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HomeMy WebLinkAbout25-110 Last Ditch Company Pertain to Weld County Rd 26 Bridge Replacement Project 10-22-2025RESOLUTION NO.2-11 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRES1 ONE, COLORADO, APPROVING AN AGREEMENT WITH THE LAST CHANCE DITCH COMPANY PERTAINING G TO THE \ v'ELD COUNTY ROAD 26 BRIDGE REPLACEMENT T PROJECT WHEREAS, Last Chance Ditch Company (Company") o °ns or controls that certain irrigation ditch commonly known the Last Chance Ditch ('Ditch'): and WHEREAS, a Portion of the Ditch is located within the Town's municipal boundary and crosses Weld County Road ("WCR") 26: and WHEREAS, the Town seeks to repair, reconstruct, install, and maintain a new box culvert within the WCR 26 rill-offway at a location where it crosses over and a ao\ e the Ditch, and the Company is willing to consent to such use pursuant to the terms and conditions contained in a `License and Crossing Agreement," attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEESTRUSTFES OF THE TOWN OF FIRESTONE, E, COLORADO: `Die License and Crossing Agreement for the Weld County Road 26 Bridge and Culver Replacement between the "Town of I irestone and Last Chance Ditch Company is approved, in substantially the same form as the copy attached hereto as Exhibit A, with such additions or modifications as the 1 own Attorney may determine to be necessary and appropriate to protect the interests of the I own or to effectuate tl e purposes of this Resolution. PASSED AND ADOPTED this day of , 2025. Ail1.J Mi ian-r 1iranad s Duna. CMC, Town Clerk �& A11 l A `ITO FO Marshall Keith Martin, Town Attorney 353721552 EXIfBZT A [Firestone/LCDC Crossing Agreement] 35372155.2 LICENSE AND CROSSING AGREEMENT Last Chance Ditch Company and Town of Firestone Weld County Road 26 Bridge and Culvert Replacement I. PARTIES. The parties to this License and Crossing Agreement (the "Agreement") are the Last Chance Ditch Company, a Colorado mutual irrigation company (the "Company") and The Town of Firestone, a Colorado statutory municipal corporation ("Licensee"). This Agreement may refer to the Company and Licensee, each, as a "Party" and, collectively, as the "Parties." 2. RECITALS. The Company owns, operates, and maintains the Last Chance Ditch (the "Ditch") and the appurtenant easement for its operation and maintenance (the "Ditch Easement"). Licensee regulates and manages the segments of Weld County Road 26 ("WCR 26") within Licensee's town limits. WCR 26 runs east -west along the section line dividing the SW 1/4 of Section 31, Township 3 North and the NW 1/4 of Section 6, Township 2 North, both of Range 67 West of the 6th P.M, Weld County, Colorado. WCR 26 currently passes over the Ditch and across the Ditch Easement within the town limits and in each of the two sections, as depicted in EXHIBIT A. To facilitate the widening of WCR 26, Licensee desires to construct a new bridge and extended box culvert (the "Crossing") at the location depicted on EXHIBIT A to replace an existing bridge and box culvert (the "Licensed Activity"), as depicted in EXHIBIT B (the "Plans"). The Company agrees to authorize Licensee to construct the Licensed Activity and, thereafter, to grant to Licensee the right to maintain the Crossing subject to the terms, conditions, covenants, and agreements set forth in this Agreement. Accordingly, the Parties agree as follows: 3. CONSTRUCTION. 3.1 After the execution of this Agreement but prior to undertaking the Licensed Activity, the Town will furnish to the Company a design, specifications, and an alternate bid package for the construction of a temporary water bypass system for the Ditch ("Bypass Plans") as a contingency to facilitate the completion of the Crossing, to avoid or minimize delays in completingthe construction phase of the Licensed Activity, and to ensure continued water flow in the Ditch during water season, should the construction phase of the Licensed Activity extend beyond the Non -irrigation Season (defined below) The Company shall issue its written acceptance or rejection of the Bypass Plans within 14 days of receipt. Said acceptance or rejection shall be based upon the engineering industry standards and principles for temporary bypass systems, and the Company shall notify Licensee of all deficiencies which must be corrected prior to acceptance. All deficiencies shall be corrected and said the Bypass Plans shall be resubmitted to and approved by the Company prior to construction, which approval shall not be unreasonably withheld or conditioned. 3.2 Pursuant to the terms of this Agreement, Licensee is granted a license to conduct the Licensed Activity and, thereafter, the perpetual, irrevocable right to operate, maintain, repair, and replace, the Crossing. The Licensed Activity shall be performed in accordance with the Plans. The Crossing shall be located and constructed as shown on and in accordance with the Plans. If Licensee proposes any change to the Plans, Licensee shall notify the Company as soon as practicable and before beginning the Licensed Activity. Licensee must receive approval of the altered Plans in writing prior to commencing or continuing with the Licensed Activity, which approval shall not be unreasonably withheld, conditioned, or delayed. 