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License Agreement with Nampa Meridian Irrigation District NMID to Encroach an Easement at Ten Mile Creek and to discharge into Ten Mile Creek
E IDIAN~-- Public IDAHO Works Department TO: Mayor Tammy de Weerd Members of the City Council FROM: Clint Worthington Staff Engineer II DATE: 7/24/2013 Mayor Tammy de Weerd City Ceunail Mem6erU Keith Bird Brad Hoaglun Charles Rountree David Zaremba SUBJECT: LICENSE AGREEMENT WITH NAMPA & MERIDIAN IRRIGATION DISTRICT TO ENCROACH WITHIN THE EASEMENT OF THE TEN MILE CREEK AND TO DISCHARGE INTO THE TEN MILE CREEK. (NEXT AVAILABLE CONSENT AGENDA) I. RECOMMENDED ACTION A. Move to: 1. Approve the License Agreement with Nampa & Meridian Irrigation District for a flush line to encroach within the easement of the Ten Mile Creek and flush into the Ten Mile Creek as part of the Ground Reservoir #2 Project. 2. Authorize the Mayor to sign the Agreement. II. DEPARTMENT CONTACT PERSONS Clint Worthington, Staff Engineer II (Project Manager) ........... Kyle Radek, Asst. City Engineer ............................................... Warren Stewart, PW Engineering Manager ............................... Tom Barry, Director of Public Works ....................................... III. DESCRIPTION A. Back rg ound ..........................489-0349 ..........................489-0343 ..........................489-0350 ..........................489-0372 Pnge I of 2 The Ground Reservoir #2 will begin consU•uction this fall and will include the construction of a 2 million gallon water tank, booster pump station and associated piping including a flush line to Ten Mile Creels. B. Proposed Proiect A flush line will be constructed with the Ground Reservoir #2 project and will discharge water to Ten Mile Creek. This flush line will allow for system flushing from pressure zones four and five as well as emergency overflow and drain from the reservoir. Nampa Meridian Irrigation District requires a license agreement in order to drain water to Ten Mile Creek. IV. IMPACT A. Fiscal Im act There is a small fee for Nampa Meridian Irrigation District's attorney to draft the license agreement. V. ALTERNATIVES A. The City could elect not to sign the license agreement which would delay the project and the flush line conshtiiction. VI. LIST OF ATTACHMENTS A. The attached agreement is a requirement of Nampa & Meridian hrigation Dishict to perform construction activities within their easement of the Ten Mile Creek. Page 2 of 2 AGREEMENT This AGREEMENT, is made and entered into this day of , 2013, by and between NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation district organized and existing under and by virtue of the laws of the State of Idaho, hereinafter referred to as the "District", and CITY OF MERIDIAN, 33 East Broadway, Meridian, Idaho 83642 hereinafter referred to as the "City", WITNESSETH: WHEREAS, the District owns the irrigation ditch known as the TEN MILE DRAIN, an integral part of the irrigation and drainage works and system ofthe District, together with the easement therefor to convey irrigation and drainage water, to operate, clean, maintain, and repair the Ten Mile Drain, and to access the Ten Mile Drain for those purposes; and, WHEREAS, the District operates, cleans, maintains, repairs and protects the Ten Mile Drain for the benefit of District's landowners; and, WHEREAS, the City owns the real property, particulazly described in the deed and/or "Legal Description" attached hereto as Exhibit A and by this reference made a part hereof; and, WHEREAS, the Ten Mile Drain crosses and intersects the City's real property described in Exhibit A as shown on Exhibit B, attached hereto and by this reference made a part hereof; and, WHEREAS, the City desires permission to construct a flush line for discharge into the Ten Mile Drain and within the District's easement under the terms and conditions of this Agreement, within the City of Meridian, Ada County, Idaho; and NOW, THEREFORE, for and in consideration ofthe premises and ofthe covenants, agreements and conditions hereinafter set forth, the parties agree as follows: A. Scope of Agreement 1. The City shall have the right to construct and maintain a flush line and to discharge into the Ten Mile Drain or encroach upon the District's easement for the Ten Mile Drain in the manner described in the "Purpose of Agreement" attached hereto as Exhibit C and by this reference made a part hereof. 