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License Agreement with Nampa Meridian Irrigation District NMID for Site 13 Project Rutledge LateralADA COUNTY RECORDER Chrisfophar D, Rich .AMOUNT .q0 10 BOISE IDAH011108112 08:08 AM QEPUTY Bonnie Oberbillig III I'II'IIIIIIII'I'I'I'IIIIIII~I'I'll RECORDED-REQUEST OF 11 ~ 11 r ~~ Nampa Meridian Irrigation Disl n~ncCnAC1~iT ~ ~ ~`~ a~1d This AGREEMENT, is made a11d entel•ed into this ~ day of . ~Ol ~, between NAMPA & MER:(D7AN IRRIGATION DISTRICT, aI1 1rrlgatlon district organized and exlstlllg antler and by viI•tue of the laws of the State of Idaho, llereinai~ter referred to as the "District", and CITY OF MERIDIAN, 33 East Broadtivay, Meridian, ldallo 8364? Il~:i'eln~f~tel' referred to as the "City", WITNCSS~TN: W1-1:EREAS, the District owns the irrigation ditch known as the RUTLEDGE LITERAL, an integral part oFthe irrigation and. drai~lage works alld system of the District, together ~ti~Ith the easement therefor to convey irrigatiotl water, to operate, cleaal, nlaintaill, alld 1'epall' the Rutledge Lateral, and to access the Rutledge Lateral foI' Those p1.Irposes; and, W1-(ERF~S, the District operates, cleans, maintains, repairs and protects the Rutlerlbe Lateral for the benei~it o1~ District's IalldO~~'llel'S; and, WI-ICRE~S, t11e City owns aI7 easenlellt or easements, particularl}r described in the "Leal Description" atta.clled hereto as :Exhibit A and by this reference made a part hereof, for replacement., construction., operation alld maintenance of aI1 existing sewer 111a111 yv1t11111 alld/01' across the road rights-o~t= way i~or Williams Street, I{inb Street a11d Mails Street in Meridiln, Idaho; and, W1-(ERE~IS, the R~rtledge Lateral cI•osses alld intersects the alley bct~veeil E,. ~1da Street ~~nti C. lung Street and the City's easenlent(s}described in Exhibit A as shown on Exhibit B, attached hereto and by this rel~~rellce made a part 1lereof; and, WI]CRE~S, the City desires permission t0 I'eplace a sewer plain ~Inder and across the Rutledge Lateral andlor the District's easement under the terllls and conditions of this ~grcenlent, within the City o~l' N(el•idian, ~1da Co~Inty, Idaho; anal NOW, T}-i~ER:CFORE, for and in collsideratioll o~t~the premises and ol'the covenants, agreements and conditions hereinaf~tel' set forth, the parties agree as follows: A. Scope of A~r•eement 1. The City shall have file right to cross file RutledgeLateral ar encroach upon the District's easement for the Rutledge Lateral i~n the I1lanner described in the "Purpose of ~lgreenlent" attached hereto as AGRE~MLNT -Page I easement for the Rutledge Lateral in the manner described in the 'Twpose of Agreement" attached hereto as Exhibit C and by this reference made a part hereof. 2. Any crossing, encroachment upon or modification of the Rutledge Lateral 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 Agreement," and any plans or drawings referenced in or attached to Exhibit ll shall be resolved in favor of Exhibit C. The City shall only be permitted to cross, encroach upon or modify the Rutledge Lateral and/or the District's easement as described in Exhibit C even if any plans or ch'awings referenced or attached to Exhibit D provide or show otherwise. Each installed facility shall be subject the conditions of this Agreement and the City shall have access to repair, maintain, or replace said facilities as needed. 3. This Agreement pertains only to the City's encroachment upon the Rutledge Lateral and/or die District's easement for the purposes and in the manner described herein. The City shall not excavate, dischv'ge, place any structures, nor plant any trees, shrubs or landscaping ~a~ithin the District's easement, nor perform any construction ot• activity within the District's easement for the Rutledge Lateral except as referred fo in this Agreement without the prior written consent of the District. 4. The City recognizes and aclarowledges that the permission granted by this Agreement pertains only to the rights ofthe District as owner ofan easement. "the District has no right or power to create rights in the Ciq~ 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 City from the holder oftitle to the property. Should the City fail to obtain such rights from the holder oftitle to the property ar should the rights obtained prove legally ineffectual, the City shall indemnify, hold harmless, and defend the District from any claim by viy party arising out of or related to such failure of rights and at the option of the District this Agreement shall be o1' no force and effect. C. Tacility Construction, Operation, Maintenance and Repair 1. The City agrees that Lhe wort: performed and the materials used in any construction permitted by this Agreement shall at all. times