HomeMy WebLinkAbout20141835.tiff RESOLUTION
RE: APPROVE CONSTRUCTION AGREEMENT FOR WELD COUNTY PARKWAY
PROJECT AND AUTHORIZE CHAIR TO SIGN - DELTA IRRIGATION COMPANY,
OPERATING PATTERSON DITCH
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 Construction Agreement for the Weld
County Parkway 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 Delta Irrigation Company, operating Patterson Ditch, commencing upon full execution of
signature, 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 Construction Agreement for the Weld County Parkway 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 Delta Irrigation
Company, operating Patterson Ditch, 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 18th day of June, A.D., 2014.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:W SC (4O5(05- cptO‘r
C,l / %� Douglas ademacher, hair
Weld County Clerk to the Board
{ tc A Di
/� /13-arbara Kirkmeyer, ro-Tem
BY: (1 QO Oa. a.
pity Clerk to the Board
gK\' IE L6'\ Sean P. Conway
APP AS T•'' - ,? I►`
ppmai1 „��:� Mike Fr n
untyAttorney
\ Willia . Garcia
Date of signature: 7-8-('/ '►
I St. .ctodt--Iv ('C'. / 0.413,
► a&c u 1°/I 8 1- I'(-1'( 2014-1835
EG0070
1861
��. MEMORANDUM
L1 G L N T 2 TO: Clerk to the Board DATE: June 12, 2014
FROM: Mike Bedell, P.E., Public Works Department
SUBJECT: BOCC Agenda
Construction Agreement for the Weld County Parkway Project with Patterson Ditch.
Attached are two signed original Agreements. Please return one signed document to Public
Works.
M.Francic`'.AGEN'DA memos\AgendatdIkeeedell-1 docx RECEIVED
JUN 13 2014
WELD COUNTY
COMMISSIONERS
2014-1835
to- ig- ►�,l
BOARD OF COUNTY COMMISSIONERS
REVIEW/WORK SESSION REQUEST
RE: Weld County Parkway—Delta Irrigation Construction Agreement
DEPARTMENT: PUBLIC WORKS DATE: 6/3/2014
PERSON(S)REQUESTING: Michael Bedell (Senior Engineer)
Brief description of the problem/issue:
The Weld County Parkway construction requires crossing the Patterson Ditch (operated by Delta Irrigation
Company) in the vicinity of Holly Street. The construction plans entail installation of reinforced concrete pipe
in two locations which are currently earthen ditches. The new concrete roadway will be constructed on top of
these two new pipe crossings.
To protect both parties (Weld County and Delta Irrigation)interests,a formal Construction Agreement has been
developed. Delta Irrigation has signed the agreement. Construction of the pipe crossings is scheduled to take
place during the time period between November 4,2014 and March 7, 2015.
What options exist for the Board:
The Board can choose to approve the attached Delta Irrigation Construction Agreement, or choose to amend or
reject the proposed agreement.
Recommendation to the Board:
Public Works recommends approval of the Delta Irrigation Construction Agreement. If recommended, Public
Works will try to get this item put on the next available BOCC meeting agenda. If approved, the Weld County
Parkway construction contractor will complete the associated work as planned.
Approve Schedule
Recommendation Work Session Comments
Douglas Rademacher,Chair
Barbara Kirkmeyer
Sean P. Conway We
Mike Freeman M�
William F. Garcia itt
Attachments: Delta Irrigation Construction Agreement
Agreements Exhibits
CONSTRUCTION AGREEMENT
DELTA IRRIGATION COMPANY (OPERATING PATTERSON DITCH)
AND WELD COUNTY COLORADO
it
THIS AGREEMENT is made this IS day Zara.. , 2014, by and between Delta
Irrigation Company (Operating Patterson Ditch), whose address is P.O. Box 200111 Evans, CO
80620, hereinafter referred to as "Company," and the County of Weld, a body corporate and
politic of the State of Colorado, by and through its Board of County Commissioners, whose
address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as "County."