3.3 Licensee shall carry $2,000,000.00 in Comprehensive General Liability (CGL) insurance and a $2,000,000.00 umbrella policy for $4,000,000.00 total coverage during the construction phase of the Licensed Activity. Licensee may meet the total limits of insurance required under this Agreement by a combination of Comprehensive General Liability and Excess/Umbrella Liability insurance. Licensee's participation in a public entity, self-insurance pool, holding a certificate of authority from the Colorado Insurance Commissioner, shall suffice in lieu of insurance meeting the requirements of this section 3.3. At the Company's request, Licensee shall ensure that the Company is named as an additional insured on the insurance policy or policies of any contractor retained by Licensee to conduct the Licensed Activity during the construction phase. 3.4 Licensee agrees to construct the Crossing in such a manner as not to damage in any way the Ditch, its laterals, or the embankments, and so as not to interfere with the flow of water in the Ditch or its laterals, during construction of the Licensed Activity. Any damage to the Ditch caused during Licensee's construction of the Licensed Activity, including damage to the facilities appurtenant to the Ditch, shall be addressed as follows: (1) If Company determines that the acts or omissions of Licensee in constructing the Crossing have caused damage that requires repair, then Company shall notify Licensee of the need for such post -construction repairs; (2) If Licensee is able to conduct such post -construction repair work, Licensee will so notify the Company immediately and will commence said repairs within a time period agreed to by the Company; (3) If Licensee is unable to undertake said repair work within a time period to which the Company agrees and the Company expends any sum for said repairs of the Ditch, the Company shall notify Licensee of the expenditure, submit documentation of the expense incurred, and Licensee shall reimburse the Company for its expenses within thirty (30) days of receipt of such documentation. 3.5 All portions of the Ditch and the affected portions of the Ditch Easement that the Licensed Activity disturbs shall be restored to their original condition so the flow of the water in the Ditch runs at the historical amount and velocity. Any and all fencing and other facilities appurtenant to the Ditch Easement shall be replaced in a condition at least equal to the condition of the facilities and appurtenances prior to beginning the Licensed Activity. 3.6 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, Licensee agrees to completely clean the affected portions of the Ditch. 3.7 Licensee agrees that the Licensed Activity shall comply with all applicable local, state, and federal laws, rules, orders, and regulations. Licensee is responsible, at its own expense, for obtaining all required local, state, and federal permits and approvals prior to commencing the Licensed Activity. 3.8 Licensee agrees that the construction of the Crossing shall proceed expeditiously and with reasonable diligence from the commencement of construction to its completion and that the construction shall occur in the "Nan- Irrigation Season" (defined, for this Agreement, as November 1st through March 31st of the subsequent year). Licensee agrees that it shall not commence construction of the Crossing across and through the Ditch Easement until after the Parties execute this Agreement and Licensee subsequently notifies the Company no less than five (5) business days prior to commencement of construction. The Licensed Activity shall be completed by no later than March 1, 2027. If the Licensed Activity is not finished by that date, Licensee shall seek the written permission of the Company to bring the Licensed Activity to its completion on reasonable terms and conditions acceptable to the Company, which permission shall not be unreasonably withheld, conditioned, or delayed. 3.9 Even though this Agreement contemplates the construction of the Crossing during the Non - irrigation Season, the Company cannot guarantee that the Ditch will be dry during the construction phase of the Crossing and cannot control or quantify the amount of "nuisance" water that Licensee may encounter. As such, Licensee is obligated to control and, to the extent necessary, safety bypass water flow in the Ditch past the construction location. Licensee will be solely responsible for any damages caused ₹o the Ditch and to affected property owners arising from improperly controlling nuisance water through and past the construction locations. 3.10 Unless the Parties otherwise agree in writing, if the Licensed Activity interrupts the Company's water supply for any reason, then, to the extent allowable by law and without in any manner waiving the protections, procedural requirements, defenses, and monetary limitations on damages provided for in the Colorado Governmental Immunity Act, sections 24-10-101 to - 120, C.R.S., Licensee shall pay as liquidated damages $10,000.00 per day for any day that the Company cannot deliver water to any shareholder who has a right to the delivery of water, has a need for water, has requested the delivery of water in accordance with the shareholder's rights, and cannot deliver water to that shareholder or shareholders as a result of the Licensed Activity. 4. AS -GUILTS. Within forty-five (45) days of completion of the Crossing, Licensee shall deliver to the Company as -built drawing(s) of the constructed Crossing. 