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Home My WebLink About20131325.tiffRESOLUTION RE: APPROVE TWO NONEXCLUSIVE LICENSE AGREEMENTS CONCERNING INSTALLATION OF IRRIGATION WATER PIPELINES UNDER CR 73 AND AUTHORIZE CHAIR TO SIGN - LOST CREEK DAIRY, LLC 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 two Nonexclusive License Agreements Concerning Installation of Irrigation Water Pipelines under County Road 73 Right -of -Way 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 Lost Creek Dairy, LLC, 36259 CR 16, Roggen, CO 80652, with terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreements, copies of which are attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the two Nonexclusive License Agreements Concerning Installation of Water Irrigation Pipelines under County Road 73 Right -of -Way 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 Lost Creek Dairy, LLC, be, and hereby are, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreements. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 3rd day of June, A.D., 2013. BOARD OF COUNTY COMMISSIONERS WELD TY, COLORADO ATTEST ti.C631.,x_ Weld County Clerk to the B BY: AP County Attorney Date of signature: JUN 1 2 2013 pUtY las Rademacher, Pro-Tem r Sean P. Conway Mike Freeman EXCUSED Barbara Kirkmeyer W * 2013-1325 EG0068 MEMORANDUM TO: Clerk to the Board DATE: May 30, 2013 FROM: Amy Joseph, Public Works SUBJECT: Agenda Items- (4) Nonexclusive License Agreements Please submit the enclosed items for the next agenda: Nonexclusive License Agreements with: Kerr-McGee Oil & Gas Onshore LP, for the installation of a 20" fresh water pipeline under: - CR 14, 16, 18, and 20 between CR 19 and CR 21 Kerr-McGee Oil & Gas Onshore LP, for the installation of a 24" fresh water pipeline under: - CR 22 between CR 21 and CR 23, and between CR 31 and CR 33 - CR 23, 25, and 31 between CR 22 and CR 24 Both Agreement requests for Kerr-McGee are extensions of the existing 20" waterline that has been approved in Nonexclusive License Agreement 2012-2190. Lost Creek Dairy, LLC, for the installation of a 6" fresh water pipeline and a 12" irrigation #1 line under: -CR 73 between CR 16 and CR 18 pc: Janet Carter Francie Collins 2013-1325 NONEXCLUSIVE LICENSE AGREEMENT CONCERNING INSTALLATION OF 6" WATER PIPELINE UNDER CR73 rd THIS NONEXCLUSIVE LICENSE AGREEMENT, made and entered into this 3 day of \fall P , 2013, by and between the Board of County Commissioners of Weld County, Colorado, (hereinafter "Licensor"), whose address is 1150 O Street, Greeley, Colorado 80631, and Lost Creek Dairy, LLC., (hereinafter "Licensee"), whose local address is 36259 CR 16, Roggen, CO 80652. WITNESSETH: WHEREAS, Licensor is the owner of a public right-of-way located in Weld County, more particularly described on Exhibit A, (Right -of -Way Use Permit which includes a legal description and map), which is attached to this Nonexclusive License Agreement and incorporated herein by reference, (hereinafter referred to as "Right -of -Way"), and WHEREAS, pursuant to Colorado Revised Statutes, (hereinafter referred to as "C.R.S."), § 38- 5-101, Licensor has the authority to permit public and private utilities to locate their facilities along, across, upon and under said Right -of -Way, and WHEREAS, Licensee desires to construct, operate maintain, and repair new 6" water pipeline, under, and/or along portions of the Right -of -Way, as more particularly described in Exhibit A and WHEREAS, Licensor desires to grant Licensee a Nonexclusive License (hereinafter referred to as "License"), to allow Licensee to construct, operate maintain, and repair new 6" water pipeline in, under, and/or along portions of the Right -of -Way. NOW, THEREFORE, in consideration of the covenants contained herein and the agreements of the Licensee to be performed hereunder, and upon the conditions herein stated, Licensor does grant to Licensee a Nonexclusive License to construct, operate maintain, and repair new 6" water pipeline in, under, and/or along portions of the Right -of -Way, subject to the following terms and conditions: 1. Licensor's Limited Interest in Right -of -Way. Licensor's interest in the Right -of -Way is limited to a public right-of-way interest and Licensor does not warrant title to the Right -of -Way by the issuance of this License. Licensee is responsible for determining the ownership of properties traversed by its lines, the location of all property boundary lines, and the ownership of all rights -of -way. Therefore, Licensee shall obtain from the fee title owner(s) of the Right -of -Way or others having proprietary interests in the Right -of -Way such authority or rights as Licensee may need, (in addition to this License) for Licensee's use of the Right -of -Way. Licensee acknowledges and agrees that the authorization granted herein by Licensor is subject to Licensee's securing such authority or rights. 1 3939068 Pages: 1 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1liii ox/.9-!_99,5 2. Limited License. The License granted herein is strictly for the installation of a pipeline which is to be used for the purpose of transporting FRESH WATER. Licensee is prohibited from changing the use of the pipeline in any way. For example if the License is granted for a pipeline to be used to the transference of non waste water, it cannot later be utilized for the transference of natural gas or petroleum, or for the transference of any type of waste water. If Licensee wishes to change the use of the facility herein licensed, Licensee must re -apply to Licensor for a new License. 