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Home My WebLink About20030119.tiff RESOLUTION RE: APPROVE LICENSE AGREEMENT FOR CONSTRUCTION OF PEDESTRIAN BRIDGE CROSSING AND SIDEWALK 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 the construction of a pedestrian bridge crossing and sidewalk between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and the Last Chance Ditch Company, commencing upon full execution of said agreement, and ending January 1, 2004, 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 construction of a pedestrian bridge crossing and sidewalk between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and 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 8th day of January, A.D., 2003. BO D OF COUNTY COMMISSIONERS WEL OUN CLOL DO ATTEST: ill l��i ',%', .�t►u. risai f .�•� � D id E. Lon , Chair Weld County Clerk tot B.: !kV \�\ / Robert D. asden, Pro-Te BY: r_iil.. • Deputy Clerk to the Board . . eile % ✓�w-� APPROV AS TO F M. EXCUSED DATE OF SIGNING (AYE) William H. Jerke unty Attorney f ix / Glenn Vaad �' JJ Date of signature: a 2003-0119 ec.'LQsye/d/Iee (N, /2- BC0033 11111111 3111111111111 III 1111111 111111111111 Prom 8ernarc',°Ur I`o'm,r • Pot y Are Ropt, 779i/gee-,. 3031779 02/11/2003 12:01P Weld County, CO 1 of 12 R 61.00 0 0.00 Steve Moreno Clerk & Recorder ,, Kahn LAST CHANCE DITCH COMPANY LICENSE AGREEMENT 1 . PARTIES. The parties to this Agreement are the LAST CHANCE DITCH COMPANY, a Colorado nonprofit corporation ("Ditch Company") and WELD COUNTY, a Colorado municipal corporation, ("Licensee"). The Ditch Company and Licensee arc collectively referred to as the Parties. 2. RECITALS. The Licensee owns property described in EXHIBIT A and desires to obtain the permission of the Ditch Company to install one (1) pedestrian bridge over the Last Chance Ditch ("Ditch") and to install one (1) sidewalk running perpendicular to the Ditch to connect the pedestrian bridge to existing sidewalks as shown in EXHIBIT B. The Ditch Company agrees to permit the proposed crossing and the sidewalk, 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. 3.1 Pursuant to the terms of this Agreement, the Licensee is granted the li- cense to install one (1) pedestrian bridge over the Ditch and one (1) sidewalk running perpendicular to the Ditch connecting the pedestrian bridge to existing sidewalks (the pedestrian bridge and the sidewalk are collectively referred to as the "Installations") pursuant to the plans and specifications approved by the Ditch Company and attached hereto as EXHIBIT C. The Ditch Company's re- view of the plans and specifications is solely for its own benefit and creates no obligation on the Ditch Company to warrant the design or the construction of the Installations for their intended purposes. 3.2 All portions of the Ditch, bottoms, sides, banks and affected portions of the Ditch Company's easement disturbed by the Licensee's Installations shall be restored to their 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 appur- tenant 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. 3.3 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 at its own expense. 3.4 The Licensee agrees that the Installations shall proceed expeditiously and with reasonable diligence from the commencement of construction to its complc- 2003-0119 1111111 111 1111111 1111 IIIIII III IIIIIE III 11111 /III 1111 3031779 02/11/2003 12:01P Weld County, CO 2 of 12 R 61.00 0 0.00 Steve Moreno Clerk & Recorder 3.4 The Licensee agrees that the Installations shall proceed expeditiously and with reasonable diligence from the commencement of construction to its comple- tion. The Installations shall be completed by January 1, 2004. lithe Installations are not completed by that date, then this Agreement expires and is of no force or effect. 