HomeMy WebLinkAboutFranklin Co Irrigation Dist Interruptible Water Agrmt wo Warranties - Soccer FieldsINTERRUPTIBLE WATER DELIVERY AGREEMENT
WITHOUT WARRANTIES
THIS AGREEMENT made and entered into this ��y of 'S t 2013,
by and between the FRANKLIN COUNTY IRRIGATION DISTRICT, an irrigation district
organized under the laws of the State of Washington, hereinafter referred to as 'District," and the
CITY OF PASCO, a municipal corporation, hereinafter referred to as "City ".
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
stipulations set forth herein, the parties agree as follows:
1. Irrigated Lands: City certifies it is the lessee from the Port of Pasco, of
approximately ten (10) acres of land in Franklin County, State of Washington, generally
described on Exhibit "A ". The City is desirous of irrigating said ten (10) acres.
City agrees to pay the hereinafter set forth water rate for said lands to be irrigated,
regardless of whether or not said lands are irrigated by City.
The irrigation water shall be drawn from the tail water pond located on Road 36,
situated in the Southeast quarter of Section 14, Township 9 North, Range 29 E. W.M., Franklin
County, State of Washington. From said tail water pond there exists and is to be maintained, at
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the sole cost and expense of the City, irrigation delivery facilities which shall be maintained to
specifications of the District, and extend to the property described in Exhibit "A" for service of
water thereto. All of said facilities, pumps, motors, and electrical hook -up and electrical charges
shall be the sole and absolute property and responsibility of the City.
If, for any reason, City is unable to use said facilities as an irrigation pump
station, the District shall be under absolutely no obligation whatsoever to relocate or authorize
the relocation of said irrigation pump station or facilities to facilitate the irrigation of the herein -
described lands. Should the lands become non - irrigable for failure to have a pump station or
irrigation facilities, all losses attendant thereto and failure to irrigate said facilities described
herein as a result of such inability or failure and all effects thereof shall be the sole responsibility
of City, with absolutely no liability to the District as a result of such failure. City acknowledges
that all zoning with regard to the irrigation facilities and use of irrigation water, the irrigation
pump and pipelines, and any permits, waivers or variances are the sole responsibility and
liability of City, and the failure to obtain or retain the same are at the sole and absolute risk of
City, with absolutely no risk or responsibility to the District for the failure of City to obtain the
same, and with no responsibility or liability, nor requirement to the District to authorize or
permit any relocation of the pump, pump station, irrigation pipeline, or other irrigation facilities
of City.
City further covenants and agrees that no water, as may be delivered pursuant to
the terms and provisions of this water delivery contract, shall be used, spread or delivered upon
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or to any lands other than those described herein for which water is being delivered and
provided.
2. Water Permits: In the event that City obtains any water permits with regard
to their property described in Exhibit "A ", they shall allocate said water permit to the use of the
irrigation of their properties for the water from the District.
3. Diversion Facilities: The District is the owner of certain irrigation
pumping equipment, pipes, and water facilities, including, the facility in which the pump of the
City is located, all located in Franklin County, State of Washington. City is contracting to
purchase water from the District from said watercourse. The facilities leading to City's pumps
and facilities are the property of the District.
4. Water Deliverv: The District is willing to attempt to deliver water as set
forth in this Agreement. Such attempt shall be with no liability for the success or failure of the
quality or quantity of water so delivered, nor for any consequential or resulting damages as a
result of the failure of any quantity or quality of water so delivered.
5. Future Water Deliverv: It is understood by City that the District has
indicated to City that they cannot, under any circumstances, rely nor interpret this Agreement or
any other agreement, except as may be specifically provided in writing, for a future supply of
irrigation water after 2013. It is understood by City that it does not have a perpetual right to
future water delivery, and that the City's right to delivery is only for the 2013 irrigation season
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and any subsequent irrigation season for which this contract is renewed pursuant to Section 9
below.
