -10
Revised 4t31~8
CLIENT:573845.4
STATE OF ~~~_)
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County of )
On this ~ da
~ y of , 20 ~?, before me, the undersl ncd
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Notary Public ~n and for said state, personally appeared Tammy. de Weerd ,known:
or identified to me to be the Mayor of City of Meridian
who is the person who executed the instrument ~n behalf of Ci of M ri ' i
ty e dean
and acknowledged to me that City of Meridian ,executed the same.
IN WITNESS WHEREOF, I have hereunto -.set my hand and aff xed my official
seal tl~e day and year in this certificate first above written.
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UT~ZTY LYCENSE AGR~~M~NT - ~ ~ CLIENT:573845.4
Revised. 4l3/OS
~~HIBIT A
Legal Description of
sewer line
~rossin~s
Southwest Quarter of Section 6, Township 3 North, Range 1 East,
Ada County, Idaho
~~~BI~' A
CLIENT:573845.4
EXHIBIT B
Engin~cring Plans :and. Spccifeations
Please refer to the following plans prepared by Civil Survey Consultants for
the City of Meridian:
Sheet 10 -water and Sewer Improvements, dated November 2011
EXHIBIT B
CLIENT:573845.4
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~H~BIT C
Clean water Act Section 404 Permit Certification
The undersigned represents he/she is a duly authorized representative. of
City of Meridian
("Licensee"}, and hereby certifies that a
(name of I.iccnsee}
Glean Water Aet Section 404 Permit is not required :for Licensee's
sewer line crossing
{description of crussin~(s}~
C~OSSing{S} of the Settlers Southside Canal , for the following
(namc of canal, l~tcral, or ditch
reason:.
Q The crossings} contemplated under this Agreement will be overhead
crossings and will. not include any .excavation in or around ar any
discharge of dredged or fi11 material into the District's Facility.
Licensee will use the "boring" method of construction which will not
include any excavation in or around or any discharge of dredged or fill
material into the District'-s Facility.
The Settlers Southside Canal iS eXstirig
name of c~na , atera , or itc
piped Facility, thus, any :construction impacting the. facilt~r will not
include any discharge of dredged or dill material into the facility..
The crossin~~s}contemplated under fihis Agreement will be inserted into
existing conduit crossings} of the Settlers Southside Canal
tnamc ofcanal, lateral, or ditch}
Q Licensee is in receipt of a Ci~an Water Act Section 404 Permit
exemption letter From the united States Army Corps of Engineers
attached hereto}.
DATED THIS day of _ , 20
City of Meridian
(name of I.iceilsec)
~y
Wlitten ~~.Tne:
Authorized'I'tle:
E~~~' C
Cllf NT:573845.4