Easement - Church of the Nazarene / Dry Creek - 5/23/2017ADA COUNTY RECORDER Christopher D. Rich 2017-052948
BOISE IDAHO Pgs=14 BONNIE OBERBILLIG 06/12/2017 09:40 AM
EAGLE CITY NO FEE
1111111 11 IIIIIIIIIIIIIIIII II IIIIIIIIIIIII 1111 I III
00372683201700529480140143
LICENSE AGREEMENT
This LICENSE AGREEMENT, is made and entered into this o7 B day of _� , 2017,
by and between BALLENTYNE DITCH COMPANY, a duly organized and existing Ida o Eorporation and
ditch company under and by virtue of the laws of the State of Idaho, hereinafter referred to as the "Ditch
Company", and
CITY OF EAGLE,
660 E. Civic Lane, P.O. Box 1520, Eagle, Idaho 83616
hereinafter referred to as the "Licensee",
WITNESSETH:
WHEREAS, the Ditch Company owns the irrigation ditch or canal known as the BALLENTYNE
DITCH (hereinafter sometimes referred to as "ditch or canal"), an integral part of the irrigation works and
system of the Ditch Company, together with the easement therefor to convey irrigation water, to operate,
clean, maintain, and repair the ditch or canal, and to access the ditch or canal for those purposes; and,
WHEREAS, the Ditch Company operates, cleans, maintains, repairs and protects the ditch or canal
for the benefit of Ditch Company shareholders; and,
WHEREAS, the Licensee is the owner of of real property/easement for a public multi use pathway
that is servient to the Ditch Company's ditch or canal 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 canal crosses and intersects the real property/easement described in Exhibit
A as shown on Exhibit B, attached hereto and by this reference made a part hereof; and,
WHEREAS, the Licensee desires a license to cross, encroach upon or modify said ditch or canal
and/or the Ditch Company'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 Ditch Company's Easement.
1. Licensee acknowledges that the Ditch Company's easement for the ditch or canal includes
a sufficient area of land to convey irrigation and water, to operate, clean, maintain and repair the ditch or
canal, and to access the ditch or canal for said purposes, and is a minimum of 50 feet, 25 feet to either side
of the centerline of the Ballentyne Ditch.
LICENSE AGREEMENT - 1
B. Scope of License
1. The Licensee shall have the right to modify the ditch or canal or encroach upon the Ditch
Company's easement along the ditch or canal 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 canal and/or the Ditch
Company'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 canal and/or the Ditch Company'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 canal and/or the Ditch Company'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 Ditch Company's easement, nor perform any construction or activity within the
Ditch Company's easement for the ditch or canal except as referred to in this License Agreement without
the prior written consent of the Ditch Company.
4. The Licensee recognizes and acknowledges that the license granted this License Agreement
pertains only to the rights of the Ditch Company as owner of an easement. The Ditch Company has no right
or power to create rights in the Licensee affecting the holder of title to the property subject to the Ditch
Company'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 of title to the property or
should the rights obtained prove legally ineffectual, Licensee shall hold harmless, indemnify and defend the
Ditch Company from any claim by any party arising out of or related to such failure of rights and at the
option of the Ditch Company 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 Ditch Company and the Ditch
Company's engineers, and that final acceptance of the such work shall not be made until all such work and
materials shall have been expressly approved by the Ditch Company. Such approval by the Ditch Company
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 Ditch Company'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 Ditch Company's easement so as not to constitute or cause:
LICENSE AGREEMENT - 2
a. a hazard to any person or property;
b. an interruption or interference with the flow of irrigation water in the ditch or canal
or the Ditch Company'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 Ditch Company's use of its easement to access, operate,
clean, maintain, and repair the ditch or canal; and
f. any other damage to the Ditch Company's easement and irrigation works.
4. The Licensee agrees to indemnify, hold harmless, and defend the Ditch Company 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 3.f., or any other damage to
the easement and irrigation 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 Ditch Company, remove any facility or repair any
alteration of the Ditch Company's easement which interferes with the Ditch Company's operation and
maintenance of the ditch or canal, 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 irrigation works. The Ditch
Company 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 Ditch
Company shall attempt to give such notice as is reasonable under the circumstances. The Ditch Company
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 Ditch Company. The Licensee agrees to pay to the Ditch
Company, on demand, the costs which shall be reasonably expended by the Ditch Company 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 Ditch Company for failure to exercise the options stated in this paragraph, and the
Licensee shall indemnify, hold harmless and defend the Ditch Company from any claims made against the
Ditch Company arising out of or relating to the terms of this paragraph, except for claims arising solely out
of the negligence or fault of the Ditch Company.
