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Agreement with Nampa Meridian Irrigation District NMID to add 8" Flush Line Discharge into Five Mile Drain~, i ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 16 BOISE IDAH012110112 OB:41 AM DEPUTY Nikola Olson RECORDED-REaUEST OF III IIIII III III IIIII II IIIII IIIIIII I II Nampa Meridian Irrigation Dist 11212959 AGREEMENT and entered into this ~ da of 2012, by and This AGREEMENT, is made Y ~? ~w en NAMI'A & MERIDIAN IRRIGATIaN DISTRICT, an irrigation district organized and existing l ~t e u»der and by vil-tue of the laws of tl~e State of Idaho, hereinafter referred to as the "District", and CITY ~~ MERIDIAN, 33 East Broadway, Meridian, Idaho 83642 hcreir~al~ter referred to as the "City,', ~VITNESSETI~I: WI-IEREAS, the DistrlLt Owns the ~l•rigation ditch known as tl~e FINE MILE DRAIN, an integral part of ~~he irrigation alid dl'alllage works and system of the District, togethet• with the easement therefor to convey irrigation aid drainage water, to operate, clean, maintai~~, and repai~~ the Five Mile Drain, and to access the ~. F i ve M i le Drain for those purposes; and, WHEREAS, the District operates, clears, maulta~ns, repairs and protects tl~e Five Mile Drain for the b~nel~it of District's la~ldowners; and, WI-IEREAS, the City owns an easement or easements, particularly described in the "Legal Description" attached hereto as Exhibit A and by this reference made a paa•t hereof, for construction, operation ~~rd mairtellaa~ce of ar ~" ~17ush line for discharge withi~~ and/or across the road right-of way for N. I31ack Cat Road in Meridian, Idaho; and, WI-IEREAS, tl~e Five Mile Drain crosses and intersects N. Black Cat Road south of the u~tersection of~N. Black Cat Road and. W. McMillan .Road and the City's easements} described in Exhibit A as shown 011 Exhibit B, attached Hereto and by this reference made a part hereof, a»d, WI-IEREAS, the City desires permission to construct a 8" flush line for discharge i»to tl~e Five Mile Dry}i~~ apd witlil~~ the Dlstrict'S eaSellle[lt lilldec tl~e terlllS al1d COnd1t10115 Oftlll5 Agreement, wltlllil the Clty oi' Merid ia~i, Ada County, Idaho; and NOW, THEREI~GRE, for and in consideration of the premises and of the covenants, agreea~~ei~ts and conditions hereinafter set forth, the parties agree as follows: ~, Scope of Agreement l . The City shall have the right to construct and maintain an 8"flush line and to discharge into the 1•i ive Mile Drain or eaacroacl~ upon tl~e District's easement for the give Mile Drain in the manner described AGRTEMENT -Page 1 in the "Purpose of Agreement" attached hereto as Exhibit C and by this reference made a part hereof. 2. Any crossing, eucroachmentuponormodiflcationoftheFiveMileDrainand/or the District's easement shall be performed and maintained io accordance with the "Special Conditions" stated in l;xhibit D, attached hereto and by this reference made a part hereof. Any difference or discrepancy between the items listed iu 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 Five 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 Five Mile Drain and/or the District's easement for the purposes and iu the manner described herein. The City shall not excavate, discharge, place any struchu~es, nor plant any trees, shrubs or landscaping within the District's easement, nor perform any construction or activity within the District's easement for the Five Mile Drain except as 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 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 arising out of or related to such failure of rights and at the option of the District this Agreement shall be of no force and effect. C. Facility Construction, Operatimr, Maintenance and Repair I . The City agrees that the wa•kperformed and the materials used in any construction permitted by this Agreement shall at all times be subject to inspection by the Dish•ict 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 wn'easomably withheld. 