HomeMy WebLinkAboutThird Party License Agreement with Nampa Meridian Irrigation District NMID and VNV, Inc.
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.-
City of Meridian
Public Works Dept.
Memo
RECEIVED
JAN - 8 2004
City of Meridi!ln
City Clerk Office
To: Mayor deWeerd & City Council
From: Brad Watson, P.E./~¿(J
cc:
File, Gary Smith, PE, City Clerk
Date: 1'/8/03
Re:
January 13 City Council Meeting Agenda Items
The Public Works Department respectfully requests that the following items be placed on the
January 13 City Council agenda, on the Consent Agenda, for Council's consideration:
1)
Black Cat Lift Station Temporary Construction Easement and Temporary Right-
of-Way Contract. We have drafted and the developer of Castlebrook Subdivision
has signed a temporary construction easement and a temporary right-of-way
contract. The easement allows the City to utilize the two residential building lots
adjacent to the Black Cat Lift Station lot during construction for equipment and
material staging. The ROW contract lists the terms of this agreement. The City will
essentially be leasing these two lots from Liberty Development until completion of the
lift station in mid to late 2005. The total lease payment will equate to $4900 per year
or $408.33 per month.
Recommended Council Action: Approve the Black Cat Lift Station
Temporary Construction Easement and Temporary Right-of-Way Contract
with Liberty Development and authorize the Mayor to sign and City Clerk to
attest.
2)
Agreement for Professional Services - North Slough Sewer T run {, Keller Associates.
This agreement is for design and easement acquisition of the North Slough Sewer
Trunk. The total agreement amount is for $148,384 of which $43,906.40 is lump sum
(Design Services) with the remainder on a time-and-materials basis. A copy of the
agreement signed by Keller Associates is attached.
Recommended Council Action: Approve the Linder Road Water Line
Extension Latecomer Agreement for Farwest, LLC (Lochsa Falls
Subdivision) and authorize the Mayor to sign and City Clerk to attest.
. Page 1
r
3)
Three party License Aoreement with Nampa & Meridian Irrioation District - Five Mile
Creek Sewer Crossino. A new sanitary sewer main to serve the serve the Comfort
Suites Motel west of Eagle Road on the north side of 1-84. This agreement is a three
party agreement between the Nampa & Meridian Irrigation District, the Comfort Suites
Developer, and the City of Meridian. The purpose of this type of agreement is to
delineate the responsibilities among the parties during and after construction. During
the construction period the agreement is between the NMID and VNV, Inc., the
developer, and upon the final acceptance of the main by the City of Meridian, the
developer drops out of the agreement, and the City becomes the Licensee. This will
cut out a necessary step of having to re-license the crossing to the City of Meridian
once it is complete.
~
Recommended Council Action: Approve the license agreement with Nampa &
Meridian Irrigation District, VNV, Inc. and the City of Meridian, and authorize the
Mayor to sign and City Clerk to attest.
Thank you for your consideration.
/~
8 Page 2
LICENSE AGREEMENT
LICENSE AGREEMENT, made and entered into this - day of , 2004, by and
among NAMP A & MERIDIAN IRRIGA TIONDISTRICT, an irrigation district organized and existing under
and by virtue of the laws of the State ofIdaho, party of the first part, hereinafterreferred to as the "District",
and
CITY OF MERIDIAN,
33 East Idaho, Meridian, Idaho 83642; and
VNV, Inc.,
238 W. River Trai] Drive, Eagle, Idaho 836]6,
party or parties of the second part, hereinafter collectively referred to as the "Licensee",
R!n:L!~~HIH:
WHEREAS, Licensee is the owner of real property and/or right-of-way for a sanitary sewer line
(burdened with the easement of the District hereinafter mentioned) particularly described in the "Legal
Description" attached hereto as Exhibit A and by this reference made a part hereof; and,
WHEREAS, the District owns the irrigation ditch or canal known as FNE MILE DRAIN
(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 water, operate, clean, maintain, and repair
the ditch or canal, and access the ditch or canal for those purposes; and,
WHEREAS, said ditch or canal and easement crosses Licensee's property and/or right-of-way 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 affecting said ditch
or canal or the District's easement in its course across the lands of the Licensee in the manner and under the
terms and conditions hereinafter set forth; and, .
