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Home My WebLink About20073527.tiff RESOLUTION RE: APPROVE CROSSING AGREEMENT AND AUTHORIZE CHAIR TO SIGN - FULTON IRRIGATING 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 Crossing 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 the Fulton Irrigating Ditch Company, commencing upon full execution, and ending March 1, 2008, 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 Crossing 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 the Fulton Irrigating 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 19th day of November, A.D., 2007. BOARD OF COUNTY COMMISSIONERS �a WEL&GOUNTY, COLORADO croc ATTEST: �D �� J David E. Long, Chair Weld County Clerk to the Board . 2CC Pro-Tem BY: De y SLB0r APP AS F EXCUSED Robert D. Masden f A orney Douglas demacher Date of signature: 2007-3527 � O At)C i ACS EG0056 /a// 2/07 a MEMORANDUM WII C. TO: Clerk to the Board DATE: November 15, 2007 COLORADO FROM: Wayne Howard, Chief Senior Engineer, Public Works SUBJECT: Agenda Item Crossing Agreement with the Fulton Irrigating Ditch Company, WCR 18. Enclosed are two original agreements. Please send one original to the Public Works Department as soon as it is executed by the Chair. M:\Francie\Agenda Wayne Howard.doc Q 7 r" Ul ) r i C C 2007-3527 ©I.E lMIC .:1 JPiliTC , Y1 3lL 9. Toro 25 South 4`l' Avenue Brighton, Colorado 80601-2029 Telephone: 303-659-3171 Fax: 303-659-5053 Lysle R. Dirrim, Of Counsel November 13, 2007 NOV 14 2007 i._ � ..' r \ CV!QR'SDEP1 Wayne Howard, P.E. Chief Sr. Engineer P.O. Box 758 Greeley, CO 80631 Re: Fulton Irrigation Ditch Company WCR 18 Crossing Agreement Dear Wayne: Enclosed please find two (2) original Crossing Agreements between the Fulton Irrigation Ditch Company and the County of Weld for the crossing at WCR 18. Both originals have been executed by the Board of Directors for Fulton Ditch. Please have your Board execute on the County's behalf and return one original to our office for our files. Thank you. Very truly yours, Brice Steele / v ici BS/jlk Enclosures C Documents and Settinys'odv Kamm AMy Documents DitehesFultonAf rmsl'inlAFlo,mtl I u clot CROSSING AGREEMENT 1. PARTIES. The parties to this Agreement are the Fulton Irrigating Ditch Company, a Colorado Mutual Ditch Company ("Fulton"), 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, 9th St., Greeley, CO 80632, (the "Licensee"). Fulton and Licensee are jointly referred to as the Parties. 2. RECITALS. The Licensee desires to obtain the permission of Fulton to install a 48"x 76" elliptical concrete culvert and reconstruct Weld County Road (WCR) 18 across the Fulton Ditch. Licensee owns property, or has obtained the right to utilize property, located at WCR 18, just west of State Highway (SH) 85, described more specifically in attached Exhibit "A". Fulton agrees to permit the proposed installation, subject to the terms, conditions, covenants and agreements set forth in this Agreement. Accordingly, in consideration of the mutual promises set forth in this Agreement, the Parties covenant and agree as follows: 3. CONSTRUCTION. t.l Pursuant to the term° of this Agreement the Licensee is granted a license to cross the Ditch with a 272 foot x 48 inch x 76 inch elliptical concrete culvert (the "Installation") pursuant to the plans and specifications approved by Fulton and attached hereto as EXHIBIT B. Fulton's review of the plans and specifications is solely for its own benefit and creates no obligation on Fulton. 3.2 With the exception of modification specifically noted in the plans and specifications, all portions of the Ditch, bottoms, sides, banks, and all affected portions of Fulton's easement which are disturbed by the Licensee's Installation shall be restored to their original condition so the flow of water in the Canal runs at the original amount and velocity. Any and all fencing and other facilities appurtenant to Fulton's easement shall be replaced in a condition at least equal to the condition of such facilities and appurtenances prior to construction. 