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Minutes - 2007 - City Council - 07/24/2007 - Regular v EAGLE CITY COUNCIL Minutes July 24, 2007 PRE-COUNCIL AGENDA: 6:30 o.m. - 7:30 o.m. ROLL CALL: BASTIAN, GUERBER, NORDSTROM, BANDY. Nordstrom is absent. A quorum is present. I. Ada County Sheriffs Office - Monthly Report. Brian Hippie, Eagle City Police presents the monthly report. General discussion on Community Policing. Discussion on the skateboard ordinance in the City. 2. Public Works Director: Reports on the maxi-com system. We are surprised how effective this program is. This is money very well spent. Without the system we would need one person just to monitor all of the irrigation through out the City. Reports on Guerber Park. The caps are being put on the columns in the shelters. Most of the water feature is working. There is still a leak underground. There are still issues with Water Odyssey in regards to the controls. General discussion. Jim Murray is going to prepare an itemized list of what he feels is complete and we would then pay KJ for those items. Discussion on the new storage tank and the Brookwood well. Brookwood well is under construction as is the Eaglefield well. I sent you an e-mail on the Dry Creek Underpass. We need to have some funds in the budget to start this construction. General discussion. 3. City Attorney Buxton: Distributes copies of the Department of Water Resources' Preliminary Order in the matter of water nos. 63-32089 and 63-32090 and discusses the same. It is my understanding that wells are under construction and that water will be pumped sometime in Septem ber. Legacy well house and water in the lines will be done by November. Today we had a meeting with Vedodrome. The biggest issue is how we are going to do the construction. Discussion on the donated services and materials and what services and materials are going to be paid for. They want to do ground breaking on August 28th and I think we can have the agreements done to meet that time frame. 4. Zoning Administrator Vaughan: Discusses the conversation he had with the HOA of Alderwood the want to incorporate the current sales office into their club house and common area. General discussion. 5. City Clerk's Report: No report. 6. Guerber reports on the Art Commission's tour to visit the benches that have been installed in Eagle. We rode a trolley to visit the bench sites and most of the artists were on the tour. Discussion on the benches. 7. Bastian: At Design Review we had a discussion on the role of Design Review. They thought the Council had acted independently on a couple of issues. 8. Bandy: Reports on the Economic Feasibility Committee meeting. They are going to invite the Mayor and the Council to attend one of their meetings. General discussion. Reports on the Eagle Food and Wine Festival meeting. The Festival will be on the 291h of September. And there will be a fund raising gala the night before. Page 1 K:\COLTNCIL\MINUTES\Temporary Minutes Work Area\(('.7-24-07mindoc Mayor: I had a very successful meeting with all of the Mayors yesterday. General discussion. We are going to try meet on a monthly basis for the next three months and then evaluate how the meetings have gone. There were no decisions made. Mayor calls a recess at 7:30 p.m. REGULAR COUNCIL AGENDA: 7:30 p.m. I. CALL TO ORDER: Mayor Merrill calls the meeting to order at 7:35 p.m. We had our roll call at the beginning of the Pre-Council meeting. 2. ROLL CALL: BASTIAN, GUERBER, NORDSTROM, BANDY. 3. PLEDGE OF ALLEGIANCE: Cheryl Bloom leads the Pledge of Allegiance. 4. PUBLIC COMMENT: Jay Friday, 1528 N. Sunup Way, and I am the President of the Farmer's Union Ditch Canal. Reads a letter he distributed to the Council. General discussion. Cheryl Bloom, I'm following what Jay has had to say. I am a residential ag user. I know that subdivisions tend to water more than farmer's do. Starting September 25th we are no longer going to be able to water. General discussion. 5. CONSENT AGENDA: · Consent Agenda items are considered to be routine and are acted on with one motion. There will be no separate discussion on these items unless the Mayor, a Councilmember, member of City Staff, or a citizen requests an item to be removed from the Consent Agenda for discussion. Items removed from the Consent Agenda will be placed on the Regular Agenda in a sequence determined by the City Council. . Any item on the Consent Agenda which contains written Conditions of Approval from the City of Eagle City Staff, Planning & Zoning Commission, or Design Review Board shall be adopted as part of the City Council's Consent Agenda approval motion unless specifically stated otherwise. A. Claims Al!:ainst the City. B. Ooen Container Permit: Franklin Building Supply is requesting an open container permit to be used at Guerber Park on August 18,2007 from 5:00- 9:30 p.m. Alcohol may be consumed only within the shelter and no glass containers are allowed. (SKB) C. DR-29-07 - Landscaoe Plan for CastIeburv West Business Park - Caoital Develooment Inc.: Capital Development Inc., represented by Talena Dovel with The Land Group, is requesting design review approval for a landscape plan for Castlebury West Business Park. The 4.25-acre site is located on the northwest side of Chinden Boulevard and North Meridian Road at 6615 North Meridian Road. (WEV) D. DR-30-07 - Two Multi-tenant Retail/RestaurantJOffice Buildinl!:s within Lonesome Dove Subdivision - Lonesome Dove LLC: Lonesome Dove LLC, represented by Walter Lindgren with Johnson Architects, is requesting design review approval to construct two multi-tenant retail/restaurant/office buildings within Lonesome Dove Subdivision totaling 60,000-square feet. The site is located on the southwest corner of East Riverside Drive and Edgewood Lane at 1505 East Riverside Drive. (WEV) E. DR-31-07 - Master Sil!:n Plan for Two Multi-tenant Retail/Restaurant/Office Buildinl!:s within Lonesome Dove Subdivision - Lonesome Dove LLC: Page 2 K.\COUNCILIMINUTES\Temporary Minutes Work Area\CC-7-24-07min.doc Lonesome Dove LLC, represented by Walter Lindgren with Johnson Architects, is requesting design review approval of the master sign plan for the two multi- tenant retail/ restaurant/office buildings within Lonesome Dove Subdivision. The site is located on the southwest corner of East Riverside Drive and Edgewood Lane at 1505 East Riverside Drive. (WEV) F. Findinl!:s of Fact and Conclusions of Law for PP-02-06 - Preliminarv Plat for Brutsman Subdivision - Donna Weston: Donna Weston, represented by Craig McCullough with Doumecq Development, is requesting preliminary plat approval for Brutsman Subdivision. The 4.86-acre, 17 lot (13 residential, 4 common) subdivision is located approximately I ,200-feet south of Floating Feather Road and on the west side of Horseshoe Bend Road at 10895 Horseshoe Bend Road. (WEV) G. Findinl!:s of Fact and Conclusions of Law for CU-12-06 - Buildinl!: eXDansion and heil!:ht exceotion for Eal!:le United Methodist Church - Eal!:le United Methodist Church: Eagle United Methodist Church, represented by Bruce Poe with Modoc Architects, is requesting conditional use approval for a 23,500 square foot building expansion and building height exception of 49'-4" (steeple only) for the Eagle United Methodist Church. The 4.63-acre site is located on the west side of Eagle Road and V,-mile north of State Street at 65 I North Eagle Road. (WEV) H. Findinl!:s of Fact and Conclusions of Law for CU-07-07 - Conditional Use Permit for Eal!:le Emerl!:encv Service Facility for the Eal!:le Fire Deoartment - Eal!:le Fire Protection District: Eagle Fire Protection District, represented by Aaron Randell with JGT Architecture, is requesting conditional use approval to construct a 5,730-square foot emergency service facility. The 0.63 I-acre site is located on the southeast corner of North Linder Road and West Clearfield Drive within Copperfield Subdivision at 1225 North Cactus Creek Avenue (Lots I and 2, Block 2, Copperfield Subdivision). (WEV) I. Minutes of July 17,2007. J. ODen Container Permit: Corey Russell is requesting an open container permit to be used at Merrill Park on August 24, 2007 from 5:00 p.m. to 9:00 p.m. Alcohol may be consumed only within the shelter and no glass containers are allowed. (SKB) K. Ooen Container Permit: Franz Witte Landscape Contracting, Inc. is requesting an open container permit to be used at Guerber Park on August 2, 2007 from 4:30 p.m. to 10:00 p.m. Alcohol may be consumed only within the shelter and no glass containers are allowed. (SKB) Guerber moves to add Item #7D to the Consent Agenda. Seconded by Bandy. Discussion. Planner Williams removes Items #5D and #5E from the Consent Agenda to be placed on the August 14,2007 City Council Agenda. Maker of the motion and the second concur. ALL AYES: MOTION CARRIES...................... Bastian moves to approve the Amended Consent Agenda. Seconded by Guerber. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES.............. Guerber moves to add Items #5D and #5E to the City Council Agenda of August 14,2007. Seconded by Bastian. Discussion. ALL AYES: MOTION CARRIES.................. Page .~ K.\COUNC'lL\MINUTES\Temporary /l.1inules Work Area\CT -7-24-07mill.doc 6. PUBLIC HEARINGS: A. PP-21-06 - Preliminarv Plat for Eal!:le Gatewav South - Cornerstone Grouo. LLC: Cornerstone Group, LLC, represented by Walter Lindgren with Johnson Architects and Morton McMillen, P.E., with McMillen Engineering, LLC, is requesting approval of preliminary plat for Eagle Gateway South, a mixed use commercial and residential development. The 56.86-acre, 98- lot subdivision, I 14-unit (7] -single-family, 42-multi-family (contained within 5-lots), 16- commercial, and 6-common) is located on the southeast corner of State Highway 44 and E. Riverside Drive at ]650 E. Riverside Drive. This item was continued/rom the July 17, 2007 meeting (WEV) Mayor introduces the issue. Mayor swears in Walter Lindgren Walter Lindgren, Johnson Architects, representing the applicant, displays overheads and provides Council an overview of the application. General discussion. Planner Williams, provides Council an overview of the projects. General discussion. Mike Lindgren: Discusses the streets, sidewalks, and curbs. The swimming pool has always been a part of the application. Planner Williams, display an overhead of the street section and discusses the same. General discussion. Mayor Opens the Public Hearing Mayor Closes the Public Hearing General Council discussion. Bastian moves to approve PP-21-06 - Preliminary Plat for Eagle Gateway South as presented tonight with the following modifications: On Page 2 of 3, that the single family residential set back for front lots #1 - #26 the front be 10 or IS feet alternating as measured from the back of sidewalk and apply that to Page 3 striking the property line and add back of the sidewalk and I would make a recommendation that the Developer when he goes to Design Review looks at a larger playground for the subdivision. Seconded by Guerber. General discussion. ALL AYES: MOTION CARRIES.................... B. RZ-OS-07 - Rezone From A-R (Al!:ricultural-Residential) BP-DA (Business Park With A DeveloDment Al!:reement) - Jefferv Mower: Jeffery Mower, represented by Mike Fairchild, Architect, LLC, is requesting approval of a rezone from A-R (Agricultural-Residential) to BP- DA (Business Park with a development agreement) to facilitate the construction of a self storage facility. The 2.00-acre site is located on the south side of E. Hill Road approximately 560' feet east of State Highway 55 at 2871 E. Hill Road. (WEV) Mayor introduces the issue. Mayor swears in Mike Fairchild Mike Fairchild, representing the applicant, provides Council an overview of the applicant. General discussion. Mayor swears in Jeffery Mower Jeffery Mower, applicant, discusses the fence line location and provides the Council a copy of the survey. Displays photos of the fence to the Council on the overhead projector. General discussion. Page 4 K\COUNCIL\MINUTES\Temporary Minutes Work Area\(('-1-24-07mindoc Planner Williams, displays overheads and provides Council an overview of the application. General discussion. Mayor opens the Public Hearing Mayor swears in Beth Thompson Beth Thompson, 9605 Horseshoe Bend Road, my property is the property in question here. Discusses the fence. General discussion on the fence and the property line. Mayor closes the Public Hearing General discussion. Guerber moves to approve RZ-05-07 - Rezone From A-R (Agricultural-Residential) BP-DA (Business Park With A Development Agreement) and include in the recommendations and stipulations of that property that 2.13 be included which says "The applicant shall obtain permission of the property owner to the south so that the fence on the southern property line may be repaired (if permission is not granted, then the repairs noted herein shall not be required). The fence shall be repaired to ensure that posts are located on the property line, the panels are tightened so as to not bow out, and the panels are secured to the fence posts with a minimum of three metal tie downs per posts; and 2.14 which says "The City will not adopt an ordinance to rezone the property until the property line dispute is resolved regarding the southern boundary line adjacent to the property located at 9605 North Horseshoe Bend Road. Seconded by Bastian. Discussion. ALL A YES: MOTION CARRIES................. .. Planner Williams: We would like to have a copy of the survey for our files. C. RZ-06-04 MOD Develooment Al!:reement Modification - Instrument No. 105048971 (Schenk Prooertv) - Hawkins Comoanies: Hawkins Companies, represented by Jessica Aguilar is requesting modifications to the development agreement (Instrument # I 05048971) associated with the C- J -DA (Neighborhood Business District with development agreement) zoning of the property to provide a concept plan and define the permitted uses within the development. The 13.2-acre site is located at northeast corner of State Highway 44 and Linder Road. (WEV) Mayor introduces the issue. Mayor swears in Jessica Aguilar Jessica Aguilar, Hawkins Companies, representing the applicant, provides Council an overview of the Development Agreement modification. Planner Williams, displays overheads and provides Council an overview of the Development Agreement and the requested modifications. General discussion. Mayor opens the Public Hearing Mayor swears in Bob Ulman Bob Ulman, one question that I have is if there is still a second ingress and egress. Mayor swears in Bob Craft Bob Craft, 4563 W. Bonney Drive, my concern is the large building that we were talking about. This building is right next to my house and this building is large enough for a grocery store and I don't want a grocery store next to my property. My recommendation would be two 15,000 Page 5 K\COUNCIL\MINUTES\Temporary Minutes Work Area\Cr ~ 7-24-07min doc square buildings. My other question is when will the weeds will be cut down. Mayor swears in Allen Ulves Allen Ulves, 338 N. Havasue Court, I am Vice President of my association; we have had very successful meetings with the developers. We are now down to the issue of the large building that Bob discussed previously. General discussion. Mayor swears in Ron Finch Ron Finch, 4599 W. Escalante Road, my house backs up to the building we are talking about. The houses on the street are two story homes. Looking at the back of this large building will be an eye sore to us. There is also the issue of deliveries all day long. General discussion. Bob Ulman, one of the things that the neighbors really didn't want was a grocery store and nursery. Todd Santiago, 530 E. Riverside Drive, I want to voice my support of this project in about every aspect. I am involved in the Legacy development and we are about to release 250 homes and the developments around Legacy will be releasing several homes also. We get asked from buyers and our financial advisors what kind of commercial development is in the area. This is commercial land and they can do a 25,000 square foot building. I know that if we had a drug store and a grocery store this close to our development it would be beneficial. This will be the first commercial development in this area and it is critical that we get this right. Jay Friday, everybody is talking about a local grocery store. How many commercial areas do we need in Eagle. WinCo is coming to Eagle. Why do we need another big grocery store. Allen Ulves, discusses the Legacy development. I think that it is a shame with all of the land that Legacy will cover that we couldn't put the grocery store there. Mayor swears in Miram Myers Miram Myers, I live right next to the proposed building. I just want to support what the others have said. I think that there would be a better area to put these large buildings. There is going to be a lot of traffic. I would be in favor of putting some large trees along those boundries. Mayor swears in Jason Bennet Jason Bennet ]21 N. 91h, Boise, I am the owner and managing partner of Sage Development. We have done everything that we could do to address the homeowners' concerns by relocating buildings, reducing sizes of buildings and reducing the amount of drive thus. There is support of numerous developers for this project. This was zoned C I when the homes were bought. We have reduced the large building to the 25,000 feet square building. Mayor swears in John Pikeman John Pikeman, 720 N. Palmento, I live no where near here. There will be four grocery stores within five miles each way. Discusses the location of the large building proposed. Ron Finch, I was not speaking for the rest of the neighbors when I mentioned the 6' fence. I have a berm and some of my other neighbors do not have a berm. We would like to see the wall put in prior to any construction. Jessica Aguilar, representing Hawkins Companies, for clarification we have not communicated or had any negotiations with a grocery store. We need some flexibility when we market this area. We don't know what will actually be on this foot print. To put a restriction on the building size really limits our flexibility to market and attract appropriate tenants. General discussion. Page 6 K.