3. Licensor's Rights. The parties to the License acknowledge and agree that the Right -of - Way exists as a public right-of-way for the primary benefit of the travelling public, and that the rights granted herein to Licensee and to other public and private utilities and entities, are subject to the Licensor's rights and obligations to preserve and maintain the Right -of -Way as such. A. Subject to the right granted herein to Licensee, Licensor reserves the remaining use of the Right -of -Way for existing and future construction, operation, maintenance, repair, replacement, relocation and/or abandonment of its own use and facilities. B. Licensor reserves the right to revoke this License at any time if Licensee fails to comply with the requirements of this License and the Right -of -Way Use Permit. Should this License be terminated for non-compliance by Licensee, any lines or facilities installed prior to the termination shall remain the responsibility of the Licensee and may be removed or maintained by Licensee at the sole discretion of Licensor. 4. Licensee's Responsibilities. The grant of this License herein is conditioned upon Licensee's compliance with the following requirements: A. The parties acknowledge that prior to the execution of this Agreement, Licensee submitted a Right -of -Way Use Permit application, together with the required submittals, to the Weld County Department of Public Works. Following review of the Application and a finding that approval thereof may be appropriate, the Weld County Department of Public Works executed, but did not issue the Permit; instead, a provisional Right of Use Permit, has been attached hereto and made a part hereof as Exhibit A. Following the execution of this License, the Right -of -Way Use Permit will be issued and Licensee may commence its work in the right- of-way. [NOTE: Project Special Provisions, which include additional requirements, may be attached to the approved Right -of -Way Use Permit, as an Exhibit to the Permit]. Licensee shall be subject to all requirements and obligations imposed by this License, the Right -of -Way Use Permit, and any Special Provisions. Neither the Right -Of- Way Use Permit, (with any Special Provisions), nor this License are mutually exclusive, and shall be interpreted in concert with each other. B. Licensee shall be responsible for obtaining all other State, Federal, or Local permits which may be necessary for the work to be performed on the Right -of -Way. C. All work performed in Licensor's Right -of -Way must be inspected by Licensor's Department of Public Works. Periodic inspections may be conducted, but final inspections are required. 2 3939068 Pages; 2 of 18 06/10/2013 02:42 P!1 R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■III R!r��a'��'��:�tiE� i'�'i��k�f!Ml'Eti�tiYu'I ��Vi �it II1 D. Licensor's Department of Public Works must be notified 24 hours prior to commencing any work. E. Licensor reserves the right to make or to require Licensee to make changes, additions, or repairs, or to remove and/or relocate the facilities licensed herein which are located within the Licensor's dedicated rights -of -way at any time. Licensor further reserves the right to reconstruct, widen and/or maintain the road(s) or right(s)-of-way affected by this License, without compensating Licensee. Therefore, whenever Licensor, or any governmental entity to which the Right -of -Way has been transferred, makes any changes to the Right -of -Way or its appurtenances within the Right -of -Way which would necessitate removal or relocation of the new 6" water pipeline installed or constructed therein, Licensee shall, upon the request of the Licensor, promptly remove or relocate the new 6" water pipeline at its own expense. F. Licensee, or its contractor, shall secure and maintain insurance policies and/or provide proof of adequate self-insurance that will protect itself, its subcontractors, and Licensor from claims for bodily injury, death, or property damage, which may arise from the installation and/or construction contemplated herein, or caused by the facilities which are installed and/or constructed as permitted herein. Weld County, Colorado, the Board of County Commissioners of the County of Weld, its officers and employees, must be named as an "Additional Named Insured" in all liability insurance policies. The following insurance policies and/or proof of self insured amounts shall be delivered to the Weld County Public Works Department: (1) (ii) Statutory Worker's Compensation. Contractor's public liability and property damage in the following sums: Bodily Injury: Property Damage: Each person $1,000,000 Each accident $1,000,000 Each accident $1,000,000 Aggregate $2,000,000 Bodily Injury: Property Damage: Each person $1,000,000 Each accident $1,000,000 Each accident $1,000,000 G. If determined necessary by Licensor's Department of Public Works, Licensee shall provide a surety bond or other security for the total amount required to restore the Right -of - Way under which the projected new 6" water pipeline is to be installed or constructed, based upon current Licensor's contract prices for the performance of such work. Said security shall remain in effect for a period of two (2) years after inspection of completed construction by Licensor. Whether or not covered by a bond, Licensee shall reimburse Licensor for any and all expenses incurred by Licensor within 2 years after completion of any work, as a result of, or related to, failure by Licensee to perform all installation, construction, maintenance or other work pursuant to this License and the Right -Of- Way Use Permit issued in addition to, in a workmanlike manner. 