HomeMy WebLinkAboutNampa Meridian Irrigation District for Water System Flush Line~.[V'~~.~~~~~~°.~
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To: Jaycee Holman; Tara Green
From: Max Jensen, Engineering Technician
jensenm@meridiancity.org
Meridian Public Worlcs Department
660 E. Watertower, Suite 200
Phone: 898-5500
Fax: 898-9551
CC: Clint Dolsby, P.E., Acting City Engineer
~P~ 1 ~ 200~
~;ity C.~! 1Vl~r~~t~iax~
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Date: 4/23/2008
Re: Proposed Agenda Item for April 29, 2008 City Council Mee~ng
The Public Works Department respectfully requests the following item be placed on the April
29, 2008 City Council agenda, under Consent Agenda, for Council's consideration:
License Agreement with Nampa & Meridian Irriaation District for a Water System Flush Line
in Assoaation with the Water Division Facilitv, Phase 2
Attached is a License Agreement with Nampa 8 Meridian Imgation District for a water system
flush line in associatian with the design and construction of the Water Division Facility, Phase
2 project. This agreement would permit and approve the City to flush/discharge water from
our water system into the Five Mile Drain.
Recommended Council Action: The Public Works Department recommends
that City Councit approves and signs the License Agreement with Nampa 8
Meridian Irrigation Dlstrict.
Thank you for your consideration. I will send originals for signature after your consideration.
Please contact me if you have any questions.
• Page 1
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this day of , 2008, hy anci
among NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and cxisting undcr
and by virtue of the laws of the State of Idaho, party of the first part, hereinafter referred to as ihc "District",
and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642
party or parties of the second patt, hereinafier collectively referred to as the "Licensee",
WITNESSETH:
WHEREAS, Licensee is thc owner of real property/right-of-way ibr a potable walcr system
(burdened with the easement of the District hereinafter mentioned) particularly described in the "C,egal
Description" attached hereto as Exhibit A and by this reference made a part hercof; and,
WHEREAS, the District owns the inigation ditch or canal known as FIVE MILE DRAIN
(hereinafter collectively refened to as "ditch or canal"), an integral part of the District's irrigation works and
systcm, together with the easement therefor to c;onvey irrigation and drainage watcr, opcratc, clcan, maintain,
and repair the ditch or canal, and access the ditch or canal for those purposes; and,
WHEREAS, said ditch or canal and 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 activi[y, or approve existing
construction or activity, affecting said ditch or canal or the District's easement in its coursc across the lands
of the Licensee in the manner and under the terms and conditions hereinafter set farth; 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 sei forth, the parties agee as follows:
1. The Licensee shall have the right to modify the said ditch or canal or encrc~ach upon the
District's easement along said ditch or canal in the manner generally described in the "Purpose of Licensc"
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 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 permitted or allowed to modify the dilch or canal or encroach
upon the District's easement as described in Exhibit C even if any plans or drawin~,n relerenced 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 easement 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 alter the ditch
or canal in any manner nol 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 nawrc
installed in or on the District's easement by the Licensee or the Licensee's predecessor in intcrest) shall be
constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense
ofthe Licensee.
4. Licensee agrees to construct, install, operate, maintain and repair cac~ facility and conduet
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 interferenee with the flow of irrigation water in the ditch or canal
or the delivery of irrigation water by the District;
c. an increase in seepage or any other increase in the loss of water from the ditch or
canal;
d. the subsidence of soil within or adjacent to the easement;
e. any other damage to the District's easement and irrigation works.
