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2012-01-27 Special~~i1~1 E IDIAN~-- IDAHO CITY OF MERIDIAN CITY COUNCIL PRE-COUNCIL MEETING SPECIAL MEETING AMENDED AGENDA Friday, January 27, 2012 at 1:30 p.m. City Council Chambers 33 East Broadway Avenue, Meridian, Idaho 1. Roll-call Attendance: X David Zaremba X Brad Hoaglun (phone) O Charlie Rountree X Keith Bird X Mayoi- Tammy de Weerd 2. Adoption of the Agenda Adopted 3. Department Reports a. Public Works: License Agreement with Nampa Meridian Irrigation District Approved Adjourned at 1:39 p.m. Meridian City Council Pre-Council Meeting Agenda- January 27, 2012 Page 1 of 1 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. Meridian City Council Meeting DATE: January 27, 2012 ITEM NUMBER: 3a PROJECT NUMBER: ITEM TITLE: Public Works: License Agreement with Nampa Meridian Irrigation District MEETING NOTES Community Item/Presentations Presenter Contact Info./Notes CLERKS OFFICE FINAL ACTION DATE: E-MAILED TO STAFF SENT TO AGENCY SENT TO APPLICANT NOTES INITIALS Meridian Citv Council Special Meeting January 27, 2012 A Special meeting of the Meridian City Council was called to order at 1:30 p.m., Friday, January 27, 2012, by Mayor Tammy de Weerd. Members Present: Mayor De Weerd, Brad Hoaglun, David Zaremba, and Keith Bird. Members Absent: Charlie Rountree. Item 1: Roll-call Attendance: Roll call. X David Zaremba X Brad Hoaglun (via phone) O Charlie Rountree X Keith Bird X Mayor Tammy de Weerd Item 2: Adoption of the Agenda Zaremba: I move we adopt the agenda as published. Bird: Second. De Weerd: A motion and a second, all those in favor say aye. ALL AYES. MOTION CARRIED. Item 3: Department Reports a. Public Works: License Agreement with Nampa Meridian Irrigation District Barry: Thank you Madame Mayor. I first want to thank the Mayor and the Council for allowing us to schedule a special meeting. I know it is an inconvenience, but nonetheless we do appreciate you helping us with this issue. Before you today is a license agreement that we have been working for some time with the Nampa Meridian Irrigation District to modify language. Recently you recall that the Irrigation District has to modify language in agreements that require certain conditions that the city does not believe they can agree with. We have been working with representatives from the Irrigation District including staff and attorneys and we also met with the board and they are reluctant, actually not interested in changing the language that we have requested. They are not interested in redacting the language in question and so we feel at this point in time with regard to the project that is at hand with regard to our construction schedule and the requirements of the Irrigation District for us to be out of any of their facilities by March 15'", that we have no choice but to move forward with license agreement with the language that has been included by the Nampa Meridian Irrigation District. We have to that end been encouraged by the District to just simply agree to the language, but if we felt the need to protest the language we could. We have evaluated that option and it is as you know see before you, we have put a letter of protest in with this license agreement language. That does not change the contractual obligation of each or either the entities and so we would still be held to the conditions required under the license agreement, but we would like to go on the record with the protest letter that we have put together for your review. What we are asking today is that you allow us to enter into this license agreement with Nampa Meridian, authorize the Mayor to sign the agreement and include with that the exhibit E, which we titled essentially a protest letter. The project at hand is an important project to us. The water line replacement project that this license agreement is needed for is a replacement of infrastructure for the northwest 15` Street Meridian City Council Special Meeting January 27, 2012 Page 2 of 2 mainline and that work is important because these water lines have been identified as critical water lines within our downtown area. We have modeled that system and identified that that particular line is substandard with regard to fire flow protection. It is less than the required 1,500 gallons per minute standard that we have set even without turning off the well. So we know it is going to be worse than that if we turned off the well (inaudible). This particular project will not only increase fire protection and breach standards; it will also help with leak improvements from that line by replacing this as well as improve water quality. We do have this important project and we need to be done with this crossing before the 15th of March and for that