3.5 To the extent authorized by law, if the Licensee's construction interrupts the Ditch Company's water supply for any reason, the Licensee shall pay as liqui- dated damages one thousand dollars ($1,000) per day for any day that the Ditch Company has a request for water from a shareholder and cannot deliver water to that shareholder or shareholders as a result of the Installations. 3.6 It is not known whether Licensee's Installations require any local, state or federal permits or approvals. It is Licensee's obligation to investigate and deter- mine the need for any such permits or approvals. The 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 specifi- cally including the Endangered Species Act, prior to beginning construction. To the extent permitted by law, the Licensee shall indemnify the Ditch Company for any and all costs, damages, fines and fees including reasonable attorneys' fees in- curred by the Ditch Company as a result of Licensee's failure to obtain such permits or approvals or failure to comply with all applicable laws and regula- tions. 4. LICENSE FEE. The Licensee shall pay to the Ditch Company a license fee of one thousand dollars ($1000) as consideration for the Ditch Company's agree- ment to allow the Licensee to alter its easement by constructing the Installations within the Ditch Company's easement. The license fee shall be paid prior to the commencement of the Licensee's construction. This license fee shall be in addi- tion to any other costs for which the Licensee is responsible pursuant to this Agreement. 5. INSPECTION. 5.1 The Licensee shall notify the Ditch Company at least five (5) days prior to construction, replacement or repair of the Installations permitted by this Agree- ment. The Ditch Company is permitted to inspect the Installations or replacements and repairs during construction. Upon completion of the Installa- tions, the Ditch Company may inspect them. 5.2 The Ditch Company's right to inspect the Licensee's construction or re- placement of the Installations in no way relieves the Licensee of its liability for 12150/2002 4.15 PM AAC dm Cienlsl CnASTJAW GLDUJ,Si0 W C�!iuse na w.rom 2 � 111111 Han 1111 Hill IIIililll1III111111111 It 3031779 02/11/2003 12:01P Weld County, CO 3 of 12 R 61.00 D 0.00 Steve Moreno Clerk & Recorder improper construction. The Ditch Company's inspection is solely for the benefit of the Ditch Company and creates no obligation to the Ditch Company. 6. REIMBURSEMENT OF EXPENSES. 6. 1 The Licensee agrees to reimburse the Ditch Company (or pay directly) for all reasonable legal costs incurred by the Ditch Company in preparing, approving and enforcing this Agreement, the costs associated with billing and collecting these amounts for the Ditch Company and the costs of inspection as described in ¶5. 6.2 Consistent with Licensee's reimbursement obligations described in ¶6.1, Licensee paid to the Ditch Company an initial deposit of one thousand dollars ($1000). If the ini- tial deposit is insufficient to cover all costs described in ¶6.1, then Licensee shall reimburse the Ditch Company for any costs that exceed Licensee's initial deposit. Con- versely, any balance of the initial deposit remaining after the Ditch Company has paid all costs described in ¶6.1 shall be refunded to Licensee. 