\COUNClL\~lINUTES\Temporar}' Minutes Work Area\CC -7-24-07min.doc Mayor closes the Public Hearing General discussion. Bastian moves to approve RZ-06-04 MOD Development Agreement Modification - Instrument No. 105048971 (Schenk Property) with the Development Agreement conditions as presented to us this evening with the following modifications: 3.2 on Page 12 of 15 at the end of the second sentence "any commercial building exceeding 15,000 square feet will require a conditional use permit". Seconded by Bandy. Discussion. ALL AYES: MOTION CARRIES.......... Mayor calls a recess at ] 0:30 p.m. Mayor reconvenes at ]0:45 p.m. D. A-09-07/RZ-ll-07 & PP-12-07 Annexation and Rezone From RUT To R-E-DA and Preliminarv Plat For Tranquil Estates Subdivision - Garv and Janette Drew: Gary and Janette Drew, represented by Angela Comish, are requesting an annexation of twenty seven (27) acres, to rezone the property from RUT (Rural Urban Transition - Ada County designation) to R- E-DA (Residential, one unit per two acres with a Development Agreement) and preliminary plat approval for Tranquil Estates Subdivision, a three (3) lot, seven (7) acre subdivision (only a portion of the site is proposed for development at this time). The twenty seven (27) acre site is located on the southwest intersection of North Ballantyne Lane and West Beacon Light Road at 2141 West Beacon Light Road. (WEV) Mayor introduces the issue. Mayor swears in Angela Com ish Angela Com ish, representing the applicants, it is bid confusing, I am representing two sets of applicants in this annexation and rezone. Displays overheads and provides Council an overview of the applications. General discussion. Planner Williams, displays overheads and provides an overview for the Council. There is a total of five parcels. Discussion on what is being acted on tonight. General discussion. Mayor Opens the Public Hearing Mayor swears in Cheryl Bloom Cheryl Bloom, 2153 N. Hollybrook Place, I live directly south of this proposed subdivision. I am the lady that was concerned about the irrigation canal. I am the President of our irrigation subdivision. There are no lots of equal size in the surrounding area. Discussion on the cul-de- sac and the stub street. Discussion on the irrigation. Mayor swears in Ron Keot Ron Keot, 2693 N. Ballantyne, I appreciate some of the confusion in this. As a group we decided to go forward and then we ran into a problem with engineering. At that point we engaged Mr. Miller to represent us. We are not leap frogging. Mayor swears in Kurt Wilkins Kurt Wilkins, 7761 Murphy Road, Melba, I was involved with project and contacted all of the neighbors and I set up the neighborhood meetings and contacted all of the neighbors. There was not opposition until the Planning and Zoning meeting. Mr. Wang was told clearly by ACHD that ifhe decided to develop there would not be an access to Mr. Wang's property. Mayor swears in Michael Miller Page 7 K:\COUNCIL\J\.lINUTES\Temporal)' Minutes Work Area\CC -7-24-07min.doc Michael Miller 2]2 S. 14th Street, Boise, we are coming as fast as we can right behind them with our preliminary plat. General discussion. Mayor Closes the Public Hearing General discussion. Michael Miller, discusses the location of the cul-de-sac. Bastian moves to approve A-09-07IRZ-ll-07 the annexation and rezone for the 27 acres. Seconded by Bandy. ALL AYES: MOTION CARRIES..................... Bastian moves to approve PP-12-07 For Tranquil Estates Subdivision as presented this evening with the site and standard conditions of approval. Seconded by Bandy. Discussion. ALL AYES: MOTION CARRIES.................. E. V AC-03-07 - Vacation of oortions of Lot 3, Block 2. within Eal!:le Ranch Subdivision 4A - City of Eal!:le: The City of Eagle is requesting a vacation of portions of Lot 3, Block 2 (pathway lot) within Eagle Ranch Subdivision 4A. Lot 3 is owned by the City of Eagle and is used for pedestrian and bicycle use and is therefore considered a public right-of-way. The purpose of the vacation request is to relinquish interest in portions of the pathway lot that are no longer needed for public use. This item was continued/rom the July 10, 2007 meeting. (WEV) E I. Resolution - 07-22: A resolution of the City of Eagle, Idaho, confirming and accepting the dedication of parks and pathways in Eagle Ranch Subdivision #4 of the City of Eagle as recorded in instrument #793600 I in Ada County, Idaho and providing an effective date. (WEV) E2. Resolution -07-23 A resolution of the City of Eagle, Idaho, to vacate portions of lot 3, block 2 (pathway lot) within Eagle Ranch Subdivision #4. 4a, and providing an effective date. (WEV) Mayor introduces the issue. Council member Guerber rescues himself as he lives in very close proximity to this property. Zoning Administrator Vaughan: Distributes handouts to the Council and provides an over view and history of the vacation. Mayor swears in Ron Marshall Ron Marshall, 740 Palmento, provides a history and overview of the pathway. General discussion. Mayor Opens the Public Hearing John Heichman, 720 N. Palmento, I am No. 32. I have a couple of questions. Is Lot 3 owned by the City of Eagle? Do the townhouse owners have a right to the property forever? I am mainly concerned with the areas with trees and the plants which are right next to my property. The only thing that the City can do is just maintain the existing landscaping. Can the City put fencing in this area. General discussion. Mayor swears in R. D. Hayes R. D. Hayes, I own Lot]. My impression was that this would be a done deal. Discussion on the fence. This is my first time at a meeting and I want to compliment you on how you have ran the meeting tonight. Mayor Closes the Public Hearing Page 8 K:\COUNCIUMINCTES\Temporary /l.tinutes Work Area\CC -7-24-07min.doc Bastian moves to approve V AC-03-07 Vacation of portions of Lot 3, Block 2, within Eagle Ranch Subdivision 4A. Seconded by Bandy. ALL AYES: MOTION CARRIES........... Bastian moves to approve Resolution 07-22 A resolution of the City of Eagle, Idaho, confirming and accepting the dedication of parks and pathways in Eagle Ranch Subdivision #4 of the City of Eagle as recorded in instrument #7936001 in Ada County, Idaho and providing an effective date. Seconded by Bandy. ALL AYES: MOTION <:ARRIES......... Bastian moves to approve Resolution 07-23 A resolution of the City of Eagle, Idaho, to vacate portions of lot 3, block 2 (pathway lot) within Eagle Ranch Subdivision #4. 4a, and providing an effective date. Seconded by Bandy. Discussion. ALL A YES: MOTION <:ARRIICS............... Council Member rejoins the Council. F. ZOA-OI-07 - Flood Control Ordinance Amendment - City of Eal!:le: An Ordinance of the City f Eagle, Ada County Idaho amending Eagle City Code Title 10 "Flood Control", Chapter I, Section I "Findings of Fact and Purpose", Section 5 "Rules and Definitions", Section 6 "Flood Insurance Study", Section 7 "Development Permit Requirements", Section 8 "Flood Damage Reduction Provisions", and Section 9 "Duties of The Zoning Administrator"; providing a repealer clause; providing a severability clause; and providing an effective date. (MM) Mayor introduces the issue. Mike Mongelli, Building Official stands for Council questions. General discussion. Mayor Opens the Public Hearing Mayor Closes the Public Hearing Bandy moves to approve ZOA-OI-07 - Flood Control Ordinance Amendment. Seconded by Bastian. ALL AYES: MOTION CARRIES.................... Guerber moves to amend the agenda by adding under New Business Resolution No. 07-24 as Item #7H and under Old Business Resolution No. 07-25 as Item #8A. Seconded by Bastian. ALL AYES: MOTION CARRIES..................... Mayor: Council needs to approve the ordinance on ZOA-01-7. Bandy moves, pursuant to Idaho Code, Section 50-902, that the rule requiring Ordinances to be read on three different days with one reading to be in full be dispensed with, and that Ordinance #541 be considered after being read once by title only. Bandy reads Ordinance #541 by title only. Seconded by Bastian. ALL AYES: MOTION CARRIES................. Bandy moves that Ordinance # 541 be adopted. Seconded by Bastian. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES............. 7. NEW BUSINESS: A. FP-9-06 - Rinl!:o Ridl!:e Subdivision #3 - P.O. Ventures. Inc. P.O. Joint Venture Inc., represented by Jim Rees with MTC, Inc. Engineers and Surveyors, is requesting final plat approval for Ringo Ridge Estates Subdivision No.3, a 5-lot residential subdivision. This 1.2-acre phase of Ringo Ridge Subdivision is located on the west side of the intersection of East Echo Hawk Way and East Mariposa Drive. Mayor introduces the issue. Page 9 K\COUNCIL\MINUTES\Temporary Minutes Work Area\(( -7-24-07min doc Zoning Administrator Vaughan: Provides history and an update in regards to Ringo Ridge Subdivision and P.O. Ventures. Jim Rees, MTC, Inc, representing the applicants, everything in as to this subdivision. We would like to have the plat signed as it takes a long time to go through the process. General discussion. Bastian moves to approve FP-9-06 - Ringo Ridge Subdivision #3 - P.O. Ventures, Inc and authorize the signature of the final plat upon approval by the Planning and Zoning Administrator and add as Site Specific Condition that have been enumerated under recombination's in the document before us: all street lights shall be activated prior to signing the final plat on Phase #3. Seconded by Guerber. ALL AYES: MOTION <:ARRIICS............... B. Memorandum between the City of Eal!:le and P.O. Ventures, Inc.. an Idaho Corooration. (WEV) Mayor introduces the issue. Guerber moves to continue Memorandum between the City of Eagle and P.O. Ventures, Inc. to the August 14,2007 City Council meeting. Seconded by Bandy. ALL A YES: MOTION CARRIES................... C. Ordinance No. 541 - (KuesterlDeckers annexation and rezone): An ordinance annexing certain real property situated in the unincorporated area of Ada County. Idaho, and contiguous to the corporate limits of the City of Eagle, to the City of Eagle, Idaho; establishing the zoning classification of said real property described herein; amending the zoning map of the City of Eagle to reflect said changes; directing that copies of this ordinance be filed as provided by law; and providing an effective date. (WEV) Mayor introduces the issue. Guerber moves, pursuant to Idaho Code, Section 50-902, that the rule requiring Ordinances to be read on three different days with one reading to be in full be dispensed with, and that Ordinance #541 be considered after being read once by title only. Guerber reads Ordinance #541 by title only. Seconded by Bandy. ALL A YES: MOTION CARRIES.............. ... Guerber moves that Ordinance # 541 be adopted. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES................................. D. FP-03-07 - Svlvan Wood Subdivision - Svlvan Wood I, LLC: Sylvan Wood I, LLC, represented by Phil Hull with the Land Group, Inc., is requesting final plat approval for Sylvan Wood Estates Subdivision, a 3 I-lot (24-residential, 7-common) residential subdivision. The 25.4I-acre site is located approximately 120 feet west of the southwest corner of Ballantyne Lane and Floating Feather Road at 843 North Ballantyne Lane. (WEV) Moved to the Consent Agenda by Motion and approved. E. Notice to Proceed for construction of the East Hills Tank: (DM) Mayor introduces the issue. Vern Brewer, Holladay Engineer, distributes a Change Order to Council for review. Bastian moves to adopt the Agreement between Concrete Placing Company and the City of Page 10 K\CQUNCIL\MINUTES\Ternporary Minutes Work Area\CC-7-24-01min doc Eagle in the amount of $1,545,000.00 and approve the Notice to Proceed and authorize the Mayor to sign as a representative of the City. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES............... Bastian moves to approve Change Order No.1 dated July 24, 2007. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES............... F. Ordinance No. 573: An ordinance annexing certain real property situated in the unincorporated area of Ada County, Idaho, and contiguous to the corporate limits of the City of Eagle, City of Eagle, Idaho; establishing the zoning classification of said real property described herein; amending the zoning map of the city of eagle to reflect said changes; directing that copies of this ordinance be filed as provided by law; and providing an effective date.(WEV) Mayor introduces the issue. Guerber moves, pursuant to Idaho Code, Section 50-902, that the rule requiring Ordinances to be read on three different days with one reading to be in full be dispensed with, and that Ordinance #573 be considered after being read once by title only. Guerber reads Ordinance #573 by title only. Seconded by Bandy. ALL AYES: MOTION <:ARRIICS................. Guerber moves that Ordinance #573 be adopted. Seconded by Bandy. Bastian: A YIC; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES............... G. Ordinance No. 574: An ordinance annexing certain real property situated in the unincorporated area of Ada County, Idaho, and contiguous to the corporate limits of the City of Eagle, City of Eagle, Idaho; establishing the zoning classification of said real property described herein; amending the zoning map of the city of eagle to reflect said changes; directing that copies of this ordinance be filed as provided by law; and providing an effective date. (WEV) Mayor introduces the issue. Guerber moves, pursuant to Idaho Code, Section 50-902, that the rule requiring Ordinances to be read on three different days with one reading to be in full be dispensed with, and that Ordinance #574 be considered after being read once by title only. Guerber reads Ordinance # 574 by title only. Seconded by Bandy. ALL AYES: MOTION CARRIES.............. ... Guerber moves that Ordinance # 574 be adopted. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL A YES: MOTION CARRIES................................ ... H. Resolution No. 07-27. A Resolution Vacating a Roadway Access Easement with Ada county for the Eagle Water Tank Site; Approving a New Roadway Access Easement Agreement with Ada County for the Eagle Water Tank Site, Authorizing the Mayor and City Clerk to Execute the Same and Providing an Effective Date. Mayor introduces the issue. Guerber moves to approve Resolution No. 07-27 vacating a Roadway Access Easement with Ada county for the Eagle Water Tank Site; Approving a New Roadway Access Easement Agreement with Ada County for the Eagle Water Tank Site, Authorizing the Mayor and City Clerk to Execute the Same and Providing an Effective Date. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION <:ARRIICS................... Page 11 K:\(OU~C1UMINUTES\Temporary Minutes Work Area\CC -7-24-07mindoc 8. UNFINISHED BUSINESS: A. Resolution No. 07-28, A Resolution Approving Consulting Services Agreement For the Eagle Foothills Comprehensive Plan Amendment between the City and Keith G. Allred, Authorizing the Mayor and City Clerk to Execute the Same and Providing an Effective Date. Mayor introduces the issue. Guerber moves to approve Resolution No. 07-28, a Consulting Services Agreement For the Eagle FoothiIls Comprehensive Plan and authorize the Mayor to sign. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES............ 9. EXECUTIVE SESSION: A. Pending Litigation: I.C. 67-2345 (f) Guerber moves to go into Executive Session for the discussion of Pending Litigation: I.C. 67-2345 (t) and Section @ regarding personnel. Seconded by Bandy. Bastian: AYE; Guerber: AYE; Bandy: AYE: ALL AYES: MOTION CARRIES................... Council goes into Executive Session at 12:35 a.m. Council discusses pending litigation and personnel. Council leaves Executive Session at I :05 a.m. 10. ADJOURNMENT: Bastian moves to adjourn. Seconded by Bandy. ALL AYE: MOTION CARRIES........... ..... Hearing no further business, the Council meeting adjourned at I :05 a.m. Respectfully submitted: .'"........",. lQ .#>"'o~ f)AGl.i"'" ,~ ~ ,...-.~ " :: !." 00 ~ollA"~ " ~HARb~~ERG~~l""'~ f(;{~" ,.' ,t i CITY CLERK/TREASURER : ,. ~ G IL\..~: 0 : -.... ~,~~ q/::: . -::. .. ...4: ;J ~~. ! .... ...C'ORPO....... L"\~': "'... ,t' ........ \,v,':; " "1'1 T Y. ," 'It" . ,," A TRANSCRIBABLE RECORD OF THIS MEETING IS A V AILABLE AT EAGLE CITY HALL Page 12 K\COUNClL\MINUTES\Temporary Minutes VI/ark Area\CC-7-24-07min doc IDAHO TRANSPORTATION DEPARTMENT P.U. Box 8028 Boise ID 83707-2028 July 24, 2007 Mr. Jason Bennett Sage Development, LLC 121 North 9t' Street, Suite 401 Boise, Idaho 83702 Re: Permit 3-08-009; Northeast corner SH 44 and Linder Rd Dear Mr. Bennett: ,ire 749/07 (Cy_o7 (208) 334-8300 itd.rdaho gaov Thank you for taking the time to meet with us yesterday. As we indicated in that meeting, your permit was presented to the Chief Engineer for a variance on July 20, 2007. The variance was granted for a right-in/right-out approach with the following conditions. 1. Provide a deceleration lane into the approach and an acceleration lane that extends to Linder. We agreed in yesterday's meeting to change this condition to a deceleration lane for the right-in/right-out approach and a right turn lane for westbound SH 44 onto Linder. 