reason, although we have tried to exhaust all options with the Irrigation District, we feel at this point and time to keep the project moving forward, we have no choice but to enter this agreement with the language included and the protest letter. Just as an update, we do want to continue to work with the Nampa Meridian Irrigation District staff and we will attempt to do so and see if we can't get this language redacted or changed in the future, but at this point and time this is the best we could do. With that I will turn it over for any questions. De Weerd: Council any questions? Zaremba: Thank you for all the work and angst if that is the right word for what you have already put into this. I am convinced that the project does need to move forward and the city of Meridian is not going to do anything in this project that violates procedures or things that we have agreed with Nampa Meridian Irrigation District before. In reading the language of the paragraph that they are seeking to add, I agree, that it doesn't apply to this project or probably any other project, it is kind of irrelevant to the project and in addition to that as you have stated, Meridian is not in a position, nor authorized or qualified to make a decision about how a water way is classified. That is not something and to agree to that just to get a permit when our agreement is essentially meaningless, I agree with the tact of continuing to pursue removing that language, but in the meantime, I appreciate what you have put together and the protest that we are attaching to it, if in fact it can be recorded along with that permit document, I think that is the right way to go. We may need to continue doing this until we get an agreement to leave that language out. I understand and appreciate that that language should not be there. De Weerd: Thank you. Any further discussion? Bird: I have none. De Weerd: I agree with what Councilman Zaremba has said. We can't be picking and choosing which ones to sign with the language and which ones can't and making the determination of where we should feel comfortable and we shouldn't -this is something that is not what we have traditionally had in these agreements and I think as we discussed when we went to their meeting, this is not a level of expertise that we have, nor do we want. This is their business between the Irrigation District and the Federal Government and we should not be in the middle of that. Mr. Hoaglun do you have any discussion? Hoaglun: No. I agree completely with what you just said. De Weerd: Council in front of you, you have a license agreement and I seek your direction. Zaremba: I move that we authorize the Mayor to sign and the Clerk to attest the permit application, license agreement and accompanied protest letter to be recorded along with the permit. Bird: Second. De Weerd: Motion and a second. Any discussion? Meridian City Council Special Meeting January 27, 2012 Page 3 of 2 Roll Call Vote: Hoaglun, aye; Bird, aye; Zaremba, aye. ALL AYES. MOTION CARRIED. De Weerd: Anything further? Bar : No Madame Mayor. I appreciate your understanding and support and we will continue to endeavor to work these issues out with Nampa Meridian. Thank you for your time. De Weerd: I would entertain a motion to adjourn. Zaremba: So moved. Bird: Second. De Weerd: All those in favor say aye. ALL AYES. MOTION CARRIED. MEETING ADJOURNED AT 1:39 P.M. (AUDIO REC RDING ON FILE OF E PROCEEDINGS) p~ l ~ ~ l o~fl~~ TAMMY D ERD, MAYOR DATE APPROVED ATTEST: o4~,~c~n au~~Sr ~~ ~~.~ .~ City of 1 N CITY CLERK ~~~~~~ JA CEE LMA , fnaHo ~'~ SEAL o~~ke 1RFAS~~ E IDIAN~-- Public ~ D A H O Works Department TO: Mayor Tammy de Weerd Members of the City Council FROM: David Allison DATE: 01/26/12 Mayor Tammy de Weerd City Council Members: Keith Bird Brad Hoaglun Charles Rountree David Zaremba SUBJECT: Nampa Meridian License Agreement -Water Line Replacement NW 1st St. at Nampa Meridian Irrigation District's Hunter Lateral (DEPARTMENT REPORTS -SPECIAL MEETING JANUARY 27, 2012) I. RECOMMENDED ACTION A. Move to: 1. Approve an Amended License Agreement with Nampa Meridian Irrigation District for an 8-inch water main crossing of Nampa Meridian Irrigation District's Hunter Lateral as part of the NW ls~ St-Water Line Replacement project with the City's attached Exhibit E -Protest Letter. 