be subject to inspection by the District and the District's engineers, and that final acceptance of the such wort: shall not be made until all such wort: 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 Agreement means any o~jecf or thing installed by Lhe City on, over or in the vicinity ofthe District's easement) shall be constructed, installed, operated, maintained, and repaired al all times by the City at the cost and expense of the City. 3. The City 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; b. an interruption or interference with the flow of irrigation or drainage water in the Rutledge Lateral or the District's delivery of irrigation water; a 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 t» access, operate, clean, maintain, and repair the Rutledge Lateral; f. any other damage to the District's easement and irrigation or drainage works. AGREEMENT -Page 2 4. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph, 3.a. through 3.f., or any other damage to the easement and irrigation wa•ks which stay be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any facility. 5. The City shall, upon demand of the District, remove any facility or repair any alteration of the District's easement which interferes with the District's operation and maintenance of the Rutledge Lateral, or causes or contributes to any ofthe circumstances enumerated in the preceding paragraph, 3.a. through 3.f. The District shall give reasonable notice to the City, and shall allow the City a reasonable period of time to perform such maintenance, repair, and other vvork, except that in cases ofemergency the District shall attempt to give such notice as is reasonable under the circumstances. The City steal I respond within 24 hours to begin repair or remediate any interference with the District's operation and maintenance of the Rutledge Lateral. The District reserves the right to perform any and all work which the City fails or refuses to perform within a reasonablc period of time after demand by the District. All work performed shall be performed iu moaner required by Idaho law, including but not limited to the use of licensed public worts contractors and engineers and the performance standards as required by law and ordinance. The City 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 City or any third party against the District for failure to exercise the options stated in this paragraph, and the City shall indenut ify, hold harmless and defend the District from any claims made against the District arising out of or relating to the terms of Phis paragraph, except for claims v ising from any work which unreasonably exposes the District's employees and agents to the risk of harm from electric power lines, or arising solely but of the negligence or faidt of the District. b. District's Rights Are Paramount I . The parties hereto understand and agree that the District has uo right in any respect to impair the uses and purposes of the irrigation or draiuage works and system of the District by this 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 Agreement shall be at all times construed according to such principles. 2. Nothing herein contained shall be constued to impair the Rutledge Lateral or the District's easement, and all construction and use of the District's easement by the City and the permission herein provided therefor shall remain inferior and subservient to the rights of the District to the use of the Rutledge Lateral for the transmission and delivery of irrigation water or transmission of drainage water. 3. The City agrees that the District shall not be liable for any dvnages which shall occur [o any facility in the reasonablc exercise of the rights of the District in the course of perFormvtce of maintenance or repair of the Rutledge Lateral. 4. In the event of the failure, refusal or neglect of the City to comply with all of the terms and conditions of this Agreement, the permission granted to the City under the terms hereof may be terminated by the District, and any facil ily, structure, plant, or any other improvement in or over the ditch, and the right of way therefor, which may unreasonably and materially interfere with the maintenance and operation oFsuch Rutledge Lateral by the District with ifs equipment for the maintenance of the Rutledge Lateral shall be promptly removed by the upon demand of the District. AGREEMENT -Page 3 1J. Applicable Law and Jurisdiction Unaffecte[l. 1. Neither the terms of this Agreement, the permission granted by the District to the City, the City's activity which is the subject ofthis Agreement, ^or the parties exercise of any rights or performance of any obligations ofthis Agreement, shall be construed or asserted fo 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 ditches, drains, irrigation works and facilities which did not apply to the District's operations and activities prior to and without execution ofthis Agreement. 