6.3 Statements for the costs chargeable to Licensee pursuant to ¶6.2 will be forwarded to Licensee and the same shall be paid to the Ditch Company within thirty (30) days after the billing date. If Ditch Company has not received pay- ment within thirty (30) days, Licensee shall have breached this Agreement and Ditch Company may institute legal proceedings to collect the amount due and ow- ing. In such proceeding, Ditch Company shall be entitled to its costs and reasonable attorneys' fees from Licensee. 7. PEDESTRIAN BRIDGE AND SIDEWALKS. Licensee may construct one (1) pedestrian bridge and the one (1) sidewalk within the Ditch Company's easement pursuant to the plans attached as EXHIBIT C. No structures other than the one (1) pedestrian bridge and the one (1) sidewalk shall be placed within the Ditch Company's easement. The Ditch Company's allowance of the use of the easement for recreational purposes is made without charge and specifically pursuant to §§33-41-101 through 33- 41-106, Colorado Revised Statutes. The Parties agree that the intent of this Agreement is to limit the Ditch Company's liability for the use of its easement for recreational purposes to the maximum extent allowable by law. 8. MAINTENANCE. Licensee specifically agrees and pledges to maintain, repair and replace the Installations described in EXHIBIT C so as not to require the Ditch Company to maintain, repair or replace them. In the event Licensee fails to maintain, repair or replace the Installations, they 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 Licensee liable for damages caused by Licensee's failure to maintain, repair or replace the Installations. 12/30/2002 0.15 PM AAC.o mnuusronv2�ounsraw-�o � �Ae=�»a�'. M ooc 3 JJlk'HJ/UULl3031779 02/11/2003 0 CD 4 of 12 R 61.00 D 0.00 Steve Moreno Clerk & Recorder 9. WATER LOSS. Licensee agrees that the Installations will not increase carriage or transit loss over the loss, which occurred historically. Licensee agrees to compact earth materials so that such additional water losses will not occur. If Licensee's construction increases carriage or transit loss in the Ditch, Licensee agrees to repair the construction to prevent such additional loss. 10. LIABILITY AND INDEMNIFICATION. 10.1 By virtue of entering into this Agreement, the Ditch Company: (l) assumes no liability for use, operation or existence of the Licensee's Installa- tions; and (2) assumes no additional responsibilities or obligations related to the Licensee's future or additional activities which are required by this Agreement. 10.2 To the extent authorized by law, the Licensee agrees to indemnify and to hold harmless the Ditch Company from all claims and liability for damage or for injury to property or persons arising or caused directly or indirectly by the Licen- see's construction, restoration, maintenance of or failure to maintain the Installations and the Licensee's occupancy and use of the area located in EX- HIBIT B. 1 1 . EASEMENT. The License granted to Licensee herein shall in no way restrict the Ditch Company's rights to its historic use of its easement, including the Ditch Com- pany's right to the use of its casement to construct, operate or maintain all existing structures and facilities of the Ditch. The Ditch Company shall be entitled to dump dirt and debris removed from the Ditch along the side the Ditch as it has done historically even if it covers or interferes with the use of the Installations. The Ditch Company shall not be responsible for damage to the Installations resulting from non-negligent operation and maintenance of the Ditch including damage resulting from the Ditch Company driving vehicles and other heavy equipment on the one (I) sidewalk to access and to maintain the Ditch. No trees, shrubs, bushes or vegetation except for native grass shall be placed within the Ditch Company's easement. No structures other than the one (1) pedestrian bridge and the one (1) sidewalk shall be placed within the Ditch Company's casement. 