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HomeMy WebLinkAboutUtility License Agreement with Settlers Irrigation for Crossing of Lemp Canal and N. Slough~~i~E IDIAN~- Public ~ D A H O Works Department TO: Mayor Tammy de Weerd Members of the City Council FROM: Tim Curns, Transportation and Utility Coordinator Mayor Tammy de Weerd City Ceaneil Membt~s~ Keith Bird Brad Hoaglun Charles Rountree David Zaremba DATE: July 12, 2010 SUBJECT: APPROVAL OF UTILITY LICENSE AGREEMENT WITH SETTLERS IRRIGATION DISTRICT FOR WATER LINE CROSSINGS OF THE LEMP CANAL AND NORTH SLOUGH I. RECOMMENDED ACTION A. Move to: 1. Approve the utility license agreement with Settlers Irrigation District for water line crossings of the Lemp Canal and North Slough; and 2. Authorize the Mayor to sign the agreement II. DEPARTMENT CONTACT PERSONS Tim Curns, Transportation and Utility Coordinator 489-0342 Warren Stewart, PW Engineering Manager 489-0350 Tom Barry, Director of Public Works 489-0372 III. DESCRIPTION Back rg ound As part of ACHD's McMillan and Locust Grove Intersection project, the City is readjusting water mains under two Settlers Irrigation facilities: the Lemp Canal (aka North Side Canal) and the North Slough Lateral. These adjustments are necessary to maintain State required clearances as the canal and lateral are shifted to make room for a widened roadway. Settlers Irrigation District requires 1 of 2 the City to enter into a license agreement to document the crossing locations and ensure no complications to their facilities will result from the City's work. IV. V. VI. VII. IMPACT A. Service/Delivery Impact: This agreement makes it possible to connect the City's water distribution system across the Settler's irrigations facilities. Without an agreement, the distribution system connectivity might not be possible, affecting water delivery to Meridian residents. B. Fiscal Impact: This license agreement does not have any fees associated with it other than a nominal recording fee with the County. ALTERNATIVES Council may choose not to approve the agreement; however, without the agreement, Settlers may require the City's water mains to be removed during ACHD's roadway construction project. TIME CONSTRAINTS The project is expected to go out to bid in September. LIST OF ATTACHMENTS A. Utility License Agreement Approved for Council Agenda: _ ~/ v arren Stewart, Engineering Manager to 2 of 2 RECORDING REQUESTED BYAND WHEN RECORDED RETURN TO: Moffatt, Thomas, Barrett, Rock & Fields, Chur•tered 101 South Capitol Boulevard, 10th Floor Post Dice Box 829 Boise, Idaho 83701-0829 ADA COUNTY RECORDER J. DAVID NAVARRO AMOUNT .00 17 BOISE IDAHO 09108!10 12:54 PM DEPUTY Bonnie Oberbillig III IIIIIII'll'IIIIIIIIIIIIIII'~'I~ ~II RECORDED-REQUEST OF 11083553 Meridian City (Space Above For Recorder's Use) UTILITY LICENSE AGREEMENT This Utility License Agreement ("Agreement"), is entered into and made effective this _~ day of N. , 20_10 , by and between SETTLERS IRRIGATION DISTRICT ("District"), an irrigation district organized and existing under and by virtue of the laws of the State of Idaho, whose address is P.O. Box 7571, Boise, Idaho 83707, and ___ _ City of Meridian A~ ("Licensee"), whose address is (name o of er party 33 East Broadway Avenue, Meridian, Idaho 83642 NOW, THEREFORE, in consideration of the mutual benefits to be received by the District and Licensee, and other good and valuable consideration, which consideration is hereby acknowledged by the parties, and the promises, covenants, agreements, and conditions hereinafter set forth, the parties agree with one another as follows: Grant of License. The District hereby grants a License (``License") to Licensee for the purpose of crossing the North Side Canal (aka Lemp Canal) and North Slough Lateral (name of canal, lateral, or ditch) at the location described in Exhibit A, appended hereto, in order to construct, operate, inspect, maintain, and repair water line crossings ,This grant (list crossing(s), power, gas, cable, phone, etc.) of License is subject and subordinate to any and all property rights the District may have in the North Side Canal (aka Lemp Canal) and North Slough Lateral (name of canal, lateral, or ditch) UTILITY LICENSE AGREEMENT - 2 CLIENT:573845.4 Revised 4/3!08 Licensee expressly acknowledges and agrees