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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID to Cross Vaughn Lateral with Reclaimed Water Line and a Trunk Sewer Line~~i~E IDIAN~-- Public ~ DA H O Works Department .r----- TO: Mayor Tarnmy de Weerd Members of the City Council FROM: John Boyd ~"4 Engineering Technician II DATE: 1112!2009 Mayor Tammy de Weerd CBy Ceaesq at~~r~, Keith Bard Brad Woaglun Charles Rountree David laremba SUBJECT: LICENSE AGREEMENT WITH NAMPA & MERIDIAN IRRIGATION DISTRICT TO CROSS THE VAUGHN LATERAL IN TWO LOCATIONS WITH A RECLAIMED WATER LINE AND A TRUNK SEWER LINE IN CONDUCTION WITH THE ACRD FRANKLIN ROAD PROJECT. I. RECOMMENDED ACTION A. Move to: 1. Approve the License Agreement with Nampa ~ Meridian Irrigation District to allow installation of a 12" Reclaimed Waterline and an 18°' and 8" Trunk Sewer line that crosses the Vaughn Lateral in two locations in Franklin Road. These will be installed in conjunction with the ACHD Franklin Road Project from Ten Mile Road to Linder Road. 2. Authorize the Mayor to sign the agreement. II. DEPARTMENT CONTACT PERSONS Tom Barry, Director of Public Works 489-0372 Warren Stewart, PW Engineering Manager 489-0350 Clint Dolsby, Asst. City Engineer 4$9-0341 John Boyd, Engineering Technician II (Project Manager) 489-0364 Pagel oft i _ ~-- ~'"N~~ o r , ~:~_ ~l ~.~ III. DESCRIPTION A. Background 1. Any time our facilities cross an irrigation district canal, we must have permission from the appropriate district to install them prior to construction. This License Agreement complies with that requirement. IV. IlVIPACT A. Strategic act: 1. There is no Strategic Impact from this action. B. Service/Deliverv Impact: 1. Without approval of this License Agreement the installation of the abovementioned utility lines cannot take place. This would cause a reduction in sewer services to residents North and South of Franklin Rd. and those properties cannot be serviced with Reclaimed Water. C. Fiscal act: 1. The License Agreement requires a fee be paid to Nampa and Meridian Irrigation District of $428.00 which includes recording fees. V. ALTERNATIVES A. Not Applicable VI. TIlVIE CONSTRAINTS A. Not Applicable VII. LIST OF ATTACHIVIENTS A. Nampa & Meridian Irrigation District License Agreement Approved for Council Agenda: Tom Barry, Director of Public Works Approved for Council Agenda: Warren Stewart, Engineering Manager Date Date Page 2 of 2 RIN~ERT LAW 1.t.rrta 1'.. Berri :43.ua 5: (:hrivk•n.wm lrtim' R. Chrixtcnum I)aaiJ i'. Claihnrna• ~. lin•:c Fum Inn fI. Gould I):nid Hammrryuiat <:Itvlaa L. Hnnsmgrr /'~ tuner, P. Faulman 4ctobcr 28, ?009 Irnmlir Rri.l Mahoncc )arrow li. Raid John Boyd City of iVlcridian 3.i E. Broadway Avenue, Ste. ?00 Meridian, Idaho 83G42 Rc• I2cyucst for License Agreement with Nampa & Meridian Irrigation District DC~Ir Mr. Boyd: Enclosed for review and signature is the original ofthe above-referenced License Agreement you rcqucstr;d on behalf of the City of Meridian. The Liccnsc Agreement must be signed and notarized as indicated. Do not date page one of the l.iccnse Agreement. [fthe original is executed and returned to me 6y November 1 1, 20Qt), 1 will he able to submit the license agreement to the District's Board of Directors for approval and si±,tlaturc at the Board's next meeting on November 17, 20{)9. The District will have the original recorded and I will return a copy to you. Please colltact me if you have any questions or comments regarding this mallet. Yours y~ery truly; ^~ :~,~r - .~"j ~/ i S. Bryce Farris SBr~:kw I;1ICIOSUI'C 455 Scwth Third Strert PO 13ox 2773 l3oiu, Idaho 83701 208.342.4591 E:AX 2U8.342.4(~57 • alAr lianrxal ixpR www.r i n g e r t l a w.com •• al.u hrcnsrd m <.t) ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 12 BOISE IDAH012l11I09 08:15 AM RECORDED REQUEST OF III IIII'IIIII'IIIIII'IIII'~IIIIII I'II Nampa Meridian Irrigation Dist 1 X913 r ~~f LICENSE AGREEMENT LICENSE AGREEMENT, made and entered into this ~_ day of ,~%c.