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Home My WebLink About20131018.tiffRESOLUTION RE: APPROVE LICENSE AGREEMENT FOR CROSSING AND AUTHORIZE CHAIR TO SIGN - LAST CHANCE DITCH COMPANY WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a License Agreement for Crossing between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and the Last Chance Ditch Company, commencing upon full execution, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the License Agreement for Crossing between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Works, and the Last Chance Ditch Company be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 29th day of April, A.D., 2013. ATTEST ,Sat:a-. Weld County Clerk to the Bo BY: AP Attorney Date of signature: MAY 1 4 2013 BOARD OF COUNTY COMMISSIONERS WELD COC U , COLORADO Wil i m F. Garcia, Chair coo (a lSlP woe, !/ glas ademacher, ro-Tem can P. Conway Mike. Freeman (P -L9 -L2 %Di CPS'. CA, (Pw5lly 2013-1018 EG0068 MEMORANDUM TO: Esther Gesick, Clerk to the Board DATE: April 25, 2013 FROM: Clay Kimmi, P.E., CFM, Public Works SUBJECT: Last Chance Ditch Crossing Agreement Please place the attached agreements on the BOCC Agenda. Once the agreements have been signed, please return one signed original back to me. Background As part of the County's mining permit, the State Division of Mining Reclamation and Safety is requiring that the County install a sub -drain around the pit to prevent the slurry wall from potentially changing historic groundwater levels. In order to install the sub -drain, we have to cross under the Last Chance Ditch. The Last Chance Ditch is willing to let us cross under them but they are requiring a crossing agreement. They are also charging us a $3,000 crossing fee and up to a $1,000 engineering review fee. The County Attorney's staff has reviewed the crossing agreement and the ditch company has accepted the minor changes that the County Attorney suggested. The design of the ditch crossing was completed on April 23, 2013 and submitted to the ditch company for review. The ditch company has reviewed the design and has signed the agreement. The agreement is now ready for the BOCC to sign. The ditch company is going to shut off their ditch from April 29 to May 6 for the crossing to take place. In order to get the crossing completed in the timeframe that the ditch company has given us, we need to have the BOCC sign the agreement on Monday. If we fail to construct the crossing next week, we will have to wait on the construction of the sub -drain until this fall when the ditch stops running. That will mean a second mobilization for the contractor. In talking with the ditch company, it is my understanding that they have coordinated the shutdown of the ditch with Commissioner Rademacher. 2013-1018 Page I of I M_\Clay\GravelPils\I IokestraVslurry Wall DesignULast Chance Ditch \Last Chance Ditch Crossing Memo to Clerk to the Board 4-25-2013.docx LAST CHANCE DITCH COMPANY LICENSE AGREEMENT FOR CROSSING 1. PARTIES. The parties to this License Agreement are the Last Chance Ditch Company, a Colorado non-profit corporation ("Ditch Company") and the County of Weld, a body corporate and politic, by and through its Board of County Commissioners, whose address is 1150 "0" Street, Greeley, Colorado 80631, ("Licensee"). The Ditch Company and the Licensee are jointly referred to as the Parties. 2. RECITALS. The Ditch Company owns, operates and uses that certain irrigation canal known as the Last Chance Ditch ("Ditch") in Weld County, Colorado. The Licensee desires to obtain the permission of the Ditch Company to construct, install, lay, maintain, alter, repair, operate, and remove a 10 -inch pipeline within a 18 -inch sleeve ("Pipeline") under and across the easement of the Ditch ("Licensed Activities"), from a southern point at latitude 40° 10' 18.27" North, and longitude 104° 58' 13.06" West to a northern point at latitude 40° 10' 18.57" North and longitude 104° 58' 13.10" West (as identified by Google earth) with the southern point located on the land located in the NW 1/4 of Section 32 and the northern point located on the land located in NW 1/4 of Section 32, both in Township 2 North, Range 68 West of the 6th P.M., in Weld County, Colorado, as such locations are shown on the preliminary drawing marked EXHIBIT A attached hereto, said EXHIBIT A consisting of one (1) sheet which will be replaced by an as -built drawing and a legal description of the property under which the construction will occur to be delivered by the Licensee subsequent to the completion of said Pipeline. The Licensee has obtained legal permission to construct such bore on the property or properties legally described in EXHIBIT A. The Ditch Company agrees to license the proposed crossing, subject to the terms, conditions, covenants and agreements set forth in this License Agreement. Accordingly, in consideration of the mutual promises set forth in this License Agreement, the Parties covenant and agree as follows: 3. CONSTRUCTION. 3.1 Pursuant to the terms of this License Agreement, the Licensee is granted the license to construct the Pipeline under the Ditch pursuant to the plans and specifications approved by the Ditch Company and attached hereto as EXHIBIT B. The Ditch Company's review of the plans and specifications is solely for its own benefit and creates no obligation on the Ditch Company. 3.2 Because of the limited clearance between the Pipeline and the invert of the Ditch as depicted in EXHIBIT B, if during the Company's routine operation and maintenance of the Ditch it damages the Pipeline, the Licensee is solely responsible for the repair and/or removal/replacement of the Pipeline, provided that the Licensee obtains approval from the Ditch Company prior to conducting those activities related to any such repair and/or removal/replacement of the Pipeline. 