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HomeMy WebLinkAboutLicense Agreement with Nampa Meridian Irrigation District NMID for Water Line Replacement at NW 4th and Carlton~~i~E IDIAN~- Public IDAHO Works Department TO: Mayor Tammy de Weerd Members of the City Council FROM: Clint Worthington DATE: 11/22/10 Mayor Tammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba SUBJECT: Nampa Meridian License Agreement -Water Line Replacement NW 4rn_ Carlton Ave. (NEXT AVAILABLE CONSENT AGENDA) I. RECOMMENDED ACTION A. Move to: 1. Approve a License Agreement with Nampa Meridian Irrigation District for an 8-inch water main crossing as part of the NW 4t"/Canton Ave-Water Line Replacement project. 2. Authorize the Mayor to sign the Agreement. II. DEPARTMENT CONTACT PERSONS Clint Worthington, Staff Engineer 489-0349 Kyle Radek, Assistant City Engineer 489-0343 Warren Stewart, Engineering Manager 489-0350 Tom Barry, Director of Public Works 489-0372 III. DESCRIPTION This project is for the construction of water line replacements in NW 4'" St from Pine Ave to Maple Ave. and Carlton Ave. from NW 4`" Street to NW 5`" St. These water lines have been identified as some of the most critical water lines within the downtown area. The water lines are outdated and undersized 4-inch, cast iron and asbestos pipes. The attached agreement is a requirement of Nampa Meridian Irrigation District to perform construction activities within their easement of the Hunter Lateral. Page 1 of 1 AOA COUNiY RECORDER J. DAViD NAVARRO AMOUNT .00 13 6OISE IDAH012129M0 09:16 AM ~~I I"~"~ftl'~f'II~~~I`~'I~~II'~ I ~~I DEPUTY Lisa tali 1 RECORDED-REQUEST OF 110121862 Nampa Irripa0on LICENSE AGREEMENT ?U10. This LICENSE AGREEMENT, is made and entered into this ~_ day of _• - by and behween NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing ender and by virtue of the laws of the State of )daho, party ofthe first part, hereinafter referred to as the "District", and Cl"fY OF MERIDIAN, 33 East Idaho, Meridian; [daho 83642 hereinafter referred to as the "Licensee", WITNLSSETH: WHEREAS, the Dish•ict owns the drainage ditch or drain known as the 1-IUN"fER LATERAL. (hereinafter sometimes referred to as "ditch or drain''), an integral part of the irrigation and drain~ige worla and system oi'the District, together with the easement therefor to convey irrigation and draina;e ~•~ater, to operate, clean, maintain, and repairthe ditch or drain, and to access the ditch or drain for those purposes; and, WHEREAS, the District operates, cleans, maintains, repairs and protects the ditch or drain for the benefit of District landowners; and, WI--lEREAS, the Licensee is the owner of of real property that is servient ro the District's ditch in' drain and easement, and is pa-•ticularly described in the "Legal Description" and/or deed attached hereto as Inhibit A and by this reference made a part hereof; and, WHEREAS, the ditch or drain crosses and intersects the real property described in Exhibit A as shown on Exhibit 13, attached hereto and by this reference made a part hereof; and, WHEREAS, the Licensee desires a license to cross, encroach upon or modify said Glitch or drain ancVor the District's easement under the terms and conditions of this License Agreemem: NOW, THEREFORE, for and in consideration ofi the preen ises and ofthe covenants, agreements and conditions hereinafter set forth, the parties agree as follows: LICENSE AGREEMENT - 1 A. Acknowledgment of the District's L~sement. 1. Licensee acknowledges that the District's easement for the 1-IUNTER LATERAL includes a sufficient a--ea of land to convey n•rigation and drainage water, to operate, clean, maintain and repair the ditch or drain, and to access the ditch or drain for said purposes, and is a minimum of ~F0 feet, 20 feet on either side of the centerline of the ditch or drain. B. Scope of License 1. The Licensee steal I have the right to modify the ditch or drain or encroach upon the District's easement along the ditch or drain in the manner described in the "Purpose of License" attached hereto as )uxhihit C and by this reference made a part hereof. 2. Any crossing, encroachment upon or modification of the ditch or drain and/or the District's easement shall be performed and maintained in accordance with the "Special Conditions" stated in ]shibit D, attached hereto and by this reference made a part hereof. Any difference or disa•epancy behveen the items listed in Exhibit C, "Purpose of License,'' and any plans or ch•awin~s referenced in or attached to Exhibit D shall be resolved in favor of Exhibit C. Licensee shall only be permitted to cross, encroach upon a• modify the ditch or drain and/or the District's easement as described in Exhibit C wen if any plans or dra4vings referenced or attached to Exhibit D provide or show otherwise. 