5. The Licensee agrees to indemnify, hold harmless, and defend the District I~rom all claims
for damages arising out of any of the Licensee's constructian or activity which constitutes c~r causes any of
the circumstances enumerated in the preceding paragraph, 4.a. through 4.e., or any other damagc to thc
easement and irrigation works which may be caused by the construction, installation, opcration, maintenanre,
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 approvcd hy thc
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 thc easement therefor which
does not comply with the terms of this agreement, and to remove any impediment to the flow 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 expcnded by the District for
such purpascs. If the Licensee shall fail in any respect to properly maintain and repair such facility, thcn thc
District, at its option, and without impairing or in anywise affeciing its other rights and remedies hercundcr,
shall have the right to perform the necessary maintenance and repairs and the Licensee agrees to pay to thc
District, on demand, the cost or expense which shall be reasonably expended or incurred by the Disttict for
such purposes. The District shall give reasonable notice to the Licensee prior to the District's performing
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 party 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 madc
LICENSE AGREEMENT - Page 2
against the District arising out of or relating to the terms of this paragtaph except for claims arising solcly
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 a~~reement, nor the parties exercise of any rights or
performance of any obligations of this agteement, 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 ro the District's ownership, operation, and maintenance of its di[chcs, canals, drains,
irrigation works and facilities which did not apply to the District's operations and activities prior tc~ 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 exccution of this agreemcnt
or thc Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmless and defcnd 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, Licensec further agrecs to
indemnify, hold harmless and defend the District from any injury, damages, claim, lien, cost and/or expcnsc
(including reasonable attorney's fees) incuned by, or asserted against, the District by reason of the negligent
acts or amissions of Licensee or its agents, contractors or subcontractors in perlorming 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 whatsocver which the
Licensee shall install on the said easement area of the District in the reasonable exercise of thc rights of thc
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 easement area when the use of the easement arca is rcquircd by thc
District for maintenance or repair under this or any other paragraph of this agreement,
1 l. Licensee shall place no structures, pathways or landscaping of any kind above or within the
District's easement area except as referred to in this agreement or exhibits hereto without the prior writtcn
consent of the District. Nor shall Licensee permit, authorize or grant any other pcrson or cntity to excavate,
discharge, construct or place any structures, pathways or landscaping within the District easement withc~ut
the prior written consent of the District.
12. Should either party incur costs or attorney fees in connection with efforts to cnforce the
provisions of this agreement, whether by institution of suit or not, the party rightfully enforcing or rightfully
resisting enforcemcnt 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 hereto understand and agree that the District has no right in any respect ta impair
the uses and purposes of the irrigation works and system of the District by this agrecment, nor to grant any
rights in its irrigation works and system incompatible with the uses to which such irrigation works and
systcm are devoted and dedicated and that this contract shall be at all times construed according to such
principles.
LICENSE AGREEMENT - Page 3
14. Nothing herein contained shall be construed to impair the right of way of thc 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
transmissic~n and delivery of inigation and drainage water.
15. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
and condilions 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 auorney 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 enlorccable by
any third party.
19. If any provision of this agreement is determined by a court of competent jurisdiction to he
invalid or otherwise unenforceable, all remaining provisions of this agreement shall remain in full forcc and
e£fcct.
20. The word "Licensee", if used in the neuter in this agreement, includes thc 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 constitute covenants to run with,
and running with, all of the lands of the Licensee described in said Exhibit A, and shall be hinding on each
of the parties hereto and on all parties and all persons claiming under them or either of them, and thc
advantages hereof shall inure to the benefit of each of the parties hereto and their respective successors and
assigns.
NAMPA & MERIDIAN IRRIGATION DISTRICI'
By,
Its President
ATTEST:
Its Secretary
L1CEI~ISE AGREEMENT - Page 4
CITY OF MERIDIAN
By
ATTEST:
STATE OF IDAHO )
~ SS:
County of Canyon )
On this day of , 2008, before me, the undersigned, a Notary Public in
and for said State, personally appeared Monte Janicek and Daren R. Coon, known to me tv be the President
and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that
executed thc foregoing instrument and acknowledged to me that such inigation district executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official scal, the day
and year in this certificate first above written.
Notary Public for ldaho
Residing at , Idaho
My Commission Expires:
STATE OF IDAHO )
)ss.
County of Ada )
On this day of , 2008, before me, the undersigned, a notary
public in and for said state, personally appeared and , known to
me to bc 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 scal, thc day
and year in this certificate first above written.