3.3 All portions of the Ditch, bottoms, sides, banks, and all affected portions of the Ditch Company's easement which are disturbed by the Licensed Activities shall be restored to their tv'!3 - /0/9 original condition so the flow of the water in the Ditch runs at the original amount and velocity. Any and all fencing and other facilities appurtenant to the Ditch Company's easement shall be replaced in a condition at least equal to the condition of such facilities and appurtenances prior to construction. 3.4 The Licensee shall not spill any dirt, debris or other foreign material into the Ditch. In the event that dirt, debris or other foreign material is spilled into the Ditch, the Licensee agrees to completely clean the affected portions of the Ditch. 3.5 The Licensee agrees that the construction of the Pipeline shall proceed expeditiously and with reasonable diligence from the commencement of construction to its completion. The Pipeline shall be completed by May 6, 2013. If the Pipeline is not completed by that date, the Licensee shall obtain the permission of the Ditch Company to continue the construction of the Pipeline on terms and conditions acceptable to the Ditch Company in its sole discretion. 3.6 If the Licensee's Licensed Activities interrupt the Ditch Company's water supply for any reason, the Licensee shall pay as liquidated damages $5,000.00 per day for any day that the Ditch Company cannot deliver water to its shareholders who have a right to the delivery of water, have a need for water, have requested the delivery of water in accordance with the shareholders' rights and cannot deliver water to that shareholder or shareholders as a result of the Licensed Activities. 3.7 The Licensee shall clearly mark the crossing along both sides of the ditch with the appropriate markings and color for this type of underground utility. All such markings shall bear the name of the structure's owner and telephone contact information. 4. LICENSE FEE. The Licensee shall pay to the Ditch Company a license fee of $3,000.00. The license fee shall be paid upon execution of this License Agreement and prior to the commencement of the Licensed Activities. This license fee shall be in addition to any other costs for which the Licensee is responsible pursuant to this License Agreement. 5. INSPECTION. 5.1 The Licensee shall notify the Ditch Company at least two (2) days prior to commencement of the Licensed Activities, or replacement or repair of the Pipeline permitted by this License Agreement, except for emergency repairs which are provided for in paragraph 7 of this License Agreement. The Ditch Company is permitted to inspect the Pipeline or replacements and repairs during construction. Upon completion of the Pipeline, the Ditch Company may inspect the Pipeline. 5.2 The Ditch Company's right to inspect the Licensed Activities or the construction of the Pipeline in no way relieves the Licensee of its liability for improper construction. The Ditch Company's inspection is solely for the benefit of the Ditch Company and creates no obligation to the Ditch Company. 2 6. REIMBURSEMENT OF EXPENSES. 6.1 The Licensee agrees to reimburse the Ditch Company (or pay directly) for all reasonable engineering and legal costs incurred by the Ditch Company in preparing and approving this License Agreement and the costs of inspection as described in paragraph 5. Such costs are not anticipated to exceed $1,000.00. 6.2 Statements for the costs chargeable to the Licensee hereunder will be forwarded to the Licensee and the same shall be paid to the Ditch Company within 30 days after the billing date. If payment has not been received by the Ditch Company within 30 days, the Licensee shall have breached this License Agreement and the Ditch Company may institute legal proceedings to collect the amount due and owing. In such proceeding, the Ditch Company shall be entitled to its costs and reasonable attorneys' fees from the Licensee, if so ordered by a court of competent jurisdiction. 7. MAINTENANCE. 7.1 The Licensee specifically agrees and pledges to maintain, repair and replace the Pipeline described in EXHIBIT B so as not to require the Ditch Company to maintain, repair or replace it. If the Licensee fails to properly maintain, repair or replace any portion of the Pipeline for which it is responsible after ten days' notice of the need for same, the Ditch Company may, at its own option, conduct its own maintenance, repair or replacement, and the Licensee shall reimburse the Ditch Company for the cost of such work within 30 days. In the event the Licensee fails to maintain, repair or replace the Pipeline, it shall be held liable for any loss, damage or injury to the Ditch Company. If the Ditch Company conducts its own maintenance, repair or replacement, it does not waive the right to hold the Licensee liable for damages caused by Licensee's failure to maintain, repair or replace. 7.2 In the event of an emergency, the Ditch Company or the Licensee may conduct maintenance or repair immediately, giving notice to the other party as soon as possible at the emergency contacts identified in paragraph 12. If the Ditch Company conducts emergency work, it shall be reimbursed for the cost of the work. Under no circumstances shall the Ditch Company be responsible or held liable for damages to the Pipeline resulting from maintenance or repair to the Ditch. 