3 3939068 Pages: 3 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, l' CO +' ■III FIFJPyill`ii gklis �i��t,l ii� i llAilk � �rll itA t it l H. Licensor's Department of Public Works shall have the authority to suspend work performed by Licensee or its contractor, wholly or in part, because of the failure of Licensee or its contractor to properly execute the work in accordance with this License, or because Licensor believes that a violation of this License has occurred or that there is a danger to the public safety if the work continues. I. Licensee shall report all emergency repairs to Licensor's Department of Public Works. Licensee shall utilize proper traffic control measures when making said repairs. If Licensor determines that an emergency situation exists, it will notify Licensee of the emergency condition. Licensee shall apply for a Right -of -Way Use Permit and make the required repairs as soon as practicable after the Licensee is notified of the emergency situation and the need for such repairs. In no event shall such repairs be completed later than 24 hours after receiving such notification, unless adverse weather conditions prohibit the repair process. J. Licensee or its contractor shall be responsible for locating all existing utilities. Licensee shall contact the Utility Notification Center of Colorado (UNCC) at 811 or 1-800-922- 1987 at least two days in advance of digging. Licensee must remove all utility locates such as flags and marker pins from the Right -of -Way once the construction is complete. K. No culverts, irrigation structures, drain lines, utility lines, or any other facilities within the Right -of -Way are to be cut or damaged. In the event Licensee damages an existing facility, Licensee shall first notify the owner and either immediately repair and replace the damaged facility or pay the owner to repair and replace the same in accordance with the desires of the owner. L. At the end of each day during the installation and construction of Licensee's facilities, Licensee shall observe the following requirements: (i) All materials shall be removed a minimum of ten feet (10') from outside edge of the road shoulder; (ii) All excavations within the Right -of -Way shall be back -filled in accordance with the Compaction requirements set forth in the Right -Of -Way Use Permit; (iii) All traffic signs must be in place per the approved Traffic Control Plan or removed or covered if not applicable to nightly activities. M. Licensee shall mark the site of the installation of the new 6" water pipeline with markers acceptable to Licensor. N. Licensee's installation of non-ferrous lines in the Right -of -Way shall require a suitable means to facilitate future line location, such as metallic warning tape installed above the line and registration with UNCC-Colorado 811. O. Licensee shall preserve or replace all survey monuments or benchmarks at each work site Licensee shall hire a Registered Land Surveyor to replace destroyed monuments or bench marks, as well as to preserve such monuments or benchmarks. 4 3939068 Pages: 4 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder: Weld County, CO P. All road bores shall be at a minimum depth of 4 feet plus the diameter of line below the lowest point of the Right -of -Way. All underground facilities that parallel the road centerline shall have a minimum of four (4) feet of ground cover. Q. Licensor's Compaction Requirements: (i) All compaction of backfills within road surfaces shall be in accordance with the Weld County Engineering and Construction Criteria guidelines. (ii) All backfills located within an existing asphalt surface or under asphalt not currently in place but which will be as part of new road construction, must be compacted using flow -fill cement in the upper three feet (3') of backfill. (iii) If any wet or non-compactable materials are produced from excavations, they shall be completely removed from the Right -of -Way and replaced with compactable materials. The Right -of -Way shall then be returned to the original grades and cross sections. Licensor shall have the authority to determine what materials shall be discarded and what materials shall be acceptable as replacement. (iv) On gravel roads where excavation materials are stacked on the road surfaces, road base of 900 tons of 3/4 inch Surface Gravel as specified in Chapter 7 of the Weld County Engineering and Construction Criteria specifications for Surface Gravel per mile shall be spread over the road surfaces upon completion of the work. Shoulders on paved roads or barrow ditches where excavation is done shall require 300 tons per mile upon completion. These amounts are to coat the road surfaces and do not supersede any requirements within the Right -of -Way Use Permit. (v) Backfilling lifts greater than eight (8) inches, but not exceeding twelve (12) inches, shall be permitted providing that Licensee has suitable equipment to properly compact the depth of lift placed. Licensor shall determine if Licensee's equipment and the depth of backfill lift is appropriate. Ninety-five (95%) percent of a standard proctor shall be required at any trench depth or in replacement of any materials within the traveled portion of the Right -of -Way. Eighty-five (85%) percent of a standard proctor shall be required at any trench depth or in replacement of any materials off the traveled portions of the Right -of -Way. R. Licensee shall install any appurtenances, whether above or below ground, within the boundaries of the Right -of -Way so that they do not obstruct maintenance operations within any rights -of -way. Licensee shall adjust the location of said appurtenances, at its sole expense, when requested to do so by Licensor. S. The construction, operation, maintenance and repair of the new 6" water pipeline installed by Licensee, and all other improvements described in this License, shall be at its own expense and without the aid or use of Licensor's funds, equipment, or materials. 