HomeMy WebLinkAboutLicense Agreement with North Slough Lateral Users Association for N. Slough
City of Meridian
Public Works Dept.
~ 2005
Memo
To:
Will Berg; Tara Green
From: Clint Dolsby, Staff Engineer
cc:
Brad Watson, Public Works Director
Date: 03/23/2005
Re:
Proposed Agenda Items for March 29, 2005 City Council Meeting
The Public Works Department respectfully requests the following item be placed on the
March 29 City Council agenda, under Consent Agenda, for Council's consideration.
1. Sewer Service Contract for the North Siouah Sanitarv Sewer Proiect. A sewer
services contract has been signed by the developer of the Saguaro Canyon
Subdivision for the reimbursement of the construction costs for the sanitary sewer
services in their development north of McMillan Road and east of Meridian Road for
this project.
Recommended Council Action: The Public Works Department recommends
that City Council approves the sewer service contract for the reimbursement of
the construction costs for the sanitary sewer services in the development
north of McMillan Road and east of Meridian Road for the developer and
authorize the Mayor to sign it.
V 2. License Aareement for the North Siouah Sanitarv Sewer Proiect. A request for
license agreement with the North Slough Lateral Users Association for the two
locations where the sewer line will be crossing a North Slough Lateral Users
Association facility has been received by the Public Works Department.
Recommended Council Action: The Public Works Department recommends
that City Council approves the License Agreement for the two locations where
the sewer line will be crossing a North Slough Lateral Users Association
facility and authorize the Mayor to sign it.
3. Chanae Order No.1 for the North Siouah Sanitarv Sewer Proiect. Additional work is
required for the completion of the North Slough Sanitary Sewer Project Engineering
Services. This change order consists of the following work:
. Page 1
.
Construction surveying and preparation of record drawings for the sanitary
sewer project.
Keller Associates, Inc submitted a cost for this change order as summarized below:
.
Keller Associates, Inc
$11,800.00
Recommended Council Action: The Public Works Department recommends
that City Council approves Change Order No.1 for the North Slough Sanitary
Sewer Project with Keller Associates, Inc. for $11,800.00 and authorize the
Mayor to sign it. .
Thank you for your consideration. Please contact me if you have any questions regarding
any of these items.
8 Page 2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Moffatt, Thomas, Barrett, Rock &
Fields, Chartered
101 S. Capitol Boulevard, 10th Floor
Post Office Box 829
Boise, Idaho 83701-0829
(Space Above For Recorder's Use)
LICENSE AGREEMENT FOR
CITY OF MERIDIAN NORTH SLOUGH TRUNK LINE
This License Agreement for City of Meridian North Slough Trunk Line
(hereinafter the "Agreement") is entered into and made effective this - day of
,2005, by and between NORTH SLOUGH LATERAL USERS ASSOCIATION, a
duly organized lateral ditch association, acting under the authority of Idaho Code section
42-1301, et seq., whose address is 2685 W. Chinden Boulevard, Meridian, Idaho 83642, and the
CITY OF MERIDIAN, a municipal corporation of the State ofIdaho, whose address is 660 East
Watertower Lane, Suite 150, Meridian, Idaho 83642.
DEFINITIONS:
In addition to the other capitalized terms defined herein, this Agreement contains
certain words which shall have the following meanings:
(a)
"City" shall refer to the CITY OF MERIDIAN, an Idaho municipal
corporation.
(b)
"Association" refers to NORTH SLOUGH LATERAL USERS ASSOCIATION,
a duly organized lateral ditch association, acting under the authority of
Idaho Code section 42-1301, et seq.
(c)
"Utility" or "Utilities" means those services provided to the development
by private or public entities, including, but not.limited to, telephone, cable,
electric, water, sewer, and gas, etc.
