HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Crossing Ten Mile Drain, Stub Drain, Kennedy Lateral with Reclaimed Water Line and a Trunk Sewer Line
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i~yor Tammy We+~rd
Mamt~tt~o
Kett ~
Bte~d cm
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t1auW Zan~mba
TO: Mayor Tammy de Weerd
Members of the City Council
FROM: Jahn Boyd
Engineering Technician II
DATE; 8/5l~Q09
SUDJEC`T; LICENSE AGREEMENT WITR 1V'A14iPA & MERIDIAN IRRIGATION
DISTRICT TO CROSS T1EIE TEIY MILE DRAIN, TEIY MTLE STUD
DRAIN, KENNEDY LATERAL AND EIGRT MIKE LATERAL WITII A
RECLAIMED 'WATER LINE AND A TRZ1AfiI~ SEIaVEII LINE IN
CONDUCTION WIT)~I TILE ACRD TEN MILE ROAD PROJECT,
I, RECOMMENDED ACTION
~ Move to:
Approve the License Agreemennt with Nampa 8c Meridian L•rigation
1?istrict to allow installation of a Reclaimed Waterline in Ten Mile Road
that crosses the Ten Mile Stub Drain, Kennedy and Eight Mile Laterals
and a Reclaimed Waterline and Tnink Scorer line that cross the Ten Mile
Fain in Franklin Road. These will be installed in conjunction with the
ACI-ID Ten Mile 12oad Project from Franklin to Cherry Lane.
Z. Authorize the Mayor to sign the agreement.
Ii. DEPARTMENT CONTACT PERSONS
Tong Darcy, Director of Public Works 489-472
Warren Stewart, PW Et~ineering er 489-035Q
Kyle Radek, Asst. City Engineer 489-t?3~4~
Clint Worthington, S Engineer (Project Manager) 489-U349
~~,
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ITL TiESCRII'~'I~1V
. i
1. Any time our facilities cross an irrigatian district canal we must have
permission from the appropriate district to install them prior co
canstructionn This License Agreement complies with that requirement.
IV. Il1~PAC'1°
A, i ,~~.~
1. There is no Strategic Impact from this action.
i. Without approval of this License Agreement the ir~stailatian of the
abavementioned utility lines cannot take place. This would cause a
reduction in water and sewer services to residents east of Ten Mile ~d.
and the 'Ten Mile Interchange will not be fed with Reclaimed 'hater,
C. Fiscal.Imnact:
1. There is no Fiscal Impact from this action.
~. ALTERNATI~Eg
~, Not .Applicable
YI. TI4V1E Ct31~STRAINTS
A, riot Applicable
ii1~ LIST OF AT°TlI~BME~tTg
A. Nampa do Meridian Irrigation Isstrict License Agreement
Approval for +Louncil Agenda:
Tam Barg, I3irector of Public Walks Date
rs~...., a ..~'
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July ~~, 24A9 Paara~a ~;. A4~P+sa~y
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Ltaa~it91`. St~t~sasa
l!(ate vV. Runyan
~-'T3-B l~ngineers, inc.
254 South 13eechr~rood Avenue, Suite 241
Braise, Idaho 83709-4944
Re: Request for License Agreerrteni wri.th ~tampa & Meridian irrigation District
scar Mr, Runyan:
lwnctosed for rey iew and signature is the original of the above-referenced License Agreement
you requested on behalf of the City of Meridian.
The License Agreornent must be signed and notariz~i as indicated. Do not date page cane of
the License Agreement. If th+e original is executed and returned to me by August 1 ~, 2409, i wil' be
able to submit the license ag<-eement to the District's Board of Dlrecct®rs for approval and signature
at the Boards next meeting on August 18, 2449. The District will hive the ®riginal recorded and
i will return a copy to you.
Please contact ine if you have any questions or comments regarding this matter.
Yours very truly
-°'"_`~
S. Bryce Farris
SBF:k~°
l~.nclosure
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JILL L ~cJ ~ P!