5. Use of Contractor Following Licensor's approval of this License and the issuance of a Right -Of -Way Use Permit, with the Licensor's written approval, Licensee may assign one or more of the responsibilities enumerated in Paragraph 3 above to a contractor retained to perform some or all of the construction required to install Licensee's facilities. However, if Licensee retains such a contractor, Licensee shall remain responsible for said contractor's compliance with the terms of this License. Furthermore, following Licensor's approval of this License, Licensee's contractor may be authorized to utilize the Right -Of -Way Use Permit issued to Licensee. 5 3939068 Pages: 5 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1111 r.trnVitir iftthil:7LaiOM11111 6. Hold Harmless/Indemnification. Except when caused by the negligence of Licensor, Licensee shall indemnify and save harmless Licensor, its successors, assigns, employees, and agents from any damage or loss sustained by them or any of them arising by reason of Licensee's negligence with respect to the upgrade and maintenance of the Right -of -Way. Licensee further agrees to protect Licensor and save and hold it harmless from any and all third party claims and damages that the installation and/or maintenance of Licensee's facilities may directly or indirectly cause. Additionally, Licensee releases Licensor, its successors, assigns, employees, and agents from any and all claims and damages to property owned by Licensee resulting from any act, either on the part of the Licensor or on the part of any third party. 7. Assignment. Following the issuance of the Right -Of -Way Use Permit, Licensee is prohibited from assigning any or all of its rights under this License without first obtaining written consent to such assignment from Licensor, which consent shall not be unreasonably withheld. With Licensor's written approval, following the issuance of the Right -Of -Way Use Permit, Licensee may assign one or more of the responsibilities enumerated in Paragraph 3 above to a contractor as set forth in paragraph 5 above. 8. Entire Agreement. The parties hereby agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party hereto, or its agents or employees. This License embodies all agreements between the parties hereto and there are no promises, terms, conditions, or obligations referring to the subject matter whereof other than as contained herein. 9. Effect of Invalidity of Provision. If any term or provision of this License, or the application thereof to any person or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this License, or the application of such terms or provisions, to a person or circumstances other than those as to which it is held invalid or unenforceable; shall not be affected, and every other term and provision of this License shall be deemed valid and enforceable to the extent permitted by law. 10. No Waiver of Governmental Immunity. No term or condition of this Agreement 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. 11. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this License , and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this License shall give or allow any claim or right of action whatsoever by any other person not included in this License. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this License shall be an incidental beneficiary only. 6 3939068 Pages: 6 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■IIl �+��'E'�r��t�l�<<�+�+,�'�J�Mu��iw'��ti�F�l'��hl� ii��h inn It is mutually understood and agreed that this License and all the terms and conditions hereof shall extend to and be binding upon the parties hereto, their successors, and assigns. EXECUTED IN DUPLICATE the day and year first above written. LICENSOR: ATTEST: `1e ^`-Q' —'9' WELD COUNTY Clerk to the Board B Appr We LICENSEE: STATE OF COLORADO ss. COUNTY OF La4rner BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO William F. Garcia, Chair JUN 0 3 2013 LOST CREEK DAIRY, LLC. 379 SR 34 LOCKE, NY 13092 By: Title: Peter Pk gLi Eldred SUBSCRIBED AND SWORN to before me this 23 day of May 2011 WITNESS my hand and official seal My commission expires: MOS.& 24, 2-10I& Notary Public OIAmLLSWINGS N0TAAYPUBU0 CAW CIF COLORADO NOTARY IDZOM00985? MY COMMISSION EXPIRES MARCH ante 7 3939068 Pages: 7 of 18 06/10/2013 02:42 P11 R Fee:$0.00 Steve Moreno, Clerk and Recorder: Weld County, CO 1111 Fr11iViu h�+<«'F 11111 a1i3 -X3a5 EXHIBIT A WELD COUNTY RIGHT-OF-WAY USE PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley, CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 304-6500 x 2700 Inspection: (970) 304-6480 Permit Number: RW13-00196 Issuance of this permit binds applicant and its contractors to all requirements, provisions, and ordinances of Weld County, Colorado. A copy of this permit must be on site at all times during construction hours. Approved MUTCD traffic control/warning devices are required at all times. Permit Type: Standard Project Name: Lost Creek Dairy Application Date: 04/29/2013 Applicant Information: Name: Peter Eldred Company: Lost Creek Dairy, LLC Phone: Email: Steve@agbuildingservicecom Location: WCR: 73 Address: 36259 CR 16 Subivision: Legal: 25,3C / 2N / 62W Impacted Surface(s): El Asphalt/Chip seal/RAP ❑Gravel ❑ Treated Gravel El Outside Roadway ❑ Other Use Type: ❑ Communication ❑ Electrical ❑ Gas/Oil El Water Service O Sanitary Sewer IA Irrigation ❑Storm Water ❑ Misc Classification of Work: O Abandonment ❑ Misc. Occupation ❑ Relocation ❑ Potholing ElOther Bore CR 73x2 ❑Maintenance ❑ Culvert Installation ❑ Road Improvements ❑ Tree Trimming H New Service ❑ Overhead Installation El Underground Installation ❑ Surveying Description of ROW use: (2) directional bores under CR 73, installing (1) 6" HDPE pipe for fresh water and (1) 12" HDPE pipe for irrigation. USR#: Start date: 06/04/2013 Between: 16 Permit fee: $330.00 Expiration date: 05/30/2013 Contractor Information: Name: Jack Temple Company: Temple Construction Phone: 970-310-5189, cell Email: temple210@gmail.com And: 18 Restoration: ❑ Asphalt (HMA) ❑ Structural Fill ❑ Class 6 Road Base ❑ Flow Fill ❑ Fugitive Dust Chemical d Native Material Weekend Hours No Daily work hours are from DAYLIGHT to 1/2 HOUR BEFORE DARK Special Requirements Pending approval of Nonexclusive License Agreements Approved by: PENDING ❑ Compaction Testing El Reseeding ❑ Mulching ❑ Erosion Control El Other Remove Locates 3939068 Pages: 8 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■IIIF1024hVri 4,INlJ MI.'IIIN:bli rki1Y4,4, ■1111 Weld County Public Works Date: 5/30/2013 Rev. July 2010 Print Date -Time: 5/30/2013 10:27:40AM Report ID: PW00001v003 Page 1 of 1 CR 73 Bore location EXHIBIT A Lost Creek Dairy Copyright 2011 Weld County Government. All rights reserved. Thu May 30 2013 09:59:08 AM. 3939068 Pages: 9 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO �� i IMAZI'NION Wlk4lg uipi rhtR.timLtyh !I III NONEXCLUSIVE LICENSE AGREEMENT CONCERNING INSTALLATION OF 12" IRRIGATION PIPELINE UNDER CR 73 THIS NONEXCLUSIVE LICENSE AGREEMENT, made and entered into this 3 day of tote , 201S, by and between the Board of County Commissioners of Weld County, Colorado, (hereinafter "Licensor"), whose address is 1150 O Street, Greeley, Colorado 80631, and Lost Creek Dairy, LLC., (hereinafter "Licensee"), whose local address is 36259 CR 16, Roggen, CO 80652. WITNESSETH: WHEREAS, Licensor is the owner of a public right-of-way located in Weld County, more particularly described on Exhibit A, (Right -of -Way Use Permit which includes a legal description and map), which is attached to this Nonexclusive License Agreement and incorporated herein by reference, (hereinafter referred to as "Right -of -Way"), and WHEREAS, pursuant to Colorado Revised Statutes, (hereinafter referred to as "C.R.S."), § 38- 5-101, Licensor has the authority to permit public and private utilities to locate their facilities along, across, upon and under said Right -of -Way, and WHEREAS, Licensee desires to construct, operate maintain, and repair new 12" irrigation pipeline, under, and/or along portions of the Right -of -Way, as more particularly described in Exhibit A and WHEREAS, Licensor desires to grant Licensee a Nonexclusive License (hereinafter referred to as "License"), to allow Licensee to construct, operate maintain, and repair new 12" irrigation pipeline in, under, and/or along portions of the Right -of -Way. NOW, THEREFORE, in consideration of the covenants contained herein and the agreements of the Licensee to be performed hereunder, and upon the conditions herein stated, Licensor does grant to Licensee a Nonexclusive License to construct, operate maintain, and repair new 12" irrigation pipeline in, under, and/or along portions of the Right -of -Way, subject to the following terms and conditions: 1. Licensor's Limited Interest in Right -of -Way. Licensor's interest in the Right -of -Way is limited to a public right-of-way interest and Licensor does not warrant title to the Right -of -Way by the issuance of this License. Licensee is responsible for determining the ownership of properties traversed by its lines, the location of all property boundary lines, and the ownership of all rights -of -way. Therefore, Licensee shall obtain from the fee title owner(s) of the Right -of -Way or others having proprietary interests in the Right -of -Way such authority or rights as Licensee may need, (in addition to this License) for Licensee's use of the Right -of .Way. Licensee acknowledges and agrees that the authorization granted herein by Licensor is subject to Licensee's securing such authority or rights. 3939068 Pages: 10 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO ■IIIkrr%'744lNiVPITArF:ANhil R'tJV,4jhtIIII O2O/S-4596 2. Limited License. The License granted herein is strictly for the installation of pipelines which are to be used for the purpose of transporting IRRIGATION WATER. Licensee is prohibited from changing the use of the pipelines in any way. For example if the License is granted for a pipeline to be used to the transference of non waste water, it cannot later be utilized for the transference of natural gas or petroleum. If Licensee wishes to change the use of the facility herein licensed, Licensee must re -apply to Licensor for a new License. 3. Licensor's Rights. The parties to the License acknowledge and agree that the Right -of - Way exists as a public right-of-way for the primary benefit of the travelling public, and that the rights granted herein to Licensee and to other public and private utilities and entities, are subject to the Licensor's rights and obligations to preserve and maintain the Right -of -Way as such. A. Subject to the right granted herein to Licensee, Licensor reserves the remaining use of the Right -of -Way for existing and future construction, operation, maintenance, repair, replacement, relocation and/or abandonment of its own use and facilities. B. Licensor reserves the right to revoke this License at any time if Licensee fails to comply with the requirements of this License and the Right -of -Way Use Permit. Should this License be terminated for non-compliance by Licensee, any lines or facilities installed prior to the termination shall remain the responsibility of the Licensee and may be removed or maintained by Licensee at the sole discretion of Licensor. 