~.y~•x,~-, 2009, by and among NAMPA & 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", WITNESSETH: WI~EREAS, Licensee is the owner of real propertylright-of--way for a Class "A" reclaimed water line and a sanitary sewer line (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 lrnown as the VON LATERAL (hereinafterrefened to as "ditch or canal"), an integral part of the District's irrigation works and system, together with the 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, 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 activity, or approve existing construction or activity, affecting said ditch or canal or the District's 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 t11at the District protect ditches and its right of way along its ditches; NOW, THEREFORE; for and in consideration ofthe 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 encroach upon the District's 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 easement along said ditch or canal shall be perforn~ed 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 ofLicense," 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 ditch or canal or encroach upon the District's easement as described in Exhibit C even if any plans or drawings referenced or attached to Exhibit D provide or show otherwise. ?. "Phis agreement pertains only to the Licensee's modification of said ditch or canal or rncroachmcnt to the District's casement for the purposes and in the manner described herein. The Liccnsec ,hall 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 not described in this agreement without first obtaining the written permission of the District. 3. Bach facility ("facility" as used in this 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 be constructed, instal led, 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 casement so as not to constitute or cause: a. a hazard to any person or }xoperty; b. an interruption or interference with the t7ow 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 casement and irrigation works. 5. 'I~he Licensee agrees to indemnify, hold harmless, and defend the District from al! claims tirr 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:e., or any other damage to the caseimentand irrigation works which may be caused by the construction, installation, pperation, rnaintenancc, repair, and any use or condition of any facility. G. Liccnsec 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 I .icensee and to repair any alteration by the Liccnsec of said ditch or canal and the easement thcrctiir which. does not comply with the terms of this agreement, and to remove any impediment to the flow of water in said ditch ar canal and any unsafe condition cx 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. Ifthc Liccnsec shall fail in any respect to properly maintain and repair such facility, then the I )istrict, 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 Licensee ab~rccs to pay to the District, on demand, the cost or expense which shall be reasonably expended or incurred by the District ii~r 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 incases of emergency the District shall attempt. to give Such notice as reasonable under the circumstances. Nothing in this paragraph shall create or support any clam ol'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 fmm any claims made LICENSE AC;REEMENT - Pa};e 2 against the District arising out of or relating to the terms of this para~aph except for claims arising solely uut o!`the ncgligrncu ol`the District. 8. Neither the terms of this agreement, the permission granted by the Iistrict to the Licensee, the Licensee's activity which is the subject of this agreement, nor the parties exercise of any riC;hts or periitrmance oi`any obligations of this agreement, shall be construed or asserted to extend the application ofany statute, rule. regulation, directive or otherrequirement, 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 reyuirrn~cnts or is subject to the jurisdiction of any such agency as a result of execution of this agreement or the Licensee's activity authorised hereunder, Licensee shall indemnify, hold harmless and defend the District from all. costs and liabililics associated with the application of such laws or the assertion ol` such jurisdiction or, at the option of the District, Phis agreement shall be of no force and effect and the Licensee shall cease ull activity and remove any facility authorized by this agreement. ~). In addition to all other indcrnnil`ieation provisions herein,. Licensee further ag~xcs to indemnity, bald harmless and defend the District from any injury,. damages, claim, Lien, cost and/or expense {including reasonable attorney's Pecs) incurred by, or asserted against, the District by reason ofthe negligent acts or omis:+ions of Licenser or its agents, contractors or subcontractors in performing the construction and activities authorized by this agreement. l (1. 