HomeMy WebLinkAboutSettlers Irrigation District for Meridian Fire Dept Traffic Signal North Slough No. 1 LateralPage 1 of 2
Tara Green
From: Ted Baird
Sent: Thursday, November 13, 2008 3:27 PM
To: Tara Green
Cc: Ron Anderson; Bill Nary
Subject: FW: Utility License Agreement for Crossing of North Slough No. 1 Lateral
Follow Up Flag: Follow up
Flag Status: Green
Attachments: Meridian Fire Station Utility License Agreement.pdf
Tara: Please place this item on the consent agenda for Tuesday. Note that in addition to signing the agreement,
the Mayor's signature is needed on Exhibit C.
From: Ron Anderson
Sent: Wednesday, November 05, 2008 4:37 PM
To: Ted Baird
Subject: FVV: Utility License Agreement for Crossing of North Slough No. 1 Lateral
Ted
Here's the electronic version of the Utility License Agreement for the traffic signal at
Station 5
Thanks
Ron L. Anderson
Fire Chief
Meridian Fire Department
888-1234
Effective 10/27/08 we have moved our Adminstrative Offices to City Hnll. The new
address is 33 E. Broadway Ave. Meridian, Idaho 83642 and my new email address is
randersonC~meridiancity.org the phone number is still 888-1234
From: Judy Gerhart
Sent: Monday, November 03, 2008 10:31 AM
To: Ron Anderson
Subject: FW: Utility License Agreement for Crossing of North Slough No. 1 Lateral
11/14/2008
Page 2 of 2
Judy Gerhart
Administrative Secretary
6leridian Fire
208-888-1234
Far 208-895-0390
Please note that my new a-mail address effective 10-1-08 is icterhartlc7i__meridiancity.org
From: Keith Randall [mailto:keith@benchmarkconstruction.com]
Sent: Thursday, October 23, 2008 1:59 PM
To: Judy Gerhart
Subject: FW: Utility License Agreement for Crossing of North Slough No. 1 Lateral
Hi,
Here it is one more time. If the Chief has any questions, just have him give me a call.
THANKS
Keith Randall
Construction Manager
Benchmark Construction, Inc.
475-0056/794-7571
From: Tiffany Hudak [mailto:TMH@moffatt.com]
Sent: Thursday, October 23, 2008 1:56 PM
To: Keith Randall
Cc: Draper, Nathan
Subject: Utility License Agreement for Crossing of North Slough No. 1 Lateral
Keith,
Attached is the Settlers Irrigation District version of the Utility License Agreement for the City of Meridian's crossing of the
North Slough No. 1 Lateral, in connection with the Meridian Fire Station No. 5. Please let me know if you have any
questions.
Thanks, Tiffany
Tiffany Hudak -- Paralegal
Moffatt Thomas Barrett Rock & Fields, Chtd.
101 S. Capitol Blvd., 10th Floor
PO Box 829
Boise, Idaho 83701
208.385.5435 (direct line)
208.385.5435 (direct fax)
NOTICE: This a-mail, including attachments, constitutes a confidential attorney-client communication. It is not intended for transmission to, or receipt by,
any unauthorized persons. If you have received this communication in error, do not read it. Please delete it from your system without copying it, and
notify the sender by reply a-mail or by calling (208) 345-2000, so that our address record can be corrected. Thank you.
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contained in this a-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any
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11/14/2008
RECORDING REQUESTED BYAND
WHEN RECORDED RETURN TO:
Moffatt, Thomas, Barrett, Rock &
Fields, Chartered
101 South Capitol Boulevard, 10th Floor
Post Office Box 829
Boise, Idaho 83701-0829
(Space Above For Recorder's Use)
UTILITY LICENSE AGREEMENT
This Utility License Agreement ("Agreement', is entered into and made
effective this day of , 20 , by and between SETTLERs
IRRIGATION DISTRICT ("District'), an irrigation district organized and existing under and by
virtue of the laws of the State of Idaho, whose address is P.O. Box 7571, Boise, Idaho 83707,
and City of Meridian ("Licensee"), whose address is
name o o er party
33 E. Idaho Avenue, Meridian, Idaho 83642
NOW, THEREFORE, in consideration of the mutual benefits to be received by
the District and Licensee, and other good and valuable consideration, which consideration is
hereby aclaiowledged by the parties, and the promises, covenants, agreements, and conditions
hereinafter set forth, the parties agree with one another as follows:
1. Grant of License. The District hereby grants a License ("License's to
Licensee for the purpose of crossing the North Slough No. I Lateral (aka Simpson Lateral)
(name of canal, lateral, or ditch)
at the location described in Exhibit A, appended hereto, in order to construct, operate, inspect,
maintain, and repair low voltage traffic controls ,This grant
(list crossing(s), power, gas. cable. Phone. etc J
of License is subject and subordinate to any and all property rights the District may have in the
North Slough No. 1 Lateral (aka Simpson Lateral)
(name of canal, lateral. or ditch)
UTILITY LICENSE AGREEMENT -1 CLIENT:573845.4
R0v(~d 413/08
Licensee expressly acknowledges and agrees that this License does not grant
Licensee the right to install any property or equipment, except as may be described in this
Agreement, or the right to impair any rights of the District or others in the use of the
North Slough No. 1 Lateral (aka Simpson Lateral) ,This grant is expressly conditioned
(name of canal, lateral, ar ditch)
upon the prior receipt by Licensee of any and all necessary approvals from governmental
entities and private parties for its activities to be performed under the terms of this Agreement,
and is fi><rther expressly conditioned upon the District's prior approval of all drawings and plans
concerning the activities to be conducted by Licensee under this Agreement.