2. Authorize the Mayor to sign the Agreement. II. DEPARTMENT CONTACT PERSONS David Allison, Staff Engineer 489-0370 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 replacement in NW ls~ St from Pine Ave. to Meridian Elementary and from Broadway Ave. to Railroad St. Due to age, type, and conditions, these water lines have been identified as critical replacements within the downtown area. Recent modeling indicates that the current flow at the end of NW 1st Street does not meet oar standard for residential protection of 1500 gpm even without turning a well off. Improving the fire flow is Page I of 2 the primary benefit of the replacement project, but water quality and leak avoidance are also benefits as this pipe is aging and tuberculated iron pipe. IV. IMPACT A. Non-Fiscal Im act: NMID has recently modified its template language for License Agreements and is requiring certain language that the City does not agree with. Despite attempts over the past several months (emails, phone calls, staff meetings, and meetings with NMID Board and legal representatives), NMID has refused to change the contested language. For this reason, the City has no choice but to sign the attached License Agreement in protest in order to assure that a municipal capital improvement project for the benefit of the citizens of the City of Meridian can be completed in a timely manner so as to avoid operational detriment to the City. B. Fiscal Impact: There is no financial cost associated with approving the license agreement. V. ALTERNATIVES A. The City could decide not to sign the License Agreement. This would limit the extent of the project area and would postpone fire protection and water quality improvements in the area. VI. TIME CONSTRAINTS Due to the upcoming irrigation season, Nampa Meridian has imposed a deadline of March 15, 2012 for the completion of the work directly impacting the Hunter Lateral. VII. LIST OF ATTACHMENTS A: License Agreement: The attached agreement. is a requirement of Nampa Meridian Irrigation District to perform construction activities within the vicinity of the Hunter Lateral. B: Exhibit E: City of Meridian Protest Letter to required language in the NMID License Agreement. Approved for Council Agenda: l "~~~-102 Date Page 2 of 2 LICENSE AGREEMENT This LICENSC AGREEMENT, is made and entered into this day of , 201 1; 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, party of the first part, hereinafter referred to as the "District", aitd CITY OF MERIDIAN, 33 East Idaho, Meridian, Idaho 83642 hereinafter referred to as the "Licensee", WI"fNESSE"f H: WFIEREAS, the District owns the irrigation ditch or canal known as the HUNTER LATERAL (hereinafter referred to as "ditch or canal"), an integral part of the irrigation and drainage work and system of the District, togethenvith the easement therefor to convey irrigation and drainage water, to operate, clean, maintain, and repair the ditch or canal, and to access the ditch or canal for those purposes; acid, WFLEREAS, the District operates, cleans, maintains, repairs and protects the ditch or drain for the benefit of District landowners; and, WHEREAS, the Licensee is the owner of real property and/or right-of--way that is servient to the District's ditch or drain and easement, and is particularly described in the "Legal Description" and/or deed attached hereto as Exhibit A and by [his reference made a part hereof; and, WHCRGAS, the ditch or drain crosses and intersects the real property described in Exhibit A as shown on Exhibit B, attached hereto and by this reference made a part hereof; and, WHEREAS, the Licensee desires a license to cross, encroach upon or modify said ditch or canal and/or the District's easement under the terms and conditions of this License Agreement; NOW, THGREPORE, forand in consideration of the premises and ofthe covenants, agreements and conditions hereinafter set forth, llte parties agree as follows: LICENSE AGREEMENT - I A. Acknowledgment of the District's Easement. I. Licensee acknowledges that the District's easement for the Hunter Lateral includes a sufficient area of land to convey irrigation water, to operate, clean, maintain and repair the ditch or canal, and to access the ditch or canal for said purposes, and is a tninimmn of 40 feet, 20 feet on either side of the centerline of the ditch or canal for the I-looter Lateral. B. Scope of License I. The LicenseesltallhavetherighttomodifytheditchordrainorencroachupontheDistrict's easement along the ditch ordrain in the manner described in the "Purpose of License" attached hereto as Exhibit C and by this reference made a part hereof. 2. Any crossing, encroachment uponormodificationoftheditchordrainand/or the District's easement shall be performed and maintained in accordance wish the "Special Conditions" stated in Exhibit D, attached hereto and by this reference made a part hereof- Any difference or discrepancy behveen the items listed in Exhibit C, "Purpose of License," and any plans or drawings referenced in or attached to Exhibit D shall be resolved in favor of Exhibit C. Licensee sltal I only be perittitted to cross, encroach upon or modify the ditch ordrain 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. 