WHEREAS, City of Meridian, by execution of this agreement, agrees to assume the maintenance
and operation of the facilities constructed affecting said ditch or canal or the District's easement in the
manner and under the terms and conditions hereinafter set forth after it provides final approval, in writing,
and to be bound by the terms and conditions of this agreement and the City of Meridian agrees to assume the
obligations and responsibilities as the Licensee which are imposed by this agreement once it provides final
approval of the construction and installation.; and,
WHEREAS, it is necessary that the District protect absolutely its right to control any modification
or alteration of its watercourses and its right of way along its watercourses;
NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and
conditions hereinafter set forth, the parties agree as folJows:
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 generaJly 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 cana] 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.
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 Licensee
shall not change the ]ocation of the ditch or canal, bury the ditch or canal in pipe, or otherwise alter the ditch
or canal in any manner not described in this agreement without first obtaining the written permission of the
District.
3. Each facility ("facility" as used in this agreement means any object or thing of any nature
installed in or on the District's easement by the Licensee or the Licensee's predecessor in interest) shall be
constructed, installed, operated, maintained, and repaired at all times by the Licensee at the cost and expense
of the Licensee.
4, Licensee agrees to construct, install, operate, maintain and repair each faci]ity 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;
b. an interruption or interference with the flow of irogation water in the ditch or cana]
or the delivery of irogation water by the District;
an increase in seepage or any other increase in the Joss of water from the ditch or
canal; .
the subsidence of soil within or adjacent to the easement;
any other damage to the District's easement and irogation works.
c.
d,
e,
5. The Licensee agrees to indemnify, hold harmless, and defend the District from aH c]aims
for damages arising out of any of the Licensee's construction or activity which constitutes or causes any of
the circwnstances enwnerated in the preceding paragraph, 4.a. through 4,e., or any other damage to the
easement and irogation works which maybe caused by the construction, insta11ation. operation, maintena,iice,
repair, and any use or condition of any facility,
6. Licensee agrees that the work performed and the materials used in such construction sha11
at all times be subject to inspection by the District and the District's engineers, and that fina] acceptance of
such work sha11 not be made until all such work and materia]s shaH have been expressly approved by the
District. Such approval by the District shaH not be unreasonably withhe]d,
7. The District reserves the right, at the District's option, to remove any facility insta11ed by the
Licensee and to repair any alteration by the Licensee of said ditch or canal and the easement therefor which
does not comply with the tenns of this agreement, and to remove any impediment to the flow of water in said
ditch or canal and any unsafe condition or hazard caused by the Licensee, at any time, and the Licensee
agrees to pay to the District, on demand, the costs which shaH be reasonably expended by the District for
such purposes, Ifthe Licensee shaH fail in any respect to properly maintain arid repair such facility, then the
District, at its option, and without impairing or in anywise affecting its other rights and remedies hereunder,
LlCENSE AGREEMENT - Page 2
sha]] have the right to perform the necessary maintenance and repairs and the Licensee agrees to pay to the
District, on demand, the cost or expense which shaH be reasonably expended or incurred by the District for
such purposes. The District sha]] give reasonable notice to the Licensee prior to the District's performing
such maintenance, repair or other work except that in cases of emergency the District sha]] attempt to give
such notice as reasonable under the circumstances. Nothing in this paragraph sha]] create or support any
claim of any kind by Licensee or any third party against the District for failure to exercise the options stated
in this paragraph, and Licensee sha]] indemnify, hold harmless and defend the District from any claims made
against the District arising out of or relating to the terms of this paragraph except for claims arising solely
out ofthe negligence of the District.
8, Neither the terms of this agreement, the pennission 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 or
performance of any obligations of this 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 ditches, canals, drains,
irrigation works and facilities which did not apply to the District's operations and activities prior to and
without execution of this agreement. In the event the District is required to comply with any such
requirements or is subject to the jurisdiction of any such agency as a result of execution of this agreement
or the Licensee's activity authorized hereunder, Licensee shaH indemnify, hold harmless and defend the
District from all costs and liabilities associated with the application of such laws or the assertion of such
jurisdiction or, at the option of the District, this agreement shall be of no force and effect and the Licensee
sha]] cease all activity and remove any facility authorized by this agreement.
9, 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 negligent
acts or omissions of Licensee or its agents, contractors or subcontractors in performing the construction and
activities authorized by this agreement.
10, The Licensee agrees that the District sha]] not be liable for any damages which shall occur
to any facility, structure, plant, or any other improvement of any kind or nature whatsoever which the
Licensee sha]] install on the said easement area of the District in the reasonable exercise of the rights of the
District in the course of performance of maintenance or repair of said ditch or canal. The Licensee further
agrees to suspend its use of the said easement area when the use of the easement area is required'by the
District for maintenance or repair under this or any other paragraph of this agreement.