that this License does not grant Licensee the right to install any property or equipment, except as may be described in this Agreement, or the right to impair any rights of the District or others in the use of the North Side Canal (aka Lemp Canal) and North Slough Lateral (name of canal, lateral, or ditch) This grant is expressly conditioned upon the prior receipt by i,icensee 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 the District's prior approval of all drawings and plans concerning the activities to be conducted by Licensee under this Agreement. Term of Grant of License. The term of the License shall commence upon the effective date of this Agreement anal shall continue for so long as Licensee is in compliance with the terms of this Agreement. The District reserves the right to revoke this License, effective upon thirty (30) days' prior written notice to the Licensee thereof, should Licensee at any time fail to materially comply with the terms of this Agreement, and fail to correct such noncompliance within thirty (30) days following service of written notice by the District ("Cure Period"). if Licensee begins, but cannot complete, corrective action within the Cure Period, the Cure Period may be extended, at the sole discretion of the District, for such amount of time as maybe reasonably required to complete the corrective action. Construction inspection Maintenance, Repair, and Replacement of Crossing. Licensee, following execution of this Agreement by the parties, may have access across the North Side Canal (aka Lemp Canal) and North Slough Lateral to conduct such construction, (name of canal, lateral, or ditch) inspection, maintenance, repair, and replacement of the water line crossings as may be reasonably necessary, (list crossings}, power, gas, cable, phone, etc.) subject to any restrictions imposed on Licensee's activities as maybe set forth in this UTILITY LICENSE AGREEMENT - 2 Revi&ed 4/3!08 CLIENT:573845.4 Agrecment. Licensee or its agents and contractors shall perform any work in a workmanlike manner, and in accordance with the Engineering Flans and Specifications referenced in Exhibit B. Any activities by Licensee which may impede or impair the flow of water through the North Side Canal (aka Lemp Canal) and North Slough Lateral may only be performed (name of canal, lateral cx ditch) during the non-irrigation season, which is usually between November 1 and March 15. Licensee expressly acknowledges that the District does not relinquish its ownership rights in any portion of the North Side Canal (aka Lemp Canal) and North Slough Lateral 4. Utility Crossings. Licensee shall not allow any Utilities (except Licensee if it is a Utility) or any private party to attach to Licensee's facilities governed by this Agreement, cross any portion of the North Side Canal (aka Lemp Canal) and North Slough Lateral Or (name of canal, lateral, or ditch) otherwise use or encroach upon the District's easements, without the express written consent of the District. Said written consent may take the form of an addendum to this existing Agreement or, the District, in its discretion, may require that separate license agreements be executed between the District and the Utility or private party seeking to cross the North Side Canal (aka Lemp Canal) and North Slough Lateral Express Waiver. In the event that any Utilities or private parties do attach to Licensee's facilities governed by this Agreement, cross District facilities and/or systems, or share in the use of District's facility and/or system easements, Licensee, and Utilities or private parties, waive any and all claims against the District, now and in the future, concerning the District's water distribution, operation, and. maintenance activitics upon its facilities and/or systems. UTILITY LICENSE AGREEMENT - 3 CLIENT:573845.4 Revised 4!3(08 6. Indemnity. Licensee, and any Utility or private party that attaches to Licensee's facilities governed by this Agreement, crosses a District facility or system, or uses an exclusive easement, agrees to protect, defend, indemnify, and hold the District and its officers, directors, employees, members, and agents harmless from and against any and all liability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including litigation costs and attorney