Notary Public 1'or
Residing at ,
My Commission Expires:
LICENSE AGREEMENT - Page 5
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EXHIBIT C
Pur~ose of License
The purpose of this License Agreement is to permit and approve Licensee to:
1. flush/discharge water from the Licensee's well into an existing24" pipe that discharges into
the Five Mile Drain,
all within or near Licensee's real property/right-of-way described in Exhibit A, located northwesl of the
intersection of Fairview Avenue and Meridian Road in Meridian, Ada County, Idaho. No other construction
or activity is permitted within or affecting the Five Mile Drain or the District's easement.
EXHIBIT D
Snecial Conditions
a. The construction described in Exhibit C shall be in performed in accordance with ccrtain
plans consisting of two sheets attached hereto as Exhibit D-1 and by this reference incorporated hercin.
Licensee shall flush/discharge water into the Five Mile Drain only on rare occasions (approximately onc to
two times per year). Licensee shall notify the District's Superintendent and obtain the District's permissi~n
prior to any flush/discharge into the Five Mile Drain. The quantity discharged shall be 1,500 to 2,000 ~~m
and shall be for approximately 10-30 minutes.
b. Licensee shall notify the water superintendent of the District prior to and immediately after
construction so that he or the District's engineer's may inspect and approve the construction.
c. The Licensee recognizes and acknowledges that the license granted in this agreement by thc
District pertains only to the rights of the District as owner of an easement. 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 Licensee from the holder of titlc to the property.
Should Liccnsee fail to obtain such rights from the holder of title to the property or should the rights obtained
prove legally ineffectuai, Licensee shaJl hold harmless, indemnify and defend the District t~om any claim
by any party arising out of or related to such failure of rights and at the option of the District this agrecment
shall be ol no force and effect.
d. Licensee shall be responsible and shall ensure that any drains which discharge into the Five
Mile Drain d~ not cause any erosion or subsidence of soil within the ditches or drains. Thc Liccnsee agrecs
that the District shall not be liable for any damages which shall occur to the drain pipes or any other
improvemcnt of any kind or nature whatsoever which the Licensee shall install on the said easemcnt area of
the District in the reasonable exercise of the rights of the District in the course ol' periixmance of
maintenance or repair of said ditch or canal.
e. Licensee represents that Licensee has complied with all federal, state or other laws, rulcs,
regulations, directives or other requirements in any form regarding environmental matters, and specifically
those rclating to pollution control and water quality, as may be applicable under the subject matter, terms
LICEIVSE AGREEMENT - Page 6
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 impiemented or imposed in the future. By executing this
agreement the District assumes no responsibility or liability for any impact upon or dcgradation of water
qua]ity or the environment resulting from the dischargc or other activity hy Licensee which is the subjeci of
this agreement.
f. 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 entily,
public or private, with respect to environmental matters relating to the subject matter, terms or pcrl~~rmance
of this agrcement unless the District shall be solely responsible for the condition or activity which gives risc
to any such penalty, sanction, directive, claim , action or requirement.
g. In the event the District is required by any governmental authority to acquire or comply with
any permit or other operational requirements associated with Licensee's discharge and other activity which
is the subject of this agrecment, Licensee shall indemnify, hold harmless and defend the District from all
costs and liabilities associated with such permit and other requirements, including but n~t limited to all costs
associated with all permit acquisition, construction, monitoring, treatment, administrativc, filing and other
requiremen[s.
h. The parties to this agreement recognize this license agreement is an accommodation to
Licensee. The District by this agreement does not assuxne, create, or exercise legal or other authority, eithcr
express or implied, to regulate control, orprohibit the discharge ot contribution of pollutants or contaminants
to the District's facilities or to any groundwater, waters of the State of Idaho or the Unitcd States, or any
other destination. Such authority, to the extent that it exists, is possessed and exercised hy governmental
envir~nmental agencies.
i. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
casemcnt for thc Five Mile Drain except as referred to in this agreement or exhibits thereto without the prior
written consent of the District.
j. Licensee acknowledges and confirms that the District's easement for the Five Mile Drain
includes a sufficient area of land to convey inigation and dtainage 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 ol' l00 feet,
50 feet to either side of the centerline.
k. Construction shall be completed one year from the date of this Agreement. Tirne is of ihe
essence.
LICENSE AGREEMENT - Page 7
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