3. This License Agreement pertains only to the Licensee's crossing, encroachment upon or modification oftheditch ordrain and/orthe District's easementforthe purposesand in the mannerdescribed herein. The Licensee shall not excavate, discharge, place any structures, nor plant any frees, shrubs or landscaping within the District's easement, nor perform any construction or activity within the District's easement for the ditch ordrain except as referred to in this License Agreement without the prior, written consent of the District. 4. -fheLicenseerecognizesandacknowledgesthatlhelicensegrantedthisLicenseAgreement 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 Liccnsce fi•om the holder of title to the property. Shoo Id Licensee fail to obtain such rights from the holder of title to the property or shoo Id 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 to such failure of rights and at the option of the District this License Agreement sltal I be of no force aitd effect. C. Facility Construction, Operation, Maintenance and Repah• I. Licensee agrees that theworkperformedandthematerialsusedinanyconstructionpermitted 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 notbe made until all such work and materials shall have been expressly approved by the District. Suclt approval by the District shall not be unreasonably withheld. LICENSE AGREEMENT - 2 2. Eaclt facility ("facility" as used in this License Agreement means arty object or thing installed by the Licensee on, over or in thevicinity oftlte District's easement) shall be constructed, installed, operated, maintained, and repaired at all 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 eesetnettt so as not to constitute or cause; a. a hazard to any person or property; b. an intenvption or interference with Clte flow of irrigation or drainage water in the ditch ot• drain or the District's delivery of irrigation water; c. air increase in seepage or airy other increase in the loss of water front 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 ditch or drain; f. any other damage to the District's easement and irrigation or drainage works. 4. 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 circutnstattces enumerated itt the preceding paragraph, 3.a. tltrouglt 3.f., or any outer damage to the easemen tand irrigation works which may be caused by the construction, installation, operation, ma intenance, repair, attd airy use or condition of any facility. 5. TheLicenseesltall,upondemandoftheDistrict,removeanyfacilityorrepairanyalteration ofthe District's easementwhich interferes with the District's operation and maintenance ofthe ditch or drain, or causes orcontributes to any of the circumstances enumerated in the precedi rag paragraph, 3.a. through 3.f., or any other damage to the easement and irrigation works. 'flte District shall give reasonable notice to the L icensee, and shall allow the Licensee a reasonable period of ti me to perform such inaitttettance, repair, mtd other work, except that in cases of emergency the District shall attemjtt to give such notice as is reasonable underthecircumstances. The DistrictreservestherighttoperformanyandallworkwhichtheLicenseefails or refuses to pet•form within a reasonable period of time 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 ot• 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 harmless and defend the District fi•om any claims made againstthe Districtarisingour of or relating to the terms of this paragraph, except for claims arising from any work tvhich unreasonably exposes the District's employees and agents to the risk of harm front electric power lines, or arising solely out of the negligence or fault oftlte District. D. DistricNs Rights Are Paramount I. The Licensee understands and agrees that the ditch orcanal is a manmade channel that was constructed and is used mtd rnainlained by the District•for the exclusive purpose of conveying irrigation water to lands witltiit the District or draining lands within tltc District. As such, Licensee further acknowledges and agrees that the ditch or drain does not constitute a natural or navigable watercourse or stream. 2. 'fltepartiesheretounderstandandagreetltattheDistricthasnorightinanyrespecttoimpair LICENSE AGREEMENT - 3 the uses and purposes of the irrigation or drainage works and system of the District by this License Agreement, norto grantany rights in its irrigation or drainage works and system incompatiblewith the uses to wlticlt 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 6e construed to impair the ditch or canal or the District's easement, and all construction 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 District to the use of the ditch or canal for the transmission and delivery of irrigation water or transmission of drainage water. 