HomeMy WebLinkAboutLicense Agreement with Settler's Irrigation for Potable Water Discharge in Settlers Northside Cana~i ~ •
To: Jaycee Holman; Tara Green
From: Roxanne Holland
CC: Kyle Radek
Date: January 26, 2009
Re: Proposed Agenda Item for February 2 City Council Meeting
The Public Works Department respectfully requests the following item be placed on the
February 2 City Council agenda, under Consent Agenda, for Council's consideration:
License Agreement wi#h Settlers Irrigation District:
The attached License Agreement with Settlers Irrigation District is to allow the construction of
a flush line that will discharge into the Settlers Northside. Canal as part of the 2008 Flush
Lines Construction project approved by City Council on January 20, 2009.
Recommended Council Action: The Public Works Department recommends
that City Council approves the agreement with Nampa & Meridian Irrigation
District for construction and operation of flush lines at various locations and
authorizes the Mayor to sign it.
Thank you for your consideration. Please contact me if you have any questions regarding
any of these items.
~ Page 1
RECORDING REQUESTED BY,4ND
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 FUR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL
This License Agreement for City Qf Meridian Potable Water Discharge Line Into
Settlers Northside Canal (the "Agreement") is entered into and made effective this day of
2fl09, by and between SETTLERS IRRIGATION DISTRICT, an
irrigation district organized and existing under and by virtue of the laws of the State of Idaho,
whose address is Post office Box 7571, Boise, Idaho 83707, and CITY OF MERIDIAN, a
municipal corporation organized and existing under and by virtue of the laws of the State of
Idaho, whose address is 33 East Broadway Avenue, 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" refers to CITY OF MERIDIAN, a municipal Corporation organized
and existing under and by virtue of the laws of the State of Idaho.
(b) "Settlers" refers to SETTLERS IRRIGATION DISTRICT, an irrigation
district organized and existing under and by virtue of the laws of the State
of Idaho.
(c) "Property" refers to the real property situated within Lot 7 Block 12 of
Cobblefield Crossing Subdivision No. 2, according to the official plat
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL -1
22155.60 Client:1098318.2
thereof, as depicted in Exhibit A-Vicinity Map, attached hereto and made
a part hereof.
(d) "Specifications" means Settlers' standard engineering drawings on file
with Settlers, and the statements describing the materials, dimensions, and
workmanship for the construction to which reference is made in the plans,
maps, drawings, and notes listed in Exhibit B, attached hereto and made a
part hereo£
WITNESSETH•
WHEREAS, Settlers owns and maintains a system of canals and laterals,
including the Settlers Northside Canal, also known as the Lemp Canal {hereinafter the "Settlers
Northside Canal"), for purposes of delivering and removing irrigation water to and from its
landowners, together with easements to convey water in such canals and laterals; easements for
ingress and egress; and easements for the operation, inspection, maintenance, and repair of the
canals and laterals;
WHEREAS, Ciry currently possesses a public utilities, drainage, and irrigation
easement across the Property, pursuant to the Plat of Cobblefield Crossing Subdivision No. 2,
recorded with the Ada County Recorder on September 22, 2005, as Instrument No. 105138534;
WHEREAS, the Property is located within the boundaries of Settlers lrrigation
District;
WHEREAS, City desires to obtain a license from Settlers in order to construct,
own, operate, and maintain a six inch (6") potable water discharge pipeline, which pipeline will
originate at its connection to a six inch (6") water main pipeline owned, operated and maintained
by the City and located on the Property, and will continue until it reaches the Settlers Northside
Canal, as depicted in the plans, maps, drawings and notes set forth as Exhibit B;
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 2
22155.60 Clienta098318.2
WHF,RF,AS, Settlers desires to grant the license to City for the purposes of
constructing, owning, operating, and maintaining the six inch (6"} potable water discharge
pipeline;
NOW, THEREFORE, in consideration of the mutual benefits to be received by
Settlers and City, and other good and valuable consideration, which consideration is hereby
acknowledged by the parties, and the promises, covenants, agreements, and conditions
hexeinafter set forth, the parties agree with one another as follows:
AGREEMENTS:
Grant of License. Settlers hereby grants to City a license (the "License")
for the purposes of constructing, owning, operating, and maintaining a six inch (6") potable
water discharge pipeline, which pipeline will originate at its connection to a six inch (6") water
main pipeline owned, operated and maintained by the City and located on the Property, and will
continue until it reaches the Settlers Northside Canal; provided, such discharge pipeline is
constructed in accordance with the terms and conditions of the Agreement and as depicted in the
plans, maps, drawings and notes set forth as Exhibit B. It is acknowledged and agreed by the
parties that said discharge pipeline shall only convey potable water discharged from the City's
six inch (6") water main pipeline. In the event that the potable water flows are commingled with
any stormwater discharges or other urban runoff, Settlers shall have the right to restrict or
completely shut-off all discharge flows.