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 1
801_MT2:575314.1
WITNESSETH:
WHEREAS, the Association owns and maintains a delivery system consisting of
the North Slough No.1 Lateral, for purposes of delivering and removing irrigation water to and
from users of the North Slough No.1 Lateral, together with easements to convey water in the
North Slough No.1 Lateral; easements for ingress and egress; and for the operation, inspection,
maintenance, and repair of the North Slough No.1 Lateral;
WHEREAS, the City intends to install a twenty-one inch (21 n) sewer trunk line
which will cross the North Slough No.1 Lateral at E. Joshua Tree Street in the proposed Ventana
Subdivision and at N. Red Horse Way in the proposed Saguaro Canyon Subdivision, as more
particularly set forth herein;
WHEREAS, the City desires to obtain a license from the Association in order to
construct, own, operate, and maintain a twenty-one inch (21 n) sewer line which will cross the
North Slough No.1 Lateral at E. Joshua Tree Street in the proposed Ventana Subdivision and at
N. Red Horse Way in the proposed Saguaro Canyon Subdivision, as depicted in the plans, maps,
drawings and notes listed in Exhibit B;
WHEREAS, the Association desires to grant the license to the City for the
purposes of constructing, owning, operating, and maintaining the sewer line crossings;
NOW, THEREFORE, in consideration of the promises and the mutual benefits,
representations, covenants, undertakings, and agreements hereinafter contained and for good and
valuable consideration received by the parties, which consideration and the sufficiency thereof is
hereby acknowledged by the parties hereto, the Association and the City represent, covenant,
undertake, and agree as follows:
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 2
801_MT2:575314.1
AGREEMENTS:
1.
Grant of License. The Association hereby grants to the City a license for
purposes of constructing, owning, operating, and maintaining a twenty-one inch (21") sewer line
which will cross the North Slough No.1 Lateral at E. Joshua Tree Street in the proposed Ventana
Subdivision and at N. Red Horse Way in the proposed Saguaro Canyon Subdivision, in
accordance with and as depicted in the plans, maps, drawings and notes listed in Exhibit B.
2.
Restrictions on License. The License is subject to the restriction that no
construction impacting the North Slough No.1 Lateral may begin until November 1, 2004, and
that all said construction must be completed prior to March 25, 2005. The City expressly
acknowledges and agrees that this Agreement does not grant the City the right to install any
property, utilities, equipment, or other facilities, except as may be described in this Agreement,
or the right to impair any rights ofthe Association or others in the use of the North Slough No.1
Lateral. This grant of License is expressly conditioned upon the prior receipt by the City of any
and all necessary approvals from governmental entities and private parties for the activities to be
performed under the terms of this Agreement, and is further expressly conditioned upon the
Association's prior written approval of all drawings and plans concerning the activities to be
conducted by the City under this Agreement.
3.
Term of Grant of License. The term of the License shall commence upon
the effective date of this Agreement and shall continue for so long as the City is in compliance
with the terms of this Agreement. The Association may revoke the License granted hereunder
should the City at any time fail to comply with the terms and conditions ofthis Agreement;
provided, however, that the Association delivers to the City written notice of such failure and the
City fails to cure the lack of compliance within fifteen (15) days of delivery of such written
notice.
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 3
BOI_MT2:575314.1
4.
Installation and InsjJection. The City, or its agents or contractors, shall
perform all work contemplated by the terms ofthis Agreement in a workmanlike manner. The
City agrees to assume all responsibility for all construction contemplated under this Agreement,
including general liability and costs for construction.
Any construction or other activities by the City, or its agents or contractors, which
may impede or impair the flow of water may only be performed during the non-irrigation season,
which is usually between November 1 and March 15, unless otherwise set forth in this
Agreement. The City expressly acknowledges that, notwithstanding his assumption of certain
responsibilities and receipt of certain rights under this Agreement, the Association does not
relinquish its ownership rights in any portion of the North Slough No.1 Lateral.
5.
Utility Crossings. Unless the City has previously disclosed utility
locations by providing plans fully depicting utility locations through a utility plan or a joint
trench utility plan, the City shall not allow any Utilities or any private party to cross any portion
of the North Slough No.1 Lateral, or otherwise use or encroach upon the Association's
easements, without the express written consent of the Association. Said written consent may
take the form of an addendum to this existing Agreement or, the Association, in its discretion,
may require that separate license agreements be executed between the Association and the Utility
or private party seeking to cross the North Slough No.1 Lateral. Whe~e Utilities or private
parties will be crossing the North Slough No.1 Lateral, those Utilities or private parties are
required signatories of this Agreement, in addition to the City, unless this requirement is waived
in writing by the Association.
In the event that the City has not provided utility plans and asserts that no Utility
or private party will be crossing the North Slough No. I Lateral, the City shall present to counsel
for the Association proof of this fact in one of the following forms:
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 4
BOI_MT2:575314.1
(a)
title report confirming that no other easements have been granted and
recorded as of the date of recording of this Agreement, or
(b)
signed writings from the individual Utilities serving the development
stating that they will not be crossing the North Slough No.1 Lateral.