3. This License Agreement pertains only to the Licensee's crossing, encroachment upon or mod ification ofthe ditch or drain and/or the District's easement for the purposes and in the manner described herein. The Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or landscaping within the District's easement, nor perfa-m any construction or activity within the District's easement for the ditch or drain except as referred to in this License Agreement without the prior written consent of the District. ~. The Licensee recognizes andacl:nowledgesthatthelicensegrantedthisLicenseAereement pertains only to the rights 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 affecting fee title must be acquired by the Licensee from the holder of title to the property. Should Licensee fail to obtain such rights from the holder of title to the property or should the rights obta fined prove legally ineffectual, Licensee shall hold harmless, indemnify and defend the District from any claim by any party arising out of or related ro such failure of rights and at the option of the District this License Agreement shall be of no force and elfect. LICENSE AGREEMBN"C - 2 C. Facility Const;r•uction, Operation, Maintenance and Repair 1. Licensee agrees that the work performed and the materials used in any construction permitted by this License Agreement shall at all times be subject to inspection by the Dish•ict and the District's engineers, and that final acceptance ofthe such work shall not be made until al l such work and materials shat I have been expressly approved by the Dish•ict. Such approval by the District shall not be unreasonably withheld. 2. Each facility ("facility" as used in this License Agreement means any object or thim, installed by the Licensee on, over or in the vicinity of the District's easement) shall be constructed, installed, operated, maintained, and repaired at al[ times by the Licensee at the cost and expense of the Licensee. 3. Licensee agrees to construct, install, operate, maintain and repair each facility and conduct its activities within or affecting the District's easement so as not to constitute or cause: a. a hazard to any person or property; U. an interruption or interference with the flo4v of irrigation or drainage 4vater in the ditch or drain or the Dish•ict's delivery of irrigation water; c. an increase in seepage or any other increase in the loss of water ii-om the ditch: d, the subsidence of soil within or adjacent to the casement; e. an interference with the District's use of its easement to access, operate, clean. maintain, and repair the ditch or drain; f. any other damage to the District's easement and irrigation or draina~~e worla, ~. The Licensee agrees to indemnify, hold harmless, and defend the District from all claims for 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, 3.a. thnxrgh 3.1'., or any other danrrgc to the easementand irrigation workswhich may be caused by the consh•uction, installation, operation, maintenance. repair, and any use or condition of any Facility. 5. The Licensee shall, upon demand ofthe District, removeany facility or repair any alteration ofthe District'seasementwhich interFeres with the District's operation and maintenanceoftheditch ordrain, or causes or contributes to any ofthe circumstances enumerated in the preceding paragraph, 3.a. through 3. F.- or any other damage to the easement and irrigation works. The District shall give reasonable notice to the Licensee, and shall allow the Licensee a reasonable period oftime to perform such maintenance, repair, a.nd other work, except that in cases of emergency the District shall attempt to give such notice as is reasonable under the circumstances. The District reserves the ri~~ht to perform any and al I work which the Licensee fai Is or refuses to perform within a reasonable period oftime after demand by the District. The Licensee agrees to pay to the District, on demand, the costs which shall be reasonably expended by the District for such purposes. Nothing in this paragraph shall create or support any claim of any kind by the Licensee or any third party against the District for failure to exercise