It is further acknowledged and agreed by the parties that the City shall provide
Settlers with written notice at least forty-eight (48) hours prior to discharging potable water from
its six inch (6") water main pipeline into the Settlers Northside Canal and such discharges shall
be limited to the irrigation season only, between April 1 and October 15 of each year. Such
LICENSE AGREEMENT FOR CITY OF MERIDIAN PO'I'ASLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 3
22155.60 CIieM:1098318.2
potable water discharges shall not exceed a rate of 2,000 gallons per minute for a time period not
to exceed twenty {20) minutes during any given discharge event (roughly a total of four (4) cubic
feet per second). Settlers shall have the right, in its absolute and sole discretion, to refuse
permission to the City upon its receipt of the City's 48-hour written notice to discharge. Settlers
shall communicate such refusal to City in writing prior to expiration of City's 48-hour discharge
notice.
2. Restrictions on License. Unless otherwise set forth in this Agreement, the
License is subject to the restriction that no construction may begin on the Settlers Northside
Canal until November 1, 2008, and must be completed prior to March 15, 2009. City expressly
acknowledges and agrees that this Agreement does not grant City the right to install any
property, utilities, equipment, improvements, or other facilities, except as may be described in
this Agreement, or the right to impair any rights of Settlers or others in the use of the Settlers
Northside Canal. This grant of the License is expressly conditioned upon the prior receipt by
City 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 further expressly
conditioned upon Settlers' prior written approval of all drawings and plans concerning the
activities to be conducted by 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 City is in compliance with
the terms of this Agreement. Settlers may revoke the License granted hereunder should City at
any time fail to comply with the terms and conditions of this Agreement; provided, however, that
Settlers delivers to City written notice of such failure and City fails to cure the lack of
compliance within fifteen (15) days of delivery of such written notice.
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 4
22155.60 Clienf:~0983'18.2
4. Installation and Inspection. City, following execution of this Agreement
by the parties, recording of this Agreement with the County Recorder, and subject to the time
limitations set forth herein, may commence the construction contemplated under this Agreement
and as described in the plans, maps, drawings, and notes set forth as Exhibit B. City, or its
agents ar contractors, shall perform all work contemplated by the terms of this Agreement in a
workmanlike manner. City agrees to assume all responsibility, including general liability and
costs for the construction.
Unless otherwise set forth in this Agreement, any construction or other activities
by City which may impede or impair the flow of water through the Settlers Northside Canal may
only be performed during the non-irrigation season, which is usually between November 1 and
March 15. City expressly acknowledges that, notwithstanding City's assumption of certain
responsibilities and receipt of certain rights under this Agreement, Settlers does not zelinquish its
ownership rights in any portion of its facilities, including the Settlers Northside Canal.
5. Warranties. The plans, maps, drawings, and notes listed in Exhibit B must
be approved in writing by Settlers prior to commencement of any construction which will impact
Settlers' facilities, including the Settlers Northside Canal City hereby represents and warrants
that the construction contemplated hereunder will be free of defects in material and
workmanship. City agrees to replace any portions of the improvements impacting the Settlers
Northside Canal which fail due to defects in material, workmanship, or improper installation for
a period of two (2) years from the date of linal inspection of the construction by Settlers.
b. Recognition of Existin;7 Easement for the Settlers Northside Canal. City
hereby recognizes an existing easement for the Settlers Northside Canal comprising a total width
of fifty feet (50') as identified on the Plat of Cobblefield Crossing Subdivision No. 2, recorded
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 5
22155.6Q Client:16983'18.2
with the Ada County Recorder on September 22, 2005, as Instrument No. 105138534 {the
"Existing Easement"). Such Existing Easement exists for the purposes of conveying water in the
Settlers Northside Canal and for ingress and egress in order to operate, repair, and maintain the
Settlers Northside Canal.
7. Operation, Maintenance, and Repair of Improvements Impacting the
Settlers Northside Canal. It is recognized by Settlers that maintenance, repair and/or
replacement of the improvements constructed by City and which impact a Settlers facility, under
the terms and conditions of this Agreement and as identified in the plans, maps, drawings, or
notes set forth as Exhibit B, maybe necessary subsequent to the execution and recording of this
Agreement. In the event that City desires to perform any maintenance, repair and/or replacement
of such improvements, i# acknowledges and agrees that the prior written consent of Settlers is
required prior to commencement of any such maintenance, repair and/or replacement of the
improvements within the area of the Settlers Northside Canal or its corresponding Existing
Easement.
8. Prohibition of Stormwater Discharge Outlets into Facilities.
Notwithstanding anything to the contrary contained in this Agreement or the plans, maps,
drawings, and notes set forth as Exhibit B, it is hereby acknowledged and agreed by the parties
hereto that Settlers does not approve, authorize, permit, allow, or accept any stormwater
discharge into any facility owned, operated, and/or maintained by Settlers, whether it be a pipe,
conduit, culvert, canal, lateral, drain or other ditch. Also, City agrees to not construct, or allow
the construction of, any facilities capable of conveying stormwater discharges into any facility
owned, operated, and/or maintained by Settlers.
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAI. - 6
22155.60 Client:1098318.2
Indemnity. City agrees to protect, defend, indemnify, and hold Settlers
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 any acts or omissions of City, its agents or
contractors, related to or in connection with {a) its use of Settlers' facilities and/or systems;
(b) use of the easements of Settlers; (c) any activity under this Agreement; and {d) the exercise of
any privileges or performance of any obligations by City hereunder.