2. Any crossing, encroachment upon or modification ofthe Ten Mile Drain and/or the District's AGREEMENT -Page 1 easement 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 Agreement," and any plans or drawings referenced in or attached to Exhibit D shall be resolved in favor of Exhibit C. The City shall only be permitted to cross, encroach upon or modify the Ten Mile Drain and/or 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. Each installed facility shall be subject the conditions of this Agreement and the City shall have access to repair, maintain, or replace said facilities as needed. 3. This Agreement pertains only to the City's encroachment upon the Ten Mile Drain and/or the District's easement for the purposes and in the manner described herein. The City 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 Ten Mile Drain except as referred to in this Agreement without the prior written consent of the District. 4. The City recognizes and acknowledges that the permission granted by this Agreement pertains only to the rights ofthe District as owner ofan easement. The District has no right or power to create rights in the City 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 City from the holder of title to the property. Should the City fail to obtain such rights from the holder of title to the property or should the rights obtained prove legally ineffectual, the City shall indemnify, hold harmless, and defend the District from any claim by any party azising 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. C. Facility Construction, Operation, Maintenance and Repair 1. The City agrees that the work performed and the materials used in any construction permitted by this Agreement shall at all times be subject to inspection by the District and the District's engineers, and that final acceptance of the 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. 2. Each facility ("facility" as used in this Agreement means any object or thing installed by the City on, over or in the vicinity ofthe District's easement) shall be constructed, installed, operated, maintained, and repaired at all times by the City at the cost and expense of the City. 3. The City 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 properly; b. an interruption or interference with the flow of irrigation or drainage water in the Ten Mile Drain or the District's delivery of irrigation water; c. an increase in seepage or any other increase in the loss of water from the ditch; d. the subsidence of soil within or adjacent to the easement; e. an interference with the District's use of its easement to access, operate, clean, maintain, and repair the Ten Mile Drain; f. any other damage to the District's easement and irrigation or drainage works. 4. The City agrees to indemnify, hold harmless, and defend the District from all claims for damages arising out of any of the City's construction or activity which constitutes or causes any of the circumstances enumerated in the preceding paragraph, 3.a. through 3.f., or any other damage to the easement AGREEMENT -Page 2 and irrigation works which may be caused by the construction, installation, operation, maintenance, repair, and any use or condition of any facility. 5. The City shall, upon demand of the District, remove any facility or repair any alteration of the District's easement which interferes with the District's operation and maintenance of the Ten Mile Drain, or causes or contributes to any ofthe circumstances enumerated in the preceding paragraph, 3.a. through 3.f, The District shall give reasonable notice to the City, and shall allow the City a reasonable period of time to perform such maintenance, repair, and other work, except that in cases of emergency the District shall attempt to give such notice as is reasonable under the circumstances. The City shall respond within 24 hours to begin repair or remediate any interference with the District's operation and maintenance of the Ten Mile Drain. The District reserves the right to perform any and all work which the City fails or refuses to perform within a reasonable period of time after demand by the District. All work performed shall be performed in manner required by Idaho law, including but not limited to the use of licensed public works contractors and engineers and the performance standards as required by law and ordinance. The City 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 City or any third party against the District for failure to exercise the options stated in this paragraph, and the City shall 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 from any work which unreasonably exposes the District's employees and agents to the risk of harm from electric power lines, or arising solely out of the negligence or fault of the District. D. District's Rights Are Paramount 1. 