6. Use of Irrigation Watercourse: District agrees, that upon 24 hours notice
previously given to the District, to attempt to transmit and divert water contracted for in this
Agreement through the District facilities, which will be pumped by the District to the point of
withdrawal by City. The District facilities will be utilized for this purpose if, and only if, it is
determined after introduction of said waters that said waters can be safely carried by the facilities
without impairing the existing operations of the District. The District will attempt to transmit
and divert water to City in amounts not to exceed 250 gpm; provided further, that this Water
Delivery Contract shall be for no more than for four (4) acre feet of water per acre of the lands
authorized to be irrigated hereunder [10 acres (x) 4 acre feet = 40 acre feet of water].
7. Pumps. Pine and Water: It is acknowledged that City has installed a pump,
pipe and attendant parts (City's facilities) connected to the District's facilities, or, is in the
process of connecting the same to the District's facilities. All costs of installation and all costs of
said facilities, now, or in the future, shall be borne by the City exclusively, and shall at no time
be the responsibility of the District. The District shall not be responsible for any claims, nor
damages to City's facilities as may be incurred for any reason whatsoever, other than damages
caused to City's facilities by the negligence of the District or its employees, servants, or
contractors. All construction of City's facilities shall be according to plans and specifications of
the District, and shall be subject to the same terms and provisions as set forth herein. The City's
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initial installation shall be subject to the same terms and conditions as are any changes to the
City's facilities as set forth herein.
Therefore, it is agreed that all construction of City's facilities and any changes
thereto shall not be made, nor changed without plans for such change, construction, or alteration
having previously been submitted to the District's engineer for review and approval. No such
construction, changes or improvements shall be made without the prior written approval from
District's engineer. At all times, the pumping station must be operated so as to pose no danger of
damage to the District facilities, other lands or property, and the other users of water from the
District. No work may be done, of any kind or nature, upon District property, either with or
without the consent of the District, until City has supplied the District lien waivers signed by all
persons who might or have or claim to have a lien right against the District property for labor or
materials famished thereon. All work done in or about the District's facilities by City as having
been previously approved by the District's engineer shall be done under the supervision of the
District and according to the District's specifications and requirements. All costs, expenses and
liabilities incurred by or on behalf of City with regard to any facilities located on, adjacent to or
in connection with the District facilities shall be home solely by City, and City hereby agrees to
indemnify and hold the District and all of its employees, agents, servants and contractors
harmless from any and all claims made with regard to any such facilities, including, but not
limited to, costs, contracts, or occurrences that may take place with regard or in relation to any
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such construction work or the use and operation of the City's facilities or the District facilities as
modified by City.
Any work as may be authorized by the District to District facilities shall be
performed and accomplished within time frames as may be set by the District. The District
reserves the right to refuse any such work in the District's sole discretion.
City agrees that once water is delivered to City's facilities, all said water and
facilities are and become the sole responsibility of City.
City further agrees to reimburse and pay to the District all reasonable costs and
expenses, and to reimburse the District for its actual reasonable costs and fees incurred by the
District as a direct result of any of the foregoing activities by the City. Said costs and expenses
shall be reimbursed upon demand. Said costs include, but are not limited to, costs of engineering
services, costs of District personnel for inspection and review, legal fees, employee costs.
8. Flow Meter: City shall install at their facilities a flow meter. As a
specific term and condition of this contract, City agrees to maintain, repair, modify or otherwise
alter and change the flow meter in such a manner to insure that the flow meter will accurately
measure the amount of water flow at City's facilities, and that the flow meter will be installed,
maintained or changed in such a fashion to operate properly, giving accurate measurement, for
water delivered to City's facilities, taking into consideration, City's facilities, and the equipment
and design thereof. City agrees that the flow meter will be installed and operable within thirty
(30) days of the date of this agreement.
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9. Term of Agreement: The term of this Agreement shall be effective
January 1, 2013, and run through December 31, 2013. Unless terminated as provided below, this
Agreement shall be automatically renewed effective January 15` of each year for successive one
(1) year terms.