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ADA COUNTY RECORDER d. DAVID NAifARRO AMOUNT 78A0 28
BOISE IDAHO 0$!02109 02:97 pM
R~coaoEO° I;~QU~s~ ol~ II! IUilll!(Illllllll{IIIIIIIIII 11 III
Nampa Meridian Irrlgatlon Disl 1~~1E~~~~a7
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this ~ day of ~' 2009, by and
amongNAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district otg nized 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
patty or parties of the second part, hereinafter collectively referred to as the "Licensee°,
WITNESSETH:
WHEREAS, Licensee is the owner ofreal propertylright-of--way fora reclaimed water line and trunk
sewer 6ne (burdened with the easement of the District hereinafter mentioned) particularly described i n 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 known as the TEN MILE DRAIN, TEN
MILE STUB DRAIN KENNEDY LATERAL AND EIGHT MILE LATERAL (hereinafter collectively
referred 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, artd 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 is the manner and under the terms and conditions hereinafter set forth; and,
WHEREAS, it is necessary that 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 patrties 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
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 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.
•
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 I:.iceusee
shall not change the location of the ditch or canal, bray the ditch oc canal in pipe, or atherwise attar the ditch
or canal in any manner not described in this agreement without first abtainin$ the written permission of the
District.
3. Each facility ('"facility" as used in this a~reemcnt means any object or thing of nay nature
issstailed is or on the District's easement by the Licensee or the Licensee's predecessoe in interest) shall be
constructed, installed, operated, maintained, and. repaired at alt tunes by the Licensee at the cost and expense
of the Licensee.
4~. Licensee agrees to construct, install, operate, maintains and repair each facility and conduce
its activities within or alI'eeting the District's easement so as aot to constitute or cause.
s. a hazard to any person or property;
b, an interruption or interference with the flaw of irrigation water in the ditch or canal
or-the delivery of irrigation water by rise 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 dasssage to ehe District's easement and irrigation works.
S. The Licensee agrees to indemnify, hold harmless, and defend the District from all clairsss
for damages arising out of any ofthe Licensee's construction or activity which constitutes or causes any of
the circumstances enumerated in the preceding, ph, 4.a. through 4.e,, or any other damage to the
easement and irrigation works whichshay be caused by the construction,installation, operation, maintenance,
repair, and any use or condition of any facility.
ta. 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 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
Licensee and to repair nay alteration by the Licensee ofsaid ditch or canal card the easement therefor which
does nat co><nply with the terms afthis agreement, and to remove any impediment to the flow of water in said
ditch or canal and any unsafe condition or hated caused by the Liceensee, 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. Ifthe Licensee shall fail in any respect to properly maintain and repair such facility, then the
District, at iris option, and witksout itaalaairing or in anywise affecting its other rights zdssd remedies hereunder,
shall have the right to perform the necessary maintenance and repairs and the Licensee agrees to pay to the
District, ors desssand, the cost or expense which shall be reasonably expended or incurred by the District for
such purposes. The District shall give reasonable notice to the Licensee prior to the District's gerforsning
such maintenance, repair car other work except that in cases of emer;~ency the District slsall attempt to give
suds notice as reasonable under the circumstances. Nothing in dais paragraph shall create or support any
claim of any triad by Licensee ar any third party against the District for failure to exercise the options stated
in this paragraph, and Licensee shall indemnify, hold harmless anddefend the District from any claims made
LICENSE AGREEMENT - Fage ~
•
against the District arising. out of or relating to the terms of this paragraph except for claims arising solely
out of the negligence of the District.
II. 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 agreement, nor the parties exercise of any rights ar
performance of any obligations of this agreement, shall be construed or asserted. to extend the application
of any statute, rule, regulation, directive orother eequiretnent, or the jurisdiction afany federal, state, or other
agency or official to the District's ownership, operation, and maintenance of i~ ditches, canals, drains,
Irrigation works and facilities which did not apply to the District's operadans and activities prior to and
without execution of this agreement. In the event the District. is required m comply with any such
eequieetnents or is subject to the jurisdiction ofany such agency as a result of execution of this agreement
or the Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmiless and defend the
District from all costs and liabilities associated with the application of such laws or the assertion of sash
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. !n addition to all other indeinnifieation provisions herein, Licensee further agrees to
indemnify, hold harmless and defend the District from any Injury, damages, claim, lien, cost and/or expense
{including reasonable attorney's fees) incurred by, or asserted against, the District by reason of the negllg~ent
acts or omissians of Licensee or its agents, eantractors or subeontractars in performing the canstruetian and
activities authorized by flue meat.