II. Licensee shall place no structures or landscaping of any kind above within the District's
easement àrea except as referred to in this agreement or exhibits hereto without the prior written consent of
the District.
12. Should either party incur costs or attorney fees in connection with efforts to enforce the
provisions of this agreement, whether by institution ofsuitornot, the party rightfu]]y enforcing orrightfu]]y
resisting enforcement of the provisions of this agreement, or the prevailing party in case suit is instituted,
sha]] be entitled to reimbursement for its costs and reasonable attorney fees from the other party.
13,
The parties hereto understand and agree that the District has no right in any respect to impair
LICENSE AGREEMENT -Page 3
the uses and purposes of the inigation works and system of the District by this agreement, nor to grant any
rights in its irrigation works and system incompatible with the uses to which such inigation works and
system are devoted and dedicated and that this contract shall be at all times construed according to such
principles.
14. Nothing herein contained shall be construed to impair the right of way of the Dístrict in the
said ditch or canal and all uses of said ditch or canal by the Licensee and the license herein provided therefor
shall remain inferior and subservient to the rights of the District to the use of said ditch or canal for the
transmission and delivery of inigation water.
15. In the event of the failure, refusal or neglect of the Licensee to comply with all of the terms
and conditions of this agreement, the license of the Licensee under the tenus hereof may be teffilinated 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 orrestrict 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 teffils and conditions of this License Agreement. Licensee also
agrees to pay any fees incurred in connection with the recording of this Agreement.
17. Nothing in this agreement shall create or support a claim of estoppel, waiver, prescription
or adverse possession by the Licensee or any third party against District.
18. This agreement is not intended for the benefit of any third party and is not enforceable by
any third party.
19. If any provision of this agreement is detennined by a court of competent jurisdiction to be
invalid or otherwise unenforceable. all remaining provisions of this agreement shall remain in full force and
effect.
20. The word "Licensee", if used in the neuter in this agreement, includes the masculine and
feminine genders, the singular number includes the plural, and the plural number includes the singular.
The covenants, conditions and agreements herein contained shall constitute covenants to run with,
and running with, all of the lands of the Licensee described in said Exhibit A, and shall be binding on each
of the parties hereto and on all parties and all persons claiming under them or either of them,- and the
advantages hereof shall inure to the benefit of each of the parties hereto and their respective successors and
assigns.
NAMPA & MERIDIAN IRRIGATION DISTRlCT
By
Its President
LICENSE AGREEMENT - Page 4
ATTEST,
Its Secretary
ATTEST:
ATTEST:
STATE OF IDAHO
)
) ss:
)
County of Canyon
CITY OF MERIDIAN
By
VNV, Inc.
B~~
(JÕWJ~)
On this - day of , 2004, before me, the undersigned, a Notary Public in
and for said State, personally appeared Ralph B. Wissell and Daren R. Coon, known to me to be the President
and Secretary, respectively, ofNAMP A & MERIDIAN IRRlGATIONDISTRICT, the irogation 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.
LICENSE AGREEMENT - Page 5
Notary Public for Idaho
Residing at
My Commission Expires:
, Idaho
STATE OF IDAHO
)
)ss.
)
County of Ada
On this - day of ,200_, before me, the undersigned, a notary
pubhc in and for said state, personally appeared and , known to
me to be the and . respectively, of the CITY OF MERIDIAN,
the political subdivision and municipality that executed 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 above written.
Notary Public for
Residing at-,
My Commission Expires,
STATE OF IDAHO )
/J , )ss.
County of ~ )
On this .iL day of ~ L-.- , ~OO?, before me, the undersigned, a notary
pubhc in and for said d~nallY appeared f(J».I.J..¡ p~ I and - , known to
me to be the D..åISì and - ,respectively, oftheVNV,Inc., the entity that
executed the foregoing instrument, and acknowledged to me that such entity executed the same.
~~~S WHE. REOF, I have hereunto set my d and affixed my of
and year in~' erftNiJfw:: bove written. .
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LICENSE AGREEMENT - Page 6
Oct 14 03 12:48p
Desicn Resources
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EXHIDIT A
A porce! oflaud belng on Ihe Nõrthwes!erly sid, ofth, NortlIwe:;lcrly right of=y Une of Romp
D-A Surve)' of dIe BlIgJe Rood JntcrcJ¡¡¡nge ¡IS shown on ,he pions oflnlc.rsLa!e S4, J'rojeet No, 11\-
84-1 (J2)45 mghw¡¡y Survey now on file in dre office ofUle Jdoho Tronspor'a:ion DeportIUO1l', and
beiug 0 portion of Lot ] 8 in the Amended Mosie View Subdivision oc"",ding to the plot thereof
filed in Book 52 of Plots ot Poges 4445 ond 4446 ,nd os coferred 10 in tbot eert,uI instrument
recorded under 1"slrumen' No. 84400642 «nd ,mended by Affid,vil' recorded as Imlnlme"t Nos.