2. Establish a cross access agreement with adjacent property to the east. 3. If additional right of way is necessary for SH 44 improvements, transfer the additional right of way to ITD. 4. Provide engineer stamped drawings for SH 44 improvements. As we discussed yesterday, the location of the approach on SH 44 will likely fall approximately where it is shown on your latest conceptual plan. The actual location will be established once the lengths of the right turn and deceleration lanes and tapers are determined by your engineer. Your permit will be issued upon receipt and ITD approval of the engineer's drawings. Please feel free to contact me at 208.334.8377 with any questions. Sincerely, an Pam Golden, P.E. District 3 Assistant Traffic Engineer 4111 (7G7 Y -O7 DECLARATION OF EASEMENT KNOW ALL MEN BY THESE PRESENTS that THE CITY OF EAGLE a political subdivision of the State of Idaho at P.O. Box 477, Eagle, Idaho 83616, (Grantor), does hereby give and grant unto Eagle Ranch No. 4-A Townhouse Association, Inc., a non-profit corporation, incorporated under the laws of the state of Idaho, P.O. Box 191, Eagle, Idaho 83616, (Grantee), a permanent easement for the purposes of non-exclusive ingress and egress by the general public, and maintenance of existing landscaping for the use and enjoyment of the Grantee, reserving to the Grantor any use that does not conflict with the easement purposes herein granted. The land referred to in this easement is described as follows: Lot 3 in Block 2 of Eagle Ranch Subdivision No. 4-A according to the plat thereof filed in Book 44 of plats at pages 3554, 3555 and 3556 records of Ada County, Idaho. This easement shall include all of Lot 3 (also referred to as assessors parcel #2024330240) excepting there from the northerly portion that exists between Lots #2 and #4 of the above described subdivision and also excepting that portion of Lot #3 which borders Lot #1 (assessors parcel #R2024330230) that lies north of the existing retaining wall in the NE portion of Lot #3. The grantees shall not prevent the use of and will forever allow the public to use the asphalt sidewalk that exists on the westerly portion of Lot #3, which connects the northerly portion of Lot #3 retained by the grantor, allowing a public non -motorized walkway from Ranch Drive to Palmetto Drive to continue its historical use. A plat illustrating the easement granted is attached and shall be recorded as an addendum to this declaration. If for any reason the easement fails to be used for its intended use as ingress and egress for the benefit of the general public, this easement shall revert to the Grantor. IN WITNESS WHEREOF, NANCY C. MERRILL, MAYOR FOR THE CITY OF EAGLE, has caused these presents to be duly executed by her signature this day of , 2007. GRANTOR: Nancy C. Merrill, Mayor City of Eagle ATTEST: Sharon K. Bergman, Eagle City Clerk Page 1 of 2 RESOLUTION NO. 07-23 A RESOLUTION OF THE CITY OF EAGLE, IDAHO, TO VACATE PORTIONS OF LOT 3, BLOCK 2 (PAI n *V AY LOT) `W i i ring EAGLE RANCH SUBDIVISION NO. 4A, AS SHOWN ON THE ATTACHMENTS HERETO AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Eagle Ranch Subdivision No. 4A was platted and accepted by the city of Eagle on March 4, 1978; and WHEREAS, Lot 3 is owned by the City of Eagle and is used for pedestrian and bicycle use and is therefore considered a public right-of-way; and WHEREAS, The purpose of the vacation is to relinquish interest in portions of the pathway lot that are no longer needed for public use; and WHEREAS, On July 24, 2007, the City Council approved the vacation of portions of the pathway lot; and WHEREAS, Exhibits A, B, C, D, and E are attached hereto and are incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF EAGLE, Ada County, Idaho, as follows: Section 1: The City Council for the City of Eagle hereby vacates portions of the existing pathway lot within Eagle Ranch Subdivision No. 4A as shown on Exhibit E and as specifically described in Exhibits B, C, and D. Exhibit A specifically describes that portion of Lot 3 that the City of Eagle will retain ownership. Section 2: This Resolution shall take effect and be in force from and after its passage and approval. DATED this 24th day of July, 2007. CITY OF EAGLE Ada County, Idaho Nancy C. Merrill, Mayor ATTEST: Sharon K. Bergmann, City Clerk K:ICOUNCILIResolutions120071Resolution 07-23 VAC-03-07.doc Administrative Calls For Service Officer -Initiated Proactive Total Jun 07 Burglary Alarm- 4 I Drunk Driver- 26 Traffic Hazard- 24 Check Reckless Driver- 23 Accident Non -Injury- 20 Welfare Check- 17 Loose/Dead/Inj Animal- 14 Theft Report- 13 Suspicious Vehicle- 12 Vandalism Report- 12 City of Eagle Monthly Crime Brief June 2007 incidents Jun 07 May 07 Jun 06 231 478 703 163 1575 244 410 643 120 1417 Top Calls For Service 216 419 763 22 1420 Mav 07 Check Reckless Driver- 35 Burglary Alarm- 34 Accident Non -Injury- 19 Drunk Driver- 19 Suspicious Vehicle- 18 Traffic Ilazard- 14 Welfare Check- 12 Juvenile Problems- 11 Suspicious Subject- 9 Area Ck Speeding Vehs- 8 Domestic Viol -Verbal- 8 Vandalism Report- 8 % Change YTD* 0.3% 4.6% -19.6% 203.6% -5.9% Calls for Service Priorities & Average Response Times (ART) CaII Jun 07 Mav 07 Jun 06 ART % Change # ART # ART # ART YTD* 154 07:23 111 08:14 117 08:55 -15.7% 311 05:08 289 04:47 287 04:37 11.2% 13 03:12 10 03:42 15 01:59 24.0% -1 478 05:49 410 05:42 419 05:43 1.3% I 4 Cases . ( r , 111 --• Jun 07 May 07 Jun 06 % Change YTD* 174 142 153 -1.1% Priority Low Medium lligh Total INIt !! Property ('rimes t. ^� Reported Prop. y Cnmes • ca„e.ror Burglary n i Carsouteo.Stocky ii) o motini • vaneastma.wn;Iq • Wutlt 8urrrery iS ' 7 • • no, na.a eA ,• �1 , • • -- w. • • 1-� Ny • L Accidents H�:'�rryn Jun 07 Burglary- 11 Theft- 11 Vandalism- 10 Drug Equip Violation- 9 Liquor Law Violation -9 Drug/Narc Violation- 8 DUI- 8 DWP- 7 Jun 07 May 07 22 24 Vehicle Burglary Residential Burglary Commercial Burglary Construction Burglar' Theft Vandalism/Arson Jun 07 Top Offenses May 07 Vandalism- 11 Simple Assault- 9 Theft- 8 Burglary- 7 DUI- 6 DWP-5 Liquor Law Violation- 5 Felonies Jun 06 25 % Change YTD* -0.8% Property Crimes Jun 07 May 07 Jun 06 9 4 1 0 3 5 1 0 4 1 0 2 11 8 8 10 11 13 YTI) Clearance Rate 23.6% % Change YTD* -32.0% 83.3% -55.6% 11.1% 25.0% 24.1% Moving, Traffic Citations May 07 Jun 06 148 132 100 YTD Clearance Rate 0.0% 5.3% 0.0% 20.0% 18.2% 18.2% % Change YTD* -12.3% • of Accidents • 1 • 2.3 • 4.6 .111.011 Property Damage Physical Injury Total - • • • Accidents Jun 07 May 07 Jun 06 14 15 11 8 6 7 22 21 18 L ^rV % Change YTD* 9.0% -10.6% 0.9% Top Accident Times & Locations Top Days: Top Streets: Jun 07 Mav 07 Jun 07 May 07 Tuesday- 7 Tuesday- 7 Eagle Rd- 12 Highway 44- 10 Friday- 7 Wednesday- 5 Highway 44- 7 Eagle Rd- 5 Wednesday- 3 Thursday- 4 Chinden Blvd- 3 Highway 55- 3 Top Hours: Jun 07 12 00- 3 16-00-3 13.00- 3 15 00- 3 Mav 07 17:00- 3 18:00- 3 Note Accidents are mapped to the nearest intersection * % Change YTD compared to 2006 1 Prepared by ALSO-CAL'th Data obtained from CAI). New World. Legacy AS400. and WebCars databases ■ Data queried 7'16 07 EAGLE CITY COUNCIL PUBLIC HEARING SIGN-UP SHEET . RZ-05-07 - Rezone From A -R (Agricultural -Residential) BP -DA (Business Park With A Development Agreement) — Jeffery Mower July 24 2007 7:30 p.m. ADDRESS/ TESTIFY NAME TELEPHONE YES/NO? PRO/CON 1,61% )e-� �''1 Ler ja'-5G,)-aGSo P7.0 Page 1 of 11 \COUNCIL\AGENDA\CCSIGNUI'.WI'I) EAGLE CITY COUNCIL PUBLIC HEARING SIGN-UP SHEET PP -21-06 - Preliminary Plat for Eagle Gateway South - Cornerstone Group, LLC Julv 24 2007 7:30 p.m. ADDRESS/ TELEPHONE Page l of . H:ICOUNCIUAGENDAICCSIGNUP. WPD TESTIFY YES/NO? PRO/CON EAGLE CITY COUNCIL PUBLIC HEARING SIGN-UP SHEET VAC -03-07 - Vacation of portions of Lot 3. Block 2. within EaPIe Ranch Subdivision 4A - City of Ea2Ie July 24 2007 7:30 p.m. NAME ADDRESS/ TELEPHONE 7�c> ISM, j e.(«-'eI/0 C.c x/27( Page 1 of 11 1CUUNCII.IAGI NDA\CCSIGNUP_WPD TESTIFY YES/NO? PRO/CON EAGLE CITY COUNCIL PUBLIC HEARING SIGN-UP SHEET A-09-07/RZ-11-07 & PP -12-07 Annexation and Rezone From RUT To R -E -DA and Preliminary Plat For Tranauil Estates Subdivision — Gary and Janette Drew Ju1v 24 2007 7:30 a.m. NAME ADDRESS/ TELEPHONE TESTIFY YES/NO? PRO/CON N. 1 L)J b jok fit `LO 6-1••ci.-- co Qc-D (/) A 0 n 2 3 i/ /3 z_z./ /-' � `/A/6 z:_rJ % Ci -/Z 17 23[ 1 _ f�c_v IZei 15z4( q- w"(1c47-- 1 (kIu ( f ie_4h1^, Page 1 of 11.1COUNCII.1AGENDA\CCSIGNUP EAGLE CITY COUNCIL PUBLIC HEARING SIGN-UP SHEET RZ-06-04 MOD Development Agreement Modification — Instrument No. 105048971 (Schenk Property) — Hawkins Companies July 24 2007 7:30 p.m. NAME 6C9 Vkl•tA-n1 X1/0 4 v gog CKF-r ADDRESS/ TELEPHONE (k3(1 -o c- C(.��1 9 19 722 - %/ � 2 ICJ r t,� 1/0 I--lau4su , uc le U v Cv►, 13)CV Q A) , Arvv') C`- -C f\ic ✓I 26( ' & 1 y 9e-7-7 �_ OG :i C� �� ,_ files C/-) /L 4/1. A-) ) e- 4.Ci� 64 F‘> 4 / / 9'1( lZ ��� J� L.16-: jam 0,(64 r .tom TESTIFY YES/NO? PRO/CON co `i Page 1 of 11.\COUNCILIAGENDA\CCSIGNUP WI'D EAGLE CITY COUNCIL PUBLIC HEARING SIGNUP SHEET . ZOA-01-07 — Flood Control Ordinance Amendment — City of Eagle Julv 24 2007 7:30 D.m. ADDRESS/ TELEPHONE Page l of . H:\000NCIUAGENDAICCSIGNUP. W PD TESTIFY YES/NO? PRO/CON Land Surveying, Inc. P001 cc 7.x.2$-'7 GPS. BOUNDARY, TOPOGRAPHIC AND A,L.T.A. SURVEYS CONSTRUCTION STATING 3D SCANNING 1121 E. State Street • Suite 105 • Eagle, Idaho 83616 ' office: 1-208.939-7373 • fax: 1-298-939-7321 5-22-07 Dave V1ortei sen P.O. Box 71 Meridian. IdT:83680 412-5SS8 Cell 441-9509 Fax Dave, On Mav 14, 2007 we were hind to lo::atc and verify the south fence line along Storage 55. Daring o-.irtime in the fieli we Ioca:ed the southwest property corner and the southeast section corner and created a straight line between them. Using this straight line we verified L .e lance line and came to the understanding that the fence line drifted from right on at thc southwest corner of the property to about one foot out of position to the southeast co/ -ler of the property and also the properly comer at the southeast corner was out of pusitic_a compared the record data by fox Land Surveying. We also verified the curb and gutt.,:r along the Hill Road and the entrance area and it seemed to agree with the subn-.itted ph ns. The building:: were wilt in the proper location per site layout and gradin: :cco:•dingly to the grading pl:n submitted. rem r0,,�. tel ng, PLS and :Xurveying. c. Project: East Hills One (1) Million Gallon Water Reservoir Owner: City of Eagle, Idaho Contract: City of Eagle, East Hills One (1) Million Gallon Water Reservoir Contractor: Concrete Placing Company Contractor's Address: [send Certified Mail, Retum Receipt Requested] 6451 West Gowen Road Boise, ID 83709 7G CG 7 54'07 Notice to Proceed Dated Owner's Contract No.: Engineer's Project No.: EG 020505 You are notified that the Contract Times under the above contract will commence to run on July 24. 2007 . On or before that date, you are to start performing your obligations under the Contract Documents. In accordance with Article 4 of the Agreement, the date of Substantial Completion is January 21. 2008 , and the date of readiness for final payment is February 20. 2008 [(or) the number of days to achieve Substantial Completion is 180 , and the number of days to achieve readiness for final payment is 210 1. Before you may start any Work at the Site, Paragraph 2.01.B of the General Conditions provides that you and Owner must each deliver to the other (with copies to Engineer and other identified additional insureds) certificates of insurance which each is required to purchase and maintain in accordance with the Contract Documents. Also, before you may start any Work at the Site, you must [add other requirements]: File Notice of Intent (NOI) with the Environmental Protection Agency (EPA) CITY OF EAGLE, IDAHO (Contractor) Owner Received by: Given by: (Date) Copy to Engineer Authorized Signature (Title) Title Date EJCDC No. C-550 (2002 Edition) Prepared by the Engineers' Joint Contract Documents Committee and endorsed by the Associated General Contractors of America and the Construction Specifications Institute. Page 1 of 1 This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) FUNDING AGENCY EDITION Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly By AcEC AasuGAI Counat or FACUMIUNG COMP&I cu 0 National Society of Professional Engineers Professional Engineers In Private Practice ASCE American Society of Civil Engineers g s PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS This document has been approved and endorsed by nimsktoonum The Associated General Contractors of America tilKno+ 4odOo br creed g ConstrL ��, nstitute This document has been accepted by United States Department of Agriculture Rural Utilities Service, Water and Waste Programs EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright(' 2002 National Society of Professional Engineers for EJCDC. All rigida reserved. r• This Suggested Form of Agreement has been prepared for use with the Standard General Conditions of the Construction Contract, Funding Agency Edition (C-710, 2002 Edition). Their provisions are interrelated, and a change in one may necessitate a change In the other. The language contained in the Suggested Instructions to Bidders (C- 200, 2002 Edition) is also carefully interrelated with the language of this Agreement. Their usage is discussed in the Commentary on EJCDC Construction Documents. See also Guide to the Preparation of Supplementary Conditions (C-800, 2002 Edition). Copyright © 2002, All Rights Reserved. National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2715 American Council of Engineering Companies 101515th Street, N.W., Washington, DC 20005 American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright *2002 National Society of Professional Engineers for EJCDC. All rights reserved. EJCDC SUGGESTED FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) FUNDING AGENCY EDITION THIS AGREEMENT is by and The City of Eagle (Owner) between and Concrete Placing Company (Contractor) Owner and Contractor, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE 1 - WORK 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Project includes construction of a 1 million gallon water reservoir including appurtenances, 1,200 feet of gravel access road, 2,000 feet of water main pipe, and a pressure reducing station. ARTICLE 2 - THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: City of Eagle East Hills One (1) Million Gallon Water Reservoir ARTICLE 3 — ENGINEER 3.01 The Project has been designed by Holladay Engineering Company P.O. Box 235 32 N. Main Payette, ID 83661 (208) 642-3304 (telephone) (208) 642-2159 (fax) (Engineer), who is to act as Owner's representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright O 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00521-1 ARTICLE 4 - CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Days to Achieve Substantial Completion and Final Payment A. The Work will be substantially completed within 180 days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within 210 days after the date when the Contract Times commence to run. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence of this Agreement and that Owner will suffer financial Toss if the Work is not completed within the times specified In Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual Toss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay Owner $ 650 for each day that expires after the time specified in Paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by Owner, Contractor shall pay Owner $ 650 for each day that expires after the time specified in Paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5 - CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to Paragraphs 5.01.A, 5.01.B, and 5.01.C. All specific cash allowances are included in the prices and have been computed in accordance with Paragraph 11.02 of the General Conditions. As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer as provided in Paragraph 9.07 of the General Conditions. Unit prices have been computed as provided in Paragraph 11.03 of the General Conditions. A. For all Work other than Unit Price Work, a Lump Sum of: One million five hundred forty-five thousand (use words) B. k, an smeunt-equal-tc tis c> i-e€-tho ectab item sf Unit - ' - = • - - = - - = - - - - - - - - - = $1,545,000 Dollars (use words) C. For all Work, at the prices stated in Contractor's Bid, June 5. 2007 attached hereto as an exhibit. ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright C 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00521-2 6.02 Progress Payments; Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment on or about the 1st day of each month during performance of the Work as provided in Paragraphs 6.02.A.1 and 6.02.A.2 below. All such payments will be measured by the schedule of values established as provided in Paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements: 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage Indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Engineer may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions: a. 95 percent of Work completed (with the balance being retainage); and b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). 2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 95 percent of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 14.02.8.5 of the General Conditions. 6.03 Final Payment A. Upon receipt of the final Application for Payment accompanied by Engineer's recommendation of payment In accordance with Paragraph 14.07 of the General Conditions, Owner shall pay Contractor as provided in Paragraph 14.07 of the General Conditions the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 14.07, less any sum Owner is entitled to set off against Engineer's recommendation, including but not Limited to liquidated damages. ARTICLE 7 - INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at -the t a rate of 4%. ARTICLE 8 — CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Agreement Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in Paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in Paragraph 4.06 of the General Conditions. E. Contractor has obtained and carefully studied (or assumes responsibility for doing so) all additional or EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2002 National Society of Professional Engineers for EJCDC. AU rights reserved. 00521-3 supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto. F. Contractor does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has correlated the information known to Contractor, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 9 - CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to 6, inclusive). 2. Performance bond (pages is , inclusive) 3 pages. 3. Payment bond (pagcc to , inclusive) 5 pages. 4. Other bonds (pages 1 to 4, inclusive). a. Bid Bond (pages 1 to 4, inclusive). b. (pages to , inclusive). c. (pages to , inclusive). 5. General Conditions (pages 1 to 60 , inclusive). 6. Supplementary Conditions (pages 1 to 6 inclusive) —RUS Bulletin 1780-26 USDA Rural Development. 7. Specifications as listed in the table of contents of the Project Manual. 8. Drawings consisting of Sheets 1 - 25 with each sheet bearing the following general title: City of Eagle East Hills One Million Gallon Water Reservoir . 9. Addenda (numbers 1 to 3 , inclusive). 