HomeMy WebLinkAbout20180853.tiffRESOLUTION
RE: APPROVE AGREEMENT CONCERNING PURCHASE OF TEMPORARY
CONSTRUCTION EASEMENT FOR POUDRE TRAIL PROJECT AND AUTHORIZE
CHAIR TO SIGN - GWIP, 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 an Agreement Concerning Purchase of
Temporary Construction Easement for Poudre Trail Project, 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 GWIP, LLC, 2005 Howard Smith Drive East, Windsor,
Colorado 80550, commencing upon full execution of signatures, and ending the completion of
said project, 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 Agreement Concerning Purchase of Temporary Construction
Easement for Poudre Trail Project, 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 GWIP, LLC, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign all necessary documents.
cc : PwC-r'-(Mc), QC-rC (? c)
4f! 9-!P
2018-0853
EG0075
AGREEMENT FOR PURCHASE OF TEMPORARY CONSTRUCTION EASEMENT FOR
POUDRE TRAIL PROJECT — GWIP, LLC
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of March, A.D., 2018.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: ddrite4) �C;Weld County Clerk to�
the Board
BY:
AP
Deputy Clerk to the B
y Attorney
Date of signature: vy-0 q -1 lg
Steve Moreno, Chair
arbara KirkmeyerPro-Tem
Sean P. Conway
EXCUSED
Julie A. Cozad
Mike Freeman
2018-0853
EG0075
MEMORANDUM
TO: Clerk to the Board DATE: March 21, 2018
FROM: Tiffane Johnson, Public Works Department
SUBJECT: Agenda Item
RE: Agreements for Poudre Trail Flood Damage
Please place on the March 21, 2018 BOCC agenda for acceptance the following three documents
related to the Poudre River Trail Flood Damage Improvements for the BOCC acceptance and
signature.
1. Second Amendment to Lease Agreement for Construction, Operations, and Maintenance of
Trail Across Kodak Property.
• There are three (3) original Agreements that must be signed by the Chair. Please return
two (2) originals to Tiffane Johnson at Weld County Public Works.
2. Temporary Construction Easement Donation agreement to execute conveyance of Temporary
Construction Easement.
,\._.3. Temporary Construction Easement between GWIP, LLC, a Colorado Company and Weld
County to be signed by the Chair.
2018-0853
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this
"Agreement") is made and entered into this 21st day of March, 2018 (the "Effective Date"),
by and between GWIP, LLC, a Colorado limited liability company ("Grantor"), and the
COUNTY OF WELD, COLORADO, a political subdivision of the State of Colorado (the
"County").
RECITALS
This Agreement is made with respect to the following facts:
A. Grantor owns certain real property in the County generally located north of the
Poudre River at Weld County Road 23, and generally depicted on Exhibit A attached hereto and
incorporated herein by this reference (the "Grantor Property")
B. Grantor and the County are parties to a trail lease (the "Lease"), pursuant to
which Grantor has leased certain real property abutting the Poudre River for purposes of
constructing, maintaining and operating a recreational trail for public use (the "Trail").
C. Following an instance of flooding on the Poudre River, a portion of the Trail was
washed out.
D. In order to preserve accessibility and continue operation of the Trail, Grantor and
the County have caused the Lease to be amended to relocate the Trail, and, in connection with
such relocation, the County has requested, Grantor has agreed to grant, a temporary construction
easement over and across that certain portion of the Grantor Property more particularly described
and depicted in Exhibit B attached hereto and incorporated herein by this reference (the
"Easement Area") to facilitate the County's construction of the relocated permanent trail to
replace the washed out portion of the Trail (the "Relocated Trail"), all in accordance with the
terms and conditions more particularly set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in
this Agreement, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Grantor and the County hereby agree as follows:
1. Grant of Temporary Construction Easement. As of the Effective Date, Grantor
hereby grants to the County and its employees, licensees, guests, invitees, contractors and
subcontractors (collectively, "Permittees") a non-exclusive, temporary easement over and across
the Easement Area for the purposes of (a) constructing, maintaining, operating, repairing and
replacing the Relocated Trail and (b) vehicular and pedestrian access to and from the Relocated
Trail and the Trail (collectively, the "Easement").
1450762.2
0204-0,0
2. Subject to Superior Interests. The County's interest, as grantee, under this
Agreement shall be subject and subordinate to any and all prior or superior rights of record in
and to the Easement Area.