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 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 Agreement shall be at all times construed according to such principles. 2. Nothing herein contained shall be construed to impair the Ten Mile Drain or the District's easement, and all construction and use of the District's easement by the City and the permission herein provided therefor shall remain inferior and subservient to the rights of the District to the use of the Ten Mile Drain for the transmission and delivery of irrigation water or transmission of drainage water. 3. The City 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 of the Ten Mile Drain. 4. In the event of the failure, refusal or neglect of the City to comply with all of the terms and conditions of this Agreement, the permission granted to the City under the terms hereof may be terminated by the District, and any facility, structure, plant, or any other improvement in or over the ditch, and the right ofway therefor, which may unreasonably and materially interfere with the maintenance and operation ofsuch Ten Mile Drain by the District with its equipment for the maintenance of the Ten Mile Drain shall be promptly removed by the upon demand of the District. E. Applicable Law and Jurisdiction Unaffected. Neither the terms of this Agreement, the permission granted by the District to the City, the AGREEMENT -Page 3 City'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, drains, irrigation works and facilities which did not apply to the District's operations and activities prior to and without execution of this Agreement. 2. 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 City's activity authorized hereunder, City shall 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 and the City shall cease the activity and remove the facility which subjects the District to such requirements. F. Indemnification and Hold Harmless 1. In addition to all other indemnification provisions herein, City 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) incun•ed by, or asserted against, the District by reason of the negligent acts or omissions of City or its agents, contractors or subcontractors in performing the construction and activities authorized by this Agreement. G. Fees and Costs 1. The City agrees to pay to the District fees and costs incurred by the District for work necessary to prepare this Agreement. The amount shall not exceed $500.00 without the additional consent of the City. 2. Should either party incur costs or attorney fees in connection with efforts to enforce the provisions of this Agreement, whether by institution of suit or not 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 1. No Claims Created. Nothing in this Agreement shall create or support a claim of estoppel, waiver, prescription or adverse possession by the City or any third party against the District. 2. Assienment. Neither this Agreement nor any agreement entered pursuant to this Agreement may be assigned or transferred without the prior written approval of the Parties, which approval shall not be unreasonably withheld. 3. Amendment and Modification. Any amendment or modification of this Agreement must be in writing and signed by all parties to be enforceable. 4. Intemretation. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Idaho. This Agreement is not intended for the benefit of any third party and is not enforceable by any third party. If any provision of this Agreement is determined 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. The parties represent and warrant to each other that they each have authority to enter this Agreement. The catchlines or section headings herein set forth are provided only for the convenience of the AGREEMENT -Page 4 parties in locating various provisions of this Agreement, and are not intended to be aids in interpretation of any provision of this Agreement with respect to which the parties might disagree at some future time, and shall not be considered in any way in interpreting or construing any provision of the Agreement. 5. Binding Effect. The covenants, conditions and agreements herein contained shall constitute covenants to run with, and running with, the easement(s) of the City described herein, and shall be binding on each of the parties hereto and on all parties and all persons claiming under them or either ofthem, and the advantages hereof shall inure to the benefit of each of the parties hereto and their respective successors and assigns. 