HomeMy WebLinkAbout20091025RESOLUTION
RE: APPROVE DITCH CROSSING IMPROVEMENT AGREEMENT AND AUTHORIZE CHAIR
TO SIGN - LEGGET DITCH AND RESERVOIR 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 Ditch Crossing Improvement Agreement
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 Legett Ditch
and Reservoir 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 Ditch Crossing Improvement Agreement 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 Legett Ditch and Reservoir 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., 2009.
ATTEST:
Weld County Clerk to t
BY.
Deputy Cler o the Board= ,
APPR
bunty torney Date of signature. 3/�� 0o9
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, OLORADO
1/4
William F. Garcia, Chair
Dougla Rademac er, Pro-Tem
Ate.._.,
Sean P. ®®Conway �/ A.Arb Kirkmeyer
e,
David E. Long
2009-1025
EG0060
COLORADO
MEMORANDUM
TO: Clerk to the Board DATE: April 24, 2009
FROM: Wayne Howard, County Engineer/CIP, Public Works
SUBJECT: AGENDA ITEM
Ditch Crossing Improvement Agreement with Leggett Ditch and Reservoir Company for
improvements to the WCR 1 and WCR 20.5 intersection not to exceed $3,000.
Enclosed are two originals Contracts. Please return one original to Public Works.
M:\Francie\Agenda Wayne Howard.doc
ID trri
2009-1025
DITCH CROSSING IMPROVEMENT AGREEMENT
518
THIS AGREEMENT, made this rr / — day of /1/24(2 2009, between LEGGETT DITCH
AND RESERVOIR COMPANY, hereinafter the "Company", of P. O. Box 1292, Longmont, Colorado 80502 and
THE COUNTY OF WELD, a political subdivision of the State of Colorado, by and through the Board of County
Commissioners of the County of Weld, of P.O. Box 758, 915 10th St., Greeley, CO 80632, hereinafter "County",
WITNESSETH;
In consideration of all goods and valuables described in paragraph 4, the receipt of which is hereby
acknowledged by the Company, the parties mutually agree as follows:
PROJECT DESCRIPTION
The County, through its Weld County Public Works Department, is widening Weld County Road (WCR) 1 and
intersection of Weld County Road 20.5. A new 8' x 10' x 6' man hole will be installed at the outlet of the 36" concrete
culvert under WCR 1 to replace a 6' x 6' diversion box; the 36" concrete culvert under WCR 20.5 15' will be extended,
a new 5' x 5' x 4' diversion box will be installed and the north and east concrete lined outlet ditches will be realigned
as shown on Exhibit A. In addition, the County will furnish the material to the Company and reimburse the Company
for the cost of the fabrication of a trash grate for placement at the inlet of the Company's diversion box on west side of
WCR 1. The aforementioned works are hereinafter referred to as "Improvements" or "the Improvements" or "the
Project".
LEGAL DESCRIPTION AND COMMON LOCATION
Whereas, the Project is generally located at the SE' 'A of Section 16, T2N, R68W, and
WHEREAS, the Company is the owner of a ditch and easement, hereinafter the "Ditch" within the Project
area; and
WHEREAS, the County desires to acquire a certain right to modify the Ditch of the Company as described
above.
NOW, THEREFORE, in consideration of the mutual promises and covenants expressed herein, the parties mutually
agree as follows:
1. Permission to Construct. The Company grants to County, its employees, subcontractors, and designated
agents permission to construct and maintain the Improvements described above within the Ditch. The County
agrees that the construction of the Improvements shall proceed expeditiously and with reasonable diligence
from the commencement of the construction to its completion.
2. Grant of Right of Access. The Company hereby grants to County the right of ingress and egress to and from
the Ditch, as needed to complete the Improvements as hereinabove described.
3. Improvements Design. The County has designed and will construct the Improvements to accommodate the
existing water capacity of the Company's ditch estimated to be a maximum of 64 cubic feet per second.
4. Improvements Specifications. The specifications of the Improvements are illustrated in Exhibit A, which is
attached hereto and incorporated herein by reference. These specifications are subject to changes in the field
as the Company and the County may agree in writing.
5. Reimbursement of Expenses. The County shall pay the Company for all reasonable legal, administrative or
engineering costs associated with the project, not to exceed Three Thousand Dollars ($3,000.00), which
amounts shall be paid within fifteen (15) days following receipt of statements for said services. This amount
shall include costs incurred for the review and analysis of this Agreement.
6. Improvements Specifications. The parties acknowledge that the County commenced work on the
Improvements prior to the time that the Company requested that a formal Agreement addressing the County's
Improvements be drafted and executed. The parties further acknowledge that the County has commenced
1111111 11111111111111111111111111111111111 11111 11111111
1
3623518 05/18/2009 11:17A Weld County, CO
1 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
`390"2- ma.
work on the Improvements in accordance with the specifications set forth in Exhibit A and expects to
complete the work according to those specifications, and the Company hereby specifically approves said
specifications. The parties agree that the work has been and will continue to be will be performed under the
supervision of Company President, or the Company's Ditch Rider. The parties agree that field inspections
were conducted at the initial stage and will be conducted at the time of the completion of the Improvements.