3. Reservation by Grantor. Grantor reserves the right to use the Easement Area for
purposes that will not unreasonably interfere with, or be materially inconsistent with the
Easement, including without limitation the right to operate, maintain, repair, replace and relocate
the existing irrigation ditch located within the Easement Area.
4. Term. The term of this Agreement (the "Term") will begin on the Effective Date
and will terminate upon the earlier to occur of (a) the completion of construction of the
Relocated Trail, or (b) written agreement of Grantor and the County. Notwithstanding the
foregoing, however, the Term will automatically expire on the date that is five years following
the Effective Date. Upon expiration of the Term, this Agreement will automatically terminate
and neither party will have any further rights or obligations hereunder.
5. Use of the Easement Area. At all times during the Term, the County will:
(a) Cause the construction, installation, repair and maintenance of the
Relocated Trail to be performed in accordance with all applicable laws and in a
reasonably safe manner;
(b) Be responsible for any and all costs associated with the Relocated Trail;
(c) Not permit any liens to be filed against the Grantor Property;
(d) Access the Easement Area from the Trail or other portions of the
Easement Area, and not from the Grantor Property, unless permitted along routes
designated by Grantor;
(e) Keep the Easement Area, including the Relocated Trail and any
landscaping, in a well maintained, clean and neat condition, and will promptly remove all
supplies and equipment from the Easement Area following any installation, maintenance
or repair;
(f) To the extent the Relocated Trail causes any damage to or physical
alteration of the Easement Area (other than as expressly contemplated by this
Agreement), promptly restore the Easement Area to substantially the same condition in
which it existed prior to the Term; and
(g) Assume any risk related to the Relocated Trail, and does hereby release
and discharge Grantor from any liability for loss, damage, destruction or injury arising
out of or related to the Relocated Trail.
6. Insurance. "The County maintain insurance through the Colorado Counties
Casualty and Property Pool (CAPP) in coverage amounts substantially similar to that specified
below covering the Easement Area, all the work and services to be performed hereunder, and all
obligations assumed hereunder, during the Term of the Agreement. Further, County shall ensure
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1450762.2
all contractors and subcontractors working in the Easement Area have insurance with the
following minimum requirements:"
(a) Workers Compensation and Employers Liability Insurance providing
statutory workers compensation benefits mandated under applicable state law and
employers' liability insurance subject to a minimum limit of $1,000,000 each accident for
bodily injury by accident, $1,000,000 each employee for bodily injury by disease and
$1,000,000 policy limit for bodily injury by disease.
(b) Commercial General Liability Insurance written on a claims -made basis
subject to a limit $5,000,000 per occurrence and in the aggregate for bodily injury,
property damage, personal injury and libel and/or slander with an annual aggregate limit
of no less than $6,000,000. Policy is to include, but not be limited to, coverage for:
Operations and Premises Liability, Completed Operations and Products Liability,
Personal Injury Liability and Contractual Liability insurance.
(c) Business Automobile Liability Insurance subject to a minimum limit of
$1,000,000 each accident for bodily injury and property damage. Policy coverage shall
be written on a claims -made basis to cover motor vehicles owned, leased, rented, hired or
used on behalf of County.
(d) All insurance required of County with the exception of Workers
Compensation and Employers Liability shall include Grantor and any subsidiary,
management company, parent, owners and affiliates of Grantor, and their respective
partners, successors, assigns, legal representatives, officers, directors, members,
managers, shareholders, employees, agents, contractors as additional insured and shall be
primary and not excess over or contributory with any insurance carried by Grantor.
(e) The County shall provide Grantor prior written notice of insurer's intent to
cancel or otherwise terminate policy coverage.
(f) The County shall file with Grantor on or before the Effective Date a valid
Certificate of Insurance for all required insurance policies. Each certificate shall identify
Grantor, its affiliates and other required parties as set forth in Section 6(d) above as
additional insured.
(g) The County hereby waives all rights of subrogation against Grantor, its
affiliates and other required parties as set forth above for damages to the extent covered
by insurance. All insurance policies of the County shall allow that any release from
liability of or waiver of claim for recovery from any other party entered into in writing by
the County prior to any loss or damage shall not affect the validity of said policy(ies) or
the right of the insured or insureds to recover under them.