12. 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 notice shall be deemed to have been given when deposited in the U.S. mail. DITCH COMPANY: COPY TO: Last Chance Ditch Company Madoline E.S. Wallace, Esq. c/o Harold Nelson Bernard, Lyons, Caddis & Kahn, P.C. 12/30/2002 4:15 PM k�2AC('O.,w�ns m/w slaasi o-wF�o�ircrso nyeeRm 4 IIIIIIIVIIIIIII'I'IIIII%NMI\litIII ttIIIIiter 3031779 0211112003 5 of 12 R 61.00 0 0.00 Steve Moreno Clerk 11955 Weld County Road 15 P.O. Box 978 Longmont, Colorado 80504 Longmont, CO 80502-0978 LICENSEE: COPY TO: Weld County Planning Weld County Attorney c/o Kim Ogle 0/0 Bruce Barker 1555 North 17`x' Avenue PO Box 758, 915 10th Street Greeley, Colorado 80631 Greeley, CO 80632 13. 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. 14. RECORDATION. This Agreement shall be recorded at the cost of Licensee and shall be binding on any successors of the Parties. The failure to record all or portions of EXHIBIT C because of the size of the documents shall not affect this Agreement. 15. EXHIBITS. All exhibits referred to in this Agreement arc, by reference, incorporated in this Agreement for all purposes. 16. 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 enforc- ing this Agreement whether or not legal proceedings are instituted. DATED: CP4ruaary /a, zcx3'3 12/30/2002 4'.15 PM /Cd(1c isuusro�w��o�usTo.we�o� ��o Porae�e^, 5 iJA!i, !!dY ViuL1i, ! I'IIIlilcL1a! IU!J1ttjjUhh1 6 of 2 R 61.00 D 0.00 Steve Moreno Clerk & Recorder DITCH COMPANY: LAST CHANCE DITCH COMPANY a Colorado nonprofit corporation By: .4'f' " 7 Robert Nelson, resident ATTEST: Harold Nelson, Secretary STATE OF COLORADO ) ) ss. COUNTY OF 6O,y/Vi1"_) The foregoing instrument was subscribed and sworn to before me this /✓ day of /cCh ,,a 2003, by Robert Nelson, as President, and Harold Nelson. as Secre- tary. for the Last Chance Ditch Company, Witness my hand and official seal. My commission expires: 6 3'?vq i,' N ``ZIAilk Notary Paiblic --o—o—o- rUpOt �fE Of G0t0 1120'2003 4:27 PM AAC.ien6L1LH5 olw�rnlus o-we�ou se nq.eemam 111111111111111111 MI III IIIIIII III 11,1101 111 it Recorder 3031779 0211112003 01P Weld reentry 7 of 12 R 61.00 0 0.00 Steve Moler WELD COUNTY a Colorado municipal corporation B aul r t David E. Long, Chair( 1/08/2003) Weld County Board of C issioners STATE OF COLORADO ) ) ss. COUNTY OF WELD ) The foregoing instrument was subscribed and sworn to before me this 8th day of January , 2003, by David E. Long , as Chair , of Weld County, a Colorado municipal corporation. Witness my hand and official seal. My commission e ;/.sSP'R29a p ESTHER E.3 f �: GESICK I .tx., O Notary Public My Commission Erpires Squashy 11,2005 12/30/2052 4:15 PM A 1c.im,tansl ulwe5oans.rwei.o L,w¢e FmeAmon oao 7 rv,n2_n1(9 1111111IIIII1111111111111111111111111 III IIIunty, ��1111X111 30 02/11/2003 8 of 12 R 61.00 D 0.00 Steve Moreno Clerk & Recorder EXHIBIT A LAST CHANCE DITCH COMPANY LICENSE AGREEMENT Lots A and B of Recorded Exemption No. 1313-02-0 RE-2705 recorded at reception number 2832747 on March 16, 2001 in Weld County, Colorado, being part of the NW '/4 Section 2, Township 2 North, Range 68 West, of the 6th P.M. 1215012002 4:15°Id aucnsmlw�covsm-we_o 1,-area A�aem�rc. uc 8 1 111111 11111 1111111 1111111111 III 1111111 111 111111111 III 3031779 02/11/2003 12:01P Weld County, CO 9 of 12 R 61.00 D 0.00 Steve Moreno Clerk & Recorder EXHIBIT B LAST CHANCE DITCH COMPANY LICENSE AGREEMENT Map of Pedestrian Bridge and of Sidewalk Location (j of 1) ,A S1[)V DllAST055' DGsnse A9reemum 1210012002 4.15 PM 9 1111 11111 1111111 IIII 11111111111111111I1111111I11 IIII 31779 02/11/2003 12:01P Weld County, CO of 12 R 61 00 D 0.00 Steve Moreno Clerk & Recorder ,:,,,7,2 _,,,,,;.7,. »7, .k,' A �� e .