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HomeMy WebLinkAboutUtility License Agreement with Settlers Irrigation District for Harrell and Wolf Lateral Water Line CrossingsADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 17 BOISE IDAHO OS/13111 11:42 AM REC RDEQ g REQUEST OF II I I I II I II I II II I II I II IIII II I II III I III Meridian City 11103073E RECORDING REQUESTED BY~N~ WHEN KL'CORI3ED RETURN TQ.• Moffatt, Thomas, Barrett, Roc~lt & Fields, chartered 101 South ~'apital Boulevard,10th Floor POSt Uf~ f ice Bvx 8.~y Boise,lrlaho 83701-0829 (Space Above l~'or Recorder's Used UTILITY LICENSE AGREEIVII~~NT This Utility License Agreement ("Agreement"~, is entered into and made effective this da of ~ ZO I ~ band between SE'T`TLERS Y ~ ~Y TRR.TGATI(}N DISTT~ICT ("District"~, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho, whose address is P,a. Box 7571, Boise, Idaho 83747, and City of Meridian ~"Licensee"~, whose address is (name ~ of er party 33 East Broadway Avenue, Meridian, Idaho 83642 NOVV, THEREFt~RE, in consideration of the mutual benef is 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: 1. Grant of License. The District hereby grants a License ~"License") to Licensee for the purpose of crossing the Harrell and Wolf Laterals (name Qf canal, lateral, ~r ~ii~ch) at the location described in Exhibit A, appended heret+e, in order to construct, operate, inspect, maintain, and repair water line crossings . This grant _- Mist crossing(s~, p~awer, gas, cable, ph~nc, eta.) of License is subject and subordinate to any and all property rights the District may have in the Harrell and Wolf Laterals (narr~ of canal, lateral, ar ditch) tJTII,IT'Y LICENSE AGREEMENT - ~ CLIENT.573845,4 Revised 413!08 Licensee expressly acknowledges and agrees that this License does not grant Licensee the right to install any property ar equipment, except as may be described in this Agreement, ar the right to impair any rights of the District or others in the use of the Harrell and Wolf Laterals (name; of anal, lateral, ar ditch) This grant is expressly conditioned upon the prior receipt by Licensee of any and all necessary approvals from governmental entities and private parties for its activities to be performed under the tams 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. 2. Term of Grant of License. The term of the License shall. commence upon the effective date of this Agreement and shall continue for so long as Licensee is incompliance 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 maybe extended, at the sole discretion of the District, for such amount of time as may be reasonably required to complete the corrective action. 3. Construction, Inspection, Maintenance, Repair, and Replacement of Cro~si~. Licensee, fallowing execution of this Agreement by the parties, may have access across the Harrell and Wolf Laterals (narr~ of canal, lateral, ar ditch) inspection, maintenance, repair, and replacement of the water line crossings to cunduct such construction, as maybe reasonably necessary, (list crossing(s), pawc;r, gas, cable, phcme, etc.) subject to any restrictions imposed on Licensee's activities as may be set forth in this UTILITY LICEIV'SE AGREEMENT - 2 CLIENT;573845.4 Revised 4/3108 Agreement, Licensee ar its agents and contractors shall perform any work in a workmanlike manner, and in accordance with the Engineering Plans and Specifications referenced in Exhibit B. Any activities by Licensee which may impede or impair the flow of water through the Harrell and Wolf Laterals may only be performed (name of canal, lateral car ditch) during the nan-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 Harrell and Wolf Laterals 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 Harrell and Wolf Laterals , 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 farm 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 Harrell and Wolf Laterals 5. 