WITNESSETH:
WHEREAS, County finds it necessary to construct the Weld County Parkway Project,
(hereinafter referred to as "Project"), which will involve said road's crossing of the Patterson
Ditch, and
WHEREAS, Company is the owner of that certain right-of-way within which lies all
Ditch improvements and related appurtenances, (hereinafter referred to as "the Ditch"), and
WHEREAS, County and Company acknowledge Company's Ditch lies within the area of
County's Project, (a copy of said location information is attached hereto and made a part hereof
by this reference as Exhibit A), and
WHEREAS, Company and County recognize that County has a statutory obligation to
maintain its roads and bridges to protect the safety of the travelling public and that Company also
has legal obligations to deliver water to its shareholder/members, and
WHEREAS, Company agrees that County has designed the Project to accommodate the
current average water capacity of the Company's Ditch, as reflected in the construction and
design drawings, a copy of which are attached hereto and made a part hereof by this reference as
Exhibit A, and
WHEREAS, each party desires to cooperate in a manner that permits each to meet its
obligations.
NOW, THEREFORE, in consideration of the promises and covenants expressed herein,
the parties mutually agree as follows:
I. COMPANY'S RIGHTS AND RESPONSIBILITIES:
1. Construction and Design Drawings: Company and County acknowledge
that each has had the opportunity to provide input into the design of the Project, and that Exhibit
A is representative of the collaborative design efforts of the parties. In the event that during
construction County discovers unanticipated conditions, County shall notify Company of the
need for design changes. The revised drawings, plans and/or specifications shall be attached
hereto and made a part hereof as Exhibit Al.
Page 1 of 7
2. Construction of Project: Company hereby grants permission to County to
construct the improvements described on the Exhibit A drawings and thereafter maintain said
culverts, within the area occupied by the Ditch, as described and illustrated in the construction
and design drawings reflected in Exhibit A.
Grant of Right of Ingress & Egress: Company hereby grants to County
g g g P Y
the right of ingress and egress to and from the Project and across the Ditch property, as necessary
and reasonable for the exercise of the purposes of this Agreement.
4. Company's Field Inspections: Company shall conduct field inspections at
the initial stage of planning and within three (3) business days of County's notification to
Company that construction has been substantially completed. In addition, in Company's
discretion, field inspections may be conducted during the construction of the Project. Company
shall notify County in writing of all necessary corrective work it deems necessary within three
(3) days of such field inspections. Such corrective work shall be completed promptly at the sole
expense of County. Failure of Company to notify County of the need for corrective work within
three (3) business days of Company's inspection shall be deemed to constitute Company's
acceptance and approval of the construction of the Project through the date of that inspection.
5. Company's Present and Future Rights to Maintain Ditch: Company has,
and shall continue to have full power to operate, maintain, alter, enlarge, relocate, clean and
manage the Ditch as if this Agreement had not been made, except to the extent that Weld County
right-of-way may be damaged by Company's negligence in conducting said activities. 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 activity on the part of the Company
could reasonably be expected to damage County's road or right-of-way, Company agrees to give
prior notice to County, and to cooperate with County to mitigate and possibly avoid said injuries
or damages to the County's road and/or right-of way, and this Project.
6. Emergency Repairs: In the event Company finds it necessary to perform
emergency repairs to the Ditch, either during County's construction of the Project or at any time
in the future, and such activity causes damage to County's road, right-of way and/or Project,
Company shall be without liability for damages to County as the result of the performance of
such repairs, except as to such damage caused by Company's negligence. If Company determines
that emergency repairs to the Ditch must be made, which repairs are caused by the acts or
omissions of County in constructing or maintaining the Project and/or road, Company shall
notify County of the need for such repairs; if County is able to conduct such repair work, it will
so notify Company immediately, and will commence said repairs within a time period agreed to
by Company. If County is unable to undertake said repair work within a time period to which
Company agrees, and Company expends any sum for said emergency repairs of the Ditch,
Company shall notify County of the expenditure, submit documentation of the expense incurred
and, subject to the approval of and appropriation of funds by the Weld County Board of
Commissioners, County shall reimburse the Company for any reasonable expense.
7. Flow of Water During Construction of Project: In order to ensure the safety
of those involved in the construction of County's Project, and in order to allow County to take
necessary steps to facilitate the uninterrupted free flow of water through the Ditch, Company
Page 2 of 7
agrees to notify County personnel, pursuant to the notice requirements of this Agreement of a
release of water in the Ditch. During County's construction of the Project, Company agrees to
provide notice to County immediately following its receipt of permission to flow water.
Immediately following its receipt of such notice, County shall make provisions to allow the free
flow of water through the Ditch, as soon as reasonably possible.
8. Acceptance of Drainage Water: Company agrees that it will accept the
historical flows from the County's right-of-way, normally conveyed in a roadside ditch. County
agrees that it will construct the entrance of the historical flows into Company's Ditch in a
manner designed to prevent erosion or damages to the Ditch banks.