2. In the event the District is required to comply with auy such requirements or is subject to the jwrisdiction of any such agency as a result of execution ofthis Agreement or the City's activity authorized hereunder, Cityshall indemnify, hold harmless and defend the Districtfrom all costs and liabilities associated with the application of such laws or the assertion of such jurisdiction and the City shat l cease the activity and remove the facility which subjects the District to such requirements. b'. htdemniticatian and Hold Harmless 1. In addition to alt other indemnification provisions herein, City 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 City or its agents, conh•actas or subconL'actors in performing the construction and activities autlorized by this Agreement. G. Fees an[l Costs 1. The City agrees to pay to the District fees and costs incurred by the District for work necessary to prepare this Agreement. The amount shall not exceed $500.00 without the additional consent of the City. 2. Should either party incur- costs or attorney fees in connection with efforts to enforce the pl'OViSlOnS of this Agreement, whether by institution of suit or not the prevailing party in case suit is instituted, shall be entitled to reimbwsement for its costs and reasonable attorney fees from the other party. H. Miscellaneous I . No Claims Created. Nothing in this Agreement shalt create or support a claim of estoppel, waiver, prescription or adverse possessimt by the City or any third party against the District. 2. Assienment. Neither this Agreement nor any agreetnent entered pursuvtt to this Agreement may be assigned or h•ansferred without the prior written approval of the Parties, which approval shall not be unreasonably withheld. 3. Amendment and Modification. Any amendment or modification ofthis Agreement must be in writing and signed by all parties to be enforceable. 4. Interpretation. This Agreementshall be interpreted and enforced in accordance with the laws of the Stxte of klaho. This Agreement is not intended for the benefit of any third party mtd is not enforceable by any third party. If any provision ofthis Agreement is determined by a court ofcompetenf jurisdiction to AGREEMENT -Page 4 be inVahd 01' OtherwlSe u11e11f01'Ceable, all 1'e111a1n111g pl'oV151011S of this Agreement 5l1aII l'elllalll In full fol'Ce and effect, The parties represent alld wai•1'ant to each other that they each have authority to enter this Agl'eenleilt. The catchlilles ol• section 1lcadings herein Set fol'tll al"e pl'oVlCled 0111y fol' file C011Venlellce 0'f the paI'tles IIl locating Val'i011S provisions of tills Agl'eelllellt, and are not intellCled tC) be aJCIS 111 llltel'l)1'etati011 Of a11~~ pI'oVIS1011 of t11iS Agreenlellt W1tI1 respect to which the parties might LllSagl'ee at Soille ftltttl'e tulle, a11C1 S11a]I IIOt be COilsldcl'ed 111 ally ~Vay In Illterpretlllg or C011St!'lling ally 1)l'oVIS1011 0~1~ file A`l'eelllellt. ~, Q111d~ffeCt. The COVellallts, conditions and agreements herein ContalneCl shall COIIStltllte COVel1ailtS t0 i'liI1 \Vltl1, al1CI i'111111111g Wltll, the easement(S} of the Clt}~ CleSCi'lbed he!'elll, alld Shall be blllChilg 011 caCll of file l)al't1eS hel'et0 and 011 all parties all(l fill pel'S011S CIa1111111g llildel' thelll or elthei' Oftllen1, Ind the aClV~llltageS 11e1'cof shall inlll"e to the belle~i:lt o~~ eaCll of the parties hereto alld tllelr i'espl',ctive s~lCCessol"s and aSSIgnS. 6. Notices. Any a11d all notices, demands, consents and approvals required p~lrsuallt to this A`~reenlellt shall be clelivered to the parties as follo~~s: Nampa c~; iVlel•itlian Irrigation District City of Meridian 525 East GI•eellhurst 3a C.13road~vay Nill1lpa, ID 83GSG Mel'idlan, Idaho 5364? .Notices shall be deeilled to 11ave been delivered l1pC)11 ha11Cl de()oslt lil the Uillted States mall as {al'OV1CIeCl abOVe. 7, Coilnterpal•ts. This Agree111ent 111ay be executed alld delivered in counterparts, each of ~vhicll shall be deemed to be all original and all of ~vllich shall constitute one and file same instrunleilt. IN V~~ITNESS WI-IEREGF, the District has Ilereunto GatISeCI it511a111e t0 be Sl1bSCl'ibed by its ofi~icers iil'st heI'e~111t0 duly authori~;ecl by resolution of its Board of Directors and the City has caclsecl its coi'{)orate nallle to lie subscribed by it:s duly alltllorizecl officer, all as of the day and t'eal' herein f~lrst above ~vritteil. ~i~~,t ~ ~~~ i ~~ ~ ~~ ~~ ~ ~ ~ ~C~. ~. ,~~,„ V NAMI'A & MERLDIAN IRRIGATION DISTRICT E3y Its President ~ y y v 1 its Sl,l,i'etdl'~' AGRLI~MI~NT -Page 5 CITY ~Ii MERIDIAN ~.