HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Ten Mile Interchange 12-inch water main crossingMemo
To: Jaycee Holman; Tara Green
From: Brent Blake, Engineering Tech. II
CC: Clint Dolsby, Kyle Radek, Tom Barry, Scott Steckline
Date: 2/26/2008
Re: Proposed Agenda Item for March 3, 2009 Council Meeting
~ECETVE~
~~e 2 s Zoos
CITY OFC~~ ,~?
CITY CLERKS OFFICE
The Public Works Department respectfully requests the following item be placed on the
March 3, 2009 Council agenda, under Consent Agenda, for Council's consideration:
License Agreement with Nampa & Meridian Irritation District for 12-inch water main crossing
as part of the Ten Mile Interchange Proiect
Recommended Council Action: The Public Works Department recommends
that City Council approves the license agreement with Nampa & Meridian
Irrigation District fora 12-inch water main crossing as part of the Ten Mile
Interchange Project and authorizes the Mayor to sign it.
Thank you for your consideration. Please contact me if you have any questions regarding
this item.
• Page 1
LICENSE AGREEMENT
LICENSE AGREEMENT, madc and entered into this day of , 2t?{)9, by and
among NAM PA & M ERIDIAN IRRIGATION DISTR[C"[', an irrigation district organized and existi ng undo
and by virtue of the laws of the State of Idaho, party of the first part, hereinafter rcl'errcd to as the "District",
and
CITY OF MERID[AN,
33 East Idaho, Meridian, Idaho (33642
party or parties of the second part, hereinafter collectively referred to as the "Liccnscc",
WITNESSETH:
WHEREAS, Liccnscc is the owner of real pr{.~pcrty/right-oi'-way for a water line and reuse main
(burdened with the eascmcnt of the District hcrcinai'ter mentioned} particularly described in the "Lc;gal
Dcscriptinn" attached hereto as Exhibit A and by this reference madc a part hcrcof; and,
WHEREAS, the District owns the irrigation ditch or canal known as KENNEDY LATERAL
(hereinafter collectively referred to as "ditch or canal").. an integnal part of the District's irrigation works and
system, together with the casement therefor to convey ira igaticm and drainage water, operate, clean, maintain,
and repair the ditch or canal, and access the ditch or c:~~nal for those purposes; and,
WHEREAS, said ditch or canal and eascmcnt crosses and intersects Licensees rea! property as
shown on Exhibit 13 attached hereto and by this reference madc a part hcrcof; and,
WHEREAS, the Licensee desires a license to engage in construction or activity, or apprcwe existing
construction or activity, affecting said ditch or canal or the District's casement in its course acrcns the lands
of the Licensee in the manner and under the terms and conditions hereinafter set li~rth; and,
WHEREAS, ii is necessary that the District protect ditches and its right of way along its ditches;
NOW, THEREFORE, for and in consideration ~ri'the premises and ol'the covenants, agreements and
u~nditiuns hcrcinal'ter set forth, the parties ag~rcc as fellows:
1. The Licensee shall have the right to t~~odify the said ditch or canal or encroach upon the
District's eascmcnt along said ditch or canal in the may ner generally described in the "Purpose of License"
attached hereto as Exhibit C and by this rei'erence made a part hcrcof. Any modification of said ditch or
canal by the Liccnscc or cnc.~roachmcnt upon the Di~iricCs eascmcnt along said ditch or canal shall he
performed and maintained in accordance with the "Spc~ial Conditions" stated in Exhibit D, attached hereto
and by this refcrenc:c; madc a part hcrcof. Any differcn=-e or discrepancy between the items listed in Exhibit
C, "Purpose of License," and any plans or drawings rclcrcnccd in or attached to Exhibit D shall he resolved
in favor of Exhibit C. Liccnscc shall only he permitted or allowed to modify the ditch or canal or encroach
upon the District's eascmcnt as described in Exhibit C even if any plans or drawings rclcrcnccd or attached
k) Exhibit D provide or Shaw 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 purpnse~s and in the manner descrihcd herein. The Liccnsec
shall not change the kx;ation of the ditch or canal, bury the ditch or canal in pipe, or otherwise alter the ditch
or canal in any manner not descrihcd in this agreement without first obtaining the written permission of the
District.