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 Distnct's facility and/or system easements, Licensee, and Utilities or private parties, waive any and all claims against the District, tow ar~d rl the future, concerning the District's water distribution, operation, and maintenance activities upon its facilities and/or systems. ~~I~ LI~E~~E A~~~MEN~ - ~ CLIENT:573845,4 Remised 4I3I0& b. Indemnit .Licensee, and any Utility or private party that attaches to Licensee's facilities governed by this Agreement, Grasses a District facility or system, or uses an exclusive easement, agrees to protect, defend, indemnify, anal 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 CTtlllty 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 duality violations, flooding, or any interruption or interference with the flow of water in the Harrell and Wolf Laterals caused by any act or omission of the Licensee anal any crossing Utility or their agents. l~iotwithstanding any other provision of this Agreement, Licensee, and any Utility or private party that attaches to Licensee's facilities, shall be responsible fur their own actions only, and not the actions of any other party hereunder. Mach 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 I,ICEN~E AGREEMENT - 4 CLIENT.573845.4 devised 4!3108 contractors, to attach.. to the Harrell and Wolf Laterals (name ~f canal:, lateral, or ditch) adjacent lands held by the District. or to any 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 sera,. prior to commencement of construction impacting the District's facllltles, 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. Operation, Maintenance, and Repair 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 Harrell and Wolf Laterals (Warne of canal, lateral, ar ditch} under the terms and conditions of this Agreement acid as identified in Exhibit B, may be necessary subsequent to the execution and recording of this Agreement. In the event that Licensee desires to perform any maintenance, repairand/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 LI~EI~SE AGI~EE~I~T - ~ CLIENT.573845.4 Revised 4!3108 maintenance, repair and/or 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 aver undertaking such work. The District agrees that it will consider and act upon all non-emergency written requests for written consent from Licensee in abusiness-like manner. 10. Limitations on Liability; Attorne,~ees. 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 suitor 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 tc~ this A,~reerr~ent shall be made only by written instrument executed by each of the parties hereto. 13. Bindin Eg_ ffect. The promises, covenants, conditions, and agreements herein contained shall. be binding on each of the parties hereto and on all parties and all person tjTIL~TY~ ~I~CENSE AGREFMF,NT - b CLIENT:573845,4 Revised 4!3108 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. ~o third parties are intended to benef t from, or obtain any rights under, this Agreement. 1 ~. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent ~ urisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. N'o 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. 1 b. Governing, Law, The validity, meaning, and effect of this Agreement shall be determined in accordance with the laws of the State of Idaho. l7. Representations ofParties. (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; iii) 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 tuns. (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 tiTTILITY LICENSE AGREEMENT - `7 CLIENT.573845.4 Revised 4/31$ 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. No=. 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. Recordin .This Agreement shall be recorded at the Ada County Recorder's Off ce. partnership established incorporated or organized [Signature Page Follows] UTILITY LICENSE AGREEMENT - 8 CLIENT:573845,4 Revised 4f3108 IN WITLESS WHEREOF, the parties hereto have executed this Agreement the date first set forth above. S~;TTLE IRRIGATIQN ~-ISTRICT By President of its Board of Directors Attest: s Secretary . ,y ~~ ~ ~ ~_ ~ ~ ~~ A-~-ke~sk ,, ~~'q ~~ ~ ~'.:: City of Meridian ~'~ ° , .~ ,~ (name of ~.icense~~ ~.,~, ,~~ ,~ ~° ~~,.~~ ,~w~- w. ;~ '~ ~; ~. ~~ 3w'' ~~ By ~~ Tamm de W ~ r ~ ; ~~ ~~'~ ~~~ tS Mayor ~~; . .~ -, r-~ u,~ ~ ~~ ~, ~,: - ~ ~^ z I; ~~ ~ r~ 1~,~C! +I ~ .. ........ .. SSA s ~ f `%41t1Y14 7 /~ ~ i ~ti/ ~ ~ ; ~ fir' ~ ~. „; ~ r ,: _ ,,~ '`, ~~~ ~` .J ,,, ~ ;, A '.~; T. } ,;'-~ t ~' a i ~t~ ~,. r ~,~_ ~~,axv~1i~ ~ fr ~,' h y ;* J _ ~ .P .i ~ ~ .~ ~. ~' ~ ,~ ~ « ;~ .4 ~~ ~~# ~' p ~,~ ~: 4! b1 f, ~ ~ Y, UTLLITY LICENSE At~REEI~IENT - 9 CLIENT:573845,4 Revised 4/3108 ~, ~ ~~. 'h d ~f 8 w-< n Q l~s . h~ ~, ~~ ~~ k.%' STATE OF IDAHQ ) ss. County of Ada ) On this day of ('~ , 20~, before me, the undersigned Notary Public in and for the said state, personally appeared _ ~V~ ~~~~~ , known or identified to me to be the President of SETTLERS IRRIGATION DISTRICT, the erson p who executed the instrument on behalf of SETTLERS IRRIGATION DISTRICT, and acknowledged to me that SETTLERS IRRIGATION llIS'I'RIC7' 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. ,,l~~~~rlll~~ll,~~ ~~ ~ ~~s~~~y9~ ' 9 ~r ~ ~ •~! j i ~+ A~R~,1 .~ ~,~ ~, 0 s~. ''~~ ~~ OF ~1n ~~•` ~~~~Il~~r~~~~~~~ 0 ARY P LIC FOR IDAHO Residin at ~ SC , ~- My Commission Expires IOr Co ' zOJS STATE OF IDAHO ) ss. County of Ada ) On this day of l'f , 2011 before me the undersi ned -> ~ Notary Public in and for the said state, personally appeared I ~~~r~ ~G¢~r1 known or identified t0 me to be the Secretary 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. 1N WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certif care first above written. ,,~~~~IIIIIIII~~,tlI ••`~ ~ a' DR'~~ ~''•, . a !~' ,` ~`.'~ GARY ~: ~ ~ ~~ • •*s ~ • • ~• ~I~` ~~ ~*l~~~~ ~O i~~ ////11i11'ii~ NOTARY PUBLIC FOR IDAHO Residing at 0~ ' , Z"r~. My Comm~sslon Expires j ~) ~ l~ ~ ZD ~l5'' UTILITY LICEIV'SE AGREE!VIENT -10 Revised 4f3ft~8 CLIENT;573845,4 STATE OF ~ ~ ) ss. County of ~,a~. ) On this Z2. day of ~~.~ , 20 I~, before me, the undersigned Not Public in and far said state, personally appeared Tammy de Weerd ,known ~'y or identified to me to be the Mayor of City of Meridian Who is the ersan who executed the instrument on behalf of City of Meridian , P and acknowledged to me that _ City of Meridian ~, executed the same. IN WTTN~SS '~VHEt~~', ~ have hereunto set my hand and affixed my official seas the day and year in this certificate first above Written. ~r',,•r•'~ .~' 5~-- "',~,~° ~ N ARY PUBL C FO ,, ~ 0 T,~ ,a ~ . . ,- ~ ;'~ . Residing at ~ I 1 ~' ;~: My Commission Expires_ ~J~.h ~ . ~ • ~ .t1~, • ~ ~ ~ • •'y~", ,' ~~:~~' IDA~Q•~ "+.. • +~ • UTILITY LICENSE AC~.E~;~v1ENT - 1~ CLIENT;573845.4 Revised 413108 EXHIBIT A Legal Description. of Water Line Crossings Water Line is located approximately 10' north of the Center line of McMillan Road the south boundary of Section 25, Township 4 North, Range 1 West, Ada County, Idaho M ~ x ~"~ :+ a .* .~ ~ 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 March 2011 Sheet 4 -Water Line Crossings, dated March 2011 Sheet 5 -Steel Casing Details, dated March 2011 EXHIBIT B CLIENT;573845,4 EXHIBIT C Clean Water Act Section 404 Permit Certification e undersi ed re resents helshe is a duly authorized representative of Th ~ P City of Meridian ("Licensee"}, and hereby certifies that a (name of [.icensee) Clean Water Act Section 404 Permit is not required for Licensee's water line crossings (description of crossing(s)) the Harrell and Wolf Laterals ,for the following crossing{s) of (name of canal, lateral, or ditch reason: The crossin s contemplated under this Agreement will be overhead [] g( ) crossin s and will not include any excavation in or around or any g dischar a of dredged or fill material into the District's facility. g Licensee will use the "boring" method of construction which will not a include an excavation in or around or any discharge of dredged or fill y material into the District's facility. The Harrell and Wolf Laterals is an existing ^ . name o c,ana , atet'a , or etc i ed facilit ;thus, any construction impacting the facility will not pp Y include any discharge of dredged or fill material into the facility. The crossing(s) contemplated under this Agreement will be inscricd into existing conduit crossing(s) of the Harrell and Wolf Laterals (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 Zz. day of _~,~ ~ 20_Ll__~ City of Meridian (name of I.icense~) By Wnttcn Namc: ~ i++~~ C~-~ S Authorized ri'itle: ~-~~ ~~~ ~~'"' EXHIBIT C CLIENT:573845.4