1 Q. 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 ar nature whatsoever which the
Licensee shall install on the said easement area of the Dish ict in the reasonable exercise of the rights of the
District in the caurse of performance of maintenance or repair of said ditch or canal. The Licensee further
agrees to suspend its use of the said easenent area when the use of the easement is required by the
District for maintenance or repair under this or any ether 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 price written
consent of the District. Nor shall Licensee permit, authorize ar grant any other peesan or entity to excavate,
discharge, consiratct ar place any structures, pathways or landscaping within the Disu°ict easement without
the prior written consent of the District.
12. Should either party incur costs or attorney fees in connection with efforts to enforce the
pravisians of this agreement, whether by institution of suit or not, the party rightfully enforcing or rightfully
resisting enforcement of the provisions of this agreement, or the prevailing party incase suit is instituted,
shall be entitled to reimbursement for its casts and reasonable attorney fees from the other party.
13. The parties hereto understated and agree that the District has no right is any respect to impair
the uses and purposes of the irrigarion works and system of the District by this age~eement, nor to grant any
rights ire its irrigation works and system incompatible with the uses to which such irrigation wanks and
system are devoted sad dedicated and that this contract shall be at all times construed according to such
principles,
LICEhTS AGREEMENT -Page 3
........_........~.._.~._.. __ d ...................._.... ___.......... ~~ ..._
14. Nothing herein contained shall be construed to impair the right of way of the District in the
said ditch or canal and all uses of said ditch or cans[ 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.
I5. In the event of the failure, refusal or aegIect of the Licensee to comply with all of the terms
and conditions 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 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 teens and conditions ofthis License Agreement. Licensee also
agrees to pay any fees inceured in comsection 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 pot 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, alI remaining provisions of this agreement shall remain in full Force and
effect
2Q. 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 ~vn with,
and running with, a1I 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 ofthe parties hereto and their respective successors and
assigns. _ „,, _
"~ ''~P,r NAMPA & MERIDIAN U2RIGATION DIS ICT
~~~~~~t o
~~~. ~ ~y
~Q Its President
ATTEST; ^ ~ '
its Secretary
LICENSE AGREEMENT -Page 4
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CITY OF MERIDIAN
~''""~
By
ATTEST: ,`` ```~`~,0~~,~~„~~,,,(~
STATE OF IDAHO ) °~~'~~
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} ss: ~i ,~o,° ~~
County of Canyon ) ''.~ ~Q GST tS"t • .r0 .~~
On this ~_„_ day of j~I3'0~, before me, the undersigned, a Notary Public in
and for said State, personally appeared CIi ton me and Doren R. Coon, known to me to be the President
and Secretary, respectively, ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that
executed the foregoing instrument and acknowledged to me that such iririgation district executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affuced my official seal, the day
and year in this certificate firs~,ai~8'l~9"~vrel~~n.
STATE OF IDAHO
County of Ada
public in and fo
me to be the ~_
the political subdivis on a~cipality that xecuted 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 seal, the day
and year in this certificate first ~lac~v~~~+ntten.
~m ~o
g, __ ~ ge
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oa°~,~~.~®~'`~~Q~,~~®°a Notary Public or
® ~ Residing at ,
My Commission Expires:.-10-x( ( {
LICENSE AGREEMENT
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°° !'UB'~Z ®O
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Notary Public for Idaho
Residing at Idaho
My Commission Expires:~~,.c11 ~
On this ~i , ,day of , 2004, before ,the un er igned, a notary
r said state, personally ap ate t'e and P(: 1M known to
~(~, ~ and r ,respectively, of a CITY OF MERIDIAN
•
EXHIBIT A
Legal Description
A right-crf way for a sewer truntc and reclaimed water line located tivitbin the road ri~i-of-way for
Franklin Road and Ten Mile Road in Sections 1Q and l 1, Township 3 North, Range 1 West. B,M., Ada
County, Idaho.