6. Notices. Any and alt notices, demands, consents and approvals required pursuant to this Agreement shall be delivered to the parties as follows: Nampa & Meridian Irrigation District City of Meridian 5525 East Greenhurst 33 E. Broadway Nampa, ID 83686 Meridian, Idaho 83642 Notices shall be deemed to have been delivered upon hand deposit in the United States mail as provided above. 7. Counterparts. This Agreement may be executed and delivered in counterparts, each ofwhich shall be deemed to be an original and all ofwhich shall constitute one and the same instrument. IN WITNESS WHEREOF, the District has hereunto caused its name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the City has caused its corporate name to be subscribed by its duly authorized offtcer, all as of the day and year herein first above written. NAMPA & MERIDIAN IRRIGATION DISTRICT By Its President ATTEST: Its Secretary CITY OF MERIDIAN Its Mayor AGREEMENT -Page 5 ATTEST: Its City Clerk STATE OF IDAHO ) ss: County of Canyon ) On this _ day of , 2013, before me, the undersigned, a Notary Public in and for said State, personally appeared Graham Paterson and Doren Coon, known to me to be the President and Secretary, respectively, ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the inrigation 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. Notary Public for Idaho Residing at ,Idaho My Commission Expires: STATE OF IDAHO ) ss. County of Ada ) On this day of , 2013, before me, the undersigned, a notary public in and for said state, personally appeared and known to me to be the and ofthe C[TY OF MERIDIAN, the entity 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: AGREEMENT -Page 6 © r .,~..' Pioneerl,iF~~~~~C~or li^1J!G Nf °DiiO 1872 S, Engin Road / Meridian Idaho 83642/(208)888.7230 312317 ~1~~ hercinaflar refened to es Orcnlee, whose current address is 33 E. Broadway, Ste. 200, Meddien, Idaho 83642 the fallowing described promises, ta•wis: WARRANTY DEED For Value Received Thorvai Howard Enirepreneuriel Fund I LLC s An Idaho Limi[ed Liability Company hereinefler referred to as Ormter, does hereby grant. bargain, sell, warrant and convey unW Ciry of Meridian SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF. To NAVLt AND 70 HOLD the sold promises, with Iheir appurtenanws unto the sold Gmmee(a), and Orwseez(s) hehs and assigns Porover. And Use said Gransar(a) does (do) hereby covanent Io and sviN the mid Grantee(s), the Grantor(s) islere she owner(s) N he simple of sold pramfxas; th¢I said premises ere free Dom ail oncumbmnces EXCEPI'thorc to which this convayence is a%prossly made subJact end those made, solfored or Bona by tAo Grantee(s); and subject to U.S. Parent reservations, rtzlrictions, ded(eodom, aesmnenu, rights of way and agreements, (if any) of record, and currem yeen rata:, lavles, and assessments, includes (rtigetlon end utlifry assessments, (ifeny) which are not yet duo end peyabl0. and that Gantor(z) will werranl end dnfend t)fe same from all IewPol claims whnUoever. Dated: March 23, 2010 Thorval Howard Enlreprcneuriel Fnnd I LLC By: Oaas nay, Ina, Iu:Me e ,. r Its: res an STATE OF Idaho, County of Ads, ss _.__ _~~, AOA COUN(Y flECOADEA J. DAVID AAVAAAD AA10UM 0,00 Y 0018E IpAN0Oy29110 OI:Of PM PFCO` CEO °"'EDUE5T10Fp III IIIIIIIIIIIIII~IIIIIIIIIIIIIIIII PlcnOet 110028278 On this PU day of March, in rho ymr of 2010, bn(ara ms llw Undersip~ted, ¢nol¢ry public, pcnonelly appeared T. Erie Ones, known Io m¢ to ba she Prasidant of O¢as & Laney. Inc„ knossn or idemlAed w be the manager to rho (United liability company ofThorval Howard Enhepranauriei Fund I, LIA, mrd she President of Oees & Lmtoy, Inc: who subscribed said Corporadon name m M¢neger of the limited liability company so she foregoing instnunent, and eeknowiodged to me shot sh¢y ezecused the same In sold limited liability company name, DENICE E3.THORNTON NOTAF.v FU!iLiC STATE ~ ~~,',10 DENICE B. THORNTON NOTARY PUBLIC STATE OF IDAMO t- an . ~ --rr_.. Notary Public of Residing at--f~%npirt:-HstldanriJ~o Commission a%pires(y~edpagrplpCyg4'p.20i0 Exhibit A, page 1 ._ . . ~XFIIDIT A A parcel located in the NoMwest quarter of the Northwest quarter of Sactlan 29, Township 3 NoM, Renga 1 Bess, Balsa Meridian, Ada County, Idaho, mare peniwlarly described se follows: Commencing at a SIB Inch dieme[er iron pin marking the southwesterly comer of she Northwest