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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Black Cat Pressure Sewer Five Mile Drain City of Meridian Public Works Dept. Memo RECEI'TE:D JUL 1 ~ 200i City Of Meridian City Clerk Office To: Will Berg; Tara Green; Sharon Smith From: Clint Dolsby, Staff Engineer CC: Len Grady, City Engineer Date: 7/15/2007 Re: Proposed Agenda Item for July 24, 2007 City Council Meeting The Public Works Department respectfully requests the following item be placed on the July 24 City Council agenda, under consent agenda, for Council's consideration: Water System Redundancy and Storaqe Evaluation. Murray, Smith & Associates Inc. has submitted a task order, scope of work, and budget for this project. They propose to complete the work for $10,000. This is an extension of the miscellaneous wastewater services agreement amendment approved by City Council on the 5th of June, 2007 for the Engineering Services for Miscellaneous Wastewater Projects. This project consists of a comprehensive evaluation of the City's water infrastructure in terms of redundancy and storage as required by IDEO. f- Recommended Council Action: The Public Works Department recommends that City Council approves the contract for Water System Redundancy and Storage Evaluation with Murray, Smith & Associates Inc. for $10,000 and authorize the Mayor to sign it. License Aqreement for the North Black Cat Pressure Sewer. A request for license agreement with the Nampa and Meridian Irrigation Districts to construct pressure sewer line within the Five Mile Drain has been received by the Public Works Department. This license agreement is necessary in order to construct the North Black Cat Pressure Sewer: Recommended Council Action: The Public Works Department recommends that City Council approves the License Agreement to construct pressure sewer line within the Five Mile Drain and authorize the Mayor to sign it. Public Rioht-of-Way Sidewalk Easement Contract for the North Black Cat Lift Station. A public right-of-way sidewalk easement has prepared by the Ada County Highway District for . Page 1 the lift station site on Black Cat Road between Ustick Road and McMillan Road for this project. Recommended Council Action: The Public Works Department recommends that City Council approves the public right-of-way easement contract for the lift station site on Black Cat Road between Ustick Road and McMillan Road for Ada County Highway District and authorize the Mayor to sign it. Rioht-of-Wav Dedication Warranty Deed for the North Black Cat Lift Station. A right-of-way dedication warranty deed has prepared by the Ada County Highway District for the lift station site on Black Cat Road between Ustick Road and McMillan Road for this project. Recommended Council Action: The Public Works Department recommends that City Council approves the right-of-way dedication warranty deed for the lift station site on Black Cat Road between Ustick Road and McMillan Road for Ada County Highway District and authorize the Mayor to sign it. North Black Cat Pressure Sewer. Ten bids were received for this project as summarized below and detailed in the attached spreadsheet: . H2 Excavation LLC $398,376.00 . Lurre Construction, Inc $466,491.00 . Sommer Construction, Inc $465,300.00 . Whitaker Construction Company $664,319.00 . T.A. Dibble $870,540.00 . Bodiford Construction, Inc $422,050.00 . Brown Construction, Inc $526,763.00 . Knife River $474,011.30 . McKay Construction, Inc $497,923.48 . Pipe, Inc $579,777.00 The Project consists of construction of approximately 5,147 lineal feet of dual 10"/16" pressure sewers, 63 lineal feet of 15" gravity irrigation pipe, surface repairs, c1ean-outs, airlvac stations, irrigation manholes, connection vault, dewatering, storm water management, and other related and miscellaneous work. Recommended Council Action: The Public Works Department recommends that City Council approves the contract for the North Black Cat Pressure Sewer with H2 Excavation LLC for $398,376 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. . Page 2 LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this _ day of ,2007, by and among NAMP A & MERIDIAN IRRIGATION DISTRICT, 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 "District", and CITY OF MERIDIAN, 33 East Idaho, Meridian, Idaho 83642 party or parties of the second part, hereinafter collectively referred to as the "Licensee", W !I!iE~~EIH: WHEREAS, Licensee is the owner of real property/right-of-way to construct, install and maintain two pressure sewer mains (burdened with the easement of the District hereinafter mentioned) particularly described in the "Legal Description" attached hereto as Exhibit A and by this reference made a part hereof; and, WHEREAS, the District owns the irrigation ditch or canal known as FIVE MILE DRAIN (hereinafter collectively referred to as "ditch or canal"), an integral part of the District's irrigation works and system, together with either fee title ownership and/or an easement therefor to convey irrigation and drainage water, operate, clean, maintain, and repair the ditch or canal, and access the ditch or canal for those purposes; and, WHEREAS, the Five Mile Drain and the