_____- EXi~IIBTT C
Purc}ase of License
The purpose of this License Agreement is to permit and approve Licensee to:
1. construct, install, maintain and repair an l $ inch sewer marrk across and under the Ten Mile
irmin and within the District's easement at or near the intersection of Ten Mile Road and
Franklin Road;
2. construct, install, maintain and repair a 12 inch reclaimed water pipeline across and under
the Kennedy Lateral and within the District's easement within the road right-of--way for
Franklin. Road, west of the intersection of Franklin Road and "Ten Mile Road;
3. construct, install, u~aintaia and repair a l 2 inch reclaimed water pipeline across and under
the Ten Mile Drain and within the District's easement within the road right-off way for
Franklin Road, east of the intersection of Ft~anklin Road and Ten Mile Road; and
4. construct, install, maintain. and repair a 16 inch reclaimed water pipeline across and under
the Ten Mile Drain, Ten Mite Stub Drain and Eight Mile Lateral and within the District's
easements within. the road ri~ltt-of-way far Ten Mile Road, north of the intersection of
Franklin Road and Ten Mile Road,
all within Licensee's right-of-evay described in E~chibit A, located within the read ri~lrts-of-way for Ten M ile
Road and Franklin Road in Meridian, Ada County, Idaho. Na other consnrction ar activity is permitted
within or affecting the Ten Mile Dmin, Ten Mile Stub Drain, Kennedy Lateral of Eight Mile Lateral or the
District's easements.
E~~I-IIBTT D
Special Conditions
a. The construction described in Exhibit C shall be in perfomred in accordance with certain
plans cpnsisting of twelve sheets relating to the reclaimed water pipeline and six sheets relating to the sewer
murk, ali of which are attached berate Exhibit D-1 and by this reference incorporated herein.
b. The Licensee recognizes and acknowledges that the license granted in Ibis agreement by the
District pertains only to the rigb~ 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 meeting, fee title must be acquired by the Licensee from the bolder of title to the property.
Should Licensee fail to obtain such rights from the holder of title to the property or should the rights obtained
prove legally inefl'~tual, Licenses shall hold harmless, indemnify and defend the District from any claim
by any party arising out of or related to such failure of rights and at the option of the District this agreement
shall be of na force and effect.
LICEI~ISE AGREEMENT -Page 6
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e. Licensee represents that Licensee has complied with all federal, state or ether laws, rules,
regulations, directives or other requirements in any forth regarding environmental matters, and specifeally
those relating to pollution control and water quality, as may be applicable under the subject matter, teens
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 implemented or imposed in the future. Hy executing this
agreement the District 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. Licensee hereby indemnifies, holds harniless and shall defend the District from any and all
penalties, sanctions, dueetives, 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 this agreement unless the District shall tae 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 govettamental 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 hartuless and defend the District form all
costs 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.
i; The parties to this agreement. recognize this license inept is an accommodation to
Licensee. 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 or contribution ofpollutants or contaminants
to the District's facilities or to any groundwater, waters of the State of Idaho or the United States, ar 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 airy trees, shrubs or
landscaping within the District°s easements, nor perform any construct7ian or setavity within the District's
easements for the Kennedy Lateral, bight Mile Lateral, Ten Mile Drain and Ten Mile Stub Drain except as
referred to in this agreement or exhibits thereto without the prior written consent of the District.
h. Licensee acknowledges and confutes that the District's easements for the Kennedy Lateral,
bight Mile Latest, Ten Mile Drain and Ten Mile Swb Drain include a sufteient area of land to convey
irrigation and drainage water, to operate, clean, maintain and repair the Kennedy Lateral, Hight Mile Lateral,
Ten Mile Drain and Ten Mile Stub Drain, and to access the Kennedy Lateral, Eight Mile Lateral, Ten Mile
Drain and Ten Mile Stub Drain for mid purposes and is a minimum of SS feet, 20 feet to the lei of the
centerline, and 35 feet to the right of the centerline facing downstream far the Kennedy Lateral, l00 feet, 50
feet to either side of the centerline far the Ten Mile Drain, 60 feet, 30 feet to either side of the centerline for
the Ten Mile Stub Drain and 80 feet, 40 feet to either side of the centerline for the Eight Mile Lateral.
i. Construction shall occur during the non-irrigation season and shall not commence prior to
November 1, 2009 and shall ~ completed prior tea :March I5, 2010. Time is of the essence.
LICHNSE AGREHMENT -Page 7
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