Absolutely no construction may proceed until said the City, Utilities, or private
party have met these siting/crossing requirements to the satisfaction of the Association.
6.
Express Waiver. In the event that any Utilities or private parties cross the
North Slough No.1 Lateral, or share in the use of the Association's easements, by such crossing
or use said Utilities or private parties waive any and all claims against the Association, now and
in the future, concerning or arising from the Association's water distribution, operation, and
maintenance activities of the North Slough No. I Lateral.
7.
Indemnitv. The City, and any Utility or private party, that crosses the
North Slough No.1 Lateral or uses the Association's easements, agrees to protect, defend,
indemnify, and hold the Association 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 court costs and attorney fees, arising from or out of (a) any
acts or omissions of the City, any crossing Utility or private party, their agents, or contractors
related to or in connection with their crossing of the North Slough No. I Lateral; (b) use of the
perpetual easements of the Association; (c) any other activity under this Agreement; and (d) the
exercise of any privileges or performance of any obligations by the City, any crossing Utility, or
private party hereunder.
Furthermore, the City, and any crossing Utility or private party, agrees to protect,
indemnify, and hold the Association 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 court costs and attorney fees, arising from or out of water
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 5
BOI_MT2:575314.1
quality violations, flooding, or any interruption or interference with the flow of water in the
North Slough No.1 Lateral caused by any act or omission of the City, and any crossing Utility,
private party, or their agents. Any party (the City, crossing Utility, or private party) who violates
any provision of this Agreement has effectively waived any and all claims, now and in the future,
against the Association, its officers, directors, employees, members, and agents regarding the
matters governed by this Agreement.
8.
No Liens. The City shall allow no liens as a result of any labor performed
or materials supplied in connection with his activities to attach to the North Slough No.1 Lateral,
or to any adjacent lands held by the Association.
9.
Permits. The City represents that it has obtained all permits, licenses, and
acknowledgments required to conduct the activities to be performed under the terms of the
Agreement. Additionally, the City shall deliver to counsel for the Association a copy of a Clean
Water Act Section 404 Permit or non-jurisdictional determination (waiver) from the United
States Army Corps of Engineers prior to commencement of construction affecting the
Association's facilities, including the North Slough No.1 Lateral. The parties hereby recognize
and agree that this Agreement will not be executed by the Association and recorded until counsel
for the Association is in receipt of the appropriate Section 404 Permit or non-jurisdictional
determination.
10.
Limitations on Liability: Attomev Fees. The parties hereto agree that
nothing herein contained shall be construed to create a joint venture, partnership, or other similar
relationship which might subject any party to liability for the debts and/or obligations of the
others, except as otherwise expressly agreed in this Agreement. No director, officer, staff
member, agent, or designee of the Association shall incur any liability hereunder to the City,
crossing Utility or private party, or any other party in such person's individual capacity by reason
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 6
801_MT2:575314.1
of such person's actions hereunder or execution hereof. In the event any party hereto shall bring
any action to enforce a breach of this Agreement, the prevailing party shall be entitled to recover
reasonable costs and attorney fees from the nonprevailing party, including any costs and attorney
fees on appeal.
11.
Professional Fees. The City agrees to promptly pay all legal expenses
incurred for the benefit of the Association relating to the negotiation, preparation, and execution
of this Agreement. It is expressly agreed that the Association shall not be responsible for the
payment of said expenses.
12.
Entire Agreement. 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. This Agreement shall bind the parties hereto and their
respective heirs, personal representatives, successors, and assigns and shall also constitute a
burden upon and appurtenance to the property govemed under this Agreement.
14.
Severability. Ifany 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 Waiver. The failure ofa 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 provision or exercise any right.
16.
Governing Law. This Agreement shall be construed under and govemed
by the laws of the State ofIdaho.
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 7
801_MT2:575314.1
17.
Representations of Parties.
(a)
The Association. The Association represents and warrants that: (i) it is a
duly organized lateral ditch association, acting under the authority of Idaho Code section 42-
1301, et seq.; (ii) it has the capacity to enter into and perform it's obligations under this
Agreement; (iii) all organizational and other actions required to authorize it to enter into and
perform this Agreement have been properly taken; and (iv) this Agreement has been properly
executed and delivered by Association and is valid and binding upon it in accordance with its
terms.