1'hc 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 I.ictntiee shall install on the said easetneni area ofthe District in the reasonable exercise of the rights ol'thc ° District in the course of performance of maintenance or repair of said ditch or canal The Licensee further agrees to suslx:nd its u,c of the said casement area when the use of the easement area is rcyuired by the District fur maintenance or repair under this oc any athcr paragraph of this agreement. l 1. Licensee shall place no structures, pathways or landscaping of any kind above or within the l}isn•ict's easement area except as referred to in this agreement or exhibits hereto without the prior written consent of the District. Nor shall Licensee permit, authorise or grant any other person or entity to excavate, discharge, construct or place any structures, pathways or landscaping within the District easement witlYOUt the prior written consent of the District. l2. Should either party incur costs or attorney fees in connection with efti~rts to enforce the provisions of this agreement, whether by institution of suit or not, the party rightfully enforcing or rightfully resisting enfi~rccmcnt of the. provisions of this agreement, or the prevailing party in case suit is instituted, shall be entitled to rcimbursemcnt for its casts and reasonable attorney fees from the other party. 13. "I'he parties hereto understand and agree that the District has no right in any respect to impair the uses and purlx~ses of the irrigation works and system of the District by this agreement, nor to t~ant any rights in its irrigation works and system incompatible with the uses to which such irrigation works and ~;ystcm are devoted. and cicdicated and that this contract shall be at all times construed according to such principles. LICENSE .AGRlaMEN'i' -Page 3 14. Nothing herein contained shall be construed to impair the right of way of the District in the said ditch or canal and al l 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 maybe 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 inay 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. ] 6. 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 constitute covenants to run with, and running with, all of the lands of the Licensee described in said Exhibit A, and shall be binding on each 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 & MERID N IRRIGATION DISTRICT ~~ ~ By Its President ATl'EST: L ~ r \ ~°'~y ~'' ~,~ ~~ Its Secretary ~ L[C ENSE AGREEMEN"f -Page 4 ~~ CITY'OF MERIDIAN ``~~~~u~~nnii ,~.rf, /~ ,,~ Q~ MH '' ~,~,' ATTEST: ~~~```G`~~GO~OR~TF ~~ ~~~~, %"~p rys'~~ ~ ,~ STATE OF 1DAI-IO ) ss: '!',~ ~~~+-r~i~~~`®~````` County of Canyon ) On this ~_ day of ~~ 2009, before me, the undersigned, a Notary Public in and for said State, personal ly appeared Clinton C. Pline and Doren R. Coon, known to me to be the President and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that executed the foregoing instrument and acknowledged to me that such irrigation district executed the same. and year in this IN W I"I'Nl;~SS WHEREOF, I have hereunto set my hand and affixed my official seal, the day certificate first a1~Ay~•y~jtten. F. O R t~ 'd4 ~~ Q0+Oe00e 0` O~ B+o X00 ~~ O®~ ®e0 •~O a~ ~®T~Ry ono ®m® ago ~ e A ~ B'„'4C' m a s9+. ~~ ao ®s ~~ epee STATE OF IDAH'~ ) +oe+ ,~?°~oe®ov®°~Q, 0voo county of Ada k,~~ - •. n•. ,~ `~ Notary Public for Idaho Residing at ,Idaho My Commission Expires:_~~'}U l ~ ~r ~j On this ~"`d1~meY~~~,y~.~ , 2009, before me, the undersigned, a notary public in and for said state, personally appeared 7aw.~, als ~~'~ and e~ n1atR lrnown to me to be the -"~p..40~ and C~,~Cti (~ ,respectively, oft e CITY OF MERIDIAN, the political subdivision and municipality that executed the foregoing instrument, and acknowledged to me that such entity executed the same. IN W ITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. ©°~~~ ~®~P °e 0~~~. .