4. The Licensee agrees that the District shall not be liable for any damages wlticlt shall occur to airy facility in the reasonable exercise of the rights of llte District itt the course of performance of maintenance or repair of the ditch or canal. The Licensee further agrees to suspend its use of the said easement areas when the use ofthe easement areas is requ fired by the District for maintenance or repair under this or any other paragraph of this License Agreement. 5. In the event oftlte failure, refusal or neglect of the Licensee to comply with al I of the terms and conditions of this License Agreement, the license of the Licensee under the terms hereof ntay be terminated by the District, and any facility, structure, plant, or any other improvement itt or over the ditch, and the right of way therefor, which may impede or restrict the maintenance end operation of such ditch or canal bythe Disn•ictwith itsequipmentfm•themaintenance of the ditch or canal shall be promptly removed by the Licensee upon deittand of the District. E. Applicable Latv and Jurisdiction Unaffected. I . Neither the terms of this License Agreement, the permission granted by the District to the Licensee, the Licensee's activity wliich is the subject of this License Agreement, nortlie patties exercise of any rights or performance ofany obligations of this License Agreement, shall be construed or asserted to extend the application ofany statute, rule, regulation, directive or other requirement, or the jurisdiction of airy 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 evens the District is required to comply with any such requirements or is subject to the jurisdiction ofany such agency as a result of execution of this License Agreentettt or the Licensee's activityauthorizedherennder, Licensee shall indemnify, hold harmless and defend [he Districtfrom all costs and liabilities associated with the application of such laws or the assertion of such jurisdiction or, at the option oftlte District, this License Agreement shall be of tto force and effect and the Licensee shall cease all activity and remove any facility authorized by this License Agreement. F. Indemnification I. In addition to all other indemnification provisions herein, Licensee further agrees to indemnify, hold harmless end defend ilia District from any injury, damages, claim, lien, cost and/or expense (includ ing reasonable attorney's fees) i ncurred by, or asserted against, the Di strict by reason of the negligent LICENSE AGREEMENT - 4 acts or om iss ions of Licensee or its agents, contractors or subcontractors in perform ing the construction and activities authorized by this License Agreement. G. Fees and Costs I . The Licensee agrees to pay attorney fees and engineering fees charged by the attorney for the District or by the engineers for the District in connection with the negotiation and preparation of ibis License Agreement. 2. Should either party incur costs or attorney fees in connection with efforts to enforce the provisions ofthis License Agreement, whether by institution afsuif or not, the party rightfully enforcing or rightfully resisting enforcementofthe provisions ofthis License Agreement, orthe prevailing party in case suit is instituted, shat l be entitled to reimbursement for its costs and reasonable attorney fees from the other party. H. Miscellaneous 1. No Claims Created. Nothing tit this License Agreement shall create or support a claim of estoppel, waiver, prescription or adverse possession by the Licensee or arty third party against the District. 2. Assienment. Neither this License Agreement nor any agreement entered pursuant to [his License Agreement may be assigned ortransferred without lire prior written approval of the Parties, wlticlt approval shall trot be unreasonably withheld. 3. AmendmentandModification. AuyamendmentorntodificationofthisLicenseAgreement must be in writing and signed by all parties to be enforceable. 4. Interpreted. This License Agreementshall be interpreted and enforced in accordance with the laws of the State of Idaho. Tltis License Agreement is not intended for the benefit ofanythird party and is not enforceable by any third party. If any provision of this License Agreement is determined by a court of contpeteitt jurisdiction to be invalid or otherwise unenforceable, al I t•emaining provisions of this License Agreement shall remain in full force and effect. The parties represent and warrant to each outer that they each have authority to enter th is License Agreement. 'fhe catchlines 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 ofthis License 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 ofthe License Agreement. 