fees, which shall include paralegal fees, arising from or out of any acts or omissions of the Licensee or any crossing Utility, their agents, or contractors related to or in connection with their crossing of District facilities, use of the exclusive easements of the District, any attachments to Licensee's facilities governed by this Agreement by a crossing Utility or private party, or any activity under this Agreement and the exercise of any privileges or performance of any obligations by the Licensee or crossing Utility hereunder. Furthermore, the Licensee and any crossing Utility agree to protect, indemnify, and hold the District and its officers, directors, employees, members, and agents harmless from and against any and all liability, suits, losses, damages, claims, actions, costs, and expenses of any nature, including litigation costs and attorney fees, which shall include paralegal fees, arising from or out of water quality violations, flooding, or any interruption or interference with the flow of water in the North Side Canal (aka Lemp Canal) and North Slough Lateral caused by any act or omission of the Licensee and any crossing Utility or their agents. Notwithstanding any other provision of this Agreement, Licensee, and any Utility or private party that attaches to Licensee's facilities, shall be responsible for their own actions only, and not the actions of any other party hereunder. Each party's liability shall be separate only, and not joint. 7. No Liens. Licensee shall. allow no liens as a result of any labor performed or materials supplied in connection with the activities of Licensee, its agents, or UTILITY LICENSE AGREEMENT - 4 CLIENT:573845.4 Revised 413108 Contractors, to attach to the North Side Canal (aka Lemp Canal) and North Slough Lateral or to any (name of canal, lateral, or ditch} adjacent lands held by the District. 8. Permits. Licensee represents that it has obtained all permits, licenses, and acknowledgments required to conduct the activities to be performed under the terms of the Agreement. Additionally, for those projects which fall under the purview of the Clean Water Act, 33 U.S.C. 1251, et seq., prior to commencement of construction impacting the District's facilities, Licensee shall deliver to legal counsel For the District a copy of a Section 404 Permit it has obtained from the United States Army Corps of Engineers. In the event that a Section 404 Permit is not required, Licensee shall certify that its construction impacting the District's facilities does not fall under the purview of the Clean Water Act and a Section 404 Permit is not required. The parties hereby recognize and agree that this Agreement will not be executed by the District and recorded until legal counsel for the District is in receipt of the appropriate Section 404 Permit or written certification by Licensee that a Section. 404 Permit is not required for the construction contemplated under this Agreement. Such certification shall be attached to this Agreement as Exhibit C and made a part hereof. 9. Oueration, Maintenance, and ReQair of Crossing Improvements. It is recognized by the District that maintenance, repair and/or replacement of the crossing improvements constructed by Licensee and which cross the North Side Canal (aka Lemp Canal) and North Slough Lateral under the terms and conditions of this (name of canal, lateral, or ditch) Agreement and as identified in Exhibit B, maybe necessary subsequent to the execution and recording of this Agreement. In the event that Licensee desires to perform any maintenance, repair and/or replacement of such crossing improvements, they acknowledge and agree that the prior written consent of the District is required prior to commencement of any such UTILITY LICENSE AGREEMENT - 5 CLIENT:573845.4 Revised 4!3/08 maintenance, repair andlor replacement of the crossing improvements, unless an emergency reasonably precludes obtaining prior written consent. In such an event, Licensee shall provide written notice to the District of such emergency repair or replacement, as soon as reasonably possible after undertaking such work. The District agrees that it will consider and act upon all non-emergency written requests for written consent from Licensee in a business-like manner. 