~~uJ ATT.CSr1,. i t 5`~~~C~ItI' sTATE or ioA[-1Q ss: Co~111ty o~l' Canyon } [ts Mayor ~o~P~eD A ~~U~r G4~ ~'~~ pll~ Cl~ Of E ~~7IAN~- IbANO w~ a~ ~` ~~ 4~' ,~..~,,..~.. ° t ~ c 1 ~ ~ ~ ~~a On this ,~ day o~F' , 2012, before me, the undersi~neci, a Notary Public in ~~ncl ~#or~: aid State, ~el•sollally appealed Clinton C. Pline and Dann Coon, kno~.Vn to n1e to be the President I ~~nd Sei~~etary, respectively, of'NAMPA ~~ MERIDIAN IRRIGATION DISTRIC~i",the irribatio~n district that t'\l'CUtC~I 1'he ~~01'e~~?0111~ i11StrCln1e11t a11C1 aCIC11oWICCIaCCI t0 I11e that Such I1'1'I~at10n CIIStI'ICt exeCUtecl the S1nle. IN WITNCSS 1~l:lERE0F,1 Have hereunto set n1y hand and a~t~f~ixed my o~~ficial seal, the day a11C1 yeal• 111 tI11S Gel•tLrCate ~~ 11'st above ~Vrllten. ~~~~~®~~1~~6~g~Q0® ~~~ ~~ °~~~' © Notary Public for Isiah `~ ~~~ ~ ~~ ~ a r Idaho ~, ~ a ReSldlll~, at 1 , .~ ~ ~ ~ My Con11111SSlon ~Xpll'CS: c ~ ~ ~ ~ ~ sTAT~ or IDAI ) ~~,®~®~ ~~ ®®~~ 5~. ~~~~~~~~~~~~ Co~inty of 7 On this da of ~ ~ ~ , 201 ?, before n1e, the unClersi~ ned, ~ notary publ is ~.~ y _ ~ lil and X01' said state, personally appeared ~~.~..- and ~.C~[ ~, on ~ I~no~Vn 1:o n1~ to be the ~~~ Z~~ allc[~ r ~ `' ~ of the CITY OF MERfDIAN, the entity ~ .~ a that. ~xecuterl the fole~o111~ lnstr~lnlellt, alld acl~ll Wledbeci to 111e that Su~ll elltltti e\c.CUleci the Sa1111.. IN WITNESS WI-IERE~h', I Have hel•eunto set my Hand and at~il~ed n1}~ oti~lclal seal, the clay and year in this ceriifiicate i~lrst above ~~vritten. '~ ~' ~ ~~ .~ ~. h J ~' L.CJ~..I ~ l --- -~- r. Notary Public for `~` f ~ ~,,.~..~. ~~ Residing at , s ' .~„~~. My Con11111SS1011 . lpli'es: ~~~,~. ~ ~' ~C,~ ~1 EXHIBIT A Legal Description An easement or easements for a sewer main, located within the road rights-of--way for E. Ada Street, E. King Street, Main Street and an alley behveen E. Ada Street and E. Icing Street in the SW '/a SW '/~ of Section 7, To4vnship 3 North, Range 1 East, B.M., Meridian, Ada County, Idaho. EXHIBIT C Purpose of Agreement The purpose of this Agreement is to permit the City to replace and construct within the City's easement a sewer main crossing under the Rutledge Lateral, to be installed a minimum oftlvee (3) feet under and across the Rutledge Lateral and the District's easement, where the City's easement intersects the Rutledge Lateral in Meridian, Ada County, Idaho. EXHIBIT D Special Conditions a. The construction described in Exhibit C shall be in performed in accordance with Exhibit D-l, attached hereto and by this reference incorporated herein. (The plans submitted to the Disc icl by the City identified the Rutledge Lateral as "Nine Mile Creek." In Exhibit D-l ,the plans have been amended by the District's Water Superintendent to identify the Rutledge Lateral). b. The City shall notify the District's Water Superintendent prior to and iuunediately after construction so that he and/or the District's engineers may inspect and approve the consh action. o. The City shall repair any damage to the Rutledge Lateral pipeline caused by the construction authorized by this Agreement. The City shall immediately notify the District's Water Superintendent of such damage so that he may approve or verify the adequacy of the repairs. Such repairs may require replacement of damaged pipe. d. The City represents that City has complied with all federal, state or other laws, rules, regulations, directives or other requirements in any form regarding environmental matters, and specifically those relating to pollution conh~ol and water quality, as may be applicable under the subject matter, terms or performance of this agreement broadly conshved. The City recognizes its continuing duty to comply with all such requirements that now exist or that may be implemented or imposed in the firture. 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 the City which is the subject of this agreement. e. The parties to this agreementrecognizethatthisagreement is au accommodation to the City. The District by this agreement does not assume, create, or exercise legal or other authority, either express or implied, to regulate control, or prohibit the discharge or contribution of pollutants or contaminants to the District's facilities or to any groundwater, waters of the State of Idaho or the United States, or any other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental environmental agencies. f. Consh~uction shall be completed prior to Maceh 15, 2013. Time is of the essence. 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I fr I M4N SIPECT . '.II: { &~- ~ C~`~ S # ~ $ ~ & 6 +~ n AN y ~ CITY OF MERM CIVIL SURVEY CCNSTILTANT3, INC. y ~ wm susvc(ors coxsuxnxc mcMava c ~ Rx SEWER MAIN REPLACEMENT SITE #13 ~ ~ ~~ r A ~ ro`O ' PLAN AND PROFILE c` m m:"~~i" i n Exhibit b-1, page 2