(b)
The City. The City represents and warrants that: (i) it is a municipal
corporation duly organized and in good standing in the State ofIdaho; (ii) it has the capacity to
enter into and perform its obligations under this Agreement; (iii) all actions required to authorize
the City to enter into and perform this Agreement have been properly taken; (iv) this Agreement
has been properly executed and delivered by the City and is valid and binding upon the City in
accordance with its terms; and (v) it has obtained all permits, licenses, and acknowledgments
required to conduct the activities to be performed under the terms ofthe Agreement.
18.
The City's Authorization ofSignatnre. The City hereby warrants that the
person signing this Agreement has been authorized to do so by the City.
19.
Notices. All notices, demands, requests, and other communications under
this Agreement shall be in writing and shall be deemed properly served or delivered if delivered
by hand to the party to whose attention it is directed or, when sent by mail, three (3) days after
deposit in the United States mail, postage prepaid, addressed as follows:
NORTH SLOUGH LATERAL USERS ASSOCIATION
P2685 W. Chinden Boulevard
Meridian, Idaho 83642
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 8
BOLMT2:575314.1
CITY OF MERIDIAN
660 East Watertower Lane, Suite 150
Meridian, Idaho 83642
Each party may change its address for delivery by written notice in the manner
provided herein.
20.
Recording. This Agreement shall be recorded upon execution in the office
of the county recorder for each county in which any portion of the land covered by the
Agreement is located.
IN WITNESS WHEREOF, the parties have hereunto caused their names to be
subscribed to this Agreement of the date first set forth above.
CITY OF MERIDIAN
By
(written name)
Its
Attest:
City Clerk
NORTH SLOUGH LATERAL USERS
ASSOCIATION
By
Michael Myers, President
Attest:
Josh Janicek, Vice-President
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 9
801_MT2:575314.1
County of
)
) ss.
)
STATE OF IDAHO
On this - day of
Notary Public in and for said state, personally appeared
known or identified to me to be the of CITY OF MERIDIAN, the
person who executed the instrument on behalf of the CITY OF MERIDIAN, and acknowledged to
me that CITY OF MERIDIAN, executed the same.
, 2005, before me, the undersigned
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
Residing at
My Commission Expires
STATE OF IDAHO )
) ss.
County of Ada )
On this - day of , 2005, before me, the undersigned
Notary Public in and for said state, personally appeared MICHAEL MYERS known or identified to
me to be the President of NORTH SLOUGH LATERAL USERS ASSOCIATION, the person who
executed the instrument on behalf of the NORTH SLOUGH LATERAL USERS ASSOCIATION, and
acknowledged to me that NORTH SLOUGH LATERAL USERS ASSOCIATION 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
My Commission Expires
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE -10
801_MT2:575314.1
STATEOFIDAHO )
) ss.
County of Ada)
On this - day of , 2005, before me, the undersigned
Notary Public in and for said state, personally appeared JOSH JANICEK known or identified to
me to be the Vice-President of NORTH SLOUGH LATERAL USERS ASSOCIATION, the person
who executed the instrument on behalf of the NORTH SLOUGH LATERAL USERS ASSOCIATION,
and acknowledged to me that NORTH SLOUGH LATERAL USERS ASSOCIATION 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
My Commission Expires
LICENSE AGREEMENT FOR CITY OF MERIDIAN
NORTH SLOUGH TRUNK LINE - 11
801_MT2:575314.1
EXIDBIT A
Vicinity Map
EXHIBIT A
BOLMT2:575314.1
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EXIDBIT B
Plans and Specifications
Please refer to the following plans prepared by Keller Associates, forthe City of Meridian North
Slough Trunk Line, Project No. 103083:
General Information, Sheet G-l, dated 2/2/05
General Notes, Sheet G-2, dated 2/2/05
Standard Details, Sheet G-3, dated 2/2/05
Key Map, Sheet G-4, dated 2/2/05
Details, Sheets D-l and D-2, dated 2/2/05
Plan & Profile, Sta. 58+00 to 66+00, Sheet PP- 7, dated 2/2/05
Plan & Profile, Sta. 66+00 to 74+00, Sheet PP-8, dated 2/2/05
EXHIBIT B
801_MT2:575314.1