84293] J IInd 96044575, record, of Ad, County. Id,ho, described os fo!Iows, to-wit:
ßegi,uJÜlg at U1O Norlh""st e"rIler of La I 18 il1 "id Amended Mllgie View Sllbdivi,;on, Adll
Cou"ty. Id¡¡JlO;
Thence South 0 degrees 27'35" East (shown ofreeo.ld La be Soutb 0 deg/e," 29'00") along the
East line ofsoid LollS" distance of 10.0 feet, 'oore or less, to ¡¡poiJlI in, lil1e parallel wit]] "nd
150.0 feet Northwesterly 5:om eenteJ'line ofRoo~J D-A Survey, o[the E'gle Ro',d InlercJmnge. a,
so)?wn 011 th~pl"cs of,¡¡id mtcr5to'e 84. Project No.1R-84-1 (J 2)45 Highway Su,:"O)',
TIJOnee Southwesterly IIlol1g soicl por¡¡lIel li.l1e being ¡¡ 3669.72 foot ",di", curve right- 689.7'1 feet
10 ¡¡ point opposite Station 2409'.38.08 of said Romp D-A Survey;
Thence North 81 degrees 25' 15"West - 6 1.29 [eetto a point il1 tire Easterly right of way bne of
e"isting Wells Street; .
Tlrencc Nortlr 9 degrc.es 35'35" West ¡¡lol1g said exi;ti~]g Eos,.,.ly right ofwoy lil1e 245.0 feet,
mare or less, to a point ill tlJe North line of said Lol 18;
Thence Jêosterly along said Nortlr line 710.0 fcet, more or less, (0 the pl"cc of beginning.
I
Exhibit A
Fwe M~e Draj~:;~;~
8,17, T.3N, R.1 E, 8.M., Ada i
Coun~, Idaho (August 1994) ~
Exhibit B
EXHIBIT C.
Purpose of License
The pwpose of this License Agreement is to permit Licensee to:
\. construct, install and maintain a sanitary sewer line within and across the District's
easement for the Five Míle Drain,
all within Licensee's real property and/orright-of-way, described in Exhibit A and the right-of-way for South
Wells Street, located northwest ofthe intersection ofEagle Road and 1-84 in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. Construction shall be in accordance with certain plans consisting of one sheet: sheet 5 of 6
entitled "Sewer Construction Plans for Comfort Suites Motel," bearing engineer's stamp dated November
19,2003. These plans have been delivered to the District's water superintendent, are in his possession in his
offices, and are hereby incorporated by this reference.
b. Licensee shall notif'y the water superintendent of the District prior to and immediately after
construction so that he or the District's engineer's may inspect and approve the construction.
c. The Licensee recognizes and aclmow1edges that the license granted in this agreement by the
District pertains only to the rights of the District as ownerofan easement. The District has no right or power
to create rights in the Licensee affecting the holder oftitle 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 obtained
prove legally ineffectual, Licensee shall hold harmless, indemnif'y 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 no force and effect.
d. The parties expressly agrees that the City of Meridian shall not be considered the Licensee
under the terms of this agreement until the City of Meridian provides fmal approval, in writing, of the
construction and installation of the sewer line described in Exhibit C of this agreement and takes over the
operation and maintenance of said sewer line. Until such time as the City of Meridian provides final
approval in writing, the covenants, conditions and obligations of this agreement shall be binding upon VNV,
Inc. and its agents. At such time as the City of Meridian does provide final approval of the construction and
installation of the sewer line, the parties agree that VNV, Inc. shall be released from any obligations,
conditions or covenants of this agreement, and VNV, Inc. shall no longer be considered the Licensee under
the tenDS of this agreement. .
e. Licensee shall not excavate, discharge, place any structures, nor plant any trees, shrubs or
landscaping within the District's easement, nor perform any construction or activity within the District's
easement for the Five Mile Drain except as refeITed to in this agreement or exhibits thereto without the prior
written consent of the District. The District's easement for the Five Mile Drain is 100 feet, 50 feet to either
side of the centerline.
LICENSE AGREEMENT - Page 7
f.
Construction shal1 be completed one year from the date of this Agreement. Time is ofthe
essence.
LICENSE AGREEMENT - Page 8