5. BindineEffect. T7tecovenants,conditionsandagreementshereincontainedshallconstitute covenants to run with, and running with, the easement of the Licensee within the real property described in Exhibit A, and shall be binding on each ofthe parties heretoand on all parties and all persons claiming under them or either of them, and the advantages hereof shat l inure to the benefit of each of the parties hereto and their respective successors and assigns. LICENSE AGREEMENT - 5 6. Notices. Any and all notices, demands, consents and approvals required pursuant to this License Agreement sltal I be delivered to the parties as follows: Nampa & Meridian Irrigation District City of Meridian 5525 East Greenhurst 33 E. Idaho Nampa, lD 83686 Meridian, Idaho 83642 Notices shall be deemed to have been delivered upon hand deposit in the United States mail as provided above. 7. Counteroarts.ThisLicenseAgreementmaybeexecutedanddeliveredincounterparts,each of wlticlt shall be deemed to be an original and all of wlticlt shall constitute oite and the same instrument. IN WITNESS WHEREOF, the District Itas hereunto caused its name to be subscribed by its officers first hereunto duly authorized by resolution of its Board of Directors and the Licensee Itas caused its corporate Haute to be subscribed by its duly authorized officer, all as of the day aitd year Itereiu first above written. NAMPA & MERIDIAN IRRIGATION DISTRICT BY. Its President ATTEST: Its Secretary CITY OF MERIDIAN v Cityof 1 Q. (~. ~y,~, ~62 ATTEST: ~ E IDIAN ~o,xo p~~ J a'J""`' I., X40 l titer.,, ~ Ci{~ LICENSE AGREEMENT - 6 STATE OF IDAHO ) ss: County of Canyon ) On dtis _ day of , 201 I, before me, the undersigned, a Notary Public in and forsaid State, personally appeared Monte ]anicekand Daren Coon, known to meto bethe Presidentand Secretary, respectively, ofNAMPA & 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 setnry baud 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: STATEOFIDAHO ) )ss. County of ) public in and On this day of , 201 I, before me, the undersigned, a notary for said state, personally appeared ,known to me to 6e the _ of ,the entity that executed the foregoing instrument, and acknowledged to me that such entity executed the same. IN W ITN ES S W HEREOF, I have hereunto set my hand and affixed my officia I seal, the day and year in [his certificate first above written. Notary Public for Residing at My Commission Expires: LICENSR AGREEMENT - 7 EXHIBIT A Legal Description Aright-of--way foran 8" wafer main, located on NW 1"Street bebveen E. Fairview Avenue and W. Frankl iit Road, i n the NE I /4 of Section 12, Townsh ip 3 Nortly Range I West, B.M., Merid iatt, Ada Cou itty, Idaho. EXHIBIT C Purpose of License The purpose of this License Agreement is to permit Licensee to: construct and install an 8" PVC water main a minimum of three (3) feet under and across the piped Hunter Lateral and the within the District's easement, all within Licensee's right-of--way where NW I" Street intersects the Hunter Lateral in Meridian, Ada County,ldaho. EXHIBIT 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 [he construction. c. Licensee represents that Licensee Itas complied with all federal, state or outer laws, rules, regulations, directives or other requirements in any form regarding environmental matters, and specifical ly those relating to pollution cmttrol and water quality, as may be applicable under the subject matter, terms or performance ofthisagreementbroadlyconstrued. Licensee recognizes itscontinuingdutytocomplywith all such requirements that now exist or that may beimplemenledorimposedinthefinure. By executingtltis agreement the District assumes no responsibility or liability for any impact upon or degrndation of v\~ater 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 Districtfrom any and all penalties, sanctions, directives, claims or arty action taken or requirement unposed 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 Dishrict shall be solely responsible for the condition or activity which gives rise to any such penalty, sanction, directive, claim ,action or requirement. e. In the event the District is required by any governmental authority to acqu i re or comply with any permit or other operational requirements associated with Licensee's d ischarge and other activity which LICENSE AGREEMENT - 8 is the subject of this agreement, Licensee shall indemnify, hold harmless and defend the District form all costs aitd liabilities associated with such pen»itand other requirements, including but not I invited to al I costs associated with all permit acquisition, construction, monitoring, treatment, administrative, filing and other requirements. £ The parties to this agreement recognize this 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 implied, to regulate control, or proh ibitthe discharge or contribution of pol lutants or contaminants to the District's facilities or to any groundwater, waters of the State of ldalto or the United States, or any other destination. Such au[Itority, to the extent that it exists, is possessed and exercised by govertnnental environmental agencies. g. Consn•uction shall not commence priorto October I5, 201 I and shall be completed prior to March I5, 2012, Tinte is of the essence. 