° eykk wroa r s-k '' ',„rr`j µ `t7C tk �" Ito., i , 41 ‘40 4,j, t•„� ,lL° a fMr JYvx ulk tt `'V�w*jfr { rf�.. 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(<+ 0. `= F 1 �1 �1 v, 1 1.1 _. i-r.n'Z 't,-an: d. : k t1`'!4.......,—x v+r t"xn 2 -z - Ya '� ? �L ., r?y,-,,, -: ;;; L - _rou. versa " ` , 4 A 'M1 rye. 1 , f k V , I x+r3AN. tiro-. it xe .ul,v`w YI Y. g r , i71 I y[ln,u'�3.4 YiL4a5.. ` ::4", f t5 ::.7-7:1-'''' 1111111 liii 1111111 /III 111111 III$1111 III 111111 III 1111 3031779 02/11/2003 12:01P Weld County, CO 11 of 12 R 61.00 0 0.00 Steve Moreno Clerk & Recorder EXHIBIT C LAST CHANCE DITCH COMPANY LICENSE AGREEMENT Plans and Specifications (l oft) 120p120J2 4:15 PM _..nsrovm oL+s o-wEt ) r�. 10 I.•. et- — E'o o. DRIVEN P BCAM COSIN°AI l s — 9l I - C 3 STEEL IDUURE • i iGr'5^ �6 _1 TUBING ivP' l� 1s sr °`a°F5 ��" IL e'_'e' „,.+ C� iY.'.- _ \ 2]' ]SPACES I )J \1111 �/- �l \/1r ,,---- 515.129 STRINGERS f— '—( )-" , S'S_TE�rr --• s �� - st. .,- - II III I I--"' '� "� r'T v EA acneI nNOT , RIP-RAF SIDE !'�� . ' I I WING WALL DETAIL 0 S Lv S"s " ` '" I i• �� H710957 DRIVEN 1-ES ve,1e �. SCALE. 1 =3' - -d' C SPNCINC II BRIDGE RAIL s' SCALE 1"=3' (11-o, / 1 PIL HIE tlfiCKva_L 1 ."9-.'N. SECTION 111* I�im 23 , 1 CEPENDING ON CD - � , _ - o r a� �U N r�U I +�-�� moufiv .,1- - ". ERIr;,,EPo os• c IF s'z G - d d - o = _ 0 f2 an E _:.I f 1 f+ / M�IOxP A t ttt) vi -N ".• N- V A r G s urcPTA OF 9, RIP RAEIv',csl 111 uPr ciN:IN�ATInry l •N �' - O ,1 ors crr_r of CAP BEAM i^r'° °",i 9 cdUci Cr FULEo 5' Irv,' MI= O si LEL SICEi PIIN6 / ELEVATION PLAN VIEW _N,_ T T U s/CEO PEELNEM SCALE: N.T.S —-rte 1" 5I:ET RILING -. a cr[c SCALE: 1 =5' —-0 Computer.aT File Information --- I _ — - - l N Sheet t Revisions1 Sir I1 : 0 WELD COUNTY a,2� No, o oaT 0 G eRn P'.RTA J:! r \ ,aci a. I' E E a 0_PE. T F� —. 11, STREET //-I--•. `Y' 1 O Eo C') O _ L) wE °EY T59 J6 L•rn R e. IJ 9 4. CAH a ARRo T T MIM ra 6-4 mse W��Dc bNI -O N "' eX 000x. rsn �J PHONE. (9COT ]"5 aooa Exi. ])ho o FPa1EC]s uim. neeE,-T_o. , - r I""ie, ccoo sacv , I fAx'. OM ]a,-6.9/ RCN Ae 2. CREGE"' ,. — I'!"! 'D/L' :n €1:::1S-C3,!.0 DANIEL F.BERNARD BERNARD LYONS 303-776-99M) RICHARD N.LYONS,II GADDIS & KAHN FAX 303-413_1003 JEFFREY J.KAHN JOHN\4.GADDIS A PROF If SSIONAI. CORPORA T ION BRADLEY A_HAI.L ATTOILN FYS AND COI:VSGLU ES Mailing address STEVEN 1'JEFFER$ - POST OFFICF HOX 975 WENDY SLIT RUDNIK LONGMONT,CO 50502-0975 ANTON V.DWORAK ADELE L.REESTER SlSECONNDD address: FLOOR MADOLINE E.S.WALLACE 515 KIM BARK STREE March 10, 2003 Harold Nelson Bruce Barker Last Chance Ditch Company Weld County Attorney 11955 Weld County Road 15 915 Tenth Street Longmont, Colorado 80504 P.O. Box 758 Greeley, CO 80632 Re: License Agreement Between Last Chance Ditch Company and Weld County Dear Mr. Nelson and Mr. Barker: Attached is a copy of the license agreement between Last Chance Ditch Company and Weld County, recorded in Weld County at Reception No. 3031779 on February 11, 2003. Sincerely, BERNARD, LYONS, GADDIS & KAHN, a Professional Corporation By Cl , �,3 Peggy P .t#&Legall Assistant pp Enclosure '' ' 1,91 � fr r�{ 1 — ° I lit 4 ! MAR t ri �. A b#.r"". V1E.L.D C ti "..T;JLU,IEY'9 orE : " G'CLI ENTS)uLASTD/WELDLLT-NELSON & BARKER.DOG 3/10/03 DANIEL F.BERNARD BERNARD LYONS 303-776-9900 RICHARD N.LYONS,II GADDIS & KAHN FAX 303-413-1003 JEFFREY J.KAHN - E-MAIL info@blglaw.com JOHN W.GADDIS A PROFESSIONAL CORPORATION Mailing address: BRADLEY A.HALL ATTORNEYS AND COUNSELORS STEVEN P.JEFFERS POST OFFICE BOX 978 WENDY SLEE RUDNIK