D. Ditch Company's Rights Are Paramount
1. The Licensee understands and agrees that the ditch or canal is a manmade channel that was
constructed and is used and maintained by the Ditch Company for the exclusive purpose of delivering
irrigation water to lands within the Ditch Company's boundaries. As such, Licensee further acknowledges
and agrees that the ditch or canal does not constitute a natural or navigable watercourse or stream.
2. The parties hereto understand and agree that the Ditch Company has no right in any respect
to impair the uses and purposes of the irrigation works and system of the Ditch Company by this License
Agreement, nor to grant any rights in its irrigation works and system incompatible with the uses to which
such irrigation 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 canal or the Ditch
LICENSE AGREEMENT - 3
Company's easement, and all construction and use of the Ditch Company's easement by the Licensee and
the license herein provided therefor shall remain inferior and subservient to the rights of the Ditch Company
to the use of the ditch or canal for the transmission of irrigation water.
4. The Licensee agrees that the Ditch Company shall not be liable for any damages which shall
occur to any facility in the reasonable exercise of the rights of the Ditch Company in the course of
performance of maintenance or repair of the ditch or canal. The Licensee further agrees to suspend its use
of the said easement areas when the use of the easement areas is required by the Ditch Company 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 Ditch Company, and any facility, structure, plant, or any other improvement in or over the
canal or ditch, and the right of way therefor, which may impede or restrict the maintenance and operation
of such ditch or canal by the Ditch Company with its equipment for the maintenance of the ditch or canal
shall be promptly removed by the Licensee upon demand of the Ditch Company.
E. Applicable Law and Jurisdiction Unaffected.
1. Neither the terms of this License Agreement, the permission granted by the Ditch Company
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 Ditch Company's ownership, operation,
and maintenance of its ditches, canals, works and facilities which did not apply to the Ditch Company's
operations and activities prior to and without execution of this License Agreement.
2. In the event the Ditch Company 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 Ditch
Company from all costs and liabilities associated with the application of such laws or the assertion of such
jurisdiction or, at the option of the Ditch Company, 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
I. In addition to all other indemnification provisions herein, Licensee further agrees to
indemnify, hold harmless and defend the Ditch Company from any injury, damages, claim, lien, cost and/or
expense (including reasonable attorney's fees) incurred by, or asserted against, the Ditch Company 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
LICENSE AGREEMENT - 4
the Ditch Company or by the engineers for the Ditch Company in connection with the negotiation and
preparation of this License Agreement. Licensee also agrees to pay any recording fees incurred to record
this License Agreement or any other documents relating to this 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
parry.
H. Miscellaneous
1. 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 Ditch
Company.
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 ofthis License Agreement
must be in writing and signed by all parties to be enforceable.
4. Interureted. 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 ofthis 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. Binding Effect. 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:
Ballentyne Ditch Company See page 1 for Licensee
P.O. Box 1151
LICENSE AGREEMENT - 5
Eagle, ID 83616
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 Ditch Company 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 name to be subscribed, all as of the day and year herein first above written.
ATTEST;
BALLENTYNE DITCH COMPANY
By d
Its 8p�/e#i y& 9,41 C6. r'reaLsV,._
CITY OF EAGLE
By
7-24
LICENSE AGREEMENT - 6
STATE OF IDAHO )
ss:
County of 4G6
-
S1"
On this day of
and for said State, personally appeared
to me to be the v -
17, before me, the undersi ned, a Notary Public in
Sc,04 1-NCL,""k" and fi known
and (NJ 6-- of BALLENTYNE DITCH
COMPANY, the Ditch Company that executed the foregoing instrument and acknowledged to me that such
Ditch Company 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.
h
STATE OF IDAHO
) ss:
Notary Public for Idaho
Residing at $ , Idaho
My Commission Expires: 1— OA- Z l
County of Ada )
On this g day of /111 , 2017, befo e me, eu dersigned, a Notary Public in
a d for said State, personallypeared 44 ,'11£�`� and
far kok-a n known to me to be the and
ati- of the CITY OF EAGLE, the entity that executed the foregoing instrument and
ack owledged to me that such entity executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
and year in this certificate first above written.
LICENSE AGREEMENT - 7
Notary Pub
Residing a
My Commission
Idaho
xpires:
o?a
, the day
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EXHIBIT A
Leual Description/Easement
Licensee has been granted an Easement for a pubic multi use pathway via a certain Permanent
Easement Agreement which has been recorded as Instrument No. 2016-116293 in the Records of Ada
County, Idaho. The location of said Easement is depicted in Exhibit A-1 attached hereto and by this
reference incorporated herein.