4. Licensee's Responsibilities. The grant of this License herein is conditioned upon Licensee's compliance with the following requirements: A. The parties acknowledge that prior to the execution of this Agreement, Licensee submitted a Right -of -Way Use Permit application, together with the required submittals, to the Weld County Department of Public Works. Following review of the Application and a fmding that approval thereof may be appropriate, the Weld County Department of Public Works executed, but did not issue the Permit; instead, a provisional Right of Use Permit, has been attached hereto and made a part hereof as Exhibit A. Following the execution of this License, the Right -of -Way Use Permit will be issued and Licensee may commence its work in the right-of-way. [NOTE: Project Special Provisions, which include additional requirements, may be attached to the approved Right -of -Way Use Permit, as an Exhibit to the Permit]. Licensee shall be subject to all requirements and obligations imposed by this License, the Right -of -Way Use Permit, and any Special Provisions. Neither the Right -Of -Way Use Permit, (with any Special Provisions), nor this License are mutually exclusive, and shall be interpreted in concert with each other. B. Licensee shall be responsible for obtaining all other State, Federal, or Local permits which may be necessary for the work to be performed on the Right -of -Way. C. All work performed in Licensor's Right -of -Way must be inspected by Licensor's Department of Public Works. Periodic inspections may be conducted, but final inspections are required. 2 3939068 Pages: 11 of 18 0clerk and 42 PM Reorder 0.00 el �y, CO Steve Moreno,l� �fll{��17�1■1��i{liif{111,�d C I 1411 1 1 D. Licensor's Department of Public Works must be notified 24 hours prior to commencing any work. E. Licensor reserves the right to make or to require Licensee to make changes, additions, or repairs, or to remove and/or relocate the facilities licensed herein which are located within the Licensor's dedicated rights -of -way at any time. Licensor further reserves the right to reconstruct, widen and/or maintain the road(s) or right(s)-of-way affected by this License, without compensating Licensee. Therefore, whenever Licensor, or any governmental entity to which the Right -of -Way has been transferred, makes any changes to the Right -of -Way or its appurtenances within the Right -of -Way which would necessitate removal or relocation of the new 12" irrigation pipeline installed or constructed therein, Licensee shall, upon the request of the Licensor, promptly remove or relocate the new 12" irrigation pipeline at its own expense. F. Licensee, or its contractor, shall secure and maintain insurance policies and/or provide proof of adequate self-insurance that will protect itself, its subcontractors, and Licensor from claims for bodily injury, death, or property damage, which may arise from the installation and/or construction contemplated herein, or caused by the facilities which are installed and/or constructed as permitted herein. Weld County, Colorado, the Board of County Commissioners of the County of Weld, its officers and employees, must be named as an "Additional Named Insured" in all liability insurance policies. The following insurance policies and/or proof of self insured amounts shall be delivered to the Weld County Public Works Department: (i) (ii) Statutory Worker's Compensation. Contractor's public liability and property damage in the following sums: Bodily Injury: Property Damage: Each person $1,000,000 Each accident $1,000,000 Each accident $1,000,000 Aggregate $2,000,000 Bodily Injury: Property Damage: Each person $1,000,000 Each accident $1,000,000 Each accident $1,000,000 G. If determined necessary by Licensor's Department of Public Works, Licensee shall provide a surety bond or other security for the total amount required to restore the Right -of - Way under which the projected new 12" irrigation pipeline is to be installed or constructed, based upon current Licensor's contract prices for the performance of such work. Said security shall remain in effect for a period of two (2) years after inspection of completed construction by Licensor. Whether or not covered by a bond, Licensee shall reimburse Licensor for any and all expenses incurred by Licensor within 2 years after completion of any work, as a result of, or related to, failure by Licensee to perform all installation, construction, maintenance or other work pursuant to this License and the Right -Of- Way Use Permit issued in addition to, in a workmanlike manner. 3 3939068 Pages: 12 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO 1111i H. Licensor's Department of Public Works shall have the authority to suspend work performed by Licensee or its contractor, wholly or in part, because of the failure of Licensee or its contractor to properly execute the work in accordance with this License, or because Licensor believes that a violation of this License has occurred or that there is a danger to the public safety if the work continues. I. Licensee shall report all emergency repairs to Licensor's Department of Public Works. Licensee shall utilize proper traffic control measures when making said repairs. If Licensor determines that an emergency situation exists, it will notify Licensee of the emergency condition. Licensee shall apply for a Right -of -Way Use Permit and make the required repairs as soon as practicable after the Licensee is notified of the emergency situation and the need for such repairs. In no event shall such repairs be completed later than 24 hours after receiving such notification, unless adverse weather conditions prohibit the repair process. J. Licensee or its contractor shall be responsible for locating all existing utilities. Licensee shall contact the Utility Notification Center of Colorado (UNCC) at 811 or 1-800-922- 1987 at least two days in advance of digging. Licensee must remove all utility locates such as flags and marker pins