LONGMONT,CO 80502-0978 ANTON V.DWORAK Street address: ADELE L.REESTER SECOND FLOOR MADOLINE E.S.WALLACE 515 KIMBARK STREET December 31, 2002 m wet llace(i Mgt/ Bruce Baker � k L Weld County Attorney PO Box 758 915 10th Street JAN 0 3 2003r Greeley, Colorado 80632 WE:LC.) L wr : b ;-ry- ATTORNEY'S 3.;, `r10E Re: Final Crossing Agreement Between Last Chance Ditch Company anJ l " - County - Dear Mr. Baker: Thank you very much for sending your December 26, 2002 letter, which provided comments on the draft Crossing Agreement between the Last Chance Ditch Company ("Ditch Company") and Weld County ("County"). I have reviewed your comments and revised the agreement accordingly. Specifically, I made the following changes per your request: • ¶3.1 To clarify the intended purpose of the last sentence, I modified the language in the last sentence to read "[t]he Ditch Company's review of the plans and specifications is solely for its own benefit and creates no obligation on the Ditch Company to warrant the design or the construction of the Installations for their intended purposes." ¶3.4 The Ditch Company will be flexible about the completion date. However, Kim Ogle of Weld County Planning has indicated that January 1, 2004 should be sufficient. ¶3.5 As requested, I modified the language to read "Jt]o the extent authorized by law, if the Licensee's construction interrupts the Ditch Company's water supply for any reason, the Licensee shall pay as liquidated damages one thousand dollars ($1,000) per day for any day that the Ditch Company has a request for water from a shareholder and cannot deliver water to that shareholder or shareholders as a result of the Installations. 6.2 ms's re e ted dde ew r ra t re is th 1000 aym t tha he Co ty e to e Dit ompany. T arag re 46sis G:\0Iieeta\L\LASTD\WELD\LASTD-WELD Review ABreament doc 12/31/02 003-0//9 BERNARD LYONS GADDIS & KAHN A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS Bruce T. Barker December 30, 2002 Page 2 ¶6.2 As requested, I added a new paragraph that reflects the $1000 payment that the County made to the Ditch Company. The paragraph reads "[clonsistent with Licensee's reimbursement obligations described in ¶6.1, Licensee paid to the Ditch Company an initial deposit of one thousand dollars ($1000). If the initial deposit is insufficient to cover all costs described in ¶6.1, then Licensee shall reimburse the Ditch Company for any costs that exceed Licensee's initial deposit. Conversely, any balance of the initial deposit remaining after the Ditch Company has paid all costs described in ¶6.1 shall be refunded to Licensee." ¶6.3 As requested, I modified the language of ¶6.3 (formerly ¶6.2) to read "statements for the costs chargeable to Licensee pursuant to ¶6.2 will be forwarded to Licensee and the same shall be paid to the Ditch Company within thirty (30) days after the billing date." ¶10.2 As requested, I modified the language of ¶10.2 to read "jtlo the extent authorized by law, the Licensee agrees to indemnify and to hold harmless the Ditch Company from all claims and liability for damage or for injury to property or persons arising or caused directly or indirectly by the Licensee's construction, restoration, maintenance of or failure to maintain the Installations and the Licensee's occupancy and use of the area located in EXHIBIT B." ¶11 As requested, I modified the language of the third sentence of¶11 to read "[t]he Ditch Company shall not be responsible for damage to the Installations resulting from non-negligent operation and maintenance of the Ditch including damage resulting from the Ditch Company driving vehicles and other heavy equipment on the one (1) sidewalk