3. Each facility ("facility" as used in thi=, agreement means any object or thing of any nature
installed in or on the District's easement by the Licensee or the Licensee's predecessor in interest) shall he
constructed, installed, operated, maintained, and rcpair~,d at all times by the Liccnsec al the cost and cxpcnsc
ofthc Liccnsec.
4. Licensee af*recs to construct, install, o~eratc, maintain and repair each facility and conduct
its ac;tivitics within or affecting the District':; easemens. so as not to constitute or cause:
a. a hazard to any person or property;
h. an interruption or interfcrenec with the slow 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 oi' water from the ditch or
canal;
d. the subsidcnc;e of soil within or adjacent to the casement;
c. any other damage to the District's casement and irrigation works.
5. The Liccnsec agrees la indemnify, hold harmless, and dcfcnd the District from all claims
fcx damages arising out of any of the Licensee's construction or activity which constitutes or causes any of
the circumstances enumerated in the preceding paragraph, 4.a. through 4.c., or any other damage to the
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 pe;rforn'~ed and the materials used in such construction shall
at all times he subject to inspection by the District and the District's engineers, and that final acceptance of
such work shall not he made unfit all such work and materials shall have been expressly approved by the
District. Such approval by the District shall not he unreasc}nahly withheld.
7. The District reserves the right, at the District's option, to remove any facility installed by the
Liccnsec and to repair any alteration by the Liccnsec a!'said ditch or canal and the easement theni~ir which
does not comply with the terms oi'this agreement, and t+~ remove any impediment to the flow ol'watcr in said
ditch or canal and any unsafe condition or harard caused by the Licensee, at any time, and the Liccnsec
agrees to pay to the District, on demand, the costs which shall he reasonably expended by the District tix
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 remedies hereunder,
shall have the right to perform the necessary maintenance and repairs and the Liccnsec agrees to pay tc~ the
District, on demand, the cost or cxpcnsc which shall hc~ reasonably expended or incurred by the District for
such purposes. The District shall give reasonable notice to the Liccnsec 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 ar support any
cIairn oI'any kind by Liccnsec or any third party against the District for failure to exercise the; options stated
in this paragraph, and Licensee shall indemnify, hold harmless and dcfcnd the District from any claims made
LICENSE AGREEMENT -Page 2
against the District arising out of or relating to the teens of this paragraph except for claims arising solely
out of the negligence of the District.
8. Neither the terms of this a~ncement, th~„ permission granted by the District to the Licensee,
the Licensee's activity which is the subject of this ageement, nor the parties exercise of any rights cfr
performance of any obligations of this agreement, shall be construed or asserted to extend the application
of any statute, rule, regulation, directive or other reyuircment, or the jurisdiction of any federal, state, or other
agency or olTicial to the District's ownership, operal:on, 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. [n the event the District is reyuircd to comply with any such
reyuircments or is subject to the jurisdiction of any su~~h agency as a result of execution o#' this agreement
or the Licensee's activity authorised hereunder, Licc~tsce shall indemnify, ht>Id harmless attd defend the
District from all costs and ]iahilities associated with the application of such laws or the assertion ot'such
jurisdiction or, al the option of the District, this agreement shall he of no force and eflcet and the Licensee
shall cease all activity and remove any facility authors ~ed by this agrccmcnt.
9. In addition to all other indemnification provisions herein, LICCnsce further agrees to
indemnify, hold harmless and defend the District from .any injury, damages, claim, lien, cost andlor expense
(including reasonable attorney's fees) incurred by, or a~scrted against, the District by reason of the negligent
acts or omissions of Licensee or its agents, contractors or subamtractors in performing the construction and
activities authorized by this agrccmcnt.