3.3 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. 3.4 The Licensee agrees that the Installation shall proceed expeditiously and with reasonable diligence from the commencement of construction to its completion. The Installation shall be completed by March 1, 2008. If the Installation is not completed by that date, this Agreement expires and is of no force or effect. 3.5 If the Licensee's construction interrupts Fulton's water supply for any reason, the Licensee shall pay as damages the actual cost of providing water to those stockholders whose delivery is interrupted as a result of the Installation. C'\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrossPmt\WeldCounty.Pmt.doc — 1 - 3.6 Licensee is responsible, at its own expense, for obtaining all local, state and federal permits or approvals and for compliance with all local, state and federal laws and regulations including but not limited to land use and environmental laws and regulations, and specifically including the Endangered Species Act, prior to beginning construction. Licensee shall indemnify Fulton for any and all costs, damages, fines and fees, including reasonable attorneys' fees incurred by Fulton as a result of Licensee's failure to obtain such permits or approvals or failure to comply with all applicable laws and regulations. 4. LICENSE FEE. Except where the license fee has been specifically waived by Fulton via separate letter, the Licensee shall pay to Fulton a license fee of$ 0.00. The license fee shall be paid prior to the commencement of the Licensee's construction. This license fee shall be in addition to any other costs for which the Licensee is responsible pursuant to this Agreement including attorney and engineering fees as mentioned in¶6. 4.1 If the license fee has been specifically waived by Fulton, a copy of the letter to Licensee stating such action by Fulton shall be attached to this Agreement as EXHIBIT C. 5. INSPECTION. 5.1 The Licensee shall notify Fulton at least five (5) days prior to the commencement of the installation or repair of the installation, permitted by the Agreement, except for emergency repairs which are provided for in ¶7 of this Agreement. Fulton is permitted to inspect the Installation or repairs to the Installation during construction. Upon completion of the installation or repairs to the Installation, Fulton may inspect the Installation. 5.2 Fulton's right to inspect the Licensee's Installation or repairs to the Installation in no way relieves the Licensee of its liability for improper installation. Fulton's inspection is solely for the benefit of Fulton and creates no obligation to Fulton. 6. REIMBURSEMENT OF EXPENSES. 6.1 The Licensee agrees to reimburse Fulton (or pay directly) for all reasonable engineering and legal costs incurred by Fulton in preparing and approving this Agreement and the costs of inspection as described in ¶5, up to a limit of $5,000. In addition, Licensee agrees to pay to Fulton, as an administration fee, an amount equal to10% of Fulton's total engineering fees. Costs chargeable to the Licensee shall be paid within 30 days of the billing date. C\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrossPmt\WeldCcunty.Pmt doc - 2 - 6.2 Statements for the costs chargeable to the Licensee hereunder will be forwarded to the Licensee and the same shall be paid to Fulton within 30 days after the billing date. If payment has not been received by Fulton within 30 days, the Licensee shall have breached this Agreement and Fulton may institute legal proceedings to collect the amount due and owing. In such proceeding, Fulton shall be entitled to its costs and reasonable attorneys' fees from the Licensee. 7. MAINTENANCE. 