District's associated fee title andlor easement crosses and intersects Licensee's real property as shown on Exhibit B attached hereto and by this reference made a part hereof; and, WHEREAS, the Licensee desires a license to engage in construction or activity, or approve existing construction or activity, affecting said ditch or canal or the District's fee title land and/or easement in its course across the lands of the Licensee in the manner and under the terms and conditions hereinafter set forth; and, WHEREAS, it is necessary that the District protect ditches and its right of way along its ditches; NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and conditions hereinafter set forth, the parties agree as follows: 1. The Licensee shall have the right to modify the said ditch or canal or encr,)ach upon the District's fee title land andlor easement along said ditch or canal in the manner generally described in the "Purpose of License" attached hereto as Exhibit C and by this reference made a part hereof. Any modification of said ditch or canal by the Licensee or encroachment upon the District's fee title land and/or easement along said ditch or canal 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 pcrmitted or allowed to modify the ditch or canal or encroach upon the District's fee title land and/or casement as dcscribed in Exhibit C even if any plans or drawings referenced or attached to Exhibit D provide or show otherwise. 2. This agreement pertains only to the Licensee's modification of said ditch or canal or encroachment to the District's fee title land andlor eascment for the purposes and in the manner described herein. The Licensee shall not change the location of the ditch or canal, bury the ditch or canal in pipe, or otherwise altcr the ditch or canal in any manner not described in this agreement without first obtaining the written permission of the District. 3. Each facility ("facility" as used in this agreement means any object or thing of any nature installed in or on the District's fee title land andlor easemcnt by the Licensee or thc Liccnsee's predecessor in interest) shall be constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense of the Licensee. 4. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's fee title land andlor easement so as not to constitute or cause: a. a hazard to any person or property; b. an interruption or interference with the now of irrigation water in the ditch or canal or the delivery of irrigation water by thc District; c. an increase in seepage or any other increase in the loss of water from the ditch or canal; d. thc subsidence of soil within or adjacent to the fee title land andlor cascmcnt; e. any other damage to the District's fee title land andlor casement and irrigation works. 5. The Licensee agrees to indemnify, hold harmless, and defend thc District from all claims for damages arising out of any of the Licensee's conslruction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph, 4.a. through 4.c., or any othcr damage to the fee title land andlor easement and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any facility. 6. Licensee agrees that the work performed and the materials used in such construction shall at all times be subject to inspection by the District and the District's engineers, and that final acceptance of such work shall not be made until all such work and materials shall have been expressly approved by the District. Such approval by the District shall not be unreasonably withheld. 7. The District reserves the right, at the District's option, to remove any facility installed by the Licensee and to repair any alteration by the Licensee of said ditch or canal and the easement therefor which does not comply with the terms of this agreement, and to remove any impediment to the now of water in said ditch or canal and any unsafe condition or hazard caused by the Licensee, at any time, and the Licensee agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for such purposes. If the Licensee shall fail in any respect to properly maintain and repair such facility, then the District, at its option, and without impairing or in anywise affecting its other rights and rcmcdies hereunder, shall have the right to perform the necessary maintenance and repairs and the Licensee agrees to pay to the District, on demand, the cost or expense which shall be reasonably expended or incurred by the District for such purposes. The District shall give rcasonable notice to the Licensee prior to the District's performing LICENSE AGREEMENT - Page 2 such maintenance, repair or other work except that in cases of emergency the District shall attempt to give such notice as reasonable under the circumstances. Nothing in this paragraph shall create or support any claim of any kind by Licensee or any third paTty against the District for failure to exercise the options stated in this paragraph, and Licensee shall indemnify, hold harmless and defend the District from any claims made against the District arising out of or relating to the terms of this paragraph except for claims arising solely out of the negligence of the District. 