2. Each facility ("facility" as used in this Agreement means any object or thing installed by the City on, over or iu 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 Ciry 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 constihrte 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 Pive Mile Drain or the District's delivery of irrigation water; c. an increase in seepage or airy other increase in the loss of water from the ditch; d. the subsidence of soil within or adjacent to the easement; e. au interference with the District's use of its easement to access, operate, clean, maintain, and repair the Five Mile Drain; f. any other damage to the District's easement and irrigation or drainage works. AGREEMENT -Page 2 4. The City agrees to indemnify, hold harmless, and defend the Dish•ict 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 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 DisU ict, remove any facility or repair any alteration of the District's easement which iirte~•feres with the District's operation and maintenance of the Five Mile Drain, a causes or contributes to airy of the ciremnstances 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, exceptthat iu cases ofemergency the Districtshall 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 Five 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 Dish•ict. 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 1'o exercise the options stated in this paragraph, and the City shall indemnify, hold harmless and defend the Dish ict 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 elech•ic power lines, or arising solely out of the negligence or fault of the District. D. Dish•ict's Rights Are Paramount L The pasties 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 io its irrigation or drainage works and system incompatible with the uses to which such in igalion 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 constued to impair the Five 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 Five Mile Drain for the transmission and delivery of irrigation water or hransmission of drainage water. 3. The City agrees that the District shall not be liable for any dunages 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 Five Mile Drain. 4. In the event of the failm•e, refusal or neglect of the City to comply with all of the terms and conditions of this Agreement, the pennissimr granted to the City under the terms hereof may be terminated by the District, and any facility, sh uchire, plant, or any other improvement in or over the ditch, and the right of way therefor, which may unreasonably and materially interfere with the maintenance and operation of such Five Mile Drain by the District with its equipment for the maintenance of the Five Mile Drain shall be promptly removed by the upon demand of the District. AGREEMt:NT -Page 3 1;. Applicable Law and Jurisdiction Unaffected 1. Neither the terms of this Agreement, the permission granted by the Dish•ict to Che 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. Iu the eventthe Dish'ict is required to comply wide 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 Districtfrom 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. ~. Indemnification and Hold Harmless I. 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) 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. tees and Costs 1. The City agrees to pay to the District fees and costs incurred by the District fm• 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 I . 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. Assi nment. 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 andModificatia~. Any amendment or modification of this Agreement must be in writing and signed by all parties to be enfa'ceable. 