II. COUNTY'S RIGHTS AND RESPONSIBILITIES
1. County's Right of Ingress & Egress: County has the right of ingress and
egress to and from the Project and across the Ditch property, as necessary and reasonable for the
exercise of the purposes of this agreement.
2. County to Provide Notice of Work: All work shall be performed only
after prior notice and submission of plans and specifications to Company's superintendent, after
such engineering and legal consultation as Company considers necessary, following the approval
of the same by Company. Such approval shall not be unreasonably withheld or delayed.
3. County's Construction Responsibilities: County agrees to construct the
Project, and thereafter maintain it in such a manner as to avoid damage to the Ditch, particularly
the embankments and access thereto, and to avoid interference with the flow of water through the
Ditch. Any damage to the Ditch caused by County's construction of the Project, including
damage to the Ditch's embankments and facilities appurtenant to the Ditch, shall be addressed as
follows: (1) If Company determines that repairs to the Ditch must be made, which repairs are
caused by the acts or omissions of County in constructing or maintaining the Project and/or
culvert, Company shall notify County of the need for such repairs; (2) If County is able to
conduct such repair work, it will so notify Company immediately, and will commence said
repairs within a time period agreed to by Company; (3) If County is unable to undertake said
repair work within a time period to which Company agrees, and Company expends any sum for
said repairs of the Ditch, Company shall notify County of the expenditure, submit documentation
of the expense incurred and, subject to the approval of and appropriation of funds by the Weld
County Board of Commissioners, County shall reimburse the Company for any reasonable
expense.
4. Historical Drainage Patterns: Company and County agree that the design
of the project, as reflected in Exhibit A, is expected to preserve historical drainage patterns, and
both parties believe that said design shall, therefore, preserve the integrity of Company's
facilities. However, in the event that historical drainage patters are altered by construction of the
Project, and adversely impact Company, County agrees to correct those characteristics of the
Project which created the adverse impact.
5. Flow of Water During Construction of Project: It is a primary goal of County
in the construction of this Project, not to interrupt the flow of water through Company's Ditch.
To that end, County agrees that absent accidents involving third parties, or force majeure, as
Page 3 of 7
described in Paragraph 111.12 herein, County will not interrupt the flow of water through
Company's Ditch. The parties have agreed that County shall construct the Project during the
period beginning on the 4th day of November, 2014 and ending on the 7th day of March, 2015,
unless otherwise agreed to by both parties. As the parties are aware that water could be
transferred through the Ditch for a variety of reasons at any time during the construction period,
Company has agreed to provide notice to County immediately following Company's receipt of
permission to flow water. Immediately following its receipt of such notice, County shall begin
the removal of its equipment, materials and/or personnel from the Ditch site in order to allow the
free flow of water through the Ditch, as soon as reasonably possible. Notice of the release of
water by Company shall be given to each person named in paragraph II1.13 and in accordance
with the provisions of that paragraph.
6. Repair and Maintenance of Project After Construction: All post-construction
repairs, replacements or maintenance of the Project by County which could impact Company's
use and operation of the Ditch shall, in the absence of an emergency, be undertaken during a
period when the Ditch is not being used to carry water, and such work shall be completed before
that use begins. County agrees to notify Company of the need to repair, replace or maintain the
Project and Company agrees to provide County with a flow schedule which will allow County to
perform its work when the Ditch is not expected to be used to carry water. In the event of an
emergency situation caused by an immediate and unforeseen incident causing damage to WCR
49 which creates a danger to the travelling public, County agrees to immediately notify
Company of the need to conduct such repairs, and to the extent possible, Company agrees to
cooperate to allow County to complete said repairs
7. County's Responsibilities Following Construction and/or Repair,
Replacement and Maintenance: Upon County's completion of construction of the Project,
and following any later repair, replacement and/or maintenance activity related to the Project,
which takes place within the Ditch boundaries, County agrees to clean the Ditch and Ditch bank
area in order to place it in the same or better condition than it was before the activity began.
8. Legal/Engineering Expense Reimbursement: Following presentation of a
paid statement reflecting expenses, County agrees to reimburse Company for all reasonable legal
and/or engineering costs incurred by Company for the legal review of this Agreement and for the
professional engineering review of the Project's design, not to exceed a total of two thousand
($2,000.00) dollars.
III. MISCELLANEOUS
1. Board of County Commissioners of Weld County Approval: This Agreement
shall not be valid until it has been approved by the Board of County Commissioners of Weld
County, Colorado.