to access and to maintain the Ditch." However, the Ditch Company will not remove ¶4, which requires the County to pay a $1000 license fee. Despite your contention, the license fee does not constitute a "construction fee" but constitutes contractual consideration for the Ditch Company's agreement to allow the County to alter its easement. While the Ditch Company requires that it be reimbursed for expenses incurred as a result of construction of the Installations (¶6) it also must be compensated for allowing the alteration of its easement. Likewise, the license fee is not a charge for the recreational use of the easement (¶7) because the license fee compensates for the County's alteration of the easement not for allowing visitors to use the easement. Similarly, the license fee differs from the liquidated damages (¶3.5) because the license fee compensates the Ditch Company allowing the County to alter its easement while the liquidated G.\CIIenULL\LASTD\WELD\LASTD-WELD Review Agreement doc 12/30101 4:15 PM BERNARD LYONS GADDIS & KAHN A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS Bruce T. Barker December 30, 2002 Page 3 • damages compensate the Ditch Company for the County's interruption of water delivery during the irrigation season. Incidentally, it is the Ditch Company's customary business practice to charge a license fee any time an entity wants to alter its easement. As a result, the Ditch Company informed you of its practice of charging a license fee on October 15, 2002 in its reimbursement letter that Mr. Vaad signed. Please find enclosed a strikeout version of the agreement that shows the revisions to the draft Crossing Agreement. Also find enclosed two copies of the final Crossing Agreement for the County's signature. Please have the County sign both copies of the final Crossing Agreement and forward the copies to me for the Ditch Company's signature. At the same time, please forward to me a check for $1000 for the license fee. Thank you very much for responding to my draft so quickly. Please call me if you have any questions or comments. Best regards, BERNARD, LYONS, GADDIS & KAHN, a Pro Tonal Cor oration Midoline E. llace MEW:mew Enclosure cc: Harold Nelson, Last Chance Ditch Company Kim Ogle, Weld County Planning G:1CIlents\L\LASTD\WELO\LASTO-WELD Review Agreement.doc 12/30/02 4:15 PM DANIEL F.BERNARD BERNARD LYONS 303-776-9900 RICHARD N.LYONS,II GADDIS & KAHN FAX 303-413-1003 JEFFREY J.KAHN JOHN W.GADDIS Mailing address: BRADLEY A.HALL. A PROFESSIONAL CORPORATION POST OFFICE BOX 978 ATTORNEYS AND COUNSELORS LONGMONT,CO80502-0978 STEVEN P.JEFFERS WENDY SLEE RUDNIK Street address: SECOND FLOOR ANTON V.DWORAK ADELE L.REESTER 515 KIMBARK STREET MADOLINE E.S.WALLACE jchaffee@blglaw.com February 10, 2003 Weld County Clerk and Recorder P. O. Box 459 Greeley, CO 80632 Re: License Agreement between Last Chance Ditch Company and Weld County Dear Clerk and Recorder: Enclosed, for recording, is the Last Chance Ditch Company License Agreement (original), together with our check in the amount of$61.00 for the recording fee. Please record this License Agreement and return it with the recording information to our office in the enclosed envelope. Please contact our office if you have any questions or comments. Thank you for your assistance. Sincerely yours, BERNARD, LYONS, GADDIS & KAHN, a Professional Corporation ,...e_-,,z_ _ B . �JeJ Therese Josie ffee, Legal Assist. /jos Enclosure cc: Harold Nelson, Last Chance Ditch Company Bruce Barker, Weld County Attorney (w/enclosure—duplicate original) • FEE-E3:12:2003, ilii �� WEL C©UNTY ATTORNEY'S OFFICE G\CLIENTS\L\LASTO\WELD\LT-CLERK AND RECORDER.DOC 2/10/03 Hello