8. Neither the terms of this agreement, the permission granted by the District to the Licensee, the Licensee's activity which is the subject of this agreement, nor the parties exercise of any rights or performance of any obligations of this 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 District's ownership, operation, and maintenance of its ditches, canals, drains, irrigation works and facilities which did not apply to the District's operations and activities prior to and without execution of this agreement. In the event the District 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 agreement OT the Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmless and defend the District from all costs and liabilities associated with the application of such laws or the assertion of such jurisdiction or, at the option of the District, this agreement shall be of no force and effect and the Licensee shall cease all activity and remove any facility authorized by this agreement. 9. In addition to all other indemnification provisions herein, Licensee 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 Licensee or its agents, contractors or subcontractors in performing the construction and activities authorized by this agreement. 10. The Licensee agrees that the District shall not be liable for any damages which shall occur to any facility, structure, plant, or any other improvement of any kind or nature whatsoever which the Licensee shall install on the said fee title land andlor easement area of the District in the reasonable exercise of the rights of the District in the course of performance of maintenance or repair of said ditch or canal. The Licensee further agrees to suspend its use of the said fee title land and/or easement area when the use of the fee title land and/or easement area is required by the District for maintenance or repair under this or any other paragraph of this agreement. 11. Licensee shall place no structures, pathways or landscaping of any kind above or within the District's fee title land andlor easement area except as referred to in this agreement or exhibits hereto without the prior written consent of the District. Nor shall Licensee permit, authorize or grant any other person or entity to excavate, discharge, construct or place any structures, pathways or landscaping within the District fee title land andlor easement without the prior written consent of the District. 12. Should either party incur costs or attorney fees in connection with efforts to enforce 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. 13. The parties hcreto understand and agrce that the District has no right in any respect to impair LICENSE AGREEMENT - Page 3 the uses and purposes of the irrigation works and system of the District by this 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. 14. Nothing herein contained shall be construed to impair the right of way of the District in the said ditch or canal and all uses of said ditch or canal by the Licensee and the license herein provided therefor shall remain inferior and subservient to the rights of the District to the use of said ditch or canal for the transmission and delivery of irrigation and drainage water. 15. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms and conditions of this agreement, the license of the Licensee under the terms hereof may be terminated by the District, and any facility, structure, plant, or any other improvement in or over said ditch or canal, and the right of way therefor, which may impede or restrict the maintenance and operation of such ditch or canal by the District with its equipment for the maintenance of its said ditch or canal may be removed by the District. 16. The Licensee agrees to pay attorney fees or engineering fees charged by the attorney for the District or by the engineers for the District in connection with the preparation of this License Agreement or in connection with negotiations covering the terms and conditions of this License Agreement. Licensee also agrees to pay any fees incurred in connection with the recording of this Agreement. 17. 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. 18. This agreement is not intended for the benefit of any third party and is not enforceable by any third party. 19. 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. 20. The word "Licensee", if used in the neuter in this agreement, includes the masculine and feminine genders, the singular number includes the plural, and the plural number includes the singular. The covenants, conditions and agreements herein contained shall constitutt: covenants to run with, and running with, all of the lands of the Licensee described in said Exhibit A, and shall be binding on cal,;h 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. NAMPA & MERIDIAN IRRIGATION DISTRICT By Its President LICENSE AGREEMENT - Page 4 ATTEST: Its Secretary CITY OF MERIDIAN By ATTEST: STATE OF IDAHO ) ) ss: County of Canyon ) On this _ day of ,2007, before me, the undersigned, a Notary Public in and for said State, personally appeared Henry Weick and Daren R. Coon, known to me lo be the President and Secretary, respectively, ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation 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 