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Specifically, the City has requested that the language in section D, paragraph 1 of the License Agreement be removed from this and all future License Agreements. However, NMID has at present declined to do so. I do want to thank the Board, Darren Coon, and Greg Curtis for the time granted to Mayor De Weerd, David Miles and myself at your December 6th, 2011 meeting to discuss this concern. Subsequent to the December 6th NMID Board Meeting, staff and legal representatives for both NMID and the City met on January 12th, 2012 at the Law Offices of I2ingert Clark to continue the discussion and work toward a mutually agreeable solution. However, NMID continues to maintain its position that it will require the City to agree to language/conditions which it does not agree with. While there have been several months of discussion on this topic, NMID has refused to yield on the language, instead suggesting the City sign the License Agreement in protest. Because the City can no longer wait to construct its Northwest 1st St Water Main Replacement Project as bidding has commenced, contracts need to be finalized, and work must be completed prior to the upcoming irrigation season, the Meridian City Council has directed staff to sign the License Agreement IN PROTEST. Regrettably, the City feels that, at this time, the City has no choice but to sign the attached License Agreement in protest in order to assure that a Municipal Capital Improvement Project for the benefit of the citizens of the City of Meridian can be completed in a timely manner so as to avoid operational detriment to the City. To that end, the City requires that this letter be Public Works Department . 33 E. Broadway Avenue Meridian, ID 83842 Phone 208-898-5500 . Fax 208-898-9551 www.meridiancity.org [NMID Board] Page 2 recorded at the Ada County Recorder's Office as Exhibit `E' to the attached signed License Agreement, representing the City of Meridian's official protest to the languages stipulated in Section D, Paragraph I . Furthermore, this agreement and prior agreements with the contested languages shall not be interpreted as precedent setting by the City or NMID. The City does understand NMID's position that NMID will call water bodies and NMID facilities by the labels which the Board chooses. However, the City's position, as discussed many times, is that the City does not maintain the time, expertise, or authority to define or label a water body and that that determination should be one left to the entities having jurisdiction. In fact, we acknowledge again that the United States Army Corp of Engineers warned the City of potential risks should we make such declarations. The City feels that NMID's required language, which is not germane, is not necessary under Idaho State Statute §42-1209 when seeking permission to cross an NMID right-of--way or easement. Further, the City contends that a request for permission lacking this language does not materially interfere with the use and enjoyment of the right-of--way under §42-1209 as is evidenced by the numerous agreements that have been signed without the new language between the City of Meridian and NMID over the last 30 plus years. Therefore, we are signing this specific License Agreement at NMID's urging and in good faith that the City and NMID will continue to work on a resolution regarding the specific license agreement languages in question as NMID has previously agreed. The City continues to research all available options and we hope to reach a solution soon which will satisfy both parties for all projects going forward which may cross one of NMID's rights-of--way or easements. Sincerely, Thomas H. Barry, PEG Director of Public Works City of Meridian Cc: Mayor Tammy deWeerd Bill Nary, City Attorney David Miles, Surface Water Administrator Darren Coon, NMID Secretary Footnotes: 1. "The Licensee understands and agrees that the ditch or canal is a manmade channel that was constructed and is used and maintained by the District for the exclusive purpose of conveying 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 constitztte a natural or navigable watercourse or stream. "