from the Right -of -Way once the construction is complete. K. No culverts, irrigation structures, drain lines, utility lines, or any other facilities within the Right -of -Way are to be cut or damaged. In the event Licensee damages an existing facility, Licensee shall first notify the owner and either immediately repair and replace the damaged facility or pay the owner to repair and replace the same in accordance with the desires of the owner. L. At the end of each day during the installation and construction of Licensee's facilities, Licensee shall observe the following requirements: (i) All materials shall be removed a minimum of ten feet (10') from outside edge of the road shoulder; (ii) All excavations within the Right -of -Way shall be back -filled in accordance with the Compaction requirements set forth in the Right -Of -Way Use Permit; (iii) All traffic signs must be in place per the approved Traffic Control Plan or removed or covered if not applicable to nightly activities. M. Licensee shall mark the site of the installation of the new 12" irrigation pipeline with markers acceptable to Licensor. N. Licensee's installation of non-ferrous lines in the Right -of -Way shall require a suitable means to facilitate future line location, such as metallic warning tape installed above the line and registration with UNCC-Colorado 811. O. Licensee shall preserve or replace all survey monuments or benchmarks at each work site Licensee shall hire a Registered Land Surveyor to replace destroyed monuments or bench marks, as well as to preserve such monuments or benchmarks. 4 3939068 Pages: 13 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Morena, Clerk and Recorder. Weld County, CO VIII It �1R��ItnAV IkI.Viihh VaNIfll:Yiyh 11III P. All road bores shall be at a minimum depth of 4 feet plus the diameter of line below the lowest point of the Right -of -Way. All underground facilities that parallel the road centerline shall have a minimum of four (4) feet of ground cover. Q. Licensor's Compaction Requirements: (i) MI compaction of backfills within road surfaces shall be in accordance with the Weld County Engineering and Construction Criteria guidelines. (ii) All backfills located within an existing asphalt surface or under asphalt not currently in place but which will be as part of new road construction, must be compacted using flow -fill cement in the upper three feet (3') of backfill. (iii) If any wet or non-compactable materials are produced from excavations, they shall be completely removed from the Right -of -Way and replaced with compactable materials. The Right -of -Way shall then be returned to the original grades and cross sections. Licensor shall have the authority to determine what materials shall be discarded and what materials shall be acceptable as replacement. (iv) On gravel roads where excavation materials are stacked on the road surfaces, road base of 900 tons of 3/4 inch Surface Gravel as specified in Chapter 7 of the Weld County Engineering and Construction Criteria specifications for Surface Gravel per mile shall be spread over the road surfaces upon completion of the work. Shoulders on paved roads or barrow ditches where excavation is done shall require 300 tons per mile upon completion. These amounts are to coat the road surfaces and do not supersede any requirements within the Right -of -Way Use Permit. (v) Backfilling lifts greater than eight (8) inches, but not exceeding twelve (12) inches, shall be permitted providing that Licensee has suitable equipment to properly compact the depth of lift placed. Licensor shall determine if Licensee's equipment and the depth of backfill lift is appropriate. Ninety-five (95%) percent of a standard proctor shall be required at any trench depth or in replacement of any materials within the traveled portion of the Right -of -Way. Eighty-five (85%) percent of a standard proctor shall be required at any trench depth or in replacement of any materials off the traveled portions of the Right -of -Way. R. Licensee shall install any appurtenances, whether above or below ground, within the boundaries of the Right -of -Way so that they do not obstruct maintenance operations within any rights -of -way. Licensee shall adjust the location of said appurtenances, at its sole expense, when requested to do so by Licensor. S. The construction, operation, maintenance and repair of the new 12" irrigation pipeline installed by Licensee, and all other improvements described in this License, shall be at its own expense and without the aid or use of Licensor's funds, equipment, or materials. 5. Use of Contractor Following Licensor's approval of this License and the issuance of a Right -Of -Way Use Permit, with the Licensor's written approval, Licensee may assign one or more of the responsibilities enumerated in Paragraph 3 above to a contractor retained to perform some or all of the construction required to install Licensee's facilities. However, if Licensee retains such a contractor, Licensee shall remain responsible for said contractor's compliance with the terms of this License. Furthermore, following Licensor's approval of this License, Licensee's contractor may be authorized to utilize the Right -Of -Way Use Permit issued to Licensee. 5 3939068 Pages: 14 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County: CO Gtk L'liNi'I'i'IA l ' 111111 6. Hold Harmless/Indemnification. Except when caused by the negligence of Licensor, Licensee shall indemnify and save harmless Licensor, its successors, assigns, employees, and agents from any damage or loss sustained by them or any of them arising by reason of Licensee's negligence with respect to the upgrade and maintenance of the Right -of -Way. Licensee further agrees to protect Licensor and save and hold it harmless from any and all third party claims and damages that the installation and/or maintenance of Licensee's facilities may directly or indirectly cause. Additionally, Licensee releases Licensor, its successors, assigns, employees, and agents from any and all claims and damages to property owned by Licensee resulting from any act, either on the part of the Licensor or on the part of any third party. 