the options stated in this paragraph, and the Licensee shall indemnify, hold ha-•m less and defend the District 9i•om any claims made against the District arisim~ out of or relating to the terms of this paragraph, except for claims arising From any work which unreasonably exposes the District's employees and agents to the risk ol'harm from electric power lines, or arising, solely out of the negligence or fault of the District. LICENSE AGREEMENT - 3 D. Dish•ict's Rights Are Paramount I . The Licensee understands and agrees that the ditch or drain is a manmade channel that was constructed and is used and maintained by the District for the exclusive purpose ofconveying irrigation water to lands within the District or draining lands within the District. As such, Licensee further acknowledges and agrees that the ditch or drain does not constitute a natural or navigable watercourse or stream. 2. The parties hereto understand and agree that the District has no right in any respect to impair the uses and purposes of the irrigation or drainage works and system of the District by this License Agreement, nor to grant any rights in its irrigation or drainage works and system incompatible with the uses to which such irrigation or drainage works and system are devoted and dedicated and that this contract shall be at all times construed according to such principles. 3. Nothing herein contained shall be construed to impair the ditch or chain or the District's easement, and all consh•uction and use of the District's easement by the Licensee and the license herein provided therefor shall remain inferior and subservient to the rights of the Dish•ict to the use ot'the ditch or drain for the h•ansmission and delivery of irrigation water or h•ansmission of drainage water. ~. The Licensee agrees that the District shall not be liable for any damages which shall occur to any facility in the reasonable exercise of the rights of the District in the course of performance of maintenance or repair oi'the ditch or drain. 'fhe Licensee further agrees to suspend its use of the said easement areas when the use ofthe easementareas is required by the District for maintenance a• repair under this or any other paragraph of this License Agreement. 5. In the event ofthe failure, refusal or neglect of the Licensee to comply ~-vich all ofthe terms and conditions of this License Agreement, the license of the Licensee antler the terms hereof may be terminated by the District, and any facility, structiu•e, plant, or any other improvement in or over the ditch, and the right of way therefor, which may impede or resh•ict the maintenance and operation of such ditch or drain by the District with its equipment for the maintenance of the ditch or drain shall be promptly removed by the Licensee upon demand of the District. 1;. Applicable Law and Jurisdiction Unaffected. I . Neither the terms of this License Agreement, the permission granted by the District to the Licensee, the Licensee's activity which is the subject of this License Agreement, nor the parties exercise of any rights or performance of any obligations of this License Agreement. shall be construed or asserted to extend the application of any statute, rule, regulation, directive or other requirement, or the jurisdiction of any federal, state, or other agency or official to the District's ownership, operation, and maintenance of its drains, drains, irrigation works and facilities which did not apply to the District's operations and activities prior to and without execution of this License Agreement. 2. In the event the District is required to comply with a.ny such requirements or is subject to the •jurisdiction of any such agency as a result of execution of this License Agreement or the Licensee's activity authorized hereunder, Licensee shall indemnify, hold harmless and defend the District from all costs and liabilities associated vvith the application of such laws or the assertion of such jurisdiction or, at the LICENSE AGREEMCNT - ~ option of the District, this License Agreement shall be of no force and effect and the Licensee shall cease all activity and remove any facility authorized by this License Agreement. F. Indemnification 1. In addition to all other indemnification 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 negl i~,ent acts or omissions of Licensee or its agents, contractors or subcontractors in perform ing the consh•uction and activities authorized by this License Agreement. G. Fees and Costs 1. "fhe Licensee agrees to pay attorney fees and engineering Fees char~~ed by the attorney For the District or by the engineers For the District in connection with the negotiation and preparation of this License Agreement. 