Notwithstanding the foregoing, the Company's right to supervise the construction of the Improvements in no
way relieves the County of its liability for improper construction. The Company's supervision is solely for the
benefit of the Company and creates no obligation to the County, unless otherwise agreed by the parties in
writing. The County shall provide the Company with one set of as built plans of the Improvements upon
completion of the Improvements. The County is solely responsible, at its own expense, for determining what
governmental approvals are necessary or required for its Improvements and for obtaining all local, state and
federal permits or approvals for the Improvements.
7. Expenses for Repair. County shall reimburse the Company for all reasonable expenses for repair for
damage caused by the acts or omissions of County in constructing or maintaining the Improvements, such
expenses to be paid within fifteen days after receipt of written notice from Company itemizing such expenses
and when available, receipts for such expenses.
8. Disturbance of Water Flow. The Improvements described in this Agreement shall be completed without
disturbing the flow of water in the Ditch, unless permission in writing is first received from the Company for
such disturbance. The Company anticipates flow of water to begin April 1, 2009 and be intermittent as needed
until October 31, 2009. Should the County disrupt the flow of water in the ditch for more than six hours
during the course of a twenty-four hour calendar day, the County shall pay the Company One Thousand
Dollars ($1,000.00) per day for each day the flow of water is interrupted. This cost shall be for the loss of
water rights to shareholders and shall be paid within fifteen (15) days after receipt of written notice from the
Company of such charges.
9. Future Repairs. Any future repairs, replacements or maintenance of the Improvements by County that affect
the Company's use and operation of the Improvements shall occur, if possible, during a time period when the
Ditch is not being used to carry water. County expressly agrees that it shall be liable to the Company and/or its
shareholders in damages for any unauthorized disturbance of the flow of water through the Improvements, to
the extent that such disturbance is caused by or due to the activities of the County or those working on its
behalf, pursuant to the provisions of Section 8 above. Upon completion of any activity upon the ditch
easement by the County, County shall clean the ditch and ditch bank area to place it in the same condition than
it was before the activity began, including the compacting of any disturbed soils.
10. Maintenance of Improvements. The Company shall have full power to operate, maintain, clean and
manage the Improvements, and any expense or damages caused thereby to County shall not be chargeable to
the Company, except as to such damage caused by the negligence of the Company or the owner of the outlet
diversion box. It is specifically agreed that normal maintenance and repair activities, including the operation
of machinery for such purposes upon the Ditch right of way and within the Ditch itself, shall not constitute
negligence. In the event, however, that any such action on the part of the Company could reasonably be
expected to affect the County, the Company agrees to give prior notice to County, and to cooperate with the
County to avoid injuries or damages to the culverts and manhole. The County shall be responsible for
maintaining flow of water from the inlet of the culvert under WCR 1 to the outlet of the culvert under WCR
20.5. The County shall not be responsible for the flow of water, maintenance, operation and management of
Company's facilities from the outlet of the culvert into the diversion box at WCR 20.5 nor shall the County be
responsible for the flow of water, maintenance, operation and management of Company's facilities upstream
from the inlet of the culvert to the manhole. The County shall provide the materials for the fabrication of the
trash grate and shall reimburse the Company for the costs incurred for its fabrication, however, the Company
shall be solely liable and responsible for the operation and maintenance of the trash grate.
11. Default. Time is of the essence, and if either party fails to perform or otherwise breaches any covenants,
terms, conditions or obligations of this Agreement, then such failure shall constitute default. In the event of a
default, the non -defaulting party shall give written notice of the default to the defaulting party, in accordance
with the notice requirements of this Agreement. Following such written notice, the defaulting party may cure
the default within thirty (30) days. Upon cure, this Agreement shall remain in full force and effect. If the
1 111111 11111 111111 11111 11111 III 1011111 III 11111 IIII IIII
2
3623518 05/18/2009 11:17A Weld County, CO
2 of 7 R 0.00 0 0.00 Steve Moreno Clerk & Recorder
defaulting party fails to cure, the non -defaulting party shall be entitled to any and all legal and equitable
remedies, including, but not limited to, any specific remedies provided for in this Agreement.
12. Assignment. This Agreement and all the terms and conditions thereof shall extend to and be binding upon
the successors and assigns of each of the parties hereto. This Agreement shall not be assigned by County
without the written consent of the Company.
13. Notice. Any notice required or permitted hereunder shall be deemed effective when deposited in the
United States mail, postage prepaid, certified mail, return receipt requested, and addressed to the party to
whom notice is to be given, as follows:
If to Company: Leggett Ditch and Reservoir Company If to County:
Attn: Luke Stromquist, President
P.O. Box 1292
Longmont, CO 80502
or such other address as may be furnished to the other party by written notice.
Weld County Public Works
Attn: Wayne Howard, P.E.
P.O. Box 758, 1111 H St.
Greeley, CO 80632
14. Entire Agreement. This Agreement contains the entire Agreement and understanding between the parties
and supersedes any other agreements concerning the subject matter of this Agreement, whether oral or written.