2. 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 Licensee is in compliance
with the terms of this Agreement. The District reserves the right to revoke this License,
effective upon thirty (30) days' prior written notice to the Licensee thereof, should Licensee at
any time fail to materially comply with the terms of this Agreement, and fail to correct such
noncompliance within thirty (30) days following service of written notice by the District ("Cure
Period"). ff Licensee begins, but cannot complete, corrective action within the Cure Period, the
Cure Period maybe extended, at the sole discretion of the District, for such amount of time as
may be reasonably required to complete the corrective action.
Construction, Inspection, Maintenance, Repair, and Replacement of
Crossing. Licensee, following execution of this Agreement by the parties, may have access
across the North Slough No. 1 Lateral (aka Simpson Lateral) t0 Conduct Such COIlstrl1Ct10II,
(name of canal, lateral, or ditch)
inspection, maintenance, repair, and replacement of the
low voltage traffic controls
as maybe reasonably necessary,
(list crossing(s), power, gas, cable, phone, etc.)
subject to any restrictions imposed on Licensee's activities as maybe set forth in this
UTILITY LICENSE AGREEMENT - 2
Revised 4!3108
CLIENT:573845.4
Agreement. Licensee or its agents and contractors shall perform any work in a workmanlike
manner, and in accordance with the Engineering Plans and Specifications referenced in
Exhibit B.
through the
Any activities by Licensee which may impede or impair the flow of water
North Slough No. 1 Lateral (aka Simpson Lateral)
may only be performed
(name of canal, lateral or ditch)
during the non-irrigation season, which is usually between November 1 and March 15.
Licensee expressly acknowledges that the District does not relinquish its ownership rights in
any portion of the North Slough No. 1 Lateral (aka Simpson Lateral)
4. Utility Crossings. Licensee shall not allow any Utilities (except
Licensee if it is a Utility) or any private party to attach to Licensee's facilities governed by this
Agreement, cross any portion of the North Slough No. 1 Lateral (aka Simpson Lateral) , or
(name of canal, lateral, or ditch)
otherwise use or encroach upon the District's easements, without the express written consent
of the District. Said written consent may take the fonm of an addendum to this existing
Agreement or, the District, in its discretion, may require that separate license agreements
be executed between the District and the Utility or private party seeking to cross the
North Slough No. 1 Lateral (aka Simpson Lateral)
Express Waiver. In the event that any Utilities or private parties do
attach to Licensee's facilities governed by this Agreement, cross District facilities and/or
systems, or share in the use of District's facility and/or system easements, Licensee, and
Utilities or private parties, waive any and all claims against the District, now and in the future,
concerning the District's water distribution, operation, and maintenance activities upon its
facilities and/or systems.
UTILITY LICENSE AGREEMENT - 3 CLIENT:573845.4
Revised 413/08
6. Indemnity. Licensee, and any Utility or private party that attaches to
Licensee's facilities governed by this Agreement, crosses a District facility or system, or uses
an exclusive easement, agrees to protect, defend, indemnify, and hold the District 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
litigation costs and attorney fees, which shall include paralegal fees, arising from or out of any
acts or omissions of the Licensee or any crossing Utility, their agents, or contractors related to
or in connection with their crossing of District facilities, use of the exclusive easements of the
District, any attachments to Licensee's facilities governed by this Agreement by a crossing
Utility or private party, or any activity under this Agreement and the exercise of any privileges
or performance of any obligations by the Licensee or crossing Utility hereunder. Furthermore,
the Licensee and any crossing Utility agree to protect, indemnify, and hold the District 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
litigation costs and attorney fees, which shall include paaalegal fees, arising from or out of
water quality violations, flooding, or any interruption or interference with the flow of water in
the North Slough No. 1 Lateral (aka Simpson Lateral)
caused by any act or omission of the
Licensee and any crossing Utility or their agents. Notwithstanding any other provision of this
Agreement, Licensee, and any Utility or private party that attaches to Licensee's facilities, shall
be responsible for their own actions only, and not the actions of any other party hereunder.