Furthermore, City agrees to protect, indemnify, and hold Settlers 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 quality violations, flooding, or any interruption or
interference with the flow of water in the Settlers Northside Canal caused by any act or omission
of City, its agents, or contractors.
10. No Liens. City shall allow no liens as a result of any labor performed or
materials supplied in connection with the activities of City, its agents, or contractors, to attach to
the Settlers Northside Canal, or to any adjacent lands held by Settlers.
11. Permits. City represents that it has obtained all permits, licenses, and
acknowledgments xequired to conduct the activities to be performed under the terms of the
Agreement. Additionally, City shall deliver to counsel for Settlers a copy of (1} a Clean Water
Act Section 404 Permit or non jurisdictional determination (waiver) from the United States
Army Corps of Engineers and (2) a water quality certification issued by the Idaho Department of
Environmental Quality, prior to commencement of construction impacting Settlers' facilities,
including the Settlers Northside Canal. The parties hereby recognize and agree that this
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSiDE CANAL - 7
22155.60 Client: t 0983 8.2
Agreement will not be executed by SetClexs and recorded until counsel for Settlers is in receipt of
the appropriate documentation required under this Section.
12. 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 City, or its agents or contractors, under this Agreement, the
nonprevailing party in such suit or proceeding shall pay to the prevailing parry such sum or sums
as the court shall adjudge reasonable for attorney fees and costs, including such fees and costs on
appeal.
13. Further Consideration. City recognizes that the License herein granted is
for its benefit, and not for the benefit of Settlers, and, for that reason, agrees to promptly pay all
engineering costs and legal expenses relating to the negotiation, preparation, and execution of
this Agreement. It is expressly agreed that Settlers shall not be responsible for the payment of
said costs or fees.
14. 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.
15. 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 persons
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.
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 8
22155.b0 Client:1098318.2
16. 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.
17. 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.
18. Interpretation. The validity, meaning, and effect of this Agreement shall
be determined in accordance with the laws of the State of Idaho.
19. Re resentations and Warranties.
(a) Settlers. Settlers 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 to enter into and perform its obligations under this Agreement; {iii) all organizational
and other actions required to authorize Settlers to enter into and perform this Agreement have
been properly taken; and (iv) this Agreement has been properly executed and delivered by
Settlers and is valid and binding upon Settlers in accordance with its terms.
(b) Cam. City represents and warrants that: (i) it is a municipal corporation
organized and existing under and by virtue of the laws of the State of Idaho; (ii) it has the
capacity to enter into and perform its obligations under this Agreement; {iii} all actions required
to authorize City to enter into and perform this Agreement have been properly taken; (iv) this
Agreement has been properly executed and delivered by Ciry and is valid and binding upon 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 of the Agreement.
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - 9
22155.60 Clisnt:1098318.2
20. City's Authorization of Signature. City hereby warrants that the person
signing this Agreement has been authorized to do so by City.
21. 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 sen# 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
3 3 East Broadway Avenue
Meridian, Idaho 83642
Each party may change its address for delivery by written notice in the manner provided herein.
22. 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.
[Signature Page Follows]
LICENSE AGREF,I4ENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL -10
22155.6D Client: 1098318.2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date first set forth above.
Attest:
CITY OF i1~1ERIDIAN
By,
Its
{written name)
City Clerk
SETTLERS IRRIGATION DISTRICT
Attest:
Vicki Keen, Secretary
By
Tom Davis, President
of its Board of Directors
LICF,NSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - ll
22155.60 Client:10983 ~ 8.2
STATE OF IDAHO )
ss.
County of Ada )
On this day of , 2009, before me, a 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 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 IDAHO
Residing at
My Commission Expires
STATE OF IDAHO )
ss.
County of Ada )
On this day of , 2009, before me, the undersigned
Notary Public in and for said state, pexsonally appeared TOM DAMS known or identified to me to
be the President of the Board of Directors of SETTLERS IRRIGATION DISTRICT, the person who
executed the instrument on behalf of the 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
LICENSE AGREEI~IENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL -12
22155.60 Client:1098318.2
STATE OF IDAHO )
ss.
County of Ada )
On this day of , 2009, before me, the undersigned
Notary Public in and for said state, personally appeared VICKI KEEN known or identified to me
Yo be the Secretary of SETTLERS IRRIGATION DISTRICT, the person who executed the
instrument on behalf of the SFTTLERS 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
LICENSE AGREEMENT FOR CITY OF MERIDIAN POTABLE WATER
DISCHARGE LINE INTO SETTLERS NORTHSIDE CANAL - I3
22155.60 Client:10983~ 8.2
EXHIBIT A
Vicinity Map
EXHIBIT A
Clieni:1098318.2
CITY OF MERIDWN
2008 FLUSHING STATION
AT LEMP CANAL
EYHIBIT B
Engineering Plans and Specifications
EXHIBIT B
Client:1098318.2
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WAT'EF2 MAIN FLUSHING STATION #1
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