Either party may terminate this Agreement for the following irrigation season
upon written notice given to the other party by January 10 " preceding the commencement of
delivery of water for the next irrigation season.
10. Comaensation: City shall pay to the District the sum of $1,770.00 ($177.00
per acre x 10 acres) for the year 2013. Irrigation assessments and outside water charges are
determined by the Board each year, as required by law. The City shall inquire of the District no
later than February V of each year as to the compensation due, and the District will bill the City
for the said compensation that is due and payable. All said payments are payable in advance of
any water being delivered to the City. Failure to make the payment on or before March Pt of
each year shall require the District to not deliver water to the City and this Agreement shall
terminate.
Notwithstanding any term or provision of this Agreement, said compensation is a
non - refundable payment, regardless of whether or not water delivery is interrupted or delivery of
water is prevented for any reason whatsoever, except as provided for in paragraph 17 below.
11. Liabilitv of District - Indemnification - Insurance: City agrees to protect,
save harmless, indemnify and defend the District from all claims and causes of action of any
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kind brought by third parties for injuries and /or damages of any kind arising from the
performance of this contract and arising from the negligence or intentional acts of the City, the
concurrent or joint negligence of City and District, but not for liability arising due to the sole
negligence or intentional acts of the District.
In addition thereto, the parties have mutually negotiated and expressly agreed that
the City waives its immunity under Washington industrial insurance Title 51, RCW and agrees
to protect, save harmless, indemnify and defend the District to the full extent of the negligence
of the City from any claim or causes of action of any kind for injury or damage to the
employee "s and/or agents of the City whose claims arise out of the performance of this contract,
or any derivative claims thereof, to the fullest extent possible under the law and as stated in
R.C.W. 4.24.115.
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The indemnity required herein includes all costs, counsel fees, expenses and
liabilities incurred in or about any such claim, or alleged claim, hereinabove mentioned; City
agrees, upon notice from the District, to resist or defend such action or proceeding by counsel
reasonably satisfactory to the District.
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To further implement the provisions of this paragraph, City agrees to maintain in
full force and effect, throughout the full term of this Agreement, a comprehensive general
insurance liability policy or self insurance with adequate limits, naming the District and its
employees, agents, servants and contractors as additional insureds.
12. Damage to District Facilities: Any damage occasioned to District facilities
or equipment by City and City's employees, agents, servants, contractors, lessees and licensees,
and use of said water by City and City's employees, agents, servants, contractors, lessees or
licensees, irrigation practices used by City and City's employees, agents, servants, contractors,
lessees or licensees, or from any cause whatsoever, shall be the sole responsibility of City and
City agrees to repair, pay for and replace any such damage or equipment damaged immediately
at City's sole cost and expense. All repairs and replacements shall be in accordance with plans
approved by the District which plans shall meet District specifications and requirements.
13. Insurance Policies: All insurance requirements hereunder shall be written in
such form and with responsible insurance companies, including, but not limited to, Washington
Cities Insurance Authorities, or acceptable self - insurance provisions by the City, with terns and
provisions acceptable to the District, and City shall deliver evidence of said insurance, if
requested by the District, to the District prior to any work being done or water delivery.
14. Interruptible Service: District and its employees, agents, servants and
contractors shall not be liable to City, his successors, lessees, assigns, or any other party for any
damages or consequential damages caused by any cause (negligence or otherwise) or act of God
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which causes a temporary or permanent termination of water supply through the District
facilities. Such causes shall include, but not be limited to, periods of time of termination of
delivery necessitated by repair or maintenance upon District facilities, priority of water delivery
to District members or to others, or termination or prohibition for delivery as may be caused by
any other cause, including governmental action.