1{). The Licensee agrees that the District shall not he liable far any damages which shall occur
to any facility, structure, plant, or any other improvement of any kind ur nawre whatsoever which the
Licensee shall install on the said casement area of the ~`i'istrict in the reasonable exercise of the rights of the
District in the course of performance of maintenance r ~r repair of said ditch or canal. The Licensee further
a#,~rccs to suspend its use of the said easement area when the use csf the casement arcs is reyuircd by the
District 1'or rnaintenancc or repair under this or any other paragraph of this agrccmcnt.
11. Licensee shall place no structures, pathways or landscaping of any kind above or within the
District's eascmcnt area except as referred to in this ag-rccment or exhibits hereto without the prior written
umscnt of the District. Nor shall Licensee permit, autl;oritc or grant any other person or entity to excavate,
discharge, construct or place any structures, pathway4 or landscaping within the District eascmcnt without
the prior written consent of the District.
12. Should either party incur costs or attk~rncy tees in connection with efforts to enforce the
provisions of this agrccmcnt, whether by institution of ;uit or not, the party rightfully enforcing or rightfully
resisting enforcement of the provisions of this agreerr,cnl, or the prevailing party incase suit is instituted,
shall he 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 to impair
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 arc devoted and dedicated and that this contract shall he at all times construed according to such
principles.
LICENSE AGREEMENT -Page 3
l4. Nothing herein contained shall he amstrucd 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 interior and subservient to the rights of l.he District to the use of said ditch or canal for the
transmission and delivery of irrigation and drainage water.
l5. In the event ol'thc failure, refusal or ni:glecl of the Liccnscc to comply with all of the terms
and u~nditions of this agreement, the license ol'the Licensee under the terms hereof may he terminated by
the District, and any facility, structure, plant, or any other improvement in or over said disc-h or e;umal, and
the right of way thcrcfor, which may impede or restrict f he maintenance and operation of such ditch ar canal
by the District with its equipment for the maintenance of its said ditch or canal may he removed by the
District.
16. The Liccnscc agrees to pay attorney fcas or engineering fees charged by the attorney liar the
District nr by the engineers for the District in connection with the preparation of this License Ag~rcemcnt cx
in connection with negotiations covering the terms and conditions of this License Agreement. Liccnscc also
agrees to pay any fees incurred in connection with the recording of this Agreement.
] 7. Nothing in this a}~recmcnt shall create or support a claim of estoppel, waiver, prescription
or adverse possession by the Liccnscc or any third party against District.
]K. This agreement is not intended for thr benefit of any third party and is nt~t enii~rceahlc by
any third party.
1y. 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 force and
e rfect.
20. The word "Licensee", il' used in the n;;uter in this agreement, includes the masculine and
feminine genders, the singular number includes the plural, and the plural number includes the singular.
The covenants, u~ndilions and agreements herein contained shall constitute covenants to run with,
and running with, all of'the lands of the Liccnscc described in said Exhibit A, and shall he binding on cash
of the parties hereto and on ali 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.
NAM.PA ~Yc MERIDIAN IRRIGATION DISTRICT
~Y-..
It+ President
ATTEST:
Its Secretary
LICENSE AGREEMENT - Pagc 4
CITY OF MERIDIAN
liy
ATTEST:
STATE OF IDAHO )
) SS:
County of Canyon }
On this day of , "H)9, before me, the undcrsignccl, a N«lary Public in
and for said State, personally appeared Clinton C. Piinc and Darcn R. Coon, known to me to hn: the President
and Secretary, respectively, of NAMPA & MERIDIANIRRIGATION DISTRICT, the irrigat ion district that
executed the foregoing instrument and acknowledged !.o me that such irrigation district cxecutcd the same.
IN WITNESS WHEREUF, I have hereumo set my hand and affixed my official scat, the day
and year in this certificate first above written.
Notary Public i'or Idaho
Residing at ,Idaho
My Commission Expires:
STATE OF IDAHO )
)SS.
county of Ada }
On this day of , 2(HJy, bcli~rc me, the undersigned, a notary
public in and for said slate, personally appeared and ,known to
me to be the and , respectively, of the CITY OF MERIDIAN,
the political subdivision and municipality that executcci the foregoing instrument, and acknowledged to me
that such entity cxecutcd the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my of'f'icial coal, the day
and year in this cerlii'icatc first about written.