8. WATER LOSS. The Licensee agrees that the Licensed Activities will not increase carriage or transit loss over the loss which occurred historically. The Licensee agrees to compact any disturbed earth materials so that such additional water losses will not occur. If the Licensee's Licensed Activities increase carriage or transit loss in the Ditch, the Licensee agrees to repair the construction to prevent such additional loss. 9. LIABILITY AND INDEMNIFICATION. 3 9.1 By virtue of entering into this License Agreement, the Ditch Company: (a) assumes no liability for use, operation, or existence of the Licensee's Pipeline; (b) assumes no additional responsibilities or obligations related to the Licensed Activities in the area described in EXHIBIT A which are required by this License Agreement; and (c) because of the limited clearance between the Pipeline and the invert of the Ditch as depicted in EXHIBIT B, assumes no liability for any damage to the Pipeline if such damage occurs by virtue of the Company's routine operation and maintenance of the Ditch. 9.2 To the extent permitted by law, the Licensee agrees to indemnify and hold harmless the Ditch Company, from all claims and liability for damage or injury to property or persons arising or caused directly or indirectly by the Licensee's construction, restoration, maintenance of, or failure to maintain, the Pipeline and the Licensee's occupancy and use of the area located in EXHIBIT A. 10. EASEMENT RIGHTS. The License granted to the Licensee herein in no way restricts the Ditch Company's right to the use of its easement to construct, operate, or maintain all existing structures and facilities of the Ditch. 11. TERMINATION. The license granted herein shall terminate upon the abandonment of the Pipeline. Abandonment shall be deemed to have occurred when the Pipeline has not been used for a period of five years. However, the Licensee may avoid having said Pipeline deemed abandoned if, within five years of when the Pipeline was last used, the Licensee sends written notice to the Ditch Company, by certified mail, return receipt requested, that it is not abandoning the Pipeline. In that event, this Agreement shall continue for one (1) additional year. Thereafter, the Licensee shall either put the Pipeline in use, or it shall conclusively be deemed abandoned. Upon abandonment, the Licensee shall, upon the request of the Ditch Company and at the Ditch Company's sole discretion, remove the Pipeline and all improvements and shall restore the Ditch Company's real property and improvements to their original condition 12. NOTICES. Any notice required or permitted by this License Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the party to whom such notice is intended to be given at the address set forth below, or at such other address as has been previously furnished in writing to the other party or parties. Such notice shall be deemed to have been given when deposited in the U.S. mail. DITCH COMPANY: Harold Nelson, Secretary Last Chance Ditch Company 11955 Weld County Road 15 Longmont, CO 80504 4 COPY TO: Scott E. Holwick Lyons Gaddis Kahn & Hall, P.C. P.O. Box 978 Longmont, CO 80502-0978 303-776-9100 (fax) LICENSEE: COPY TO: Weld County Attn: fax (fax) 12. WAIVER OF BREACH. The waiver by any party to this License Agreement of a breach of any term or provision of this License Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 13. RECORDATION. This License Agreement shall be recorded at the cost of the Licensee and shall be binding on any successors of the Parties. The obligations and benefits of this License Agreement shall specifically run with the land described in EXHIBIT A. The failure to record all or portions of EXHIBIT B because of the size of the documents shall not affect this License Agreement. 14. EXHIBITS. All exhibits referred to in this License Agreement are, by reference, incorporated in this License Agreement for all purposes. Special Provisions 1. Effect of Special Provisions: These Special Provisions govern the relationship between the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, ("County"), and the Last Chance Ditch Company, ("Ditch Company"). Any provision, statutory, regulatory or otherwise incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall be invalid and unenforceable in any action at law, whether by way of complaint, defense or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement and the Agreement shall remain in full force and effect to the extent it remains capable of execution. Should conflict in any provisions of this Agreement and any exhibits thereto be identified, the priority of interpretation of the Agreement shall be as follows: 1. The Special Provisions incorporated within the Agreement; 2. The terms and provisions of this Agreement. 2. Board of County Commissioners of Weld County Approval: This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 3. Fund Availability: Financial obligations of County payable after the current fiscal year and/or obligations for which a budget has not been established are contingent upon funds for that 5 purpose being appropriated, budgeted and otherwise made available. By execution of this Agreement, County does not warrant that funds will be available to for such obligations. 