10. Exhibits to this Agreement (enumerated as follows): a. Notice to Proceed (pages 1 to 1 , inclusive). b. Contractor's Bid (pages 1 to , inclusive). EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00521-4 c. Documentation submitted by Contractor prior to Notice of Award (pages to , inclusive). d. 11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed (pages 1 to 1 , inclusive). b. Work Change Directives. c. Change Order(s). B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 10 - MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Other Provisions EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright C 2002 National Society of Professional Engineers for EJCDC. AH rights reserved. 00S21-5 i IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement in four copies. One counterpart each has been delivered to Owner, Contractor, Engineer, and Agency. All portions of the Contract Documents have been signed, initialed, or identified by Owner and Contractor or identified by Engineer on their behalf. This Agreement will be effective , 2007 (which is the Effective Date of the Agreement). This Agreement shall not be effective unless and until Agency's designated representative concurs. OWNER: City of Eagle By: Title: Mayor CONTRACTOR: Concrete Placing Company By: i cam- 1 .. �z. 0s.c -1► Title: v�`t'y cit s Wt. O 4-11-1-7— [CORPORATE 1'-L 7 [CORPORATE SEAL] [CORPORATE SEAL] Attest: Attest Title: Designated Representatives: Name: c4 Title: —" tura'\ Designated Representatives: Name Title: Title: Address for giving notices: Address for giving notices: 660 E. Civic P.O. Box 1520 6451 West Gowen Road Eagle, Idaho 83616 Boise, ID 83709 Phone: 939-6813 FAX: 939-6827 (If Owner is a corporation, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of Owner -Contractor Agreement.) Phone: 362-2100 FAX: 362-2220 License No.: 0,57 7/-/- 2-a (Where applicable) Agent for service or process: .- tC.4-tp, L. s ; - eice- (If Contractor is a corporation or a partnership, attach evidence of authority to sign.) Agency Concurrence: As lender or insurer of funds to defray the costs of this Contract, and without liability for any payments thereunder, the Agency hereby concurs in the form, content, and execution of this Agreement. Agency: By: Date: Title: EJCDC C-521 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright C 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00521.6 /No. C 49296 Return to: SECRETARY OF STATE 700. WEST JEFFERSON PO BOX 83720 BOISE, ID 83720-0080 NO RUNG FEE IF RECEIVED BY DUE DATE • 4. Corporations: Enter Names and Business Addresses of President, Secretary and Directors. Due no later than April 30, 2007 Annual Report Form 1` Mailii g Address=.:Correct•ir> this_boX it'a'p'p{ii:atile: ;.:ti•' CONCRETE PLACING COMPANY, INC. MICHAEL J BURKE 6451 W GOWEN RD BOISE, ID 83709 2. Registered Agent and Office NO PO BOX JOHN B FERGUSON 6451 W GOWEN RD BOISE, ID 83709 3. New Registered Agent Signature Office held Name . Street or P.0. Address s • President Vice Pres Sec/ yeas John B. Fergpscn 6451 W. Gowei Pd. • Tan T. Fem. 6451 W. Gowen Bd.. hilae ud • 6451 W. Gcrivil Pd... 5. Organized Under the Laws of: IDAHO C 49296 Issued 02/01/2007 Boise Boise Boise • Do Not Tape or Staple State ID 83709 ID • 83709 ID 83709 Date 4.°31;:. ‘7".°1)7 Title $ems 200704000403 PAYMENT BOND Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): RitmeesPtlguaatac.. Boise . Idaho _. 837 09.. OWNI? (Nate Address): 918/10§t0 of Ea 1e. • O Bc»c 1§20 Oho 83616 Date: 7/9/2007 Amount. $1,545,000.00 Description (Name s+ad Location): City of Eagle, East Hills One (1) Million Gallon Water Reservoir SURETY (Mame and Address of Principal Place of Business): ce Company of America zAppleway Ae Liberty. Lake, WA 99019 BOND Bond Number: 6347569 Date (Not earlier than Contract Date): 7/9/2007 Ammt:$1,545 000.00 Modifications to ibis Bond Fomt! None Surety and Contractor, .intondifg to be legally bound hereby, subject tothe terms printed on the reverse side hereof, do each cause this Payment Bond to beduly executed on its behalf by fits authorized oMMeer, agent, or representative. CONTRACTOR AS PRINCZPAI. SURETY Company ate Signatu Name cin (SCo., Inc. 1140 coV7.. 177.49106 ) (Space is provided below for signatures of additional parties, ifrequired.) CONTRACTOR AS PRINCIPAL Company: Signature: Nance and Title: (Seal) Sofro Insurance Company of America (Seal) Surety's Neta Corpoi me _ 1 By:.. signature and Title. Staci L Jayo ttorney-In-Fact (Attacb Power of Attorney) Attest Signature and SURETY Witness (Y4. Co-SZQ Surety's Name and Corporate Seal By: Signature and Title (Attach Power of Attorney) Attest: Signature and Title: (Seal) =DC No. C -61S (1002 Edillaa) Originally prepared Uiaucit the joint efforts of the Surety Association of Atnertaa. p nptbcers Joint Contract DocumenW Comziuiuea, the Associated Genera Ccniractoss of Amariea, the MIMIC= blsiitcute of Architects, the American Subcantreetors A,ssudatlonn, soul tee Associated Specialty ConkaaL rs. Il0615.: PERFORM kE BOND Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. C4NTRACTOR.(Namc acid Address): oncrete Placing Co., Inc. 6451 s Gwen Road Bosse. o 83709 OWNER ame and Address): City of Eagle PO Box 1520 Eagle, Idaho 83616 CONTRACT Date:7/9/2007 Am°$1,545,000.00 Description (Name and Location): City of Eagle, Eagle Hills One (1) Million Gallon Water Reservoir SURETY (Name and Address of Principal Place of Business): Safeco�Insurance Company of America Lif erty Lake wAy99019 BOND Bond Number-: 634756.9 Dam (Not earlier than Contract Date): 7/9/2007 Amount» $1,545,000.00 Mbdthcations to tdia Bond Form:None Surety and Contractor, intending to be legally bound hereby, sutijeot to the term primed on the .reverse a this Performance-Bond.to be duly executed on its behalf by its ad horizetl offices, agent, or representative. CONTRACTOR AS PRINCIPAL $TJRTY Company:acing Co., Inc. signature: Name end (Space is provided below for signatures parties, ifreguiied.) CONTRACTOR AS PRINCIPAL Company, Slgnatuce: Name and Title: (Sem) Vvt•Ic= of additional (Seel) Safeco Insuran ce Company. of America Surety's Name rporate Seal By: ( 6/ A Signature and Title Staci L Jayo Af orney m -Fact (Attach Power of Attorney) f, do each cause Attest: Signature and Tide Witness SURETY Surety's Name and Corporate Seal By: Signature and Title (Attach Power of Attorney) Attest: Signature and Title: (Seal) EJCDC No. C-610 (2002 Edition) Originally prepared through the joint efforts of tho Surety Asioctation of America, Engineers Jateel Contract Documents Commitee, the Aasodatad General Contractors eimeerita, and the American Institute of Architects. Safeco Safeco Insurance Company of America POWER General Insurance Company of America • OF ATTORNEY SeWA Seattle, WA98185 KNOW AU.BY THESE PRESENTS: No. 15487 That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each hereby appoint ""*MICHAEL Z. ENGLISH; RODNEY A. HIGGINS; STAC1 L JAYO; GAIL A. JOHNSON; GREG SWENSON; Boise, Idaho"""*** its true and lawful attomey(s)-in-fact, with hill authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar character issued In the course of its business, and to bind the respective company thereby. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and attested these presents this 17th STEPHANIE DALEY-WATSON.SECRETARY day of January , 2007 TIM MIKOLAJEWSKI. SENIOR VICE-PRESIDENT. SURETY CERTIFICATE Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA: "Article V, Section 13. - FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer In charge of surety operations, shall each have authority to appoint individuals as attomeys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character Issued by the company in the course of Its business... On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any Instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be Impressed or affbced or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking." Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28. 1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out, 0) The provisions of Artide V, Section 13 of the By -Laws, and (11) A copy of the power-of-attomey appointment, executed pursuant thereto, and (111) Certifying that said power-of-attorney appointment is In full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof.' I, Stephanie Daley -Watson , Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By -Laws and of a Resolution of the Board of Directors of these corporations, and of a Power of Attorney issued pursuant thereto, are true and correct, end that both the By -Laws. the Resolution and the Power of Attorney are sill in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile 1 of said corporation 0 -4 - this S-0974/DS 4105 day of O2663 STEPHANIE DALEY-WATSON, SECRETARY Sarasota end the Safeco iogo ere registered trademarks of Safeco Corporation. WEB PDF Date of Issuance: July 24, 2007 Project East Hills 1 MG Reservoir 1Cwner. City of Eagle contract East Hills 1 Million Gallon Water Reservoir Contractor: Concrete Placing Company Change Order No.I Effective Date: July 24,2007 Owners Contract No. Dale of Contract The Contract Documents are modified as follows upon execution of thls Change Order. Description: The attached language regarding cash -based incentives shall be added to the contract documents, supplemental conditions. Attachments: (List documents supporting change): CHANGE IN CONTRACT PRICE: Original Contract Price: $ 1.545.000 Engineers Project No.: EG 020505 CHANGE IN CONTRACT TIMES: Original Contract Times: ❑ Working days 111 Calendar days Substantial completion (days or date): 180 1-21-2008 Ready for final payment (days or date): 210 2-20-2008 [Increase] [Decrease] from previously approved Change [Increase] [Decrease] from previously approved Change Orders Orders No. to No. No. to No. Substantial completion (days): na $ na Ready for final payment (days): na Contract Price prior to this Change Order: Contract Times prior to this Change Order. Substantial completion (days or date',. 1-21-2008 $ 1.545.000 Ready for final payment (days or date): 2-20-2008 [Increase] [Decrease] of this Change Order: [Increase] ]Decrease] of this Change Order. Substantial completion (days or date): na $ na Ready for final payment (days or date): na Contract Price Incorporating this Change Order: Contract Times with all approved Change Orders: Substantial completion (days or date): 1-21-2008 $ 1.545.000 Ready for final payment (days or date): 2-20-2008 RECOMMENDED, By. ACCEPTED: ACCEPTED: Engineer (Authori J.S e y Owner (Authorized Signature) Contractor (Authorized Signature) Date: 7. 7W- ?moo 7 Date: Dale* Approved by Funding Agency (f applicable): Date. EJCDC No. C-941 (2002 Edition) Prepared by the Engineers' Joint Contract Documents Committee and endorsed by the Associated General Contractors of America and the Construction Specifications Institute. Page 0 of 2 City of Eagle East Hills One Million Gallon Water Reservoir Supplemental Conditions 12.04. Cash -based Incentives. Contractor shall be provided cash -based incentives for completing Work prior to the final completion date. If Contractor completes Work thirty (30) days prior to the final completion date, Contractor shall be compensated an additional thirty thousand dollars ($30,000.00), or one thousand dollars ($1,000.00) per day, above and beyond the Contract Price. If Contractor completes Work sixty (60) days prior to the final completion date, Contractor shall be compensated one thousand, five hundred dollars ($1,500.00) per day, or ninety thousand dollars ($40,000.00), in addition to the Contract Price. If Contractor completes Work more than thirty (30) but less than sixty (60) days prior to the final completion date, Contractor shall be provided additional compensation of one thousand dollars ($1000.00) per day for the first thirty days prior and one thousand, five hundred dollars ($1500.00) per day for the thirty-first (31st)day and beyond up to a maximum of sixty (60) days prior to the final completion date above the Contract Price. This additional compensation is an incentive for the Contractor to complete the Work and not a change in the Contract Price. The incentives are only available should the Contractor complete work prior to the final completion date contemplated in the Agreement. Eag(e City Mall' 660 E. Civic Lane. Eag&, Idaho 83616 (208) 939-6813 fax (208) 939-6827 Fax: To: Mayor and City Council From: Sharon K. Bergmann CC: Date: July 24, 2007 Re: AMEND THE AGENDA JKemorancfum Please amend the agenda as follows: 1. Add Resolution No. 07-24 under New Business as Item #7H 2. Add Resolution No. 07-25 under Old Business as Item #8A. dr—ise- 41 From the desk of Sharon K. Bergmann City Clerk/Treasurer RESOLUTION NO. 7 122% A RESOLUTION OF THE CITY OF EAGLE, ADA COUNTY, IDAHO, VACATING A ROADWAY ACCESS EASEMENT WITH ADA COUNTY FOR THE EAGLE WATER TANK SITE; APPROVING A NEW ROADWAY ACCESS EASEMENT AGREEMENT WITH ADA COUNTY FOR THE EAGLE WATER TANK SITE, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAME; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Ada County granted a roadway access agreement, agreement number 7465, to the City of Eagle to access the Eagle Water Tank Site on March 28t , 2006, such document recorded with the Ada County Recorder as document number 106047246; and WHEREAS, the City has requested to relocate said easement and such relocation has been approved by Ada County; and WHEREAS, in order to relocate the roadway access easement, the City of Eagle must vacate the original roadway access easement and Ada County must grant a new roadway access easement to the City of Eagle; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EAGLE, Ada County, Idaho, as follows: Section 1: The March 28, 2006, Roadway Access Easement Agreement between the City of Eagle and Ada County for access to the Eagle Water Tank Site, agreement number 7465, recorded as Ada County document 106047246, is hereby vacated, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City. Section 2: The revised Roadway Access Easement Agreement between the City of Eagle and Ada County to access the Eagle Water Tank Site, attached hereto as Exhibit A and by reference made a part hereof, is hereby approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City. Section 3: This Resolution shall take effect and be in force from and after its passage and approval. DATED this day of July, 2007. CITY OF EAGLE Ada County, Idaho By Nancy C. Merrill, Mayor ATTEST: Sharon K. Bergmann, City Clerk Page 1 AGREEMENT NO. ROADWAY ACCESS EASEMENT AGREEMENT THIS EASEMENT AGREEMENT made this day of , 2007, by and between the CITY OF EAGLE, an Idaho Municipal Corporation ("City"), and ADA COUNTY, a duly organized and existing county under the laws and constitution of the State of Idaho, ("County"). WITNESSETH That COUNTY in consideration of the covenants and promises described in this agreement and the sum of ten dollars ($10.00) and other valuable consideration does hereby grant and convey unto CITY, its successors and assigns, a nonexclusive easement and right of way, over the real property described below for the purpose of crossing said real property with a roadway to access the Eagle Water Tank Site, conveyed to City contemporaneously herewith, including therewith the right, as modified below, to enter upon the below described real property, at all reasonable times, including ingress and egress thereto, at the sole expense of CITY, to construct, maintain, operate, inspect, alter, replace, excavate, prepare, install, backfill, and repair said access roadway, over and across the following described real property belonging to the said COUNTY: See Exhibit "A" attached hereto and made a part hereof by reference. COUNTY grants the easement described in Exhibit A to CITY and its successors and assigns for so long as CITY shall use the aforesaid real property for any of the purposes mentioned above. If CITY fails to use the aforesaid real property for such ROADWAY ACCESS EASEMENT AGREEMENT — PAGE 1 purposes for a continuous period of one (1) year or more, the above-described real property shall automatically revert to COUNTY and its successors and assigns without it being necessary for COUNTY and its successors or assigns to take any affirmative action to effectuate the reverter. CITY covenants with COUNTY, its successors and assigns, that after any maintenance, inspection, replacement, excavation, preparation, installation, backfill, or repair activities, CITY will keep said roadway in good repair, and at all times shall restore the surface of the ground not covered by the roadway, including any paving and/or landscaping located thereon, to as good of condition as when entered upon by CITY or its agents for so long as this easement shall be in effect. IN WITNESS WHEREOF, these present have been executed by the undersigned this day of , 2007. COUNTY: Board of Ada County Commissioners By: By: By: Rick Yzaguirre, Chairman Judy M. Peavey -Derr, Commissioner Fred Tilman, Commissioner ATTEST: J. David Navarro, Ada County Clerk ROADWAY ACCESS EASEMENT AGREEMENT — PAGE 2 STATE OF IDAHO ) ) ss. County of Ada ) On this day of , 2007, before me a notary public, personally appeared Rick Yzaguirre, Judy M. Peavey -Derr, and Fred Tilman known or identified to me, to be the County Commissioners of Ada County, that executed the said instrument, and acknowledged to me that Ada County executed the same. Notary Publicr for Idaho Commission expires: ROADWAY ACCESS EASEMENT AGREEMENT — PAGE 3 RESOLUTION NO. 07-28 A RESOLUTION OF THE CITY OF EAGLE, IDAHO, APPROVING CONSULTING SERVICES AGREEMENT FOR THE EAGLE FOOTHILLS COMPREHENSIVE PLAN AMENDMENT BETWEEN THE CITY AND KEITH G. ALLRED, Ph.D.; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SAME; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Eagle, Ada County, Idaho (the "City"), periodically amends its Comprehensive Land Use Plan pursuant to Title 67, Chapter, 65, Idaho Code; WHEREAS, the City is authorized to contract for professional services pursuant to Idaho Code §50-301; WHEREAS, the City desires to engage the assistance of Keith G. Allred, Ph.D. to assist the City in facilitating public comments for the Comprehensive Plan Amendment in the Foothills; and WHEREAS, the Mayor and City council are committed to thoroughly consider long-range and comprehensive planning in the Foothills and intends to utilize collaborative polling within the public comment and public hearing process to engage broader stakeholder and public participation to identify attendant concerns, conditions and consequences, both legal and physical, in the Foothills area subject to the pending Comprehensive Plan Amendment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EAGLE, IDAHO, as follows: Section 1: The Agreement between the City and Keith Allred, Ph.D., substantially in the form annexed hereto as Schedule A and by reference made a part hereof, is hereby approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City. Section 2: This Resolution shall take effect and be in force from and after its passage and approval. DATED this day of July, 2007. CITY OF EAGLE Ada County, Idaho By Mayor ATTEST: City Clerk Consulting Services Agreement For the Eagle Foothills Comprehensive Plan — Public Comment Process THIS AGREEMENT is made between the City of Eagle, whose address is 660 Civic Lane, Eagle Idaho, 83616 and Keith G. Allred, Ph.D., hereinafter referred to as "Consultant," whose office address is 2480 N. Edgewood, Eagle, ID 83616, WHEREAS, the City of Eagle, a municipal corporation duly organized and existing under the general municipal laws of the State of Idaho, desires to contract for the consulting services of Consultant pursuant to §50-301, Idaho Code; and WHEREAS, Consultant desires to act as an independent contractor to the City of Eagle to assist in facilitating the public comment process for Eagle Foothills Development Plan for the City of Eagle. NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the parties agree as follows: 1. ASSIGNED PERSONNEL AND DESCRIPTION OF SERVICES: Consultant will perform the services generally described in Schedule "A" attached hereto. 