EXHIBIT B
Location of Ditch/Property
The location of the Ditch and Licensee's Easement are generally depicted in Exhibits A-1 and D-1.
EXHIBIT C
Purpose of License
The purpose of this License Agreement is to permit Licensee to:
1. construct, install, operate and maintain a 10 foot wide multi use pathway across and over the
Ballentyne Ditch (which has or will be piped in 48" RCP at this location) and within the
Ditch Company's easement,
all within Licensee's real property/easement described in Exhibit A, located at the Church of Nazarene of
Eagle Idaho, located on the east side of Dry Creek and northeast of the intersection of Dry Creek and
Highway 44 in Eagle, Ada County, Idaho. No other construction or activity is permitted within or affecting
the ditch or canal or the Ditch Company's easement.
EXHIBIT D
Special Conditions
a. The construction described in Exhibit C shall be in performed in accordance with certain
plans attached hereto as Exhibit D-1 and by this reference incorporated herein. Licensee's construction is
being coordinated with the piping of the Ballentyne Ditch by the Church of Nazarene of Eagle Idaho which
has been previously authorized via a 2008 License Agreement between the Ditch Company and the Church
of Nazarene of Eagle Idaho. Licensee's pathway will be constructed after the piping is completed by the
Church of Nazarene and over the pipe installed by the Church of Nazarene.
b. Licensee shall notify the Ditch Company prior to and immediately after construction so that
the Ditch Company or the Ditch Company's engineer may inspect and approve the construction.
c. Licensee acknowledges and agrees that should the improvements, pathway or other
encroachments need to be removed in order for the Ditch Company to access, operate, maintain or repair the
ditch or canal, it shall be Licensee's obligation and cost of removing or replacing the improvements, pathway
and/or encroachments. Licensee further agrees that the Ditch Company shall not be liable for any damages
which shall occur to the improvements, pathway or other encroachments in the reasonable exercise of the
LICENSE AGREEMENT - 8
rights of the Ditch Company in the course of performance of maintenance or repair of the ditch or canal.
d. Licensee represents that Licensee 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 control and water quality, as may be applicable under the subject matter, terms
or performance of this 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 Ditch Company 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.
e. Licensee hereby indemnifies, holds harmless and shall defend the Ditch Company 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 Ditch Company shall be solely responsible for the condition or
activity which gives rise to any such penalty, sanction, directive, claim, action or requirement.
f. In the event the Ditch Company is required by any governmental authority to acquire or
comply with any permit or other operational requirements associated with Licensee's activity which is the
subject of this agreement, Licensee shall indemnify, hold harmless and defend the Ditch Company from 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.
g. The parties to this agreement recognize this license agreement is an accommodation to
Licensee. The Ditch Company 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 Ditch Company'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.
h. All construction authorized by this Agreement shall be completed within two years of the
date of this Agreement. Time is of the essence.
LICENSE AGREEMENT - 9
SKETCH FOR LEGAL SHIT
PARCEL A
A PARCEL OF LAND BEING A PORTION OF THA' PARCEL loAwLiiib IN
WARRANTY DEED INSTRUMENT NO. 103213617
LOCATED IN SEI/4 SW1/4 SECTION 8, T. 4 N., R. 1 E , BOISE MERIDIAN,
CITY OF EAGLE, ADA COUNTY, IDAHO
2016
N25'40'27'
41.20'
4 111
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9,568 s.f. 141
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CURVE TABLE
CURVE g DELTA RADIUS LEN0111 04. MARINO CH. M.