4. hrterpretation. This Agreement shat I 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 AGI~,EMENT -Page 4 be invalid or otherwise mienforceable, 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 tco 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 futw•e lime, and shat (not be considered in any way in interpreting or construing any provision of the Agreement. 5. Bindint! 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 pasties and all persons claiming under them or either of them, and the advantages hereof shall inure to the benefit of each of the pasties hereto and their respective successors and assigns. 6. Notices. Any and all notices, demands, consents and approvals required pursuant rp this Agreement shall be delivered to the pasties as follows: Nampa & Meridian Irrigation District City of Meridian 5525 BastGreenhurst 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 officer, all as of the day and year herein first above written. NAMPA & MERIDIAN IRRIGATION DISTRICT By Its President A "ff ES"I': Its Sea•etary AGREEMENT -Page 5 CITY OF MERIDIAN Its Mayor ATTEST: Cit~(C~lerk STATE or IDAHO } } SS: County of Canyon } ~~1~r~~~~ A ~C~Jn I 0~ ~ '~~ G ~~ ,, `~ c~tiy ~f E ~D~.AN''~ rnAHC~ ~ ;~ ~r~ ~ ~v 1hr'fAt On this da of ~ , 201.2, before me, the undersigned, a Notary Public ix~ y r said State ersonall a eared Clinton C. Pline anti Daren Coon, k~~own to me to be tl~e President and i~o , p Y pP retar res ectivel ofNAMPA & MERIDIAN IRRIGATION DISTRICT, the irrigation district that and Sec y, p y~ er~cuted the fore oily instrument and aclc~lowledgecl to me that such irrigation. district executed the sa~~~e. g g IN WITNESS WHEREOF, I have hereunto set my land aa~d affixed my official seal, the day ~... anti year in this certificate first abb~ e vu~•~tten. ,~ C`d. `p'~AR ~ ~~~ tar Public for Idaho m ~ ~~ ~ ~0 y ~ ~ Residing at _~ , ldaho }}~~ 4 ~ ~ ~ ~ ~~ ~~~~ -~ 0 ~ My Commission Expires: ~ ~~~~ ~ ~~ ~~ ~q ~ ~ ~® S~I`ATC OF IDAHO } ®°~~~~~e~~~~~~ ss. Count of ~~~.. ~ y On this ` da.y of ~4V~ ~,~~v _ __~ Za 1.2, before n1e, the undersigned, a notary public in aid for said state, personally appeared ~'"~~~ cl~rd and .Je.•!c'~Q l~nna+~ kno~v« to me to be the U _ and C v~ of the CITY OF MERIDIAN, the entity that excccited tl~e foregoing instrument, and acknowledged to me that such entity executed the same. 1N WITNESS WHEREOF, I Dave hereu~~to set my haa~d and. affixed my official seal, tl~e day and year in this certificate first above written. . ~~ x ~ is ate' {~ ~ ~ ~S yr, ry~~ '~~ dm ~ .c+Z .~ ~: ~ ,~ ~"~~~ ~~ ~ ~Y~ s s C~^3 ; %, ~5 ' F,' .. ;~ ~. ~ w;,?,. v t 6i ~= w N S~F x ~ F',ln ?e. $' r1~REEMENT - Page ~ :~~ f~' ~x~~ ~~ , r,~;,s ~~~ s ~ ~ ~~-~ , ~. r °" ., ~;t F'r ~'~ •i.,6 ". .~ by N :F: ~ Y ~. ~•~ No ry Public for Ic~~.h o Residing at yrc[~ h 1 ~ My Commission Expires: ,~~t EXHIBIT A Legal Desa~iption An easenteut fora 8" flush line for discharge, located within the road right-of=way for N. Black Cat Road iu the Sections 33 & 34, Township 4 North, Range 1 West, B.M., Meridian, Ada County, [daho. EXHIBIT C Purpose ofAgreemeut The propose of this Agreement is to permit the City to construct, operate, and maintain an 8"flush line into the Five Mile Drain and the District's easement for the Five Mile Drain and within the City's easement for the 8" flush line, where the City's easement intersects the Five Mile llrain in Meriditui, Ada County, Idaho. EXHIBIT D Special Conditions a. The construction desa'ibed in Exhibit C shall be in performed in accordance with Exhibit D-1, attached hereto and by this reference incorporated herein. "fhe plans attached as Exhibit D-1 also reference a "Rutledge Drain" which is not a drain or ditch which is operated or maintained by the Dish ict. b. The City's discharge to the Five Mile Drain shall be for purposes of occasionally Gushing the City's system and the City shall notify the District's Water Superintendent, in writing, and obtain the District's permission prior to any flush/discharge into the Five Mile Drain. c. The City shall he responsible and shall ensure that any