Agreement with Nampa Meridian Irrigation District NMID for Construction of Sewer and Water Mains for Split Corridor Phase TwoADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 12
BOISE IDAHO 08/24/12 08.43 AM
DEPUTY Bonnie Oberbiilig I'I ('~I'I"II'I'II~'II'I~'I'I'I'II'I'
RECORDED-REQUEST OF 1120~5~,5'
Nampa Meridian Irrigation Dist
AGREEMENT
'This AGREEMENT, is made and entered into this ~, day of , 2012, by and
etween NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation dis , t organized and existing
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under and b virtue of the laws of the State of Idaho, party of the first part, hereinafter referred to as the
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"District", and
CITY aF MERIDIAN,
33 East Broadway, Meridian, Idaho 83642
hereinafter referred to as the "City",
WIT~ESSETH:
WHEREAS, the District owns the irrigation ditches known as the RUTLEDGE LATERAL and
the HUNTER LATERAL (collectively referred to herein as "ditches"), integral parts of the irrigation
works and system of the District, together with the easements therefor to convey irrigation. water, to
o erate clean, maintain, and. repair the ditches, and to access the ditches for those purposes; and,
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WHEREAS, the District operates, cleans, maintains, repairs and protects the ditches for the
benef t of District's landowners; and,
WHEREAS, the City owns an easement or easements, particularly described in the "Legal
Descri tion" attached hereto as Exhibit A and by this reference made a part hereof, for construction,
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o ration and maintenance of a water main and a sewer main within andlor across the road right-of-way
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for Main Street in Meridian, Idaho; and,
V~HEREAS, the ditches cross and intersect Main Street and the City's easement(s) 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 and install a water main and a sewer main
under and across the ditches and/or the District's easement under the terms and conditions of this
A Bement in furtherance of the Meridian Road Split Corridor project within the City of Meridian, Ada
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County, Idaho; and
NOW, THEREFORE, for and inconsideration of the premises and of the covenants, agreements
and conditions hereinafter set forth, the parties agree as follows:
AGREEMENT -1
A. Scope of Agreement
. The Ci shall have the right to cross the ditches or encroach upon the District's
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is for the ditches in the manner described in the "Purpose of Agreement" attached hereto as
easemen
Exhibit C and by this reference made a part hereof.
An crossin ,encroachment upon or modiFcation of the ditches andlor the District's
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ents shall be erformed and maintained in accordance with the "Special Conditions:' stated in
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Exhibit D attached hereto and by this reference made a part hereof. Any difference or discrepancy
tween the items listed in Exhibit C, "Purpose of Agreement," and any plans or drawings reference m
be
ttached to Exhibit D shall be resolved in favor of Exhibit C. The City shall only be permuted to cross,
or a
u on or modi the ditches andlor the District's easements as described ~n Exhibit C even ~f any
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or drawin s referenced or attached to Exhibit D provide or show otherwise. Each installed facility
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shall be subject the conditions ofthis Agreement and the City shall have access to repair, maintain, or
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replace said facilities as needed.
3. This Agreement pertains only to the City's encroachment upon the ditches andlor the
District's easements for the purposes and in the manner described herejn. The. City shall not excavate,
dischar a Lace any structures, nor plant any trees, shrubs or landscaping within the District s easement,
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rform an construction or activity within the District's easement for the ditches except as referred
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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
ertains onl to the rights of the District as owner of easements. The District has no right or power to
p y' tin the holder of title to the property subject to the District's easements.
create rights ~n the City affec g
An such ri hts affecting fee title must be acquired by the City from the holder of title to the property.
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Should the Ci fail to obtain such rights from the holder of title to the property or should the rights
obtained rove le all ineffectual, the City shall indemnify, hold harmless, and defend the District from
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an claim b an arty arising out of or related to such failure of rights and at the option of the District
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this Agreement shall be of no force and effect.
C. Facility Construction, Operation, Maintenance and Repair
1. The Ci agrees that the work performed and the materials used in any construction f
ermined by this Agreement shall at all times be subject to inspection by the District and the District s
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en ineers and that final acceptance of the such work shall not be made until all such work and materials
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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 Ci on, over or in the vicinity of the District's easement} shall be constructed, installed, operated,
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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 property;
b, an interruption or interference with the flow of irrigation or drainage water in the
AGREEMENT - 2
ditches or the District's delivery of irrigation water; ,
an increase in see a e or any other increase in the loss of water from the ditches;
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d. the subsidence of soil within or adjacent to the easements;
e. an interference with the District's use of its easements to access, operate, clean,
maintain, and repair the d itches;
an other damage to the District's easements and irrigation or drainage works.
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he Ci a rees to indemnify, hold harmless, and defend the District from all claims for
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' ' out of an of the City's construction or activity which constitutes or causes any of the
damages arising y
' ces enumerated in the receding paragraph, 3.a. through 3.f., or any other damage to the
circumstan p
ement and irri ation works which maybe caused by the construction, installation, operation,
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maintenance, repair, and any use or condition of any facility,
5. The Ci shall, upon demand of the District, remove any facility or repair any alteration
• ~ ~ ~ 'strict's o eration and maintenance of the ditches, or
of the District s easement which interferes with the Di p
ntributes to an ofthe circumstances enumerated in the preceding paragraph, 3.a. through 3.f.