C1 0'33'25" 2221.83 21.59 11891112"W 21.59
C2 38'4212 10.00 176 112010'42'E 6.83
C3 12'2910' 90.00 19.63 651521'W 19.59
I C4 153500" 74.72 20.32 N31246'W 20.26
C5 5'03'10' 240.00 21.18 617509'E 21.16
06 2648'53' 70.00 32.76 N1216'00'E 3246
C7 12'57'43" 290.00 65.61 61911'351 65.47
08 12'4914' 310.00 69.43 S1915301W 69.28
C9 2548'53' 50.00 23.40 5121610"W 23.19
CIO 511310' 260.00 22.93 S12119"W 22.92
C11 153500" 54.72 14.88 S352'461 14.84
C12 12'2410' 110.00 23.99 S53521"E 23.95
C13 1131'38' 30.00 6.04 5835'22W 6.03
POOA'O7
SH -44 81088110
-801411"E 88.88'
_ 1403.17' 1293.62'
SW CORNER N89 �5'38°W 2696.79' POINT OF
SEC77ON 8 COA&&VC EVENT
31/4 CORNERITON
SECTION 8
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2141 W.Alipst_WYI, 81s104
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2083424400
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Exhibit A-1, page 1
NOT TO SCALE
A FARCE,
LOCATED IN
N20 48'28'E
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8831155E
CO
SKETCH FOR LEGAL EXHIBIT
PARCEL B
OF LAND BEING A PORTION OF THE PARCEL DESCRIBED IN
WARRANTY DEED INSTRUMENT NO. 104128261
SEI/4 SWI/4 SECTION 8, T. 4 N., R. 1 E., BOISE MERIDIAN,
CITY OF EAGLE, ADA COUNTY, IDAHO
2016
/POM GY
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NOT TO SCALE
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EDGE OF PATH
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PATH COMMUNE
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I MAINTENANCE AREA
PERMANENT EASEMENT AGREEMENT - EXHIBIT D
DRY CREEK PATHWAY
NMM.OM a =DOM MAW WO Wei=10I. 1
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PROJECT NO.
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(86:.-050 SP 6001 BARRIER
130 FT, So,I7•50 to 313 16.55. tt,
130 FT, Sto 20-50 13 21.50, O.
(73:12-05-t65.5 6HARE0115F PATH
523 57, Sta. !7-50 514 22-20.
• Rt.
3.• 23'57'23" 11
1• 12,13'
• 2539'
R. 613.65"
'16' 27,565 24,91.
Pi•1. 739.508 07
E 2.461.404.52
2.• 25- 2.4 2t'• Rt
T. 13.71'
• 23.95
R- 50 00'
0• 3.15'3427'W 25 73
RI• N 730,621.32
E 2,461.392 03
RFV:STO r3R 8.,..5.1.,7.3.TYNF CANAL
L !ANSE AGREEME.NT
2552
T10 E gr:AVAT iON. 32! CY
T.1 FLO 459
2550
pRa1,13014AltsTek
2:-00
Kr:E3:2
F S EET Wngiish
DRY CREEK TRAIL, EAGLE
SIA. 17-50 TO STA. 22-20
'L -a 4TgTgXg
..... 2 3,1 . ,T,o>.
i JN
4184194/..
-1
S'
TYpicot Seoie Section
Dry Creek
ASFHA..1 PAT,WA\'
Dry
Creek
Potr.
r5.
Y r
f;,.;er.
.F;rv4'4 Graaf'
Grote JJ
s.
x•12 CMP
DRAINAGE SWALE DETAIL
Slo. 13.95 To Sto. 14-29
Not To Score
1,4" AGGRE,
48" PIPE CULVERT MRCP)
PROFILE VIEW
Not To Scale
Ma'cn Ck S::n FWrines
•G''Caf'
. 6" CONCRETE PATH
t?'• '.rjNCRETE ...E
12" PIPE CULVERT (CMP)
Not To Scale
Re,lore Sark
TT' par
key -in Rip Roo
2' Mir. Not To Scole
Ory
C=eek
Path
Imo+ -f 2'r-4- 5' S
Croae
1.5X
t
2'1-"
BANK RESTORATION DETAIL
Sto. 18.60 To Sto.I8•90
AC-.REGATr_
4A'I IVE
SOIL
NOTE:
1. STATIONING AND ELEVATIONS OF DETAILS TO BE FIELD VERIFIED BY CONTRACTOR,
2 CONCRETE SECTIONS TO HAVE No.4 REINFORCING STEEL BARS 0 18" O.C. EACH WAY,
3 SCORE CONCRETE SECTIONS:NOT TO EXCEED 5 FEET IN EITHER DIRECTION,
4. AT TERMINATION OF BLOCK WALLS BLEND INTO EXISTING RIP RAP AND ADD
NEW RIP RAP TO COMPLETELY COVER END OF WALLS:
REVISIONS "-<.Ic+tc sc cs :.nWI IDAHO PROIIECT NO. Kr ,�tCE'
,..- . sfT$ English
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t .-#. "G+: a'itECKF.O PRINTS ONLY TRANSPORTATION DRY CREEK TRAIL, EAGLE CDlslr-
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......._...�.�.._._._.[..... MAWu,G crreCerO 00 t.eru WING 04 Holladay En nein Company SHEET i8
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