drains/flush lines which discharge into the Five Mile Drain do not cause any erosion or subsidence of soil within the Eive Mile Drain. d. The City represents that City has complied with all federal, state or other laws, wiles, rcgulatioas, directives or other requirements in any form regarding environmental matters, and specifically those relating to pollution control and water yuality, as may be applicable under the subject matter, terms a 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 luhuc. By executing this agreement the Dish'ict assumes no responsibility or liability for any impact upon oa degradation of water quality or the enviromnenl resulting from the discharge or other activity by the City which is the subject of this agreement. e. The City hereby indenmifies, holds harmless and shall defend the Dish•ict from any and all penalties, sanctions, directives, claims or any action taken or reyuirement 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 [n 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. AGREEMENT - Yage 7 g. The parties to this agreement recognize that this agreement is an accommodation to the City. 'fhe 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 conh'ibulion of pollutants or contaminants to the District's facilities or to arty 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 govermnenlal environmental agencies. h. Construction of the flush lines within the Districts easement shall be completed one yeas fiom the date of this agreement. Time is of the essence. AGREEMENT -Page 8 *~~ I~ _ ~,.~.~~ ~~, Sea.33 i31, ~..~ ts'xhibit B +,, r ;~ ~ --, m 'I ~I .m IZ !IO W r n ~~ C ~ CO~ ~ ~ N°~ 111 Nc Z ~ . _ 0 Z m Z ,As R m m oe ~9 o N~ ss! a CITY OF MERIO Wi BLACK CAT ROAR FLUSH LINE CONSTRUCTION PLANE ;~~ .~; _ 3 =s~so ^b o it k CIVIL SURVEY CONSULTANTS, [NC. CONSULTING ENGINEERG ANN WNU SURVEYORS suuo ax o~49're.v,- f. 1614 e Exhibit D-I, page 1 k p II ~ q e P~ ,y~~ P y P f Y 5 Y ~~ p° P A! 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CITY OP MERIDIAN " -- ,a.,.., .~- a,"~ CIVIL SURVCY CONSULTANTS, INC. - tl ,, ,, ~. ~ ELACK CAT ROAD PLUSK LINE CONSULYINC ENOINEEFR9 ONO L1NU SURVEYOfl9 -- ~ ~ --_ o~`'`~624~ ' DETAILS "'I"ew1 ~Pa-o~c .eu°°k Exhibit D-1, page 4 aF~ N%a ``„3m ski 5m I -~ o~' ~o ^fl5 %"954 f€°~U=~~;.~°,a I ~ I ~° d°: ~~~e 4E ;mm m„mz,°, v~S ~8" ~m o~ ~~~ tQm .,moo °~-94g "cRm Fl g'° - ~,m ~'3 ~o 2R Fay°mF ~mm ~"~~, ----'A~ oR ur np ~£ *~.,m Sod oo_ m~>£r;{f ~3 m ~ ~~S'a°-' ~~ N N~ aR= '"~Go 90 ~ ~ n < I Y N ~ %9 T Y g '$3 - ~ (o & ~ a ` im~8 R qg: ~~ ~ __, _ e n4 a en [ o~ a p o 0 3 n a I t § 9^ 2 k » s ~ ~ ~ ,m,~-~ w... =.av s' ~y~~ '~ ~d/ a flb ~~ A^ m °RB^^2l~~( a`r, 8r F ~+ ~ I '. I 1 8 ~ 4"s 'a+ )§~•R W n ?.~. ~sa X~ll o LTIg °4 0.12 .~ ~° ~ 2eA CP ~II ~e`~ ~I A y ~_~ IJII r 3 E i "A°o Eg ,Fii w ^?~_ ga ,~ ~~ ~e=`e r_1 Eyf' 'SZ x R ~~ oom~o i z° m~ ~~, Yi~{~i~ Eon ~e f. IAN o i°z i ii i i ~ =g, oa Via. H PI~~ ~f [ T~ ~ ~ 1- uER'~ a" Zu m€o i » 9 ~~ n 1 »"a~ a;8 ~o•~cN ' qo 1i ~.. m 52g`D; ..c ~ ~ o ~e~y ~=>Pg - 1 s ==ea a` ga ~u ~~ a~ ~ -`~~__ ~® n~ d ~~ ~® F~ a; x mvo~~s m a g ~ CITY OF MERIDIAN »' °` +e+..r , CIVIL SURVEY CONSOLTANTS, INC. _ ~* -' ;,{ v+ a a' CONSULTING EN4INEERS ANU L1ND SURVEYORS ° ° e x BLACK CAT ROAD FLUSH LINE . u 624 e oT A.. ,.oo ...razo.E. szaa. 90 z`o.xo eec.z " .~ DETAILS °`"~zaejeaa-uo --- _.._. '°y z. ~pzn..o Exhibit D-l, page 5 0 0 0 0 0 0 0 0 0 0 0 r ~p~ ~ ~',, E.. 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I I ~ ~ 2 .. ^ ~ ' ~\ i -a + ~~ i 1 N n 6 ~ P I 1 I ~ s W r" 0 ~nD n ~ Z O O '~f f -1"~ . n ~D? =Zo r ~ Z ~° m z i i ~ ~ [rti gR 4 :Os a E CITY OF MERIDIAN C[VIL SURVEY CONSULTANTS, INC. ~ -~~- w "~•~~~" ,a:,me%., # ~ 5 " BLACK CAT ROAD FLUSN LINE curvso~amc ervctrveexs nrvn urvn suxveroxs - p moos O ,.~ £ .~;~a,,aoEa =,« ,::: ~~:~. EROSION AND SEDIMENT CONTROL .Eao. o..o,.s., aoamae-.,,. - - -- _ ~~~- a f ~ s5d ~ ~';a~ a ~., =xa; a ~i "a"= ` § S 4 2 5 s d s `x~ s Exhibit D-1, page 7