quarter of Sectlan T9, from which a 316 inch diameter imn pin marking the northwesterly comeraf sold Northwest quarter of the Northwest quarter beers NoM 0°I4' 19" East a distance otT646.69 ftel; Thence NoM 0° IA'19" East along tho wastedy boundary of said Northwest quarter a dlslanea of 1697.59 feet to the POINT OF BEGINNMG; Thence contfnuing NoM 0°14.19" East a dfatence of 160,30 foot to a po(nf, Thence leaving sold westerly boundary Bauch 89°74'71" feat a distance of 598,42 feet toe 6!8 inch dlamaser Iron pin; Thence South 0° 14'22" West a dia[ence of 4.36 feat to a S/B Inch diameter von pin; Thence Bouth Ie°OI'22" Weat a distance of 477.87 feet to a point; Thence NoM 56°06'79'• West a distenu of 543,56 foot to she POMT OF BEOINNMO Exhibit A, page 2 ~:f ~' N e Rd. .t 1 ` •s ~~' ''~`c? a 4 •i M L~ D 1 ~l lil .. •. - - ~`~ _ s ~ - .. ,. - ,, ;~~ ., t L c•i ~, i Ten Niile Drav- in NW114 m 5.29, T.3N,, R.IE~, B.M,, Ada Cou~y, Idalw Exhibit B EXHIBIT C Purpose of Agreement The purpose of this Agreement is to permit the City to construct, operate, and maintain an 20" flush line within the District's easement for the Ten Mile Drain for purposes ofdischarging the single water system flush line/tank drain and overflow into the Ten Mife Drain from the City's Ground Reservoir #2 & Booster Pump Station located southeast of the intersection of Locust Grove Road and Victory Road in in Meridian, Ada County, Idaho. EXHIBIT D Special Conditions a. The construction described in Exhibit C shall be in performed in accordance with Exhibit D-1, attached hereto and by this reference incorporated herein. b. The City shall be responsible for measuring the quantity of water discharged to the Ten Mile Drain. The flush/discharge shall be once or twice per year for maintenance and quality control issues and the discharge shall be 1,500 to 2,000 gpm for 10-30 minutes. The discharge in overflow scenarios shall be in emergency situations and shall also be shall be 1,500 to 2,000 gpm for 10-30 minutes. The discharge in the tank drain scenario shall be every couple years and shall be Tess than 2,000 gpm for less than an hour. Except in emergency situation described above, the City shall notify the District's Water Superintendent, in writing, and obtain the District's permission prior to any flush/discharge into the Ten Mile Drain. c. The City shat l be responsible and shall ensure that any drains/flush lines which discharge into the Ten Mile Drain do not cause any erosion or subsidence of soil within the Ten Mile Drain. d. The City represents that City has complied with all federal, state or other laws, rules, regulations, directives or other requirements in any form regarding environmental matters, and specifically those relating to pollution control and water quality, as may be applicable under the subject matter, terms or performance of this agreement broadly construed. The City recognizes its continuing duty to comply with all 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 the City which is the subject of this agreement. e. The City hereby indemnifies, holds harmless and shall defend the District 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 matters relating to the subject matter, terms or performance of this agreement unless the District shall be solely responsible for the condition or activity which gives rise to any such penalty, sanction, directive, claim ,action or requirement. f. In the event the District is required by any governmental authority to acquire or comply with any permit or other operational requirements associated with the City's discharge and other activity which is the subject ofthis agreement, the City shall indemnify, hold harmless and defend the District from 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. g. The parties to this agreement recognize that this agreement is an accommodation to the City. The District by this agreement does not assume, create, or exercise legal or other authority, either express or AGREEMENT -Page 7 implied, to regulate control, or prohibit the discharge or contribution of pollutants or contaminants to the District's facilities or to any groundwater, waters of the State of Idaho or the United States, or any other destination. Such authority, to the extent that it exists, is possessed and exercised by governmental environmental agencies. h. Construction of the flush line within the District's easement shall be completed one year from the date of this agreement. Time is of the essence. 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