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Agreement with Nampa Meridian Irrigation District NMID to Cross and Encroach on Hunter Lateral. ~ ~. ,~ ADA COUNTY RECORDER Christopher D. Rieh AMOUNT .00 13 BOISE IDAHO Q8124112 08:43 AM REC RQED °REQUE~ OF III IIIIIIIIIIIIIIIIIIIIIIIIIIIIII I III Nampa Meridian Irrigation Dist i 12~~5~56 AGREEM~NT This AGREEMENT, is made and entered into this ~ day of , 2012, by and a NAMPA & MERIDIAN IRRIGATION DISTRICT, an irrigation dis ' t organized and existing betweei under and by virtue of the laws of the State of Idaho, party of the first part, hereinafter referred to as the "District", and CI"I'Y OF MERIDIAN, 33 East Broadway, Meridian, Idaho 83442 hereinafter referred to as the "City", Wl"rNESSETH: WHEREAS, the District owns the irrigation ditch or canal known as the HUNTER LATERAL, an integral part of the irrigation and. drainage works and system of the District, together with the easement therefor to convey irrigation water, to operate, clean, maintain, and repair tl~e Hunter Lateral, and to access the Hunter Lateral for those purposes; and, WHEREAS, the District operates, cleans, maintains, repairs and protects the Hunter Lateral for the benefit of District's landowners; and, WHEREAS, the City owns an easement, particularly described in the "Legal Description" attached hereto as Exhibit A and by this reference made a part hereof, for construction, operation and maintenance of a water main within the road right-of way forNW 1st Street in Meridia~~, Idaho; and, WHEREAS, the Hunter Lateral crosses and intersects NW 151 Street and the City's easement 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 cross and encroach upon the I-Iitnter Lateral and/or the District's easement under the terms and conditions of this Agreement; NOW, THEREFORE, for and in consideration of the premises and of the covenants, agreements and conditions hereinafter set forth, the parties agree as follows: A. Scope of Agreement l . 1'he City shall have the right to cross the Hunter Lateral or encroach upon the District's easement for the I-Iunter Lateral in tl~e manner described in the "Purpose of Agreement" attached hereto as Exhibit C and by this reference made a part hereof AGREEMENT - l 2. An crossing, encroachment upon or modification of the Hunter Lateral and/or thel Y ' ' ' ement shall be erfornled and maintained in accordance with the "Special Conditions stated District s eas p in Exhibit D attached hereto and by this reference made a part hereof, Any difference or discrepancy between tl~e items listed in Exhibit C, "Aurpose of Agreement," and any plans or drawings reference in or attached to Exhibit D shall be resolved in favor of Exhibit C. The Clty shall only be permitted to cross, encroach u on or modify the Hunter Lateral and/ar the District's easement as described In Exhlblt C even p if an fans or drawin s referenced or attached to Exhibit D provide or show otherwise, The Installed YP g facili shall be subject the conditions of this agreement and the City shall have access to repair, maintain, tY or replace said facility as needed. 3. This Agreement pertains only to the City's encroachment upon the Hurter Lateral andlor the District's easement for the purposes and in fine 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 Hunter Lateral 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 of the District as owner of an 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 ri hts affecting fee title must be acquired by the City from the holder of title to the property. Should. g 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 hold harmless, and defend the District from any claim by any a arising out of or related to such failure of rights and at the option of the District this Agreement shall P ~' be of no force and effect. C. Facility Construction, Operation, Maintenance and Repair 1. The City agrees that the work perfol•med and the materials used in any construction ermined by this Agreement shall at all times be subject to inspection by the District and the District's P 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 of the 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 property; b. an interruption or interference with the flow of irrigation or drainage water in the Hunter Lateral 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 l~iuntcr Lateral; AGREEMENT - 2 any other damage to the District's easement and irrigation or drainage works. 4. The City agrees to 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 and irrigation works which maybe 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 Hunter Lateral, or causes or contributes to any of tl~e 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 Hunter Lateral. 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 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 Hunter Lateral 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 Hunter Lateral 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 Hunter Lateral. 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 maybe terminated by the District, and any facility, structure, plant, or any other improvement in or over the ditch, AGREEMENT - 3 ` f wa therefor which may unreasonably and materially interfere with the maintenance and and the right o y eration of such Hunter Lateral by the District with its equipment for the maintenance of the Hunter op Lateral 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 to the City, the Ci 's activity which is the subject of this Agreement, nor the parties exercise of any rights or erformance of any obligations of this Agreement, shall be construed or asserted to extend the application P of an statute, rule, regulation, directive or other requirement, or the jurisdiction of any federal, s#ate, or Y other a enc or official to the District's ownership, operation, and maintenance of its ditches, drains, g Y irri ation works and facilities which did not apply to the District's operations and activities prior to and g without execution of this Agreement, 2. In the event the District is required to comply with any such requirements or is subject to the 'urisdiction of any such agency as a result of execution of this Agreement or the City's activity J authorized hereunder, the City shall hold harmless and defend the District from ail costs and liabilities associated with the application of such laws or the assertion of such jurisdiction acid the City shall cease the activity and remove the facility which subjects the District to such requirements. F. Hold Harmless 1. In addition to all other indemnification provisions herein, the City further agrees to ,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 the 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 incase suit is instituted, shall be entitled to reimbursement for its costs and reasonable attorney fees from the other party. 