5. LICENSE FEE AND OTHER CONSIDERATION. The license fee for the Crossing is $5,000. Licensee .shall pay the license fee upon execution of this Agreement and prior to the commencement of the Licensed Activity. This license fee shall be in addition to any other costs for which Licensee is responsible pursuant to this Agreement. Company shall not charge any future annual crossing fee or similar assessment against Licensee for the Crossing. 6, INSPECTION. 6.1 Licensee shall notify the Company at least five (5) business days prior to its commencement of the Licensed Activities and any repair and/or replacements of the Crossing, as permitted by this Agreement, except for emergency repairs as permitted under paragraph 8.3. The Company is permitted to inspect the Crossing during the Licensed Activity, and any repair and/or replacements of the Crossing, during and after any construction. 6.2 The Company's right to inspect the Licensed Activity in no way relieves Licensee of liability for improper construction. The Company's inspection is solely for its own benefit and creates no obligation on the Company. 7. REIMBURSEMENT OF EXPENSES. 7.1 Licensee agrees to reimburse the Company for, or to pay directly, all reasonable engineering and legal costs that the Company incurs in preparing and approving this Agreement, the Plans and the costs of inspection, as described in paragraph 6. 7.2 Statements for the costs chargeable to Licensee under this Agreement will be forwarded to Licensee and Licensee shall pay the forwarded chargeable costs to the Company within thirty 3 (30) days after the billing date. If the Company has not received payment within thirty (30) days, Licensee will have breached this Agreement and the Company may institute legal proceedings to collect the amount due and owing. 8. CROSSING MAINTENANCE. 8.1 Upon L€censee's completion of the Licensed Activity, Licensee specifically agrees and pledges to maintain, repair, and replace the Crossing so as not to require the Company to maintain, repair, or replace it. Sim€larly, Company specifically agrees and pledges to maintain, repair, and replace the Ditch in accordance with state law and so as not to require Licensee to maintain, repa€r, or replace it. If Licensee fails to properly maintain, repa€r, or replace any portion of the Crossing for which it is responsible, then upon Company obtaining from the Town a right-of-way permit and Town approval of any construction plans and only afterten (10) days' notice of the anticipated date for performing the maintenance, repair, or replacement, the Company may, at its option, conduct the maintenance, repair, or replacement in accordance with such permit and plans, and Licensee shall reimburse the Company for the cost of the work within thirty (30) days. If the Company conducts any maintenance, repair, or replacement, pursuant to this paragraph, €t does not waive the right to file a claim against Licensee for damages caused by Licensee's failure to perform its responsibility to maintain, repair, or replace the Crossing, as required under this Agreement. 8.2 Licensee further agrees that, if at any time, the Licensed Activity causes any settling in the embankments of the Ditch, Licensee shall, as soon as practicable, make all repairs that the Company requires at Licensee's expense. 8.3 In the event of an emergency that necessitates immediate repairs or maintenance of the Crossing to maintain or restore proper functioning of the Ditch, either the Company or Licensee may conduct maintenance or repair immediately, giving notice to the other Party as soon as possible at the emergency contacts identified below. Emergency repairs and maintenance by the Company shall only be authorized under this Agreement when there is an unexpected occurrence that necessitates immediate repairs or maintenance to prevent, mitigate, or remedy injury to persons or damage to property, which such repairs or maintenance cannot be timely performed by the Licensee. If the Company conducts emergency work authorized under this paragraph, Licensee shall reimburse the Company for the reasonable cost of the work. In performing any such emergency work, Company agrees to reasonably endeavor to avoid or minimize damage to the Crossing. Under no circumstances shall the Company be responsible or held liable for damages to the Crossing resulting from maintenance or repairs to the Ditch, except to the extent caused by the Company's negligence or willful misconduct. EMERGENCY CONTACTS: Company: Garrett Varra, President (720) 272-2857 (ce€l) gvarra@raptormaterialsllc.com Licensee: Town of Firestone Nathan Haasis, PE (303) 531-6274 nhaasis@firestoneco.gov 4 9. WATER LOSS. Licensee agrees that the Licensed Activity will not increase carriage or transit loss over the loss which occurred historically. Licensee agrees to compact any disturbed earth materials so that any additional water losses will not occur. If the Licensed Activity increases carriage or transit loss in the Ditch, Licensee agrees to repair the construction to stop and prevent such additional loss. 10. LIABILITY. 10.1 By virtue of entering into this Agreement, the Company: (1) assumes no liability for use, operation, or existence of the Crossing; and (2) assumes no additional responsibilities or obligations related to the Licensed Activity. 10.2 Licensee shall provide the Company a Certificate of Insurance ("C01") that lists the Company as an additional insured on Licensee's contractor's liability insurance policies at all times during the construction phase of the Licensed Activity, with reference to this Agreement. Licensee shall renew the C01 on an annual basis during.the Licensed Activity and provide the Company evidence of the coverage. 