2. TERMS OF AGREEMENT: The term of this Agreement commenced on or about July 10, 2007 and will end when the public comment process on the Eagle Foothills Comprehensive Plan Amendment is closed. The Consultant will make reasonable efforts to complete such services in an expeditious manner but no later than September 12, 2007. Either party may cancel this Agreement on ten (10) days' notice to the other party in writing, by certified mail or personal delivery. Fees incurred up to the date of termination shall be paid to Consultant unless said fees are in dispute. The parties shall mediate the fee or other dispute under this Agreement prior to filing any judicial action. 3. PAYMENT OF CONSULTANTS FEE: Consultant's fee for the services to be provided under this Agreement shall not exceed nineteen thousand, one hundred dollars ($19,100.00). Additional work beyond the scope of services must be authorized by the City in writing prior to incurring additional costs. Fees for additional services will be negotiated separately prior to incurring additional fees or costs above $19,100.00. 4. COST AND EXPENSES. All material costs incurred by Consultant in fulfilling its obligations under this Agreement shall be paid by Consultant. 5. GENERAL CONSIDERATION: The Consultant shall hold harmless City of Eagle from all claims involving the Consultant or Consultant's associates, employees, agents or assigns. Consulting Services Agreement For the Eagle Foothills Comprehensive Plan — Public Comment Process -1 the City in whole or part by Consultant and all of its employees, associates, students, drawings, prints, charts, computations or subcontractors assisting in creating the Work Product within the scope of this Agreement, whether or not copyrightable or otherwise protectable. 14. RECORDS: Consultant shall keep full and accurate records of all work performed under this Agreement. All records, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed hereunder, or in anticipation of the consulting work to be performed in regards to this Agreement, shall at all times be and remain the joint property of the City and Consultant. Consultant shall turn over to the City copies of such records upon reasonable request of the City. Consultant shall abide by the Public Records Act and coordinate any requests with the City Clerk and City Attorney. 15. SAVINGS CLAUSE: If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. 16. NOTICES: Any notices required under this Agreement shall be deemed given upon the date of personal delivery or 48 hours after deposit in the United States mail, postage fully prepaid, return receipt requested addressed to the individuals as the addresses listed below: City Clerk City of Eagle 660 Civic Lane Eagle, Idaho 83616 Keith G. Allred, Ph.D. Mediation & Consulting Services 2480 N. Edgewood Eagle, ID 83616 IN WITNESS WHEREOF, the parties hereto have cause this Agreement of be executed as of the date so indicated. APPROVED: City of Eagle Consultant Nancy C. Merrill, Mayor Keith G. Allred, Ph.D Mediation & Consulting Services Consulting Services Agreement For the Eagle Foothills Comprehensive Plan — Public Comment Process -3 1 4 Dated this day of July, 2007. ATTEST: Sharon K. Bergmann, City Clerk Consulting Services Agreement For the Eagle Foothills Comprehensive Plan — Public Comment Process -4 A C6 I. 21/-07 BEFORE THE DEPARTMENT OF WATER RESOURCES OF THE STATE OF IDAHO IN THE MATTER OF APPLICATIONS TO APPROPRIATE WATER NOS. 63-32089 AND 63-32090 IN THE NAME OF THE CITY OF EAGLE PRELIMINARY ORDER On January 19, 2005, the City of Eagle ("Eagle") filed two applications for permit to appropriate water, numbered in the files of the Idaho Department of Water Resources ("IDWR" or "Department") as 63-32089 and 63-32090. IDWR published notice of the applications in the Idaho Statesman on April 21 and 28, 2005. The applications were protested by the following individuals: Roy Barnett, Tim Cheney, City of Star, Dean and Jan Combe, Michael Dixon/Hoot Nanny Farms, Bill Flack, Bob and Elsie Hanson, Michael Heath, Charles Howarth, Corrin Hutton, Norma Mares, Michael McCollum, Charles Meissner, Jr., LeRoy and Billie Mellies, Robyn and Del Morton, Frank and Elaine Mosman, Joseph, Lynn, and Mike Moyle, Eugene Muller, Tony and Brenda O'Neil, Bryan and Marie Pecht, Dana and Viki Purdy, Sam and Kari Rosti, Ronald Schreiner, Star Sewer and Water District, Jerry and Mary Taylor, United Water Idaho, and Ralph and Barbara Wilder. IDWR conducted a prehearing conference on July 28, 2005. At the prehearing conference, Scott Reeser hand -delivered a letter to IDWR. In the letter, Scott Reeser asked to intervene in the contested case. On September 13, 2005, IDWR issued an order.granting Scott Reeser's petition to intervene. Several protestants failed to appear at the prehearing conference. IDWR mailed a notice of default to the non -appearing protestants. The following non -appearing protestants who failed to show good cause for non-appearance were dismissed as parties: Roy Barnett, Bryan and Marie Pecht, Del and Robin Morton, Tony and Brenda O'Neil, and Frank and Elaine Mosman. The hearing officer conducted a second prehearing conference on October 18, 2005. At the prehearing conference, Eagle proposed to drill two wells for conducting a pump test. Eagle proposed to pump water from one of the wells and measure water levels in other wells in the vicinity of the pumped well to determine the impacts of pumping. On December 22, 2005, IDWR approved two drilling permits to construct wells for the pump test. PRELIMINARY ORDER — Page 1 On January 17, 2006, IDWR received a "notice of protest" from Bud R. Roundtree. IDWR interpreted the document as a petition to intervene. On January 19, 2006, the hearing officer issued a Notice of Hearing, Order Authorizing Discovery, and Prehearing Order. The hearing officer scheduled the hearing for April 10 through April 14, 2006. On February 28, 2006, Eagle notified the hearing officer that the two test wells had not been constructed. The letter stated "the City of Eagle will not be able to get the pump test completed pursuant to the existing schedule." As a result of the notice, the hearing officer canceled and continued the hearing. In the Order Continuing Hearing and Canceling Prehearing Deadlines, the hearing officer ordered the following: ...[U]pon completion of construction of the test wells, the City of Eagle shall arrange a time for the anticipated pump tests with the other parties. When the date(s) for the pump tests have been arranged, the City of Eagle shall notify the Department of the test date(s). After receiving notice of the test date(s), the Department will inquire about available dates for a hearing. The hearing will be scheduled no earlier than ninety days following the date of the test to allow the exchange of information and discovery previously authorized. On July 11, 2006, the City of Eagle notified the hearing officer that "the pump test conducted by the City of Eagle has been completed." Sometime during late summer or the fall of 2006, Eagle submitted a report titled City of "oft` Eagle — 7 Day Aquifer Test to IDWR staff for review. The document is dated "June 2006," but the test was not completed until June 19, 2006. On September 6, 2006, the hearing officer issued a second Notice of Hearing, Order Authorizing Discovery, and Prehearing Order. The Notice of Hearing scheduled the hearing for December 6 through 8, 2006 and December 11 and 12, 2006. At the time of service of the notice of hearing, IDWR had not acted on the petition to intervene filed by Bud Roundtree. The record does not show that IDWR ever determined whether Roundtree should be allowed to intervene. Roundtree received notice of all the proceedings, however, and IDWR treated Roundtree as a full party to the contested case. On November 7, 2006, Star Sewer & Water District withdrew its protest. On November 13, 2006, protestants Joseph, Lynn and Mike Moyle, Eugene Muller, Dana and Viki Purdy, Charles Meissner, Jr., and Charles Howarth filed a Motion to Continue the Hearing. On November 15, 2006, the above protestants filed an Amended Motion to Continue Hearing. The protestants filing the motion for continuance asserted: (1) various scheduling conflicts of the protestants; and (2) Eagle failed to "arrange a time for the anticipated pump test with the other parties" as required by the hearing officer's March 10, 2006 Order Continuing Hearing and Canceling Prehearing Deadlines. On November 20, 2006, the hearing officer denied the Amended Motion for Continuance. This order will not discuss the grounds for refusing the continuance based on scheduling conflicts. ,^, A discussion of the prearrangement of the pump test is germane, however. PRELIMINARY ORDER — Page 2 In denying the request for a continuance on the grounds of failure to jointly conduct a pump test, the hearing officer wrote: ...The hearing officer intended that all the parties interested in the pump test have an opportunity to participate in the test. If Eagle failed to arrange the timing of the test with the parties, the hearing officer is dismayed that Eagle did not follow the dictates of the order. Nonetheless, even assuming Eagle did not arrange a time for the pump test with the protestants as required by the hearing officer's March 10, 2006 order, the protestants have known that the City of Eagle completed its pump test since receiving the July 11, 2006 letter. The hearing officer also notified the protestants of the completion of the pump test in his August 16, 2006 letter and alluded to the completion of the test in his September 6, 2006 order. Failure of the city to fully coordinate the pump test with the protestants should have been raised as an issue at the time the protestants were notified that the pump test had been completed. Instead, the protestants waited until less than a month before the scheduled hearing to complain. Despite Eagle's failure, the protestants' inaction after learning of the completion of the pump test for approximately four months leads the hearing officer to surmise that the protestants were disinterested in participating actively in the pump test. Consequently, failure to coordinate the pump test is not grounds for postponing the hearing at this late date. On November 22, 2006, protestants Joseph, Lynn and Michael Moyle, Eugene Muller, Dana and Viki Purdy, Charles Meissner, Jr., and Charles Howarth filed a Motion in Limine. The protestants participating in the Motion in Limine argued that the "...data and results collected from the seven-day pump test conducted by the City of Eagle in May and June, 2006" should be excluded from the evidence "...because the Protestants were not provided an opportunity to collect data from their wells while the pump test was conducted." On November 30, 2006, the hearing officer issued an Order Denying Motion in Limine, Notice of StaffMemorandum, and Amended Notice of Hearing. In the order, the hearing officer stated: ...The protestants had an opportunity to complain about their inability to participate in the test long in advance of the hearing. The protestants did not avail themselves of the opportunity and should not be allowed to raise the issue just prior to the hearing as a means of preventing consideration of technical information. The Motion in Limine should be denied. On November 29, 2006, Sean Vincent and Shane Bendixsen submitted a Department staff memorandum to the hearing officer that evaluated the pump test conducted for the City of Eagle test wells. A copy of the staff memorandum is enclosed with this document. The staff memorandum raises several issues about the procedures of the pump test and the analysis of the pump test data. The PRELIMINARY ORDER — Page 3 questions raised by Department staff could seriously affect the credibility of the pump test evidence presented at the hearing. The hearing officer will consider the Department staff memorandum as part of the evidence in this contested case. Because the analysis of the pump test submitted to Department staff was incomplete, the hearing officer will forward any additional evidence about the pump test received into evidence at the hearing to Department staff for further review to determine possible deficiencies. After the staff review, the hearing officer will distribute the results of the Department's post hearing review to the parties who will have an opportunity to submit additional comments and possibly to request supplemental hearings about the document. This process will delay the ultimate consideration of the applications. The November 30, 2006 order also delayed commencement of the hearing by one day. A hearing for the contested case was conducted on December 7 and 8, 2006, and resumed on December 11 and 12, 2006. At the end of the day on December 12, 2006, the presentation of evidence was not complete. As a result, additional evidence was presented the morning of December 18, 2006. Bruce Smith and Tammy Zokan, attorneys at law, appeared on behalf of Eagle. Charles Honsinger and Jon Gould, attorneys at law, appeared on behalf of Joseph, Lynn and Mike Moyle, Eugene Muller, Dana and Viki Purdy, Charles Meissner, Jr., Charles Howarth, and Mike Dixon/Hoot Nanney Farms. Sam Rosti, Corrin & Terry Hutton, Mary Taylor, and Jan Combe appeared individually representing themselves. On December 20, 2006, the hearing officer issued a request for staff memorandum to Hal Anderson, Rick Raymondi, Sean Vincent, and Shane Bendixsen. The request for staff memorandum stated the following: stated: Sean Vincent (Vincent) and Shane Bendixsen (Bendixsen) reviewed a technical document titled City of Eagle, Idaho 7 -Day Aquifer Test prepared by Chris H. Duncan of Holladay Engineering Company. After the review, Vincent and Bendixsen issued a staff memorandum dated November 29, 2006. In the memorandum Vincent and Bendixsen stated that "the scope of the data collection was adequate, but the aquifer test analysis is incomplete." The request for staff memorandum recited some of the procedural background, and further At a hearing conducted on December 7-8, 11-12, and 18, 2006, the City of Eagle presented additional analysis of the aquifer test data. In addition, the City of Eagle called Vincent to testify regarding the November 29, 2006 staff memorandum. THEREFORE, the hearing officer invites department staff to augment the November 29, 2006 staff memorandum regarding the above captioned matter, which .could include, without limitation: PRELIMINARY ORDER — Page 4 1. A full scrutiny of the methods of gathering data, the data presented, and results • of the aquifer test contained in the City of Eagle, Idaho 7 -Day Aquifer Test report dated June 2006. . 2. Presentation and analysis of additional data available to department staff to enhance the hearing officer's understanding of the hydrogeology and aquifers in the vicinity of the proposed appropriations of water, including, but not limited to data related to aquifer tests performed for the Lexington Hills well and the Floating Feather well. 3. An independent analysis of' Eagle's 7 -Day Aquifer Test data using commonly accepted scientific methods in the field of geology, hydrogeology, and engineering. 4. A technical review and critic (sic) of any information and analysis of data presented as evidence during the contested case hearing conducted on December 7-8,11-12, and 18, 2006. On February 27, 2007 (date on the document was February 27, 2006), Sean Vincent of IDWR submitted to the hearing officer a staff memorandum titled Review of Addendum to City of Eagle, Idaho 7 -Day Aquifer Test Report. Attached to the staff memorandum was a document titled Addendum to City of Eagle 7 -day Aquifer Test Report. In the staff memorandum, Vincent states that "the Addendum adequately addresses comments made in a previous memo to you dated November 29, 2006" On March 13, 2007, Eagle mailed copies of the written addendum reviewed by IDWR staff to the parties who attended the December hearing. On March 27, 2007, the hearing officer mailed a copy of the staff memorandum written by Vincent to the parties who attended the December hearing. The hearing officer also served a Notice of Consideration of Additional Evidence and Post Hearing Order on the parties. The document informed the parties that the hearing officer would consider the information in the addendum and the staff memorandum, and granted the parties until April 25, 2007 to review documents and to submit technical comments about the addendum to the hearing officer and/or request a supplemental hearing. On March 27, 2007, the hearing officer issued an order dismissing the following parties from the contested case: Michael McCollum, Michael and Nancy Heath, Tim Cheney, Bob & Elsie Hanson, Bill Flack, Ronald Schreiner, City of Star, Scott and Nancy Reeser, Bud Roundtree, Ralph and Barbara Wilder, and Nonna Mares. On April 24, 2007, Mary Taylor submitted written comments to Eagle's addendum. PRELIMINARY ORDER — Page 5 frombN On April 25, 2007, protestants Joseph, Lynn and Mike Moyle, Eugene Muller, Dana and Viki Purdy, Charles Meissner, Jr., Charles Howarth, and Mike Dixon/Hoot Nanny Farms, Inc., submitted comments to Eagle's addendum and the IDWR staff memorandum. Having considered the evidence presented at the hearing, and the information subsequently submitted to the hearing officer, the hearing officer finds, concludes, and orders as follows: FINDINGS OF FACT 1. On January 19, 2005, the City of Eagle submitted two applications to appropriate water to IDWR. IDWR assigned application numbers 63-32089 and 63-32090 to the applications. 