causes or co y
istriet shall ive reasonable notice to the City, and shall allow the City a reasonable period of time
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such maintenance, repair, and other work, except that in cases of emergency the District shall
to perform
em t to ive such notice as is reasonable under the circumstances. The City shall respond within 24
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urs to be in re air or remediate any interference with the District's operation and maintenance of the
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ditches. The Disttict reserves the right to perform any and all work which the City fails or refuses to
erform within a reasonable period of time after demand by the District. All work performed shall be
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ormed in manner re uired by Idaho law, including but not limited to the use of licensed public works
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contractors and en ineers and the performance standards as required by law and ordinance. The City
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r es to a to the District, on demand, the costs which shat! be reasonably expended by the District for
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such oses. Nothing in this paragraph shall create or support any claim of any kind by the City.or any
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third a a ainst the District for failure to exercise the options stated in this paragraph, and the City
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shall indemnify, hold harmless and defend the District from any claims made against the District arising
out of or relatin to the terms of this paragraph, except for claims arising from any work which
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unreasonabl ex ses the District's employees and agents to the risk of harm from electric power Imes, or
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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
im air the uses and purposes of the irrigation or drainage works and system of the District by this
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A Bement, 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 ditches or the District's
easements and all construction and use of the District's easements by the City and the permission herein
rovided therefor shall remain inferior and subser~~ient to the rights of the District to the use of the ditc es
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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
an facility in the reasonable exercise of the rights of the District in the course of performance of
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AGREEMENT
maintenance or repair of the ditches.
4. In the event of the failure, reftisal 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
ditches, and the easements therefor, which may unreasonably and materially interfere with the
maintenance and operation of such ditches by the District with its equipment for the maintenance of the
ditches shall be promptly removed by the upon demand of the District.
E. Applicable Law and Jurisdiction Unaffected.
1. Neither the terms of this Agreement, the permission granted by the District fio the City,
the 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 andlor
expense (including reasonable attorney's fees) incurred 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
l . 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
P~3'~
AGREEMENT - 4
H. Miscellaneous
l , 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. Assignment. 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. Inte~ retation. 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
far the convenience of the 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. Bindin Eg~ ffect. 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 of
them, and the advantages hereof shall inure to the benefit of each of the parties hereto and their respective
successors and assigns.
b, Notices. Any and all 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 83b8b 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 of
which shall be deemed to be an original and all of which shall constitute one and the same instrument,
TN WITNESS WI-~REOF, 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 officer, all as of the day and year herein first above
written.
AGREEMENT - 5
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ATTEST;
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Its Secretary
NAMPA & MERIDIAN IRRIGATION DISTRICT
By G-.
Its President
CITY OF MERIDIAN
E IDTAN~
ATTEST: ,~ !DAN 4
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~t~br 7AEA5t1
is Ci Jerk
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AGREEMENT - 6
STATE OF IDAHO
} ss:
County of Canyon }
On this ~ day of , 2012, before me, the undersigned, a Notary Public in
and for said State, personally appeare Cli n C. Pline aid Daren Coon, known to me to be the President
and Secretary, respectively, of NAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district
that executed the foregoing instrument and acknowledged to me that such irrigation district executed the
same,
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year in this certificate first above written.
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STATE OF IDAHO }°s'~j~•.® ~'Lrc ®~°~
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County of ~ ~°°~o, ~ ~ ~ A~~ir~~~~
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Notary Publ' for Idaho
Residing at ,Idaho
My Commission Expires: ~ 1 ~"
On this ~~- day of ~~ , 2012, before me, the undersigned, a notary
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public in and for said state, personally appeared e r and ~ ot•J CQ~. N~1 ~ h
known to me to be the .,~~iloY- and of the CITY OF MERIDIAN,
the entity that executed the foregoing instrument, and acknowledged to me that such entity executed the
same,
IN WITNESS WHEREOF, t have hereunto set my hand and affixed my official seal, the
day and year in this certificate first above written.
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AGREEMENT
Exhibit A
Le 1 Description
An easement or easements for a water main and a sewer main, located within the road right-of
way fvr Main Street north of Franklin Road inthe SW'/a Sw'/a of Section 7 and the SW'/ Nw'/a of
Section 7 ,Township 3 North, Range 1 West, B.M., Meridian, Ada County, Idaho.
AGREEMENT ~ 8
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EXHIBIT C
Purpose of Agreement
The purpose of this Agreement is to permit the City to construct within the City's easement(s) a
sewer main crossing under the ditches at three (3}locations, and a water main crossing under the ditches
at two (2} locations, each to be installed a minimum of three (3) feet under and across the ditches and the
District's easement, where the City's easement(s) intersect the ditches in Meridian, Ada County, Idaho.
EXHIBIT D
Special Conditions
a. The construction described in Exhibit C shall be in performed in accordance with certain
plans entitled "City of Meridian, Meridian Road and Main Street Split Corridor Phase 2," bearing
engineers stamp dated March 28, 2012. These plans have been delivered to and approved by the
District's Water Superintendent, are in his possession in his offices, and are hereby incorporated by this
reference.
b. The City shall notify the District's V~later Superintendent prior to and immediately after
construction so that he and/or the District's engineers may inspect and approve the construction.
c. The City shall repair any damage to the ditches pipeline caused by the construction
authorized by this Agreement. The City shall immediately notify the District's Water Superintendent of
such damage so that he may approve or verify the adequacy of the repairs. Such repairs may require
replacement of damaged pipe.
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 may be 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 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 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.
f. Construction shall not commence before the District ceases delivering water through the
ditches, and shall be completed prior to March 15, 2013. Time is of the essence.
AGREEMENT - 9