~, o o ~ ' © ; ~ O , r a ~ °~ , ~0 0 ~~ ~ i Q~ p ~AO~ ~ ®~' bbp~~'p® LICENSE AGREEMEIS'~'0e 5 Notary Publi or' Residing at h , My Commission Expires: t "1 F.XH[BiT A I.e,E;al Description n right-of-way for a sanitary sewer line and Class "A" reclaimed water line located within the road right-of--way for Hranklin Road, between Linder Road and'fen Mile Road, in Sections 14 and 11,'I'ownship 3 North, Range I West. li.M., Ada County, Idaho. I;XH16I'f C Purpose of License 1'he purpose o1'this License Al,~reement is to permit and approve Licensee to: 1. construct, install, maintain and repair an 8 inch- sanitary sewer line across and under the Vaughn Lateral and within the District's easement; 2. construct, install, maintain and repair a 12 inch reclaimed water pipeline across and under the Vaughn Lateral at two locations within the right-of-way for Franklin Road and within the District's easement: and 3. construct, install, maintain and repair an 18 inch sanitary sewer line across and under the Vaughn Lateral and within the District's easement, all within L~censrc's right-of--way described in Lsxhibit A, located within the road right-of-way for Franklin Itoarl, between Linder Road and Ten Mile Road, in Meridian, Ada County, Idaho. No other construction or activity is permitted within or affecting the Vaughn Lateral or the District's easement. I:XHIBi'I' D Snecial Conditions a. The construction described in Exhibit C shall be in performed in accordance with ccrtairz plans co~~sisting cif four sheets attached hereto asExhibit LD-1 and by this reference incomeorated herein. The crossings shall be constructed below existing or new pipe for Franklin Road and shall constructed by boring if during the irrigation season or by trenching below the pipe for the Vaughn Lateral if durinb the non- irrigation season. h. 'l'he Licensee rccc~gn izes and acknowledges that the 1 icense granted in this agreement by the District pertains on ly to the rights ofthe District as owner of an easement. The bistrict 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 title to the property. Should Licensee fat I to obtain such rights from the holder of title to the property or should the rights obtained prove lcgaily inell`ectual, Licensee shall hold harmless, indemnify and defend the bistrict from any claim by any party arising out c~1'or related to such failure of rights and at the option of the District this agreement Izall be of no ford and c!'fcci. c. Licensee represents that Licensee has eornplied 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 o#'this a},~rcemcnt broadly construed. Licensee recognizes its continuing dutyto comply with LICENSE A(;RFiEM[;N7" -Page ti all sash requirements that now exist or that may be implemented or imposed in the future. By exccuti g obis agreement the t)isU•ict assumes no responsibility 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. d. hicensee hereby indemnifies, holds harmless and shalt 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 respect to environmental matters relating to the subject matter, terms or performance of Phis 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. e. In the event the District is required by any governmental authority to acquire orcomply with any }xrmit or other operational requirements associated with Licensee's discharge and other activity which is the subject of this agrccment, Licensee shall indenmify, hold harmless and defend the District form all casts and liabiliti~a associated with such permit and other requirements, including but not limited to al l costs assoCated with all pert»it aequiSiiian, construction, monitoring, treatment, administrative, filing and ether requircinents. l: The parties to this agreement recognize this license agrccment is an accommodation to Licensee. 'I'hc District by this agrccment does not assume, create, or exercise legal or other authority, either rxpress ur impl ied. to regulate control, or prohibit the discharge orcontribution ofpollutants or contaminants to thr 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 environmental agencies. g. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or landsca}ping within the nistrict's easements, nor perform any construction or activity within the District's casement ii~r the Vaughn Lateral except as referred to in this al,~reement or exhibits thereto without the prior written consent oi'thc District. h. Licensee acknowledges and confirms that the District's easement for the Vaughn Lateral includes a sul'ticicnt area of land to convey irrigation and drainage water, to operate, clean, maintain and repair the Vaughn Iateral, and to access the Vaughn Lateral far said purposes and is a minimum of40 feet, 2t1 feet to either side of the centerline. i. ('onstnrction shall be completed as part of the Franklin Road (Ten Mile to Linder) road project and shall be completed prior to December 3l, 2012. Time is of the essence. 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