15. Prioritv of Water Deliverv: It is specifically understood and agreed
between the parties hereto that the primary obligation of the District is to supply water to its
irrigation District members. Therefore, the rights of City to receive water through the irrigation
District facilities is secondary to the rights of the members of the Irrigation District to receive
water supplied through the District's facilities and, in the event that the capacity of the facilities
must be used to supply water to the District's members, then and in that event the supply to City
shall be reduced in preference to the District's members priority rights hereunder without
damage or claim being made against the District and its employees, agents, servants and
contractors.
16. Termination by Law: Notwithstanding any term or provision of this
Agreement, if the District is prevented by law from complying with any term or provision of this
Agreement, then, in that event, the term or provision of this Agreement so prohibited by law
from being complied with by the District or its employees, agents, servants and contractors shall
be deemed immediately terminated and the District shall not be liable to City for any such
termination nor for any damages, lost profits or any other claims whatsoever as a result of such
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termination. In the event of any such termination, the duties of City to the District, including,
but not limited to, the indemnity provisions contained herein and the insurance provisions
contained herein shall not be effected nor terminated.
17. Rental Adjustment for Permanent Termination: In the event of a
permanent termination of this Agreement by the District for any reason other than as specified in
this Agreement and such termination is without the fault of City, City as his sole and exclusive
remedy, shall have the right to a pro -rata refund of the annual rental paid for the season based on
a fraction, the denominator of which is the number of days in the irrigation season, and the
numerator of which is the number of days beginning the day after permanent termination
through the end of the irrigation season , times the water compensation per acre rate times the
number of acres to which permanent termination has occurred. For purposes of clarity,
terminations not authorizing a refund, including terminations at the fault of City, shall include,
but are not limited to, interruption of water service as provided for in this Agreement for any
reason whatsoever, including termination by operation of law, reduction or termination of water
delivery resulting from the primary duty to provide water to District members, interruption
caused by repair or maintenance, termination resulting from failure of City to obtain any
governmental authorities, zoning requirements or variances, failure of City to obtain the right to
farm or lease property, failure of City's system or any portion or part thereof, repair or damage or
potential damage endangering the District facilities necessitating termination of delivery for the
preservation and protection of District facilities or the repair thereof, or any other breach of this
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Agreement by City, or any damage to the District facilities caused by any reason whatsoever
necessitating termination of delivery of water for preservation, protection or repair of District
facilities. The list of specific items contained herein is not intended, nor to be interpreted as all
inclusive.
The number of days and dates of the supply of irrigation water for each year is
determined by the Board of Directors, and is available at the beginning of each irrigation season.
The compensation is set annually, as provided for in paragraph 10 above.
18. Time of Delivery of Water: It is agreed between the parties that the
normal delivery time of water through the canal facilities shall be for the period as set annually
by the Board of Directors; provided however, all deliveries shall be at the sole discretion of the
District, and subject to the control of the Operations Manager of the District. Additionally, as
provided above, City and/or his lessees, employees, agents, servants, or assigns shall be required
to notify the District 24 hours in advance of water delivery and shall further notify the District 24
hours in advance of planned terminations of water delivery.
19. Water Riehts: Neither party claims the rights of the other and nothing
herein contained shall ever be construed as in any manner granting to either party any of the
other party's water rights, except as specifically provided for herein with regard to the use, if
necessary, of City's water rights and permits to irrigate City's herein described property during
the term of this Agreement.
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20. Ouantitv of Water Delivered: The volume of water delivered through the
District facilities may be adjusted and determined at the diversion point of City and shall be at
the sole discretion of the District, and subject to the control of the Operations Manager of the
District.
21. Entire Agreement - Alteration or Amendment: This Agreement embodies
the entire agreement between the parties and may not be altered or amended except by a writing
signed by the parties.
22. Captions: The captions are for convenience only and shall not control or
affect the meaning or construction or any provision of this Agreement.
23. Governine Law: This Agreement shall be construed in accordance with and
governed by the laws of the State of Washington.