(h) The County shall require any Permittees to carry insurance policies in
favor of Grantor that comply with the limits stated within this Agreement.
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1450762.2
7. Indemnity. To the extent permitted and as limited by the Colorado Constitution,
the County will indemnify, defend and hold harmless (a) Grantor and its affiliates and related
entities, and (b) their officers, directors, members, agents, employees, designees, contractors,
consultants, customers, lessees, guests, invitees, licensees (collectively, the "Grantor's
Indemnified Parties") from and against any and all claims (including, without limitation,
mechanic's lien claims), actions, causes of action, liability, losses, damages, costs and expenses,
including without limitation reasonable attorneys' fees, and any actual costs and expenses
incurred by any such Grantor's Indemnified Parties in connection with the County's or its
Permittees' use of the Easement and any other rights and obligations pursuant to this Agreement,
except to the extent arising as a result of a Grantor's Indemnified Party's gross negligence or
intentional misconduct.
8. Notices. All notices, demands or other communications required or permitted to
be given hereunder will be in writing and any and all such items will be deemed to have been
duly delivered upon (a) personal delivery; (b) as of the 5th business day after mailing by United
States mail, certified, return receipt requested, postage prepaid, addressed as follows; (c) as of
noon on the immediately following business day after deposit with Federal Express or a similar
overnight courier service that provides evidence of receipt, addressed as follows; or (d) upon
delivery by e-mail, addressed as follows:
If to Grantor, to:
With a copy to::
If to the County, to:
GWIP, LLC
2005 Howard Smith Drive East
Windsor, Colorado 80550
Attention: Project Manager
Email: cstith@omnitrax.com
GWIP, LLC
252 Clayton Street, 4th Floor
Denver, Colorado 80206
Attention: Legal Counsel
Email: bleonard@broe.com
County of Weld
Department of Public Works
1111 H Street
PO Box 758
Greeley, CO 80632
Attention: Tiffane Johnson
Email:tvjohnson@weldgov.com
or to such other address of which, or such other person of whom, any party notifies the other for
such purpose in accordance with this Section.
9. No Public Dedication.
or dedication of any portion of the
purpose whatsoever; this Agreement
Nothing contained in this Agreement will be deemed a gift
Easement Area for the general public or for any public
will be strictly limited to and be for the purposes set forth
4
1450762.2
herein and will not be interpreted or construed to create any third party beneficiary rights in any
person not a party hereto.
10. No Recording. This Agreement (or any memorandum thereof) will not be
recorded by either party hereto and any violation of this provision by the County will, at the
option of Grantor to be exercised by written notice from Grantor to the County, cause this
Agreement to be terminated, null and void.
11. Severability. If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be void or unenforceable, such determination shall not affect any other
term, covenant or provision hereof, and all of the other terms, covenants and provisions hereof
shall remain in full force and effect.
12. Governing Law; Counterparts. This Agreement is governed by and construed in
accordance with the laws of the State of Colorado. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the Effective Date.
GRANTOR:
Cheryl Ho y Clerk to
GWIP, LLC,
a Colorado limited li
By:
Name:
Title:
COUNTY:
COUNTY OF WELD, COLORADO,
a political subdivision of the State of Colorado
By:
Name: Steve Moreno
Title: Chairperson, Board of County
Commissioners of Weld County MAR 21 Z018
020aa- of ‘A
1450762.2
EXHIBIT B
EASEMENT AREA
PROJECT CODE: 21887
PROJECT NUMBER: TAP C030-071
TEMPORARY EASEMENT NUMBER: TE-1
DATE: SEPTEMBER 25, 2017
LEGAL DESCRIPTION
A Temporary Easement No. TE-1 of the Department of Transportation, State of
Colorado, Project Code 21887, Project Number TAP C030-071, containing 127,217.54 square
feet (2.921 acres), more or less, located in Lot -B of RE -476, Windsor, Colorado, said Temporary
Easement being more particularly described as follows:
Commencing at a point, whence the East One -Quarter corner of Section 35, Township 6
North, Range 67 West of the Sixth Principal Meridian, County of Weld, State of Colorado bears
North 40° 37' 44" West, a distance of 406.44 feet, said point being the TRUE POINT OF
BEGINNING;
1. Thence South 44° 51' 43" East, a distance of 27.12 feet;
2. Thence South 22° 19' 19" West, a distance of 50.38 feet;
3. Thence South 46° 29' 30" West, a distance of 229.88 feet;
4. Thence North 64° 05' 09" West, a distance of 155.79 feet;
5. Thence South 63° 50' 09" West, a distance of 116.79 feet;
6. Thence North 39° 36' 18" West, a distance of 232.00 feet;
7. Thence North 56° 36' 35" West, a distance of 244.63 feet;
8. Thence North 20° 53' 48" East, a distance of 165.04 feet;
9. Thence South 83° 02' 13" East, a distance of 167.39 feet;
10. Thence South 42° 11' 33" East, a distance of 567.73 feet;
11. Thence North 46° 29' 30" East, a distance of 188.08 feet;
B-1
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12. Thence North 22° 19' 19" East, a distance of 55.54 feet to the TRUE POINT OF
BEGINNING.