Notary Public for
Residing at ,
My Commission Expires:
LICENSE AGREEMENT -Page 5
EXHIi3IT A
Le 7a~1 Dcscripti<~n
Aright-of-way for a potable water main and a Caass A Reuse main located within the road right-of-
way for Ten Mile Road in the NW3/4 of Section 34, 'T'ownship 3 North, Range 3 Wcst and the NE 1J4 of
Secticm 35, Township 3 North, Range 1 West, I3.M., Ada County, Idaho.
EXH1L'IT C
Purpose of License
The purpose of this License Agreement is to hermit and appn>vc Licensee to:
1. construct, install, maintain and repair a 12rnch potable water main across and under the
Kem~edy Lateral and within the District's easement; and
2, construct, install, maintain and repair a 12 inch Class A Rcusc main acrc7ss and under the
Kennedy Lateral and within the District's easement,
all within Licensee's right-of-way described in Exhibit A, located within the road right-ol'-way fc~r Ten Milc
Road, between the Interstate 84 and Franklin Road in Meridian, Ada County, Idaho. No other construction
or activity is permitted within or affecting the Kennedy lateral or the District"s casement.
EXHIBIT D
S ec.~ial Ccsnditions
a. The construction described in Exhibit C shall be in performed in accordance with certain
plans consisting of one sheet attached hereto as Exhibit D-1 and by this reference incorporated herein.
h. The Liccnsc.e reuagnizes and acknowlc~dgcs that the license granted in this agrecmcnt by the
District pertains only to the rights of the District as owner of an eascmcnt. The District has no right or power
to create rights in the Lic;ensce affecting the holder of title to the property suhjcct to the District's eascmcnt.
Any such rights affecting fee title must be acyuired by the Licensee from the holder of title t<~ the property.
Should Licenscc fail to obtain such rights from the holdc;r of title to the property or should the rights c~blaincd
prove legally ineffectual, Licensee shall hold harmless, indemnify and dei'cnd the District from any claim
by any party arising out of or related to such failure of rights and at the option cif the District this agreement
shall he of no force and effect.
c. Licenscc represents that Licenscc has uymplicd with all federal, state or other laws, rules,
regulations, directives or other rcyuiremcnts in any form regarding environmental matters, and specifically
those relating to pollution control and water quality, <ts may be applicable under the suhjcct matter, terms
or performance of this agreement broadly construed. Licenscc recognizes its continuing duty to comply with
all such requirements that now exist or that maybe implemented or imposed in the future. Ely executing this
agrecmcnt the District assumes no responsibility or li:~bility for any impact upon or degradation of water
quality or the environment resulting from the discharge. or other activity by Lic;c;nscc which is the suhjcct of
this agrecmcnt.
LICENSE AGREEMENT -Page ti
d. 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 cn entity,
public or private, with respect to environmental matters relating to the subject matter, terms or performance
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 reyuirement.
c. 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 agreement, Licensee shall indemnify, hold harmless and defend the District li~rm all
u~sts 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.
f. The parties to this agreement recognize this license al,*recment is an accommodation to
Lic;ensec. 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 orcontribution of pollutants or contaminants
to the Districi's facilities or to any g~roundwatcr, waters of the State of Idaho or the United States, or any
either destination. Such authority, to the extent that it exists, is possessed and exercised by governmental
environmental agencies.
g. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's casement, nor perform any construction or activity within the District's
easement for the Kennedy Lateral except as referred to in this agreement or exhibits thereto without the prior
written consent of the District.
h. Licensee acknowledges and confirms that the District's easement for the Kennedy Lateral
includes a sufficient arcs of land to convey irrigation and drainage water, to operate, clean, maintain and
repair the Kcnncdy Lateral, and to access the Kennedy Lateral for said purposes and is a minimum of SS 1'cct,
2t) feet to the le#'t of the centerline, and 35 feet to the right of the centerline facing downstream.
Construction shall be completed one year imm the date ol'this Ag*rccmcnt. Time is of the
essence.
LICENSE AGREEMENT -Page 7
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