2. Application to appropriate water no. 63-32089 seeks the following: Source: Groundwater Flow Rate: 4.0 cfs Purpose of Use: Municipal Proposed Priority: January 19, 2005 Period of Use: Jan. 1 through Dec. 31 Points of Diversion: Township 04 North, Section 10 NWNE' Range 01 West, Section 11 SENW Section 10 NWNW Section 11 NWSE (two wells) Place of Use: The municipal service area for the City of Eagle. . 3. Application no. 63-32090 proposes the following: Source: Groundwater Flow Rate: 4.9 cfs Purpose of Use: Municipal Proposed Priority: January 19, 2005 Season of Use: Jan. 1 through Dec. 31 Points of Diversion: Township 04 North, Section 10 NWNE Range 01 West, Place of Use: Section 11 SENW Section 10 NWNW The municipal service area for the City of Eagle. Public land survey descriptions in this decision without a fraction following a two alpha character descriptor are "Ink, presumed to be followed by the fraction "1/4." In addition, all public land survey descriptions are presumed to be based on the Boise Meridian. All locations are in Ada County. PRELIM NARY ORDER — Page 6 4. The two applications identify eight possible separate well locations. The three points of diversion listed in application no. 63-32090 duplicate locations described in application no. 63-32089. Eagle only intends to construct a maximum of five wells. 5. Eagle owns and operates a municipal water system that serves a geographical area within the municipal boundaries of the City of Eagle. The certificated area of service for the Eagle municipal water system also includes lands outside of the city boundaries. The certificated area for service by the Eagle municipal water system is depicted in Eagle Exhibit 6 and is color -coded in pink. Eagle Exhibit 6 also shows locations of the five wells proposed by the applications. 6. A portion of Eagle's service area is located west of Linder Road, east of Highway 16, and north of Highway 44 to the edge of the foothills bounded on the north by Homer Road. This area will be referred to in this decision hereinafter as the `western expansion area." 7. Two housing developments named Eaglefield and Legacy are currently proposed for construction in the western expansion area. The combined number of homes proposed for the development is approximately 2,000 homes. The homes will be constructed on approximately 800 to 900 acres in Sections 2, 3, 9, 10, and 11, T4N, R1W. 8. Eagle anticipates that the development for the 2,000 homes will be complete within five -years, although all of the homes may not be built by that time. 9. Developers proposing construction of residential housing within Eagle are required to dedicate sufficient ground water or surface water rights to the proposed developed lands to accommodate irrigation demands within the subdivision. When surface water is the traditional method of irrigating the lands prior to development, the developer is required to install a separate system from Eagle's municipal water system for delivery of surface water for irrigation. 10. The applications propose delivery of water primarily for in-house use in the 2,000 homes projected for construction. The peak one-hour demand for in-house use in 2,000 residential units is 2.23 cfs. In addition, Eagle is required to supply the development with 6.68 cfs for fire protection. The total projected instantaneous demand is 8.9 cfs, the combined flow rate sought by the two applications. 11. The developers of the proposed subdivisions must pay for the five proposed wells and internal delivery system within the development. In addition, Eagle has set aside monies in its budget for construction of main lines and trunk lines to connect with the existing Eagle municipal water system. Eagle also has the power to levy assessments against its water users for payment of additional improvements. Finally, Eagle has the authority to form a Local Improvement District (LID) and issue bonds to be repaid by future assessments. 12. Eagle does not presently intend to employ any water storage to meet peak demands. Storage to supply short-term peak demands and fire flow demands could be a component of future use, however. Eagle Exhibit 6 identifies the location of a future storage tank at the northern boundary of the western expansion area. PRELIMINARY ORDER — Page 7 13. In May 2006, Eagle constructed two wells within the proposed development property. Both of the wells were constructed according to the Department of Environmental Quality standards. 14. The first well was constructed in the SENW, Section 11, Township 04 North, Range 01 West. This well will be referred to hereafter as Well no. 1 or the "Legacy Well." The second well was constructed in the NWSE, Section 11, Township 04 North, Range 01 West. This well will be referred to hereafter as Well no. 2, or the "Eaglefield Well." 15. An aquifer pump test was conducted from approximately May 25 through June 19, 2006, by pumping the Eaglefield Well and monitoring water levels in other wells. The test was conducted in three separate phases. Background testing was conducted for seven days prior to the pump test. A seven-day constant rate pump test commenced on June 2 and ended on June 9 at a pumping rate of 1,580 gallons per minute ("gpm"). Following pumping, water levels were measured for seven days following the end of the pumping period to determine recoveries of ground water levels without pumping. 16. Eagle monitored the water levels in eight wells. One of the monitoring wells was the pumping well (Eaglefield Well). Water levels in the Legacy Well were monitored. Water levels in six other privately owned wells were also monitored. Other parties to this contested case were not given an opportunity to participate in the test and monitor their own wells during the test. 17. Eagle submitted to IDWR a report titled City of Eagle, Idaho 7-DayAquffer Test. ,0104> The report was received into evidence as Eagle Exhibit 14. Copies of the aquifer test were made available to the parties. 18. IDWR staff reviewed the report. In a staff memorandum dated November 29, 2006, stafffound several deficiencies in the report. The staff memorandum stated, among other things, the following: a. A higher pumping rate than was originally proposed for the lower yielding Monitoring Well # 1 (Legacy Well) could and should have been used to stress the system. If Eagle had done so, the effect on othernearby wells and possible boundary conditions would have been more clearly identified. b. Site hydrogeology should have been consulted to determine whether the test data and conceptual models were reasonable. c. Other factors such as water level trends, barometric pressure fluctuations, and fluctuations caused by nearby pumping wells should have been examined and used to correct and/or interpret the test data. d. Tables should have been prepared to identify the various wells and their construction characteristics. Methods of analysis other than the Theis Equation should have been employed. This would have verified the results of the Theis estimates. Use of other methods would have better analyzed the water level recovery data. PRELIMINARY ORDER — Page 8 e. Significant differences in the values estimated for storativity were not well explained. f. Some water levels recovered to an elevation higher than the initial static water level. 19. The above deficiencies were discussed at the hearing. As a result of these concerns, the hearing officer allowed additional analysis of data and information following the conclusion of the presentation of evidence. 20. Ground water levels measured in a well owned by Ricks (Monitoring Well no. 6) showed some signs of a boundary condition. The Ricks well began a steeper decline in water levels approximately four to five days into the pump test. Because the rate of pumping of the Eaglefield Well was not as high as it could have been, and because the pumping test was of somewhat short duration, this possibility of boundary conditions was never explored. 21. In an addendum to its original report submitted to the hearing officer after the hearing, Eagle addressed some of the concerns raised by IDWR staff. As a result, IDWR staff issued a supplemental staff memorandum dated February 27, 2007. The author of the supplemental memorandum, Sean Vincent, wrote the following: 1. The water level and aquifer test data presented in the Addendum generally support the authors' primary conclusion (i.e., the deep sand layers that are targeted for production have sufficient capacity for additional withdrawals). The fact that static water levels in the deep system near the area of proposed development are above land surface and appear to be relatively stable suggest that the deep aquifer system is not currently in a state of overdraft. 2. An exception to the relatively stable water level trend described above is the hydrograph for Well 04N01 W-31AA.A1, which is located approximately 5 miles southwest of the area of proposed development. The water level in this well has declined by approximately 10 to 15 feet since 1970. Because the aquifer strata are dipping, however, this 462 -foot deep well may not be producing from the same aquifer system that is targeted for the development by the City of Eagle. 3. The inclusion of a conceptual hydrogeologic model, hydrographs for area wells, and additional analyses using the Cooper -Jacob (1946) and Theis (1935) residual drawdown methods, significantly improves the value of the aquifer test as a basis for evaluating the water supply. 4. As discussed in the Addendum, semilogarithmic plots of drawdown and residual drawdown suggest that both positive (recharge) and negative (finite aquifer) boundaries affected the test data. The observed behaviors are consistent with the conceptual model of a finite, confined aquifer that receives recharge from the surrounding uplands. Given the available data, PRELIlVDNARY ORDER — Page 9 application of the Theis (1935) solution to estimate the aquifer properties is appropriate for this hydrologic setting. 5. The Addendum also includes calculations for estimating potential impacts to existing wells. The calculations, which also are based on the Theis (1935) solution, are conservative in that they neglect to account for aquifer recharge but non -conservative in that they are premised on the assumption of an infinite aquifer. 6. The 1 -year timeframe for evaluating impacts to existing wells is appropriate, in my opinion, and is consistent with guidance for determining yield for public drinking water supply wells (IDEQ, 2007). The ranges of transmissivity and storativity values used to estimate drawdown also are appropriate based on available information. 7. I verified that the drawdown estimates presented in Table 4 of the Addendum were calculated correctly using the series approximation of the Theis (1935) solution and the assumed input values. 8. Although the data analysis provides the basis for estimating hydraulic properties for the target aquifer system, the aquifer test was not of sufficient duration to definitively evaluate aquifer boundary conditions and long-term impacts associated with pumping. As recommended in the Addendum (Recommendations 15 and 16), a long-term water level and discharge rate monitoring program should be implemented if the water right applications are approved in order to evaluate water level trends as affected by pumping. Dedicated upgradient and downgradient monitoring wells that are completed in the deep aquifer system within the zone of influence of the aquifer test are recommended. 22. The hearing officer adopts the Vincent analysis text quoted above as findings of fact. 23. Ground water underlying the location of the proposed wells resides in three aquifers separated by discontinuous clay aquatards. The discontinuity of the impervious clay strata allows some communication between the aquifers. This communicative relationship between the aquifers will be discussed in subsequent findings. 24. The shallow aquifer is a water table aquifer extending from land surface to approximately 100 feet below land surface. The intermediate aquifer is generally found from 100- 200 feet below ground surface and is at least semi -confined. The deep aquifer is located at depths below approximately 200 feet and is under artesian pressure. There may also be deeper aquifers, including geothermal aquifers. 25. The production zones for two of the test wells are completed in the shallow aquifer. The production zones for three of the test wells are completed in the intermediate aquifer. The PRELIMINARY ORDER -- Page 10 Eaglefield Well, the Legacy Well, and one of the United Water wells are completed in the deep aquifer. Evidence at the hearing established that a United Water intermediate aquifer well and a United Water deep aquifer well were completed within the same borehole. Upon construction, United Water nested strings of casing inside a single well. The casing for the monitoring well identified as having been constructed into the deep aquifer monitoring well commingled the intermediate and deep aquifers together, resulting in a mixing of water from the intermediate and deep aquifers, and also mixing the pressures of the two zones. This commingling probably skewed the data gathered from the United Water deep aquifer well. As a result, the only direct measurements of drawdowns in the deep aquifer caused by pumping are the measurements of drawdowns for the Legacy well. 26. Eagle Exhibit 8 is a summary of the potential effects on the protestants' wells of pumping the proposed Eagle Wells at various flow rates. 27. Eagle Exhibit 24 contains information about the protestants' well and tables estimating drawdowns using the Theis equation at various radial distances from a producing well in the three different aquifers, the shallow aquifer, the intermediate aquifer, and the deep aquifer. 28. Table 1 of Eagle Exhibit 24 is an estimate of potential drawdown in the shallow aquifer based on various pumping rates and distance from the pumping well. The estimates were calculated by multiplying Theis equation drawdowns by a multiplier of 0.116. The 0.116 multiplier is an arbitrary number that has no basis in scientific or technical literature nor is it derived from actual data. Nonetheless, there is limited communication between the shallow, intermediate, and deep aquifers, and the separation between the shallow aquifer and the deep aquifer production zone significantly reduces the communication. The hearing officer determines there is little effect on the shallow aquifer by pumping from the deep aquifer. 29. Table 2 of Eagle Exhibit 24 is an estimate of potential drawdowns in the intermediate aquifer resulting from continuous pumping at various flow rates from the deep aquifer. The drawdowns were calculated by multiplying the Theis equation drawdown values by 0.5. The 0.5 multiplier has no basis in technical literature or data analysis. The hearing officer determines there is a direct hydraulic relationship between the intermediate aquifer and the deep aquifer from which Eagle proposes to produce water. Although the direct relationship may be limited by the separation from the deep aquifer, the degree of the limitation was not established. As a result, the hearing officer assumes the full Theis equation drawdowns will occur in the intermediate aquifer without applying a fractional multiplier, and will use Table 3 of Eagle Exhibit 24 to determine the impacts of pumping the proposed wells on wells constructed in the intermediate aquifer. 30. Table 3 of Eagle Exhibit 24 contains results of a direct Theis equation calculation of drawdowns at various flow rates and distances from the pumping well for continuous pumping over a period of 365 days. Pumping from the deep aquifer will directly and adversely affect other nearby water users diverting from the deep aquifer. 31. Water residing in the intermediate and deep aquifers in the area of proposed well construction is under artesian pressure. Artesian pressure in the deep aquifer causes water to rise PRELIMINARY ORDER — Page 11 above land surface in wells constructed with a production zone in the deep aquifer. These artesian pressures have been used by some of the protestants to supply water to their beneficial uses. 32. The following is a table of the active protestants' names, water right priorities/date of construction, and the depth of their wells. Some of this information is taken from Eagle Exhibit 24. Protestant Water Right Priority - Construction Dean&Jan Combe Mike Dixon Charles Howarth Corrin & Terry Hutton Charles W. Meissner Mike Moyle Eugene Muller Dana & Viki Purdy Sam & Kari Rosti Jerry & Mary Taylor 63-2858A 8/5/1956 63-2957 8/28/1953 63-2958 8/28/1953 63-31988 3/1/1976 Domestic 2002 (not recorded) Domestic Three wells. Well logs for two of the wells. No recorded water rights. 63-2546 63-2609 63-22650 63-2920 63-15680 63-22652 Domestic (not recorded) 63-11715 63-5040 63-2858B 63-17523 63-3296 63-32189 PRELIMINARY ORDER — Page 12 July 1981 July 1970 12/12/1959 2/15/1944 7/25/1887 1/2/1953 6/1/1900 6/1/1967 1980 1992 3/1/1941 6/10/1951 6/1/1960. 