No modification, amendment, novation, renewal, or other alteration of or to this Agreement and the attached
exhibits shall be deemed valid or of any force or effect whatsoever, unless mutually agreed upon in writing by
the undersigned parties. The plans and specifications as approved shall be attached hereto as an exhibit and be
recorded.
15. Breach. No breach of any term, provision, or clause of this Agreement shall be deemed waived or
excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or
consented. Any consent by any party hereto, or waiver of, a breach by any other party, whether express or
implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. If
there is a breach of this Agreement, the breaching party shall pay the other party all of the reasonable
attorney's fees and costs incurred in enforcing this Agreement, whether or not legal proceedings are instituted.
16. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable, this Agreement shall be construed and enforced without such a provision, to the extent this
Agreement is then capable of execution within the original intent of the parties.
17. Liability/Governmental Immunity. Except as specifically provided herein, County does not waive any of
its protections under the Colorado Governmental Immunity Act.
18. No Third Party Beneficiary Enforcement. It is expressly understood and agreed that 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 contained 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 deemed an incidental beneficiary only.
19. Force Majeure. Neither party shall be liable to the other for failure to perform its obligations hereunder to
the extend said failure is caused by an event beyond such party's reasonable control, including without
limitation, government statute, order, rule, or regulation, state of emergency, acts of God, war, warlike
hostilities, terrorism, riots, epidemics, fire, strikes, lockouts, or similar causes, provided that the party affected
promptly notifies the other party in writing of such occurrence and makes its best efforts to promptly comply
with the terms of this Agreement. If compliance is rendered impossible, any future performance by either
party shall be excused.
20. Effective Date. This Agreement shall be effective upon the date the County commenced work on the
Improvements, February , 2009.
1111111 11111 111111 11111 11111 III MINIM I I 1 II I I I I I 11111
3623518 05/18/2009 11:17A Weld County, CO
3 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
3
IN WITNESS WHEREOF, the parties have caused these presents to be duly executed by the proper persons, and have
affixed their seals hereto on the day and year first above written.
LEGGETT DITCH AND RESERVOIR COMPANY
r
ATTEST:
Weld County Clerk to the
By:
1 111111 11111 111111 1111111111 III 11111111 III 11111 II1I IIII
3623518 05/18/2009 11:17A Weld County, C0�� /D�J
4 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
4
By:
Luke Stromquist, Pi6sident
Date:
COUNTY
4,/z3/001
BOARD OF WELD COUNTY COMMISSIONERS
WELD COUNTY, COL DO
By:
William F. Garcia, Chair
APR 2 9 2009
Date:
EXHIBIT A — 8' X 6' X 6' MANHOLE
PAGE 1 OF 3
raa CVC nc -- _
x
0
w
W
n
0
I—
__ y___ - - }�__I-i •a..
1 i
N �
0
J
I-
0
LID DETAILS
5
1.
N
a
I
r
I
IS
Ii
Y
S
a
I
I
I
WELD COUNTY
S
1
a
I
i
i
I
000
1
a
f
t
I
i
I
1
I
IIIIIII IIIIIIIIIII VIII VIII IIIIIIIIIII III IIIII IIIIIIII
3623518 05/18/2009 11:17A Weld County, CO
5 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
EXHIBIT A - 5' X 5' X 4' DIVERSION BOX
PAGE 2 OF 3
6
0
g
d
wFn
i
w4
C
u
•
0
V
J
C
O
Vq
L
r:
•
000
I MIMI III111111111 Jill
3623518 05/18/2009 11:17A Weld County, CO
6 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
EXHIBIT A - NORTH & EAST DITCH REALIGNMENT
PAGE 3 OF 3
If TO EXISTNG DITCH
Y
EAST DITCH CENTERLINE POINTS
>L
-
V
L.
f
.I!
e
to
t
r�,iC
r
lt
4
S.
K
WVAPAr
mnr�
ligi§i
h
r
C rl
mrL
i
H
{
Z
a
w
mh_ "}
0!;-00
mommJ
a."y
Or >
Ct4to
Zulu...
W
a
r
U
W m
2,
r
0
u2
no
OM
00
O my
�r n
r
T. o
orra
a Li
WmOL.
e -J
r
o
a
CrJp-
cv
W O
ul..
Q W
w2
J
w
W
2�
a
b
i
I I
R
I 40
11
1 lj
I
I
a
a
a
r
.
0
leto
m
&Wa
UCC
J�
O
r
tlt U
;-(D-
TO CONSTRUCTION)
I III!!! 11111 111111 11111 11111 III 0111111101111111111111
3623518 05/18/2009 11:17A Weld County, CO
7 of 7 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
7
V
a
(J
n
2
0
`S
R
S
1
a
0
j`►
Y
Constructed
kit Hrt oil
WELD COUNTY
Y1
V
O
_
S
Cr
4,
t
0
V
M
I I
I
I
w
z
009
vcfl Scott As %oleo
I
I
W n Levi*. »I.J•
}
3
Hello