The above described Temporary Easement contains 127,217.54 square feet (2.921 acres), more
or less.
The purpose of the above described Temporary Easement is for the construction the Poudre river
trail flood damage.
Basis of Bearings: All bearings are grid bearings of the Colorado State Plane System,
North Zone (0501), North American Datum 83(2011). The East line of the Northeast One -
Quarter of said section 35, from the East One -Quarter corner being a 3-'/," aluminum cap
stamped LS20685 1990 to the Northeast corner of said section 35 being a 3-'/." aluminum cap
stamped LS7242 1993, as bearing North 00033' 42" West.
For and on Behalf of the
Weld County
Daniel R. Holmes, PLS 38213
1111 H Street
Greeley, CO 80632
B-2
1450762.2
GWIP LLC
(FORMERLY BROL LAND
AQUISITIONS II LLC)
LINE TABLE
LINE
BEARING
DISTANCE
L1
S45'08'17 W
30.00'
L2
S44'51'43`E
27.12'
L3
S22'19'19 -W
50.38'
L4
$63'5O'O9"W
116.79'
L5
N2219'19"E
55.54'
N2O'53'48"E
165.04'
WELD COUNTY
4d WIDE LEASE
RLC#2G72770
2-;1-1999
EXHIBIT -B
DEMIANYCZ JOHN
DANIEL
REVOCABLE TRUST
LOT -A RE -475
S83.02'13"E
167.39'
GWIP LLC
(FORMERLY BROE LAND
ACQUISITIONS II LLC)
BLANKS
LOT -A RE -476
RECP.# 3349269
PARCEL#080735400008
LOT -B RE -476
RECP.#1847472
NOTE: THIS EXHIBIT MAP DOES NOT REPRESENT A
MONUMENTED LAND SURVEY OR LAND SURVEY PLAT.
IT IS INTENDED TO ILLUSTRATE THE ATTACHED
PROPERTY DESCRIPTION ONLY.
TEMPORARY EASEMENT
ACQUISITION
GWIP LLC
WELD COUNTY, COLORADO
SE 1/4 S35-T6N-R67W
SW 1/4 S36-16N-R67W
NE COR. S35-T6N-R67W
FND 3 1/4" ALUM. CAP
LS7242 1993
EXISTING 60.00' ROW
RD BK-1. PG -355
04-09-1675
30' WOE- W. SIDE OF
THE NW 36-6-67 �'�'� GWIP LLC
MAR. 17. 1909 (FORMERLY BADE LAND
REC�136966 AQULSI7.ONS II LLC)
TEMPORARY EASEMENT
ACQUIRED
127,217.54 sf.
OR 2.92 ac.±
B-3
P.O.C.
E 1/4 COR. S35-T6N-R67W
FND 3 I/4' ALUM. CAP
L520685 1990
EXISTING 60.00' ROW
RD BK-1. PG -355. 04-09-1875
RESOLUTION 06-13-2013
REC/3072613
WELD COUNTY RETAINS THE
RIGHT-OF-WAY FOR MAINTENANCE
AND EMERGENCY USE
SW 1/4
S36-T6N-R67W
WELD COUNTY DEPARTMENT
OF PUBLIC WORKS
POUDRE TRAIL PROJECT
PROJECT NO; GR-37
DATE: 2-05-18
SCALE: I"=200
DRAWN BY: DRMI SHEET: 4 of 4
1450762.2
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