7.1 The Licensee specifically agrees and pledges to maintain and repair the Installation described in EXHIBIT B so as not to require Fulton to maintain or repair it. If the Licensee fails to properly maintain or repair any portion of the Installation for which it is responsible after ten days' notice of the need for same, Fulton may, at its own option, conduct its own maintenance or repair, and the Licensee shall reimburse Fulton for the cost of such work within 30 days. In the event the Licensee fails to maintain or repair the Installation, it shall be held liable for any loss, damage or injury to Fulton and shall fully indemnify Fulton for or against the claims of third parties. If Fulton conducts its own maintenance, repair or replacement, it does not waive the right to hold Licensee liable for damages caused by the Licensee's failure to maintain, repair or replace. 7.2 In the event of an emergency, Fulton 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 ¶11. If Fulton conducts emergency work, it shall be reimbursed for the cost of the work. Under no circumstances shall Fulton be responsible or held liable for damages to the installation resulting from the maintenance or repair to the Canal. 8. WATER LOSS. The Licensee agrees that the Installation will not increase carriage or transit loss over the loss which occurred historically. The Licensee agrees to compact earth materials so that such additional water losses will not occur. If the Licensee's Installation increases carriage or transit loss in the Canal, the Licensee agrees to repair the construction to prevent such additional loss. 9. LIABILITY. 9.1 By virtue of entering into this Agreement, Fulton: (1) assumes no liability for the use, operation, or existence of the Licensee's Installation; and (2) assumes no additional responsibilities or obligations related to the Licensee's future or additional activities in the area described in EXHIBIT A which are required by this Agreement. 9.2 Licensee's liability for the use, operation, or existence of the Licensee's Installation is limited to the items listed in this Agreement. C\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrossPmt\WeldCounty.Pmt doc - 3 - 10. EASEMENT RIGHTS. The License granted to the Licensee herein in no way restricts Fulton's right to the use of its easement to construct, operate or maintain all existing structures and facilities of the Canal. 11. NOTICES. Any notice required or permitted by this 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 notices shall be deemed to have been given when deposited in the U.S. mail. DITCH COMPANY: COPY TO: Fulton Irrigating Ditch Company Law Offices of Brice Steele, P.C. 25 South 4th Avenue Attn. Brice Steele, Esq. Brighton, CO 80601-2029 25 South 4th Avenue Brighton, CO 80601-2029 LICENSEE: Wayne Howard. P.E., Chief Sr Engineer P.O. Box 758, 1111 "H" St. Greeley, CO 80631 12. WAIVER OF BREACH. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 13. EXHIBITS. All exhibits referred to in this Agreement are, by reference, incorporated into this Agreement for all purposes. 14. ATTORNEYS' FEES. If any party breaches this Agreement, the breaching party shall pay all of the non-breaching party's reasonable attorneys' fees and costs in enforcing this Agreement whether or not legal proceedings are instituted. DATED: � � `/--d DITCH COMPANY By C/' .Pc,./'_-Gri ATTEST: Secretary C:\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrossPmt\WeICCounty.Pmt.doc - 4 - LICENSEE By Signature David E. Long NUV 1 9 Z�� Name Chair Title LAW _I � a � ATTEST: n uvy I \\ � � `` Weld County Clerk to the Board , 2:6, tika p_p. By: eon' CgAtern Deputy Cler to the Board - t : • , 4, C:\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrossPmtlW eldCounty.Pmt doc - 5 - �Do�- 35,7 7 EXHIBIT A STATION 114+ 15 PROJECT END WCR 20 N � rYI (JA (I) _.... ....... • WCR 18 WCR 16 STATION 100 +00.00 PROJECT 3EGIN C\Documents and Settings\Jody Kamm\My Documents\Ditches\Fulton\CrosSPmt\WeldCounty Pmt.doc - 6 - • i I PROPOSED ALIGNMENT OF WCR 18 r EXISTING FULTON DITCH• PROPOSED 48 x 76 INCH ELLIPTICAL CONCRETE PIPE APPROX. 272 FT LONG ea W L �L J ., _ — - t 8 e, ►� — ---- k .. \ ,,— , — ,: 3 ler j. ' / Y I EXISTING WCR 18 PROPOSED 96 INCH DIAMETER MANHOLE EXISTING 48 INCH CONCRETE PIPE CARRYING FULTON DITCH i EXHIBIT B =xhibil B Fulton dvn 1(1/917IH17 9'11'79 AM - C\Documents and SettingslJody Kamm\My Documents\Ditches\Fulton\CrossPmt\WeldCounty.Pmt doc - 7 - Hello