2. Should either party incur costs or attorney fees in connection with efforts to enforce the provisions of this License Agreement, whether by institution of suit or not, the party rightfully enforcin~~ or rightfully resisting enforcement of the provisions of this License Agreement, or the prevailing party in case suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party. H. Miscellaneous I . No Claims Created. Nothing in this License Agreement shad create or support a claim of estoppel, waiver, prescription or adverse possession by the Licensee or any third party against the District. 2 Assienment. Neither this License Agreement nor any agreement entered pursuant to this License Agreement may be assigned or transferred without the prior written approval of the Parties. which approval shall not be unreasonably withheld. 3. AmendmentandModifcation. Anyamendmenl'ormodificationofthisLicenseAgreement must be in writing and signed by all parties to be enforceable. 4. .Irate, rp,•eted. This License Agreement shall be interpreted and enforced in accordance with the laws of the State ofldaho. This License Agreement is not intended for the benefit of any third part} and is not enforceable by any third party. Ifany provision of this License Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, all remaining provisions of this License Agreement shall remain in fill force and effect. The pvties represent and warrant to each other that they each have authority to enter this License Agreement. The cafichlines or section headings herein set forth are provided only for the convenience of the parties in locating various provisions of this License Agreement, and are not intended to be aids in interpretation of any provision of this License Agreement with respect to ~arhich the parties might disagree at some future time, and shall not be considered in any way in interpreting or construing any provision of the License Agreement. LICENSE AGREEMENT - 5. Binding Effect. The covenants, conditions and agreements herein contained steal l constinite covenants to run with, and running with, the easement of the Licensee within the real property described in 1Lxhibit A, and shall be binding on each ofthe parties hereto and on all parties and all persons claimingunder them or either of them, and the advantages hereof steal l inure to the benefit of each of the parties hereto and their respective successors and assigns. 6. Notices. Any and all notices, demands, consents and approvals required pursuant to this License Agreement shall be deliverer( to the parties as follows: Nampa & Meridian Irrigation Disb•ict City of Meridian 5525 East Greenhursc 33 E. Idaho Nampa, LD 83686 Meridian, fdaho 83642 Notices shall be deemed to have been delivered upon hand deposit in the United States mail as provided above. 7. Counteruarts. This License Agreement may be executed and delivered in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the District has hereunto caused its nameto be subscribed by its officers first=hereunto duly authorized by resolution of its Board of Directors and the Licensee has caused its coa•porate nameto be subscribed by its duly authorized officer, all as of the day and year herein first above written. ,~~~;" ,~; ~'= •-~~?~ NAMPA & MERIDIAN IRRIGATION DISTRICT {" ~~( Y ~ ~- ,~~ / / ;~, F=. '~,~,~$~ rY~'~~~ Its President ATTEST: . •~ Cam. v Its Secretary LICENSE AGREEMENT - 6 CITY OF MERIDIAN ATTEST: STATE OF IDAHO ) ss: County of Canyon ) On this Q2~ day ofl~ 2010, before me, the undersigned, a Notary Public in and for said State, personally appeared Lee Sisco and Daren Coon, known to me to be the President and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that executed the foregoing instrument and acknowledged to me that such irrigation district executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. STATE OF tDAkIO ) )ss. County of~~ ) •,. ~ ~, FQR,.. TF ~~ o - ~~•~s~ 'J G~, ~yoM ~ \ ~% '$© UST 1S ~ • 'Z` .,.~ ~''~~ •, GUN s `~ ' ~~~~~ ~~~~~rrrn~ a ~~~~~~~~\ co ., q~c0o9~O0°°0 M ®oo •esse o, ~-,.® of ; ~o ~pT A R }. ®o 8 ®°® P U R 1.~C °°® >' o ~ ° ,. Gam.`- Notary Public for Idaho Residing at ~,~.~-..Q-Q-Q ,Idaho My Commission Expires: 7 ~U IZ On this 1~'~' day of ~a~e-mhe~ , 2010, before me, the undersigned, a notary public in and fa• said state, personally a~ ppeared T ~„•,~ ~.