6/5/1962 3/31/1976 Distance from Nearest Proposed Eagle Well 5,900 ft 1,399 ft 11,992 ft 4,800 ft 5,643 ft to 7,200 ft 3,286 ft 3,390 ft 2,700 ft approx.2,640 ft 3,444 ft 5,997 ft. Comments Well is 65 feet deep No information about the depth or number of wells was presented at the hearing Well is 333 feet deep Well is 115 feet deep Well is 90 feet deep Well is 103 feet deep Six wells, all completed in the deep aquifer Well was initially completed in the shallow aquifer. The well was redrilled in 1979, and now the production zone is in the deep aquifer Well is 90 feet deep Well is 250 feet deep Well is 120 feet deep Well is 255 feet deep Well is 445 feet deep Wells completed in the shallow aquifer 33. Pumping at a continuous rate of 8.9 cfs is not an unreasonable assumption about future use of water by Eagle, given Eagle's projected growth and probable storage of municipal water in the future. 34. Pumping of Eagle's proposed wells at a rate of 8.9 cfs will cause significant reduction in the artesian pressures of wells constructed in the deep aquifer. Pumping will also cause reductions in artesian pressures in the intermediate zone. Moyle 35. Joseph, Lynn, and Mike Moyle own six wells constructed in the deep aquifer that flow under artesian pressure. Four of the wells are described as points of diversion by water rights nos. 63-2546 and 63-2609, bearing priority dates of 1939 and 1943, respectively. A fifth well is the point of diversion for an unrecorded domestic use for a home built by Joseph and Lynn Moyle in approximately 1970. The sixth well was constructed in 1997 to supply water to Mike Moyle's home. 36. Moyles have measured the closed -in pressure in the wells at 10 pounds per square inch ("psi"). Ten psi correlates to a water level head of approximately 21 feet. The flowing artesian wells have supplied stock water for as many as 43,000 mink on the Moyle property. In addition, the Moyle wells have provided irrigation water and water for commercial refrigeration and cooling. Finally, the flowing artesian wells provide domestic water for several homes. In some locations, small, relift pumps increase the pressure for commercial and domestic uses. 37. The four Moyle wells described by decreed or claimed water rights are remote from an electrical supply. As a result, pumping the wells would be difficult if the artesian pressure is lost. 38. As artesian pressure declines, the flow from the artesian wells will decrease. During the end of June 2006 or the first of July 2006, the pressure dropped in some of the artesian wells. Moyles discovered that artesian water was not flowing to the end of the water lines providing drinking water for the mink As a result, some of the mink died from lack of water. 39. If Moyle's nearest well is approximately 5,643 feet away from a new well pumping continuously at a flow rate of 8.9 cfs, Table 3 of Eagle Exhibit no. 24 predicts a decline in artesian pressure of approximately 15 feet. A reduction from an artesian pressure head of 21 feet down to six feet would significantly reduce the flow needed to supply the domestic, commercial, stockwater, and irrigation needs for Moyles. Lesser reductions of artesian pressure will also significantly reduce the flow needed by Moyles to supply the beneficial uses. Muller 40. • Eugene Muller holds water right no. 63-22650. The original well was constructed to a depth of 70 feet, and the production zone was in the shallow aquifer. In 1979, the well co-uld no long provide water for Muller's beneficial use, and Muller dug a new well in the deep aquifer. The new well is a flowing artesian well. PRELIMINARY ORDER — Page 13 41. Muller testified that water flowed from the original well. His testimony is inconsistent with the described characteristics of the shallow aquifer. Nonetheless, any loss of pressure or water level in the original well occurred prior to 1979 when the original well failed, requiring construction of a new well in the deep aquifer. Howarth 42. In approximately 2001 or 2002, Charles Howarth constructed a domestic well in the deep aquifer. The domestic well is under artesian pressure, maintaining 3 to 7 psi of pressure. Meissner 43. Charles Meissner, Jr. owns three wells. One of the wells is completed in the shallow aquifer at a depth of 90 feet. 44. A second well was constructed to a depth in excess of 103 feet (See Protestants Exhibit 404, second page) in 1970, and is used for domestic and stockwater purposes. This well will be referred to as the "Double R Cattle Well" The well casing is not perforated, and the water in the well is derived from the bottom of the casing. The casing passes through a significant layer of clay from 70 to 85 feet in depth that probably acts as an aquatard. The water underlying the aquatard is under artesian pressure, but the water does not flow above land surface. The production zone for the well is completed in the intermediate aquifer. 45. Table 3 of Eagle Exhibit 24 establishes that, at a distance of 4,800 feet from the nearest proposed Eagle well and at a continuous pumping rate of 8.9 cfs, water levels in the Double R Cattle Well will decline approximately 15 feet. 46. The depth and other information about the third well was not presented, except Meissner speculated that the well has collapsed. Purdy 47. Dana and Viki Purdy hold water right no. 63-2920 authorizing irrigation from ground water. The point of diversion is a well approximately 90 feet deep. Purdys pump supplemental ground water for irrigation when surface water in not available for irrigation. The water right for the irrigation well bears a priority date of 1953, but is constructed in the shallow aquifer. 48. Water right no. 63-15680 authorizes use of water for domestic and stockwater purposes and bears a priority date of June 1, 1900. The well is constructed to a depth of 250 feet. Viki Purdy testified that the well has been in place during several decades she has lived on the Purdy farm and that the well had not been worked on or replaced. Water in the well is under artesian pressure but does not free flow. The production zone for this well is most likely completed in the deep aquifer. PRELIMINARY ORDER — Page 14 49. Table 3 of Eagle Exhibit 24 establishes that, at a distance of 2,700 feet from the nearest proposed Eagle well and at a continuous pumping rate of 8.9 cfs, water levels in the well for water right no. 63-15680 will decline approximately 19.5 feet. 50. Water right no. 63-22652 authorizes a stockwater use, and bears a priority date of June 1, 1967. The point of diversion for water right no. 63-22652 is a well drilled to a depth of 120 feet. The well is constructed in the intermediate aquifer. Water in the well is under artesian pressure, but water does not free flow at ground surface. The well was constructed in 1966. 51. Table 3 of Eagle Exhibit 24 establishes that, at an approximate distance of 2,640 feet from the nearest proposed Eagle well and at a continuous pumping rate of 8.9 cfs, water levels in the well for water right no. 63-22652 will decline approximately 19.0 feet. 52. A well log for another well associated with a home owned by Dana Purdy's mother was received into the evidence. The well was drilled in 1991. Taylor 53. Jerry and Mary Taylor own several water rights. Three of the water rights authorizes a total irrigation of 17 to 18 acres. Another water right authorizes domestic use. Claim no. 63-5040 is for a domestic/commercial use in the City of Star. The point of diversion is sufficiently distant from the proposed wells that it would not be affected. The wells nearest to the proposed points of diversion are completed in the shallow aquifer. Combe 54. Dean and Jan Combe hold a water right for a domestic use from a well with a priority date of August 5, 1956. The well is 65 feet deep, and is completed in the shallow aquifer. Rosti 55. Sam and Kari Rosti own a domestic well drilled in 1980. In addition, they own a 445 foot deep irrigation well completed in the deep aquifer drilled in 1992. 56. Diversion of water from the deep aquifer would have little or no effect on the Boise River in the reach from Lucky Peak to just below Star Bridge. The flows of the Boise River in this zone are affected primarily by water residing in the shallow aquifer and are directly related to surface water flows in the Boise River. Water in the deeper zones is separated by an aquatard or several aquatards. Water in the deeper aquifer migrate westerly toward the Snake River. CONCLUSIONS OF LAW • 1. Idaho Code § 42-203A states in pertinent part: In all applications whether protested or not protested, where the proposed use is such (a) that it will reduce the quantity of water under existing water rights, or (b) that the water supply itself is insufficient for the purpose for which it is sought to PRELIMINARY ORDER — Page 15 be appropriated, or (c) where it appears to the satisfaction of the director that such application is not made in good faith, is made for delay or speculative purposes, or (d) that the applicant has not sufficient financial resources with which to complete the work involved therein, or (e) that it will conflict with the local public interest as defined in section 42-202B, Idaho Code, or (f) that it is contrary to conservation of water resources within the state of Idaho, or (g) that it will adversely affect the local economy of the watershed or local area within which the source of water for the proposed use originates, in the case where the place of use is outside of the watershed or Local area where the source of water originates; the director of the department of water resources may reject such application and refuse issuance of a permit therefor, or may partially approve and grant a permit for a smaller quantity of water than applied for, or may grant a permit upon conditions. 2. The applicant bears the ultimate burden of proof regarding all the factors set forth in Idaho Code § 42-203A. 3. Idaho Code § 42-111 defines the phrase "domestic purposes." Stockwater use of up to 13,000 gallons a day is recognized as use of water for domestic purposes. 4. In 1951, the Idaho Legislature enacted legislation known as the Ground Water Act. In 1953, the Idaho Legislature amended the Ground Water Act. The 1953 amendment recognized that ground water rights would be administered according to the prior appropriation doctrine, but that prior water rights should not prevent the full economic development of the ground water resources of the State of Idaho, and that ground water appropriators would be required to pump from a "reasonable pumping level" established by the Department. In 1978, the Idaho Legislature amended the Ground Water Act again. The 1978 amendment expressly stated that domestic water rights are subject to the reasonable economic pumping level standard. 5. In Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982), the Idaho Supreme Court determined that a later in time aii►. ij. gator should be enjoined from pumping ground water for irrigation that almost immediately dried up a domestic well located nearby. The court held that the water right for the domestic well was perfected prior to the irrigation water right and before the reasonable pumping level standard was applied to domestic beneficial uses, and that the domestic water right holder was entitled to the protection of the ground water pumping level existing prior to pumping by the junior appropriator. The court held that the injunction was not permanent, and could be absolved upon full compensation by the junior appropriator for the cost of deepening the senior appropriator's well and payment of the costs of additional equipment and energy. 6. The Idaho Supreme Court stated in Parker v. Wallentine: Under the doctrine of prior appropriation, because Parker's domestic well was drilled prior to Wallentine's irrigation well, Parker has a vested right to use the water for his domestic well. That right includes the right to have the water available at the historic pumping level or to be compensated for expenses incurred if a subsequent appropriator is allowed to lower the water table and Parker is PRELIMINARY ORDER — Page 16 ^` required to change his method or means of diversion in order to maintain his right to use the water. 103 Idaho 506, 512 (1982) (emphasis supplied). The Idaho Supreme Court went onto note that: Parker will not be deprived of any right to his use if water can be obtained for Parker by changing the method or means of diversion. The expense of changing the method or means of diversion, however, must be paid by the subsequent appropriator, Wallentine, so that Parker will not suffer any monetary loss. Thus, upon a proper showing by Wallentine that there is adequate water available for both he and Parker, it is within the inherent equitable powers of the court upon a proper showing and in accordance with the views herein expressed to enter a decree which fully protects Parker and yet allows for the maximum development of the water resources of the State. 103 Idaho at 514. 7. Under Parker, if (1) pumping of ground water by junior ground water appropriators causes declines in pumping water levels in wells of the senior water right holders because of local well interference, and (2) the water rights held by the senior water right holders bear priority dates earlier than 1953, or 1978 for domestic water rights, the holders of the senior water rights are, at a minimum, entitled to compensation for the increased costs of diverting ground water caused by the declines in ground water levels. 8. The extent to which Parker provides protection to the protestants' water rights depends on proof of injury and factual similarities to the facts of the Parker case. 9. In Parker, the owner of the domestic well was unable to divert water from the domestic well within minutes of when the junior priority right holder began pumping ground water. The proof of the lowered water table caused by pumping from the irrigation well that resulted in inability to pump water from the domestic well was established through testimony about the effects of the initial pumping from the Wallentine well and by a pump test conducted by the parties and the Department. 10. In an administrative hearing for an application to appropriate water, the applicant bears the burden of proving that the proposed use of water will not injure other water rights. If a protestant seeks the protection of Parker that would insulate the protestant from the reasonable pumping level standard of the Ground Water Act, however, the protestant must come forward with evidence that: (1) the protestant is the holder of a water right that is not subject to the reasonable pumping standard of the Ground Water Act, and (2) the protestant's diversion equipment and facilities are capable of diverting the protestant's water right at the ground water levels at or about the time the application is being considered. Once the protestant comes forward with the information, the applicant ultimately bears the burden of proving that the proposed use of water will not injure the protestant under the Parker standard. 11. Pumping of 8.9 cfs will not cause water level declines in area wells below a level that is reasonable. ,0010,, 12. The following describes how Parker applies to each of the active protestants. PRELIMINARY ORDER — Page 17 Moyle 13. The priority dates of the water rights held by Moyle predate the 1953 amendment of the Ground Water Act subjecting subsequent appropriations of water to the reasonable pumping level standard. Moyles are entitled to protection of their historical water levels in the four wells recorded by their water rights and in one other domestic well associated with a home owned by Joseph and Lynn Moyle. Evidence presented established that Moyles were receiving water under artesian pressure at the time Eagle filed its applications and during the summer preceding the hearing. Diversion from the proposed Eagle wells will injure Moyles' water rights. 14. Prior to diverting water from its existing or proposed wells, Eagle must (a). supply water for uses of ground water from the five Moyle wells entitled to Parker protection at no cost to Moyles except the cost for incidental electricity that adds additional pressure to the water supply for domestic and commercial uses, and be immediately ready and able to physically deliver the water to Moyles; or (b) acquire the water rights from Moyles, possibly through condemnation. To be immediately ready and able to physically deliver water to Moyles, Eagle must complete one of the following prior to initiating pumping from and beneficial use of ground water under permits for these applications: (a) physically connect Moyle's water delivery system to Eagle's Ynunicipal water system; or (b) with Moyles' consent, place the necessary pumps in the Moyle wells, supply the power for the pumps, construct or install any other physical features, including running power to the wells, and at the same time, insure the water supply to Moyles' beneficial uses is not interrupted; or (c) drill new wells that will supply the water to Moyles' beneficial uses and construct and install all necessary features. Eagle must pay all construction and equipment costs, maintenance, and power costs, except for the electricity costs described above to add additional pressure for domestic and commercial uses. Muller 15. The priority date for water right no. 63-22650 (1887), owned by Eugene Muller, predates the 1953 amendment to the Ground Water Act that subjects water rights to the reasonable pumping level standard. The original well for water right no. 63-22650 was constructed in the shallow aquifer. In 1979 Muller dug a new well in the deep aquifer. Parker would only protect Muller's water right from injury to water levels in the shallow aquifer. The hearing officer determines that pumping from the deep aquifer will not injure water rights diverting from the shallow aquifer. Any new water levels (or pressures) in a new well constructed in 1979 are subject to the reasonable pumping level standard established by the 1978 amendment to the Ground Water Act as it relates to domestic water rights. Howarth 16. Charles Howarth constructed a domestic well in the deep aquifer in approximately 2001 or 2002. The domestic well is under artesian pressure, maintaining 3 to 7 psi of pressure. Howarth's well is subject to the reasonable pumping level standard established by the 1978 amendment to the Ground Water Act as it relates to domestic water rights. PRELIMINARY ORDER — Page 18 Meissner 17. One of Meissner's three wells derives water from the shallow aquifer. Pumping from the deep aquifer will not injure water rights diverting from the shallow aquifer. 