Each party's liability shall be separate only, and not joint.
7. No Liens. Licensee shall allow no liens as a result of any labor
performed or materials supplied in connection with the activities of Licensee, its agents, or
UTILITY LICENSE AGREEMENT - 4 CLIENT:573845.4
Revised413/08
contractors, t0 attach t0 the North slough No. 1 Lateral (aka Simpson Lateral) or to any
(name of canal, lateral, or ditch)
adjacent lands held by the District.
8. Permits. Licensee 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, for those projects which fall under the purview of the Clean Water
Act, 33 U.S.C. 1251, et seq., prior to commencement of construction impacting the District's
facilities, Licensee shall deliver to legal counsel for the District a copy of a Section 404 Permit
it has obtained from the United States Army Corps of Engineers. In the event that a Section
404 Permit is not required, Licensee shall certify that its construction impacting the District's
facilities does not fall under the purview of the Clean Water Act and a Section 404 Permit is not
required. The parties hereby recognize and agree that this Agreement will not be executed by
the District and recorded until legal counsel for the District is in receipt of the appropriate
Section 404 Permit or written certification by Licensee that a Section 404 Permit is not required
for the construction contemplated under this Agreement. Such certification shall be attached to
this Agreement as Exhibit C and made a part hereof.
9. Operation, Maintenance, and Repair of Crossing improvements. It is
recognized by the District that maintenance, repair and/or replacement of the crossing
improvements constructed by Licensee and which cross the
North Slough No. 1 Lateral (aka Simpson Lateral) under the terms and conditions of this
(name of canal, lateral, or ditch)
Agreement and as identified in Exhibit B, may be necessary subsequent to the execution and
recording of this Agreement. In the event that Licensee desires to perform any maintenance,
repair and/or replacement of such crossing improvements, they acknowledge and agree that the
prior written consent of the District is required prior to commencement of any such
UTILITY LICENSE AGREEMENT - 5 CLIENT:573845.4
Revised 4!3/08
maintenance, repair and/or replacement of the crossing improvements, unless an emergency
reasonably precludes obtaining prior written consent. In such an event, Licensee shall provide
written notice to the District of such emergency repair or replacement, as soon as reasonably
possible after undertaking such work. The District agrees that it will consider and act upon all
non-emergency written requests for written consent from Licensee in a business-like manner.
10. Limitations on Liability; Attorney 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. In the event of any suit or
proceeding by either party herein against the other party arising out of this Agreement or in
connection with the activities of the Licensee, or their agents or contractors, under this
Agreement, the nonprevailing party in such suit or proceeding shall pay to the prevailing party
such sum or sums as the court shall adjudge reasonable for attorney fees and costs, including
such fees and costs on appeal.
11. Further Consideration. In further consideration for inducing the District
to grant this License, the Licensee agrees to promptly pay all expenses incurred by the District
relating to the negotiation, prepazation, and execution of this Agreement.
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. The promises, covenants, conditions, and agreements
herein contained shall be binding on each of the parties hereto and on all parties and all person
tJTII.ITY LICENSE AGREEMENT - 6 CLIENT:573845.4
Revised 4/3108
claiming under them or any of them; and the rights and obligations hereof shall inure to the
benefit of each of the parties hereto and their respective successors and assigns. No third
parties are intended to benefit from, or obtain any rights under, this Agreement.
14. Severability. If any 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 of a 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. The validity, meaning, and effect of this Agreement
shall be determined in accordance with the laws of the State of Idaho.
17. Representations of Parties.
(a) District. The District represents and warrants that: (i) it is an irrigation
district organized and existing under and by virtue of the laws of the State of Idaho; (ii) it has
the capacity and all legal rights necessary to enter into and perform the District's obligations
under this Agreement; (iii) all organizational and other actions required to authorize the District
to enter into and perform this Agreement have been properly taken; and (iv) this Agreement has
been properly executed and delivered by the District and is valid and binding upon the District
in accordance with its terms.
(b) Licensee. Licensee represents and warrants that: (i) it has the capacity to
enter into and perform its obligations under this Agreement; (ii) all actions required to authorize
Licensee to enter into and perform this Agreement have been properly taken; {iii) it has
UTILITY LICENSE AGREEMENT - 7 CLIENT:573845.4
Revised 4!3108
obtained all permits, licenses, and acknowledgments required to conduct the activities to be
performed under the terms of the Agreement; (iv) this Agreement has been properly executed
and delivered by the Licensee and is valid and binding upon the Licensee in accordance with its
terms; and (v) (check one of the following, if applicable):
Licensee is an Idaho municipal corporation incorporated and in good
standing in the State of Idaho.