4. Governmental Immunity: For the protection of the taxpayers, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 5. Independent Contractor: Ditch Company shall perform its duties hereunder as an independent contractor and not as an employee of County. Ditch Company shall be solely responsible for its acts and those of its agents and employees for all acts performed pursuant to this Agreement. Neither Ditch Company nor any agent or employee of Ditch Company shall be deemed to be an agent or employee of Weld County. Ditch Company and its employees and agents are not entitled to unemployment insurance or workers' compensation benefits through Weld County and Weld County shall not pay for or otherwise provide such coverage for Ditch Company or any of its agents or employees. Unemployment insurance benefits will be available to Ditch Company and its employees and agents only if such coverage is made available by Ditch Company or a third party. Ditch Company shall pay when due all applicable employment taxes and income taxes and local head taxes (if applicable) incurred pursuant to this Agreement. Ditch Company shall not have authorization, express or implied, to bind Weld County to any agreement, liability or understanding, except as expressly set forth in this Agreement. Ditch Company shall have the following responsibilities with regard to workers' compensation and unemployment compensation insurance matters: (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law and (b) provide proof thereof when requested to do so by Weld County. 6. Compliance with Law: County and Ditch Company shall strictly comply with all applicable federal and State laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to discrimination and unfair employment practices. 7. Choice of Law: Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. 8. Employee Financial Interest/Conflict of Interest. C.R.S. §§24-18-201 et seq. and §24- 50-507: The signatories to this Agreement aver that to their knowledge, no employee of County has any personal or beneficial interest whatsoever in the service or property which is the subject matter of this Agreement. Ditch Company has no interest and shall not acquire any interest direct or indirect, which would in any manner or degree with the performance of Ditch Company's services and Ditch Company shall not employ any person having such known interests. During the term of this Agreement, Ditch Company shall not engage in any in any business or personal activities or practices or maintain any relationships which actually conflict with or in any way appear to conflict with the full performance of its obligations under this Agreement. Failure by 6 Ditch Company to ensure compliance with this provision may result in County's sole discretion, in immediate termination of this Agreement. 9. No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 10. Attorneys Fees/Legal Costs: In the event of a dispute between Weld County and Ditch Company, concerning this Agreement, the parties agree that neither shall be liable to or responsible for the payment of attorney fees and/or legal costs incurred by or on behalf of the other. 11. Binding Arbitration Prohibited: County does not agree to binding arbitration by any extra -judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 12. Software Piracy Prohibited: State, county or other public funds payable under this Agreement shall not be used for the acquisition, operation or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Ditch Company hereby certifies and warrants that, during the term of this Agreement and any extensions thereof, Ditch Company has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If Weld County determines that Ditch Company is in violation of this provision, Weld County may exercise any remedy available at law or equity or under this Agreement, including, without limitation, immediate termination of the Agreement and any remedy consistent with Federal copyright laws or applicable licensing restrictions. 13. Public Contracts for Services. C.R.S. §8-17.5-101: (Not applicable to the offer, issuance or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements or information technology services or products and services.) Ditch Company certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E -Verify program of the Department program established pursuant to C.R.S. §8-17.5- 102(5)(c). Ditch Company shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify with Ditch Company that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Ditch Company (a) shall not use E -Verify Program or Department program procedures to undertake pre -employment screening or job applicants while this Agreement is being performed, (b) shall notify the subcontractor and Weld County within three (3) days that Ditch Company has actual knowledge that a subcontractor is 7 employing or contracting with an illegal alien and (c) shall terminate the subcontract if a subcontractor dues not stop employing or contracting with the illegal alien within three (3) days of receiving notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to C.R.S. §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Ditch Company participates in the Department program, Ditch Company shall deliver to Weld County, a written notarized affirmation that V has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Ditch Company fails to comply with any requirement of this provision or of C.R.S. §8-17.5-101 et seq., Weld County, may terminate this Agreement for breach, and if so terminated, Ditch Company shall be liable for damages. Dated: '- . 5-^ .2 O /3 LAST CHANCE DITCH COMPANY, a Colorado mutual ditch company By: 4f Jim French, President ATTEST By: G 7i7�o-dTr Harold elson, Secretary COUNTY OF WELD, a body corpe and politic ATTEST: `1•- t'._ By: 8 By: illiam F. Garcia, Chair Board of County Commissioners APR 2 9 2013 7cc3 is/8 80L0-10 7871 8 teatZ� opAYJSAU od a ours • onww+wwa soe •a"1'SUpInsuo) yarIrig IIvM Annie S45 SOH saSelaossy AaIAa1.Y N �tl 10101116.311 a 1 S 2 to 9 ® o Hello