18. The Double R Cattle Well is a domestic well and is entitled to Parker protection because its use predates the requirement of ground water pumping levels under the 1978 amendment to the Ground Water Act. 19. The Double R Cattle Well is completed in the intermediate aquifer. Because Eagle did not satisfy its burden of proving the relationship between the intermediate and the deep aquifer, the hearing officer will assume that the Theis equation drawdowns apply directly to the intermediate aquifer. Under Parker, Eagle must compensate Meissner for the additional costs of pumping. Eagle must notify Meissner in the year it begins diverting water from the proposed wells. To avail himself of the benefits of Parker, Meissner. must measure the water levels in the Double R Cattle Well, beginning during the year Eagle begins pumping water from the proposed wells. Meissner must allow Eagle the opportunity to observe or independently,measure water levels in the Meissner well. If Meissner monitors static water levels in his well and can show that water levels continue to decline in the well after Eagle begins pumping water, Eagle must compensate Meissner for the additional cost of pumping from up to 15 feet of water level declines, including costs of lowering a pump, if necessary. If the well dries up within the 15 feet of water level declines, Eagle must either: (a) provide free water service to Meissner through its municipal water system; or (b) redrill a well for Meissner and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire Meissner's water right, perhaps through condemnation. 20. The depth of the third Meissner well is unknown. Meissner had the burden to show that he had a water right for the well bearing a priority date that would qualify for Parker protection. Meissner did not satisfy his burden of proof for the third well. Purdy 21. • Dana and Viki Purdy own an irrigation well that is approximately 90 feet deep and is pumped to supply supplemental ground water for irrigation when surface water is not available. The water right for the irrigation well bears a priority date of 1953. Pumping from the deep aquifer will not injure water right no. 63-2920 because Purdys divert ground water from the shallow aquifer. The water level in the Purdy irrigation well is not entitled to Parker protection. 22. The well for water right no. 63-15680 is a domestic well entitled to Parker protection of ground water levels. 23. The point of diversion for water right no. 63-15680 is a well drilled to a depth of 250 feet. The well is probably completed in the deep aquifer, although the well does not free flow at land surface. Under Parker, Eagle must compensate Purdys for the additional costs of pumping from .a deeper depth. Eagle must notify Purdys in the year it begins diverting water from the proposed wells. In order to avail themselves of the benefits of Parker, however, Purdys must measure the water levels in the well for water right no. 63-15680, beginning in the first year Eagle PRELIMINARY ORDER — Page 19 begins pumping water from the proposed wells. Purdys must allow Eagle the opportunity to observe or independently measure water levels in the well. If Purdys monitor static water levels in the well and can show that water levels decline in the well after Eagle begins pumping water, Eagle must compensate Purdys for the additional cost of pumping from up to 19.5 feet of ground water declines, including costs of lowering a pump, if necessary. If the well dries up, Eagle must either: (a) provide free municipal water service to Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire water right no. 63-15680, perhaps through condemnation. 24. Water right no. 63-22652 authorizes domestic and stockwater use, and bears a priority date of June 1, 1967. The well for water right no. 63-22652 is a domestic well entitled to Parker protection of ground water levels. 25. The point of diversion for water right no. 63-22652 is a well drilled to a depth of 120 feet The well is constructed in the intermediate aquifer. Water in the well is under artesian pressure, but water does not free flow at ground surface. The well was constructed in 1966. Under Parker, Eagle must compensate Purdys for the additional costs of pumping from a deeper depth. Eagle must notify Purdys in the year it begins diverting water from the proposed wells. In order to avail themselves of the benefits of Parker, Purdys must measure the water levels in the well for water right no. 63-22652, beginning in the first year Eagle begins pumping water from the proposed wells. Purdys must allow Eagle the opportunity to observe or independently measure the water levels in their well. If Purdys monitor static water levels in their well and can show that water levels decline in the well after Eagle begins pumping water, Eagle must compensate Purdys "1 ►, for the additional cost of pumping from up to 19 feet of ground water declines, including costs of lowering a pump, if necessary. If the well dries up Eagle must either: (a) provide free municipal water service to Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire water right no. 63-22652, perhaps through condemnation. 26. Purdys also presented evidence about a well supplying water to Dana Purdy's mother's home. This well was drilled after domestic wells were subjected to the reasonable pumping level standard. Taylor 27. The Taylor wells are completed in the shallow aquifer. Pumping from the deep aquifer will not injure water rights diverting from the shallow aquifer. The water levels in the Taylor wells are not entitled to Parker protection. Combe 28. The Combe well is 65 feet deep. Pumping from the deep aquifer will not injure water rights diverting from the shallow aquifer. The water level in the Combe well is not entitled to Parker protection. PRELIMINARY ORDER — Page 20 Aomik ,A'►+ Rosti 29. Rostis own a domestic well drilled in 1980. The Rosti domestic well was drilled after the 1978 amendment to the Ground Water Act that subjected domestic wells to the reasonable pumping level. The Rosti domestic well is not entitled to Parker protection of ground water levels. 30. The Rosti irrigation well completed in the deep aquifer was drilled in 1992. The Rosti irrigation well was constructed after the 1953 amendment to the Ground Water Act The .Rosti irrigation well is not entitled to Parker protection of ground water levels. 31. Water levels and pressures are not declining significantly in the area where water is sought for appropriation. Nontheless, IDWR staff raised concerns about limitations of the pump test. Furthermore, in its addendum to the pump test report, Eagle recognized some of the uncertainties about sufficiency of the water supply and injury and recommended further ground water monitoring. IDWR staff recommended the construction/identification by Eagle of two observation wells, one up -gradient and one down -gradient of the proposed wells. In addition, Eagle must develop a monitoring, recording, and reporting plan for the observation wells. 32. By compensating the protestants entitled to protection of water levels/pressures under Parker, and by monitoring ground water levels during pumping, the proposed appropriation by Eagle will not injure other water users. 33. There is sufficient water for the purposes sought by Eagle's applications. The additional monitoring of the two dedicated observation wells will insure that the deep aquifer in the area is not overappropriated. 34. The application is not filed in bad faith or for purposes of speculation or delay. 35. Eagle has sufficient monetary resources to complete the project. 36. The proposed project is in the local public interest. 37. The proposal conserves the water resources of the state of Idaho because irrigation and other outside uses of water will be provided primarily by other water rights. ORDER IT IS HEREBY ORDERED that applications to appropriate water nos. 63-32089 and 63- 32090 are Approved subject to the following conditions: Proof of application of water to beneficial use shall be submitted on or before August 1, 2012. In connection with the proof of beneficial use submitted for this permit, the permit holder shall also submit a report showing the total annual volume, the maximum daily volume, and the maximum instantaneous rate of flow diverted from the point of diversion authorized for this PRELIMINARY ORDER — Page 21 '01%` Code and applicable Well Construction Rules of the Department. permit during the development period. The report shall also show the maximum instantaneous rate of diversion, either measured or reasonably estimated by a qualified professional engineer, geologist, or certified water rights examiner, for the entire City of Eagle municipal water system. The report shall also describe and explain how water diverted under this permit provides an additional increment of beneficial use of water for the City of Eagle municipal water system as opposed to an alternative point of diversion for prior water rights already held and used by the City of Eagle for its municipal water system. Project construction shall commence within one year from the date of permit issuance and shall proceed diligently to completion unless it can be shown to the satisfaction of the Director of the Department of Water Resources that delays were due to circumstances over which the permit holder had no control. Subject to all prior water rights. Place of use is within the service area of the City of Eagle municipal water supply system as provided for under Idaho Law. Prior to diversion of water under this right, the right holder shall install and maintain a measuring device and lockable controlling works 'of a type acceptable to the Department as part of the diverting works. Right holder shall comply with the drilling permit requirements of Section 42-235, Idaho _ Prior to diverting water from its existing or proposed wells, for the four wells identified as points of diversion for water right nos. 63-2546 and 63-2609, and for the domestic use of water in the home presently owned by Joseph and Lynn Moyle, the right holder shall: (a) supply water for uses of the five Moyle wells at no cost to Moyles except the cost for incidental electricity that adds additional pressure to the water supply for domestic and commercial uses and be ready and able to immediately, physically deliver the water to Moyles; or (b) purchase the Moyle water rights, perhaps through condemnation. To be immediately ready and able to physically deliver water to Moyles, the right holder must complete one of the following prior to initiating pumping from and beneficial use of ground water under this right: (a) physically connect Moyles' water delivery system to the right holder's municipal water system; or (b) with Moyles' consent, place the necessary pumps in the Moyle wells, supply the power for the pumps, construct or install any other physical features, including running power to the wells, and, at the same time, insure the water supply to Moyles' ongoing beneficial uses is not interrupted; or (c) drill new wells that will supply water to Moyles, and construct and install all necessary features. The right holder shall pay for all construction and equipment costs, maintenance, and power costs, except for the electricity costs described above to add additional pressure for domestic and commercial uses. The right holder must compensate Meissner for additional costs of pumping from the Double R Cattle Well because of declines in water levels caused by pumping from the authorized points of diversion. The right holder must notify Meissner of the year it begins diverting water from the proposed wells. In order to avail himself of the benefits of Parker, however, Meissner ,�■►, must measure the water levels in the Double R Cattle Well, beginning during the year Eagle begins PRELIMINARY ORDER — Page 22 pumping water from the proposed wells. Meissner must allow Eagle the opportunity to observe or independently measure water levels in the Meissner well. If Meissner monitors static water levels in his well and can show that water levels continue to decline in the well after the right holder begins pumping water, Eagle must compensate the right holder for the additional cost of pumping from up to 15 feet of water level declines, including costs of lowering a pump, if necessary. If the well dries up within the 15 feet of water level declines, Eagle must either: (a) provide free water service to Meissner through its municipal water system; or (b) redrill a well for Meissner and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire Meissner's water right, perhaps through condemnation. The right holder must compensate Purdys for the additional costs of pumping from the well described as a point of diversion by water right no. 63-15680. The right holder must notify Purdys in the year it begins diverting water from the proposed wells. In order to avail themselves of the benefits of Parker, however, Purdys must measure the water levels in the well for water right no. 63-15680, beginning in the first year the right holder begins pumping water from the proposed wells. Purdys must allow the right holder the opportunity to observe or independently measure water levels in the well. If Purdys monitor static water levels in the well and can show that water levels decline in the well after the right holder begins pumping water, the right holder must compensate Purdys for the additional cost of pumping from up to 19.5 feet of ground water declines, including costs of lowering a pump, if necessary. If the well dries up within the 19.5 feet of ground water declines, the right holder must either: (a) provide free municipal water service to Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire water right no. 63-15680, perhaps through condemnation. The right holder must compensate Purdys for the additional costs of pumping from the well described as a point of diversion by water right no. 63-22652. The right holder must notify Purdys in theyear it begins diverting water from the proposed wells. In order to avail themselves of the benefits of Parker, however, Purdys must measure the water levels in the well for water right no. 63-22652, beginning in the first year the right holder begins pumping water from the proposed wells. Purdys must allow the right holder the opportunity to observe or independently measure water levels in the well. If Purdys monitor static water levels in the well and can show that water levels decline in the well after the right holder begins pumping water, the right holder must compensate Purdys for the additional cost of pumping from up to 19 feet of ground water declines, including costs of lowering a pump; if necessary. If the well dries up within the 18 feet of ground water declines, the right holder must either: (a) provide free municipal water service to Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire water right no. 63-22652, perhaps through condemnation. Prior to diversion of water under this right, the right holder shall construct/identify two observation wells, one up -gradient and one down -gradient of the production wells under this right. The location and construction must be approved by the Department. Each observation well must be constructed so that water levels in each of the three aquifers can be independently measured. PRELIMINARY ORDER — Page 23 Prior to diversion of water under this right, the right holder shall develop and the Department must approve, a monitoring, recording, and reporting plan for the observation wells. The right holder shall not provide water diverted under this right for the irrigation of land having appurtenant surface water rights as a primary source of irrigation water except when the surface water rights are not available for use. This condition applies to all land with appurtenant surface water rights, including land converted from irrigated agricultural use to other land uses but still requiring water to irrigate lawns and landscaping. The Director retains jurisdiction to require the right holder to provide purchased or leased natural flow or stored water to offset depletion of Lower Snake River flows if needed for salmon migration purposes. The amount of water required to be released into the Snake River or a tributary, if needed for this purpose, will be determined by the Director based upon the reduction in flow caused by the use of water pursuant to this permit. The wells constructed at the points of diversion shall be constructed in accordance with the rules of the Idaho Department of Water Resources regarding well construction standards and measurement of diversions and the rules of the Department of Environmental Quality for Public Drinking Water Systems, IDAPA 58.01.08. Dated this y of July, a 2007. PRELIMINARY ORDER =Page 24 Gary Span Hearing Officer CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this ' 0 - dayof 2007,a true and correct copyof July, the foregoing document(s) described below were served by placing a copy of the same in the United States mail, postage prepaid and properly addressed to the following: Document(s) Served: Preliminary Order and Explanatory Sheet for "Responding to Preliminary Orders...," when a hearing was held. JERRY & MARY TAYLOR 3410 HARTLEY EAGLE ID 83616 CORR]N & TERRY HUTTON 10820 NEW HOPE RD STAR ID 83669 SAM & KARI ROSTI 1460 N POLLARD LN STAR ID 83669 LEEROY & BTU 1F MELLIES 6860 W STATE ST EAGLE ID 83616 DEAN & JAN COMBE 6440 W BEACON LIGHT EAGLE ID 83616 PRELIMINARY ORDER — Page 25 BRUCE M SMITH MOORE SMITH BUXTON TURKE 225 N 9TH STE 420 BOISE ID 83702 JOHN M MARSHALL GIVENS PURSLEY PO BOX 2720 BOISE ID 83701-2720 CHARLES L HONSINGER DANIEL V STEENSON RINGERT CLARK CHARTERED PO BOX 2773 BOISE ID 83701-2773 WESTERN REGION ATTN JOHN WESTRA 2735 AIRPORT WAY BOISE ID 83705-5082 Deborah J. Gibson Administrative Assistant