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. Asst nment. Neither this Agreement i~or 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, AGREEMENT ~ 4 3, Amendment and Modification. Any amendment or modification of this Agreement must be in writing and signed by all parties to be enforceable. 4. Interpretation. 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 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 of the City within the real property described in 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 benef t of each of the parties hereto and their respective successors and assigns. 6. 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 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 of which shall be deemed to be an original and all of which 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 autharized 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 4~~~;y~ i~ii~~~l~ ~ 9' NAMPA & MERIDIAN IRRIGATION DISTRICT ~~ oFFjri~Q~. Z aG~~ B "vjV ~~~~y Y Its President ATTEST: ~~r Its Secretary CITY OF MERIDIAN O,ip'i CD A UcLST GO`t4 ~.IO •~ ~ry of ~ Its .Mayor E IDIAN -- ~ ~nAya ATTEST: ~~, 5~ ~~ ~r~~ or ~~4~~ 16e TR~~' Its City Irk ~~ 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 appeared Cli on C. Pline and Daren Coon, known to me to be the President and Secretary, respectively, of NAIVIPA & 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. ~~ e•• ~' IOTA ~ ~~°®s~',~ ~. « ~ S ~ w 0 ~ ®®~ ~ ~ a i br A STATE Olr IDAHO x,1',4 •ae~dme.®° ~,~,.` )s~~eir~ ~F ~~`+~~~ County of o~ ) ~`'OrloM+++++++~ Notary Public or Idaho Residing at ,Idaho My Commission Expires: ~,C~ ~ ~- On this ~~ day of ~ ~~, 2012, before me, the undersigned, a notary public in and for said state, personally appeared `-[a,~a„~ ~P ~l~le_er~~l and G,r~ known to me to be the and of the CIT OF MERIDIAN, the entity that executed the foregoing instrument, and ac owledged to me that such entity executed the same. IN WITNESS WHEREOF, l have hereunto set my hand and affixed my official seal, the day and year in this certificate fast above written, ~~~ ~ ~~ ~ w ~. ~' ~ ary Public for ~ ~ Residing at ~~i; ~ :~; '~} ,` , , ~1 My Commission Expires:~~ ~~ ~~~ ~ !~ crA3 d M~j/ ~~, $~~ v „ti 4 T ~$ ''``+' ~ t ~ ~ AGREEMENT - 7 EXHIBIT A Leal Description easement for an $" water main, located within NW ] S` Street between E, Fairview Avenue and An ranklin Roa in the NE 1 /~ of Section 1.2, Township 3 North, Range 1 West, B.M., Meridian, Ada '~1. F d, County, Idaho, AGREEMENT - 8 E ~~ ~ ~: ~ r ~, - ~ ~ y + ~~` v~ ~ Y ~f 1 3 ~ ~ b * 5 ~`~ of ~}~. S 1 ~ G ~V/ ~~f~~l 5 > . 'C~f1'~"f ~,~~ y . .: _ ~ ~ ~ ~:. r= - ~ .~ ~ ~ ~~, ~ . ~ ~~ 'AC, y l: .a - rs ~~ ~,~t~s~~~n~~t5~ti ,.. ~. ~4 .~: ~ -~ R. .~ ~f r ., r .: ~...~ ~ ` ~r_ e .4..' y. m~' r.. Y i. ;_c e 9 ~. ~ w W ' ~rr. {i~ i'°' ~ i ,~,: < $ ~. - - .~o F~ xstr~ ' '~ a / mac.... .. ~~ ~ 5. ,.-..~ :~*'. "S ~, ~, Exhibit B ti ~ ~ EXHIBIT C Pur~os__e of A egvr ement The u ose ofthis Agreement is to permit City to construct and install within the City's p ~ "PVC water main a minimum of three (3}feet under and across the easement described herein an 8 teral and the District's easement, where the City s easement and NVl! 1 Sr Street intersect the Hunter La Hunter Lateral in Meridian, Ada County, Idaho. EXHIBIT D S ecp, 1_. al 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 Ci shall. notify the District prior to and immediately after construction so that he andlor the District's engineer's may inspect and approve the construction. c. The City shall repair any damage to the Hunter Lateral pipeline caused by~the construction authorized by this Agreement. The City shall immediately notify the District s V~ater Su erintendent of such damage so that he may approve or verify the adequacy of the repairs. Such p ' re lacement of damn ed i e. repairs may require p g p p d. The City represents that the City has complied with all federal, state or other laws, rules, re ulations, directives or other requirements in any form regarding environmental matters, and g s ecificall those relating to pollution control and water quality, as may be applicable under the subject P y matter, terms or performance of this agreement broadly construed. The City recognizes its cantinu~ng du to com 1 with all such requirements that now exist or that may be implemented or imposed in the ty p Y future. B executing this agreement the District assumes no responsibility or liability for any impact Y u on or de adation of water quality or the environment resulting from the discharge or other act~v~ty by P ~ the City which is the subject of this agreement. e. The parties to this agreement recognize 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 im lied, to regulate control, or prohibit the discharge or contribution of pollutants or contaminants to P ' ' ' ' ' s or to an oundwater, waters of the State of Idaho or the United States, or any the District s facilit~e y ~' 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 Hunter Lateral, and shall be completed prior to March 15, 2013, Time is of the essence. 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