ahove written. Notary Public for Idaho Residing al , Idaho My Commission Expires: STATE OF IDAHO ) )ss. County of Ada ) On this _ day of ,2007, before me, the undersigned, a notary public in and for said state, personally appeared and , known lo me to be the and , 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 LICENSE AGREEMENT - Page 5 and year in this certificate first above written. Notary Public for Residing at My Commission Expires: LICENSE AGREEMENT - Page 6 EXHIBIT A Lell:al Description A right-of-way for dual pressure sewer lines from Licensee's North Black Cat Lift Station, on the east side of Black Cat Road, and then to thc cast and northerly of the Five Mile Drain to Licensee's Waste Water Treatment Facility, all of which is located in the Northwest 114 of Section 34, Township 4 North, Range 1 West, B.M., Ada County, Idaho. EXHIBIT C Purpose of License Thc purpose of this License Agreement is to permit and approve Licensee to: 1. construct, install, maintain and repair dual pressure sewer lines parallel to Five Mile Drain and within the District's fee title land and/or easement, all within Licensee's right-of-way, located north of the Five Mile Drain from the North Black Cat Lift Station on Black Cat Road to the Meridian Waste Water Treatment Facility in Meridian, Ada County, Idaho. No other construction or activity is permittcd within or affecting the Five Mile Drain or the District's casement. EXHIBIT D Special Conditions a. The construction described in Exhibit C shall be in performed in accordance with cerlain plans consisting of seventeen sheets: sheets 1-17 entitled "City of Meridian, North Black Cat Pressure Sewer," dated June 28, 2007. These plans have been delivered to the District's water superintendent, are in his possession in his offices, and are hereby incorporated by this reference. b. The District owns fee title to the Five Mile Drain and the land necessary to operate, access and maintain the Fivc Milc Drain in some of the locations whcre Licensee intends to construct and install the scwer lines. In addition, the District may only own an easement in some of the locations where Licensee intends to construct and install the sewer lines. Rcgardless of whethcr the District owns fce title or an casement, the District, by way of this License Agreement and according to the terms contained herein, grants Licensee the right to construct, install, operate and maintain the sewer lines within both its fee title lands and easements. c. The Liccnsee rccognizes and acknowledges that the licensc granted in this agreement by the District may pertain in some locations only to thc rights of the District as owner of an casement. Accordingly, at said locations the District has no right or power to create rights in the Licensee 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 Liccnsee 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 ineffcctual, Licensce shall hold harmless, indemnify and defend the District from any claim by any party arising out of or related to such failure of rights and at the option of the District this agreement shall be of no force and effect. LICENSE AGREEMENT - Page 7 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 dut y to comply with all such requirements that now exist or that may be implemented or imposed in the future. By executing this agreement the District assumes no rcsponsibility 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 District from any and all penalties, sanctions, directives, claims or any action taken or requirement imposed by any party or entity, public or private, with rcspect to environmental matters relating to thc subject matter, terms or pcrformance of this agreement unless the District 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 District is req uired by any governmental authority to acq uire or comply with any permit or other operational rcquirements associated with Licensee's discharge and other activity which is the subject of this agreement, Licensee shall indemnify, hold harmless and defend the District form 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 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 environmcntal agencies. h. Licensec shall not excavate, discharge, place any structures, nor plant any trecs, shrubs or landscaping within the District's fee title land andlor easement, nor perform any construction or activity within the District's fee title land andlor easement for the Five Mile Drain except as referred to in this agreement or exhibits thereto without the prior written consent of the District. i. With respect to those portions in which the District own and easement for the Five Mile Drain, Licensee acknowledges and confirms that the District's easement includes a sufficient area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Five Mile Drain, and to access the Five Mile Drain for said purposes and is a minimum of 100 feet, 50 feet to either side of the centerline. J. essence. Construction shall be completed one year from the date of this Agreement. Time is of the LICENSE AGREEMENT ~ Page 8 --,-_: -,.+" ~-" ' ~;~ Five Mile Drain in NW1/4, 8.34, T.4N, R.1W, 8.M., Ada County, Idaho (August 1994) -~.~ ' - ~~ - Exhibit B