2. Agreement Binding: This writing, together with the exhibits, constitutes the
entire Agreement between the parties hereto with respect to the subject matter herein, and shall
be binding upon said parties their officers, employees, agents, and assigns and shall inure to the
benefit of the respective survivors, heirs, personal representatives, successors and assigns of said
parties. This Agreement may be assigned by County to another governmental entity who by
annexation or other governmental action assumes jurisdiction over the Project, without the
Page 4 of 7
written consent of Company. Company agrees to notify County of its intent to assign this
Agreement in order that it may take such formal action for ratification as may be required by its
Board of County Commissioners.
3. No Third Party Beneficiary: It is expressly understood and agreed that
the 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 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 an
incidental beneficiary only.
4. Fund Availability: County has budgeted the funds required to perform its
obligations under the terms of this agreement, and assumes that all expenses it is required to pay
will be expended within the current calendar year unless otherwise stated. Financial obligations
of the Board of County Commissioners of Weld County payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. By execution of this Agreement, County does not warrant that funds will be available
to fund this Agreement beyond the current fiscal year.
5. Time of the Essence: Time is of the essence in each and all of the provisions
of this Agreement.
6. 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
provision, to the extent that this Agreement is then capable of execution within the original intent
of the parties.
7. Choice of Law: Colorado law, and rules and regulations established
pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this
Agreement. Any provision included or incorporated herein by reference which conflicts with
said laws, rules and/or regulations shall be null and void.
8. Attorneys Fees/Legal Costs: In the event of a dispute between County and
Company concerning this Agreement, the parties agree that neither party shall be liable to or
responsible for the payment of attorney fees and/or other legal costs incurred by or on behalf of
the other party.
9. Governmental Immunity: No term or condition of this contract shall be
construed or interpreted as a waiver, express or implied, by either party, 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.
10. Entire Agreement/Modifications. This Agreement contains the entire
agreement between the parties with respect to the subject matter contained in this Agreement.
This instrument supersedes all prior negotiation, representation, and understanding or agreements
with respect to the subject matter contained in this Agreement. This Agreement may be changed
or supplemented only by a written instrument executed by both parties.
Page 5 of 7
11. Compliance with Laws: The parties agree that each shall comply with all
applicable federal state and local laws. Ordinances and rules in connection with the construction
and/or maintenance of the Project, that each shall obtain such permits and/or approvals required
by applicable governmental entities in connection with the construction and/or maintenance of
the Project and shall take such affirmative and/or remedial actions required by such entities.
12. Interruptions: Neither party to this Agreement shall be liable to the other
for delays in performance or a failure to deliver or otherwise to perform any obligation under this
Agreement, where such failure is due to force majeure, or any cause beyond its reasonable
control, including but not limited to Acts of God, fires, strikes, war, flood, earthquakes or
Governmental actions.
13. Notices: Any notice required or permitted hereunder shall be deemed
effective when transmitted by facsimile to the numbers provided below or 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:
Notice to County:
Weld County Public Works
Michael Bedell, P.E.
E-Mail: mbedell@co.weld.co.us
P.O. Box 758, Greeley, CO 80632
Notice to Delta Irrigation Company:
Name: Jim Clark, President, Delta Irrigation Company
Phone Number: 970-396-8287
Address: P.O. Box 200111, Evans, CO 80620
*In the event that County or Company should designate a different individual(s) to receive
notice, or change the address or facsimile number listed above, the other party shall be notified in
writing of the new information. The failure to provide new or corrected information shall release
the other party of all responsibility for any losses suffered by the party failing to provide the new
information.*
14. Effect of Annexation: The parties recognize that in the event a municipality
should annex the road, including the culvert described in this Agreement, County will lose
jurisdiction over the road and the culvert. Therefore the parties agree that following such
annexation, each shall be relieved of all obligations imposed by this Agreement and neither shall
have the right to enforce the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their
duly authorized officials, two duplicate originals of this Agreement, each of which shall be
deemed an original, on the date first written above.
Page 6 of 7
SIGNATURE PAGE
DELTA IRRIGATION COMPANY
By: ,,v S-2 7- /4—
Date
Nam (P inted): Jim Clark
Title: President
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
i•-x:-4ci'D Rae Oaki1/47
ouglak Rademacher, Chair
41 UN 1 8 2014
Weld County Clerk to the Board `,4
A�
/,�-�-�„ n' 1861 `ii;Qt,
BY: l/0 I � �`1
Deputy lerk to the Board °-
Page 7 of 7
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