24. Attornev's Fees - Venue: Should any action by mediation, arbitration, or
court action, be commenced to enforce any of the terms hereof, or to cancel this Agreement, or
to collect any sums due hereunder, or should any claim under this Agreement be placed in the
hands of an attorney for enforcement, the successful party shall be entitled to a reasonable sum
as its attorney's fees, in addition to statutory costs, and any such action shall be commenced and
maintained in Franklin County, Washington.
25. Disputes: The parties acknowledge that any disputes with regard to any term
or provision of this Agreement shall proceed with court action, unless the parties agree to either
mediation or arbitration of the dispute according to terms and provisions as may be agreed to.
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26. Bindine Effect: This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
DISTRICT:
M
Attest:
Secretary
CITY:
CITY OF ASC
BY \
STATE OF WASHINGTON)
) ss.
COUNTY OF FRANKLIN )
R
On this ]!'day of S 20�, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commiq�*�??__oned and sworn, personally appeared
&Y �� r �� to me known to be thWiesident of FRANKLIN COUNTY
IRRIGATION DISTRI 1, the municipal corporation that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that they are
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authorized to execute the said instrument and that the seal affixed is the corporate seal of said
corporation.
WITNES,,�ffyh�p /d and official seal hereto affixed the day and year first above written.
'',�a�''.jgSION FXA�L P✓ / w /s�
,•'o`s '9R ;: �n Notary Public in ��}}d for the State of Washington
NOTARY "' — residin at
�/fo
u-, Pusuc
-� • ��` NAME OF NOTARY PUBLIC (TYPE R P T)
My Appointment Expires:
WAS
/lI', ',��`
STATE OF WASHINGTON)
) ss.
COUNTY OF FRANKLIN )
On this day of S� .2013 , before me, the undersigned, a Notary
Putjlic in and for the State of Washington, duly commissioned and sworn, personally appeared
Kn Zi, ,v Rw VL�.e . to me known to be the Secretary of FRANKLIN COUNTY
IRRIGATION DISTRICT NO. 1, the municipal corporation that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that they are
authorized to execute the said instrument and that the seal affixed is the corporate seal of said
corporation.
WITNESS my hand and official seal hereto affixed the day and year first above written.
%0%%t 1111 / /t
\p E DgG!r
\5S^ ON f4 �9..
Notary Public in
/
end for the State of Washington
TARP residing at f
L'd i(r�0r 9
NAME OF NOTARY PUBLIC (TYPE O 7NT
' My Appointment Expires:'/ /
r
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STATE OF WASHINGTON)
) ss.
COUNTY OF FRANKLIN )
On this cZ-d y of "" A , 201, before me, the undersigned, a Notary
Publ' in and fa the State o Washington, duly commissioned and sworn, personally appeared
_ , to me known to be an Authorized Agent of the
CIT OF PASCO, the municipal corporation that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said municipal
corporation, for the uses and purposes therein mentioned, and on oath stated that is
authorized to execute the said instrument on behalf of said municipal corporation.
WITNESS my hand and official seal hereto affixed the day and year first above written.
eq 04,0
/4,, ® 6tary Public in and jt�e ate , 4 Washington
A-�, o 's'.9 a residing at
*; °NOTARYN. *o `Tc�111 L �ctA.)KVZ-
PUBLIC NAME OF NOTARY PUBLIC E OR PRINT)
°r�q? r H 3 My Appointment Expires:{ t
r'-4, OF811111 *\
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EXHIBIT "A"
Parcel A (Tax Parcel No. 117- 322 -040):
The East half of the Southeast Quarter of the Southeast Quarter of the Southeast Quarter of
Section 14, Township 9 North, Range 29, E.W.M., records of Franklin County, State of
Washington
Parcel B (Tax Parcel No. 117 - 322 -031):
The West half of the Southeast Quarter of the Southeast Quarter of the Southeast Quarter of
Section 14, Township 9 North, Range 29, E.W.M., records of Franklin County, Washington,
LESS county roads.
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