11. EASEMENT RIGHTS. The license granted to Licensee in this Agreement in no way restricts the Company's right to its use of the Ditch Easement to construct, operate, maintain, repair, replace, and remove any and all existing structures and facilities of the Ditch, except as otherwise stated herein and provided that Licensee approval shall be required for any Company activities that require material modification of the Crossing. The license does not in any way restrict the Company's access to and from the Ditch Easement for all such activities, except that Company shall be liable for any damage to the Crossing caused by Company's or its delegates, agents, or assignees negligence or intentional misconduct. 12. DITCH MODIFICATION. If, in the future, the Company should have actual bona fide plans to enlarge, deepen, or otherwise change or relocate the Ditch and/or its laterals or to construct any other canal, ditch, or waterway on the Ditch Easement or its laterals or to do any other thing incident to the operation of the Ditch and/or its laterals or to any other portion of the Company's irrigation system, and such plans involve a material, foreseeable risk of damage to or of the need for relocation of the Crossing, then the Company will first consult with Licensee during design of the plans to minimize, to the extent practicable, any such potential damage to or the need for future relocation of the Crossing. If, after the Company exhausts all reasonable options and the Company deems it necessaryto modify or relocate the Crossing, then Company shall, as soon as is reasonably possible, provide notice to Licensee of the need for relocation or modification prior to undertaking any such activities. After providing notice, the Company shall work in good faith with Licensee as to whether: (a) the Crossing is in conflict with the Company's planned project,, including but not limited to, whether the Ditch, new waterwork or other improvement design involves gravity and the feasibility of adjusting project specifications; (b) whether the Crossing must be relocated to bring the Crossing into compatibility with the implementation of the Company's planned project; or (c) whether the Company can take steps other than relocation to mitigate the effect of the Crossing on the project. If the Parties determine that the Crossing must be relocated, the Parties shall, as soon as is reasonably possible, coordinate and cooperate with one another to develop a mutually agreeable comprehensive relocation plan, consisting of design plans, construction work documents, proposed relocation site(s); scheduling, costs of relocation, and determining the responsible party for the costs of relocation. Then, the Parties shall, as soon as is reasonably possible, enter into a project specific relocation agreement to accomplish and implement the agreed -upon relocation plan, and the Parties shall amend this Agreement to reflect the terms of the relocation agreement. Upon mutual approval of any proposed relocation agreement, the Company shall undertake and complete relocation of the Crossing in accordance with the agreed -upon relocation agreement. 5 13. NOTICES. Any notice that this Agreement requires or permits 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 the notice is intended at the address set forth below, or at any other address that has been previously furnished in writing to the other Party. The notice shall be deemed to have been given when deposited in the U.S. mail. DITCH COMPANY: Angie Swanson, Secretary Last Chance Ditch Company P.Q. Box 119 Longmont, CO 80502-0119 LICENSEE: Town of Firestone Nathan Haasis 9950 Park Ave. Firestone, CO 80504 K11YA i] Scott E. Holwick Lyons Gaddis, PC P.O. Box 978 Longmont, CO 80502-0978 14. WAIVER OF BREACH. The waiver of either Party to a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of either Party. 15. NO MULIT YEAR FINANCIAL OBLIGATION. Nothing in this Agreement shall be construed as creating a multiple fiscal year direct or indirect debt or other financial obligation on behalf of Licensee within the meaning of the Constitution and laws of the State of Colorado. 16. BINDING. It is mutually understood and agreed that this Agreement and all its terms and conditions shall extend to and be binding upon the Parties and their successors and assigns. 17. RECORDATION. This Agreement shall be recorded at Licensee's cost and shall be binding on any successor and/or assign of the Parties. The obligations and benefits of this Agreement shall specifically run with the land described in EXHIBIT A. The failure to record all or any portion of this Agreement shall not affect the Agreement. 18. EXHIBITS. All exhibits to which this Agreement refers are, by reference, incorporated for all purposes. 19. INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the Parties. The Parties have not reached any oral or collateral agreements or understandings. This Agreement may be amended only by an instrument, in writing, that the Parties sign. 20. COUNTERPARTS. The Parties may execute this Agreement in any number of counterparts, each of which may be deemed an original, but all of which together shall constitute one and the same Instrument. 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