7. Assignment. Following the issuance of the Right -Of -Way Use Permit, Licensee is prohibited from assigning any or all of its rights under this License without first obtaining written consent to such assignment from Licensor, which consent shall not be unreasonably withheld. With Licensor's written approval, following the issuance of the Right -Of -Way Use Permit, Licensee may assign one or more of the responsibilities enumerated in Paragraph 3 above to a contractor as set forth in paragraph 5 above. 8. Entire Agreement. The parties hereby agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party hereto, or its agents or employees. This License embodies all agreements between the parties hereto and there are no promises, terms, conditions, or obligations referring to the subject matter whereof other than as contained herein. 9. Effect of Invalidity of Provision. If any term or provision of this License, or the application thereof to any person or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this License, or the application of such terms or provisions, to a person or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this License shall be deemed valid and enforceable to the extent permitted by law. 10. No Waiver of Governmental Immunity. No term or condition of this Agreement 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. 11. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this License , and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this License shall give or allow any claim or right of action whatsoever by any other person not included in this License. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this License shall be an incidental beneficiary only. 6 3939068 Pages: 15 of 18 06/10/2013 02:42 PM R Fee:$0.00 Steve Moreno: Clerk and Recorder. Weld County: CO lIIIKAMtYllt lIIII It is mutually understood and agreed that this License and all the terms and conditions hereof shall extend to and be binding upon the parties hereto, their successors, and assigns. EXECUTED IN DUPLICATE the dayandyear first above written. LICENSOR: ATTEST:gw9"~ BOARD OF COUNTY COMMISSIONERS WELD COUNTY Clerk to the Board WELD COUNTY, COLORADO LICENSEE: William F. Garcia, Chair JUN 0 3 2013 LOST CREEK DAIRY, LLC. 379 SR 34 LOCKE, NY 1309�i"\-t By: Peter Eldred Title: STATE OF COLORADO ) ss. COUNTY OF L CXr i n, of ) SUBSCRIBED AND SWORN to before me this $ 3 day of WITNESS my hand and official seal My commission expires: March 24 9_01(D May 2013 SHARYL L. BUSINGER NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20084009857 MY COMMISSION EXPIRES MARCH 24,2010 7 3939068 0 02:42 ges: 16 PM R 06/10/2013 Fee:$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO Lit f 114f�4�i[�iIIf�YF,'�YlvJti Bill 'Sd. 3� �t otaryPublic 020/.3 -7.5a5 EXHIBIT A WELD COUNTY RIGHT-OF-WAY USE PERMIT Weld County Public Works Dept. 1111 H Street P.O. Box 758 Greeley, CO 80632 Phone: (970) 304-6496 After Hours: (970) 356-4000 Emergency Services: (970) 304-6500 x 2700 Inspection: (970) 304-6480 Permit Number: RW13-00196 Issuance of this permit binds applicant and its contractors to all requirements, provisions, and ordinances of Weld County, Colorado. A copy of this permit must be on site at all times during construction hours. Approved MUTCD traffic control/warning devices are required at all times. Permit Type: Standard Project Name: Lost Creek Dairy Application Date: 04/29/2013 Applicant Information: Name: Company Phone: Email: Steve@agbuildingservicecom Location: WCR: 73 Peter Eldred Lost Creek Dairy, LLC USR#: Start date: 06/04/2013 Permit fee: $330.00 Expiration date: 05/30/2013 Contractor Information: Name: Jack Temple Company: Temple Construction Phone: 970-310-5189, cell Email: temple210@gmail.com Between: 16 And: 18 Address: 36259 CR 16 Subivision: Impacted Surface(s): Q Asphalt/Chip seal/RAP ❑Gravel ❑ Treated Gravel Q Outside Roadway ❑ Other Use Type: ❑ Communication ❑ Electrical Q Irrigation ❑ Storm Water 0 Misc Classification of Work: ❑Abandonment Misc. Occupation ❑ Relocation ❑ Maintenance 0 Culvert Installation ❑ Road Improvements El New Service ❑ Overhead Installation Q Underground Installation Description of ROW use: (2) directional bores under CR 73, installing (1) 6" HDPE pipe for fresh water and (1) 12" HDPE pipe for irrigation. ❑Gas/Oil Restoration: ❑ Asphalt (HMA) ❑ Class 6 Road Base ❑ Fugitive Dust Chemical ❑ Compaction Testing ❑ Structural Fill ❑ Flow Fill Q Native Material Q Reseeding Weekend Hours No Daily work hours are from DAYLIGHT to 1/2 HOUR BEFORE DARK Special Requirements Pending approval of Nonexclusive License Agreements Q Water Service Legal: 25,3C/ 2N / 62W ❑ Sanitary Sewer ❑ Potholing ElOther Bore CR 73x2 ❑ Tree Trimming ❑ Surveying ❑ Mulching ❑ Erosion Control Q Other Remove Locates 3939068 Pages: 17 of 18 06/10/2013 02:42 PM R Fee :$0.00 Steve Moreno, Clerk and Recorder, Weld County, CO VIII!!!l1nVilkiiRti' larli31l III Approved by: PENDING Weld County Public Works Date: 5/30/2013 Rev. July 2010 Print Date -Time: 5/30/2013 10:27:40AM Report ID: PW00001v003 Page 1 of 1 CR 73 Bore location Lost Creek Dairy Copyright 2011 Weld County Government. All rights reserved. Thu May 302013 09:59:08 AM. 3939068 Pages: 18 of 18 06/10/SteveMoreno,O2:42 P11 R Cle Clerk and Recor,el rde , Weld County, CO • Ecil' tk'caIhtriwVhY+t VINTII1ti1'ai III EXHIBIT A Hello