10. Limitations on Liability; Attorne~Fees. The parties hereto agree that nothing herein contained shall be construed to create a joint venture, partnership, or other similar relationship which might subject any party to liability for the debts and/or obligations of the others, except as otherwise expressly agreed in this Agreement. In the event of any suit or proceeding by either party herein against the other party arising out of this Agreement or in connection with the activities of the Licensee, or their agents or contractors, under this Agreement, the nonprevailing party in such suit or proceeding shall pay to the prevailing party such sum or sums as the court shall adjudge reasonable for attorney fees and costs, including such fees and costs on appeal. 11. Further Consideration. In further consideration for inducing the District to grant this License, the Licensee agrees to promptly pay all expenses incurred by the District relating to the negotiation, preparation, and execution of this Agreement. 12. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter of this Agreement. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 13. Binding Effect. The promises, covenants, conditions, and agreements herein contained shall be binding on each of the parties hereto and on all parties and all person UTILITY LICENSE AGREEMENT - 6 CLIENT:573845.4 Revised 413108 claiming under them or any of them; and the rights and obligations hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. No third parties are intended to benefit from, or obtain any rights under, this Agreement. 14. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. No Waiver. The failure of a party to insist on the strict performance of any provision of this Agreement or to exercise any right or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit such party's right to enforce any provision or exercise any right. 16. Governin Law. The validity, meaning, and effect of this Agreement shall be determined in accordance with the laws of the State of Idaho. 17. Representations of Parties. (a) District. The District represents and warrants that: (i) it is an irrigation district organized and existing under and by virtue of the laws of the State of Idaho; (ii) it has the capacity and all legal rights necessary to enter into and perform the District's obligations under this Agreement; (iii) all organizational and other actions required to authorize the District to enter into and perform this Agreement have been properly taken; and (iv} this Agreement has been properly executed and delivered by the District and is valid and binding upon the District in accordance with its terms. (b) Licensee. Licensee represents and warrants that: (i) it has the capacity to enter into and perform its obligations under this Agreement; (ii) all actions required to authorize Licensee to enter into and perform this Agreement have been properly taken; (iii} it has UTILITY LICENSE AGREEMENT - 7 C LI ENT:573845.4 Revised 4!3/08 obtained all permits, licenses, and acknowledgments required to conduct the activities to be performed under the terms of the Agreement; (iv) this Agreement has been properly executed and delivered by the Licensee and is valid and binding upon the Licensee in accordance with its terms; and (v) (check one of the following, if applicable): © Licensee is an Idaho municipal corporation incorporated and in good standing in the State of Idaho. Licensee is a and is in good standing in the State of Licensee is a and in good standing in the State of 18. Notices. All notices permitted or required to be given under the terms of this Agreement shall be in writing and shall be deemed effective upon receipt if sent by first class mail, postage prepaid, and addressed to the respective party hereto as follows, or at such other address as a party designates in writing. SETTLERS IRRIGATION DISTRICT Post Office Box 7571 Boise, Idaho 83707 City of Meridian Name 33 East Broadway Avenue Address Meridian, Idaho 83642 City, State & Zip Code 19. Recording. This Agreement shall be recorded at the Ada County Recorder's Office. partnership established incorporated or organized [Signature Page Follows] UTILITY LICENSE AGREEMENT - 8 CLIENT:573845.4 Revised 4/3/08 IN WITNESS WHEREOF, the parties hereto have executed this A~-eement the date first set forth above. Attest: SETTL~tS IRRIGATION DISTRICT By -' ___ __ v c \ a~ L President of its Board of Directors u~~ k~~ ~ f)'CKi K2Zt~ ,Secretary UTILITY LICENSE AGREEMENT - 9 Revised 4!3108 City of Meridian (name of Licensee) By Tamm de e d Its Mayor ~-a~- ~ Q C LI ENT:573845.4 STATE OF IDAHO ) ss. County of Ada ) On this ~ day of _, 20 I~ before me, the undersigned Notary Public in and for the said state, per ovally appeared ~~R~E URl L , known or identified to me to be the President of SETTLERS IRRIGATION DISTRICT, the person who executed the instrument on behalf of SETTLERS IRRIGATION DISTRICT, and acknowledged to me that SETTLERS IRRIGATION DISTRICT executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ~9 .~,• <' 70 A v',~- ~eLIC :9 • •q•~ Op I D p~ NOTAR L C FOR, ~DAHO Residing at ) S~, x;10 . My Commission Expires 1 O ` ~ ' 20 LS STATE OF IDAHO ) ss. County of Ada ) On this ~ day of GIST , 20L, before me, the undersigned Notary Public in and for the said state, per ovally appeared Ali C~C~ ~~2~Zy1 , known or identified to me to be the Secretary of SE'I°rLERS IRRIGATION DISTRICT, the person who executed the instrument on behalf of SETTLERS IRRIGATION DISTRICT, and acknowledged to me that SETTLERS IRRIGATION DISTRICT executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ~~tl !. fl~;A~~ Z ~p~'AR3, ~° ~..r ~'U B LAG y'•.,~F OF 1~P.~ NOTARY PUBLIC FOR IDAHO Residing at _ _ iS~ ~ My Commission Expires ~ ~ - Co ' ~OIS UTILITY LICENSE AGREEMENT -10 Revised 4/3/08 CLIENT:573845.4 STATE OF ~('L~.L(1/U ) ss. County of ) ~-- On this a7 day of ~-~~ , 2010, before me, the undersigned Notary Public in and for said state, personally Appeared Tammy de Weerd ,known or identified to me to be the Mayor of City of Meridian who is the person who executed the instrument on behalf of City of Meridian , and acknowledged to me that City of Meridian ,executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ~0°4~~',~ ~WA•;~s~'•.,~ NOTARY PUBLIC FOR ~ s. ~a,~ ~~,Y '•. =: Residing at ~•~ c My Commission Expires q7$' q~0/ G s PUBy~ r o UTILITY LICENSE AGREEMENT -11 CLIENT:573845.4 Revised 4!3!08 EXHIBIT A Legal Description of Water Line Crossings Southwest Quarter of Section 29, Township 4 North, Range I East, Ada County, Idaho EXHIBIT A CLIENT:573845.4 EXHIBIT B Engineering Plans and Specifications Please refer to the following plans prepared by Civil Survey Consultants for the City of Meridian: Sheet 1 -Cover Page and Vicinity Map, dated Apri12010 Sheet 3 -Water Line Crossing of Lemp Canal at McMillan/Locust Grove Road Intersection, dated Apri12010 Sheet 4 -Water Line Crossing of Lemp Canal and North Side Lateral on McMillan Road, dated April 2010 EXHIBIT B C LI ENT:573845.4 EXHIBIT C Clean Water Act Section 404 Permit Certification The undersigned represents he/she is a duly authorized representative of City of Meridian {"Licensee"), and hereby certifies that a (name of Licensee) Clean Water Act Section 404 Permit is not required for Licensee's water line crossings (description of crossing(s)) crossing(s) of the North Side Canal (aka Lemp Canal) and North Slough L___ater~, for the following (Warne of canal, lateral, or ditch reason: The crossing(s) contemplated under this Agreement will be overhead crossings and will not include any excavation in or around or any discharge of dredged or fill material into the District's facility. Licensee will use the "boring" method of construction which will not include any excavation in or around or any discharge of dredged or fill material into the District's facility. Q The North Side Canal (aka Lemp Canal) and North Slough Lateral 1S an existing name o Cana , atera , or itc piped facility; thus, any construction impacting the facility will not include any discharge of dredged or f 11 material into the facility. The crossing(s) contemplated under this Agreement will be inserted into existing conduit crossing(s) of the North Side Canal (aka Lemp Canal) and North Slough ~ (name of canal, lateral, or ditch) Licensee is in receipt of a Clean Water Act Section 404 Permit exemption letter from the United States Army Corps of Engineers (attached hereto). DATED THIS 2~ day of /t 20 ( o City of Meridian (name of Licensee) By ~ ~- Written Narne:_ !~..-~~l~ w.-,,5 Authorized Title:_rTixKs~r+4 ~ c wtil;~j~w~,l'K,~{,~r EXHIBIT C C LI ENT:573845.4