Licensee is a partnership established
and is in good standing in the State of
Licensee is a incorporated or organized
and in good standing in the State of
18. Notices. All notices permitted or required to be given under the terms of
this Agreement shall be in writing and shall be deemed effective upon receipt if sent by first
class mail, postage prepaid, and addressed to the respective party hereto as follows, or at such
other address as a party designates in writing.
SETTLERS IRRIGATION DISTRICT
Post Office Box 7571
Boise, Idaho 83707
City of Meridian
Name
33 E. Idaho Avenue
Address
Meridian, Idaho 83642
City, State & Zip Code
19. Recordins. This Agreement shall be recorded at the Ada County
Recorder's Office.
[Signature Page Follows]
UTILITY LICENSE AGREEMENT - 8 CLIENT:573845.4
Revised 4/3/08
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date first set forth above.
SETTLERS IRRIGATION DISTBICT
By.
Attest:
President of its Boazd of Directors
. Secretary
City of Meridian
(name of Licensee)
By
Tammy de Weerd
Its Mavor
UTII.ITY LICENSE AGREEMENT - 9 CLIENT:573845.4
Revised 4/3/08
STATE OF IDAHO )
ss.
County of Ada )
On this day of , 20_, before me, the undersigned
Notary Public in and for the said state, personally appeared ,
known or identified to me to be the President of SETTLERS IRRIGATION DISTRICT, the person
who executed the instrument on behalf of SETTLERS IRRIGATION DISTRICT, and
acknowledged to me that SETTLERS 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 above written.
NOTARY PUBLIC FOR IDAHO
Residing at
My Commission Expires
STATE OF IDAHO )
ss.
County of Ada )
On this day of , 20_, before me, the undersigned
Notary Public in and for the said state, personally appeared ,
known or identified to me to be the Secretary of SETTLERS IRRIGATION DISTRICT, the person
who executed the instrument on behalf of SETTLERS IRRIGATION DISTRICT, and
acknowledged to me that SETTLERS IRRIGATION DISTRICT executed the same.
1N 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
UTILITY LICENSE AGREEMENT - ld CLIENT:573845.4
Revised 4/3/08
STATE OF Idaho )
ss.
County of Ada )
On this day of , 20_, before me, the undersigned
Notary Public in and for said state, personally appeared Tammy de Weerd ,known
or identified to me to be the of City of Meridian
who is the person who executed the instrument on behalf of City of Meridian ,
and acknowledged to me that City of Meridian ,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
Residing at
My Commission Expires_
Idaho
UTILITY LICENSE AGREEMENT -11 CLIENT:573845.4
Reprised 4!3/08
EXHIBIT A
Legal Description of
low voltage traffic controls Crossing
Northeast Quarter of Section 26, Township 4 North, Range 1 West,
Ada County, Idaho
EXHIBIT A
CLIENT:573B45.4
E~~IT B
Engineering Plans and Specifications
E~~IT B
CLIENT:573845.4
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EXHIBIT C
Clean Water Act Section 404 Permit Certification
The undersigned represents he/she is a duly authorized representative of
City of Meridian
("Licensee', and hereby certifies that a
(name of Licensee)
Clean Water Act Section 404 Permit is not required for Licensee's
low voltage traffic controls
(description of crossing(s))
crossing(s) of the North Slough No. 1 Lateral (aka Simpson Lateral) ,for the following
(name of canal, lateral, or ditch
reason:
^ The crossing(s) contemplated under this Agreement will be overhead
crossings and will not include any excavation in or around or any
discharge of dredged or fill material into the District's facility.
Q Licensee will use the "boring" method of construction which will not
include any excavation in or around or any discharge of dredged or fill
material into the District's facility.
^ The North Slough No. 1 Lateral (aka Simpson Lateral) is an existing
name o can , or itc
piped facility; thus, any construction impacting the facility will not
include any discharge of dredged or fill material into the facility.
^ The crossing(s) contemplated under this Agreement will be inserted into
existing conduit crossing(s) of the North Slough No. 1 Lateral (alts Simpson Lateral)
(name of canal, lateml, or ditch)
^ Licensee is in receipt of a Clean Water Act Section 404 Permit
exemption letter from the United States Army Corps of Engineers
(attached hereto).
DATED THIS day of 20
City of Meridian
(name of Licensee)
sy
Written Name: Tammy de Weerd
Authorized Title: Mayor
EXHIBIT C
CLIENT:573845.4