~ V~laeYr~ , known to me to be the ~~~o,Y of d...{e ~, ~~c~~ ,the entity that executed the foregoing instrument, and acknowledged to me that such entity executed the same. IN W[~TIESS WHEREOF, I have hereunto set my hand and affixed myofticial seal, the clay and year in this certificate first above written. 3. Y ~ m 9 ~ f H i , ~ ~ O ~\ ~ ~ ~~~,,~®~ ~'aaoma`" r\ Notary Public f ~> Residing at ~~-«it~,,~cz 1 ~ ___ M}~ Commission Expires~~ rift T,f_ZI LICCN:SE AGREEMENT - 7 EX]-IIB1T A Leal Description A right-of--way for an 8" PVC water line, located on W. Carlton Avenue beh-veen N. West ~"'Street and N. West 4"' Street, and aright-ot=way for an 8" PVC water line, locates( on N. West 4''' Street between Maple Avenue and Pine Avenue, both in the NE 1!4 of Section 12, Township ~N, Range 1 West, 13.M.• 1Vleridian, Ada County, ]daho. EX!-I1BIT C Purpose of License The purpose of this License Agreement is to permit Licensee to: I . remove and replace the existing water line with 8"PVC under and across the 1-lunter Lateral and the District's easement, all within Licensee's right-of-waywhere N. West4''' Street antl Carlton Avenue intersect the 1-lunter Lateral in Meridian, Ada County, Idaho. 1= X I-11 Bl"f D Special Conditions a. The construction described in Exhibit C shall be in performed in accordance with Exhibit D- I attached hereto and by this reference incorporated herein. b. Licensee shall notify the District prior to and immediately after construction so that he or the District's engineer's may inspect and approve the construction. c. Licensee represents that Licensee has complied with a.ll federal, state or other laws, rules, re,ulations, directives or other requirements in any form regarding environmentalmafters, and specifically those relating to pollution control and water quality, as may be applicable under the subject matter, terms or performanceofthisagreementbroadlyconstrued. Licensee recognizes its continuing duty to comply with ali such requirements that now exist or that maybe implemented or imposed in the future. By 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 harmless and shall defend the Dish•ict 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 masters relating to the subject matter, terms or performance ofthis agreementunless the District shall be solely responsible for the condition or activity evhich dives rise to any such penally, sanction, directive, claim ,action or requirement. e. In theeventthe District is required byany 3overnmental authority to acquire orcomply with an}t permit or other operational requirements associated wwith Licensee's discharge anct other activity 4+~hich LICENSE AGREEMENT - 8 is the subject of this agreement, Licensee shall indemnify, hold harmless and defend the Dish•ict 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, tiling and other requirements. f. The parties to this agreement recognize ibis license agreement is an accommodation to Licensee. The District by this agreement does not assume, create, or exercise legal or other authority, either express or i mpl ied, to regulate control, or prohibit the discharge or conU•i bution of poi lutants or contain inants to the Dish•ict's facilities or to any groundwater, waters of the State of ]daho or the United States, or any othea• destination. Such authority, to the extent that it exists, is possessed and exercised by ;~overnmentril environmental agencies. g. Construction shall be completed with by March 1 ~, 201 I. Time is of the essence. LICENSE AGREEMENT - 9 I ~~ ~M..~ j~ . Hu~fer ~aferal in NE114, ~ S,12, T,3N, R,1W, B,M,, Ada ~'~ Cou~y, I~ho (August 1994) ~ ~~ ~~ c Fxhi'bit F3 ®oo °s ~ e ~~ O D 9~ ~~ - - - ~K ~xd _ "- ~g® - y~ m ~ ~ ® ---- a'..°. z: a~_~ i ~ e ~ `<_~ ' ~_ ______. _f ~~ -- - Vii! - i 1- ~~ „m.~ ~ m m ~ v o ~10~ _ _ ., ~_ _ ~~_ j -m~! _ . ~ ' ~ ;Ik+ _ i'.! ~g j u%v ~~, _- ~. 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F -~- mW z o a ° n n im ~ a _ v nd m° z 0 z n ° . nn t~ m ' :n ~ nn ~ E _n nN a : ~+~ g ~ ~ ~ nm ~ ? ~ ~~ MATCH LINE STA. 9+00 ~ ,_ o~ ~ w ~ ZF a ~ Y ~ _ I p WTC REVRExI PRm.IEtt TIRE: fl0m ftE NNIE:MNIR_IUi_?RIIN-1_ 3 o Q r N. WES T 4TH ST. °"""~ °' ~~D m a sTpRR'. RRRI"" ~ 5~ TRANSCIVIL -of- E IDIZ IAN; (_/ / ylEEi niLE: CNEENED Bv: 1 SMRE/u. NEVPOR X00 EST fRMIKLIN Rp. 8636 $ I\ DAHO / \_/ WATER LINE PLAN WTE: SEPi., plp NWPe 1WM ep) PLDi SCNE: AS SIE11M ( .6 . 9 Exhibit D-1 , page 3