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HomeMy WebLinkAbout20-12 License Agmt with Public Service Company of ColoradoRESOLUTION N0.20-12 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, AUTHORIZING A LICENSE AGREEMENT WITH PUBLIC SERVICE COMPANY OF COLORADO REGARDING THE INSTALLATION, OPERATION AND MAINTENANCE OF A GAS GATHERING PIPELINE WITHIN TOWN -CONTROLLED RIGHT-OF- Ciil:�� WHEREAS, The Town of Firestone (the "Town") is the owner of real property located in the Town, Weld County, Colorado, which is also a public right of way ("Town Property"); and WHEREAS, Public Service Company of Colorado ("PSCO") is authorized to operate as a utility provider by the Colorado Public Utilities Commission; and WHEREAS, PSCO desires to construct, own and operate a single 8" underground gas gathering pipeline and appurtenant underground facilities located on Town Property, as described in more particular detail on Exhibit A, attached hereto and incorporated herein, and the Town desires to grant a non-exclusive, revocable license that would allow use of that area, pursuant to certain terms and conditions as set forth in a Revocable Encroachment License Agreement, attached hereto as Exhibit B; and WHEREAS, PSCO and the Town wish to define the terms of PSCO's license to construct, install and operate its gas gathering pipeline; and WHEREAS, the attached Revocable License Agreement clearly defines the rights and responsibilities of the parties in relation to PSCO's construction and use of its gas gathering pipeline in Town -controlled right -of --way. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The Board of Trustees authorizes the grant of anon -exclusive, revocable license to Public Service Company of Colorado to use WCR 19 as described in more particular detail on Exhibit A for installing, operating and maintaining a single gas gathering pipeline and appurtenant underground facilities upon, across and through said strip of land. Section 2. The Revocable License Agreement between the Town of Firestone and Public Service Company of Colorado is hereby approved in substantially the same foam as the copy attached hereto as Exhibit B, and the Mayor is authorized to execute the agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this 12th day of February, 2020. EXHIBIT "A" WCR 19 right -of --way between WCR 24 to approximately 900 north of WCR 24 -lo- of -way or Town street, the Company shall physically identify the horizontal and vertical locations of any other existing underground utility or other facilities in the License Area in the proximity of the proposed work area and illustrate such locations on plan and profile drawings also illustrating the proposed Underground Facilities. 5. Permitted Users. Licensee's affiliates, employees, contractors, agents, and representatives ("Permitted Users") may use the License, provided that all such uses shall be within the scope of this Agreement. SECTION 2. USE OF LICENSE AREA 1. The License Area may be used by the Licensee for the sole and exclusive purpose of accessing, locating, constructing, installing, operating, maintaining, repairing, removing, and replacing the Underground Facilities, 2. The Underground Facilities shall be installed in accordance with the plans and specifications approved by the Town Engineer prior to beginning the installation of such Underground Facilities, and any appropriate permits issued by the Town that involve digging or other excavation in a public right -of --way or Town street. The Town Engineer may require modifications to such plans and specifications prior to approval thereof or issuance of any appropriate permits. Any proposed changes to the approved plans and specifications shall be submitted to the Town for review and approval in writing prior to making such changes. 3. All work approved by the Town shall be completed in compliance with all codes, ordinances, rules, and regulations of the Town. 4. All Underground Facilities installed within the License Area shall be buried to a depth of not less than forty-eight inches (48") from the existing ground elevation. Except for surface markers, all facilities installed pursuant to the license granted herein shall be located entirely underground. 5. Except for the Underground Facilities specifically authorized by Owner, Licensee shall not place, build, erect, or add any structures, pipelines, facilities, improvements or other items on, under, over or across the License Area or Town Property. 6. Any changes, expansions or alterations in any way to the Underground Facilities shall require additional advance approval by Owner. 7. Licensee's use of the License Area shall be subject to all existing utility easements, if any, located on, under, or above the Town Property. 8. Licensee acknowledges that the use hereunder is of the License Area in its present, as -is condition with all faults, whether patent or latent, and without warranties or covenants, express or implied. Licensee acknowledges that Owner shall have no obligation to repair, replace, or improve any portion of the Town Property in order to make the License Area or Town Property suitable for Licensee's intended uses. 9. Licensee, in the exercise of its rights and obligations under this Agreement, shall not interfere in any manner with the existence and operation of any and all public rights of way, sanitary -2- sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, cable television, and other communications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable laws or this Agreement. 10. Prior to undertaking any work pursuant to this Agreement, Licensee shall take all actions necessary to become a tier 1 member of the Utility Notification Center of Colorado, and comply with and adhere to local procedures, customs and practices relating to the one call locator service program established in C.R.S. Section 94.5401, et seq., as such may be amended from time to time. SECTION 3. TERM AND TERMINATION 1. The initial term of this Agreement shall commence on the Effective Date, and shall extend for a term of ten (10) years commencing on the date that Licensee installs the Underground Facilities in the License Area, unless terminated by either Party in accordance with the provisions herein ("Initial Term"). This Agreement will automatically renew for successive (10) year terms ("Renewal Term") upon the expiration of the Initial Term and any Renewal Term unless earlier terminated as provided herein or a written notice of non -renewal is given by either party to the other party at least thirty calendar days prior to the expiration of the Term then in effect. 2. The Town may ter7rrinate this Agreement by delivering 30 days advance written notice to Licensee, if Licensee removes and does not replace the Underground Facilities, abandons its use or operation of the Underground Facilities, or otherwise abandons its use and enjoyment of the License Area pursuant to the rights granted herein. 3. Either Party may terminate this Agreement if the other Party defaults in the performance of any of its obligations hereunder and fails to cure such default within 30 days following the giving of written notice by the other party ("Cure Period"), unless such Cure Period is extended by mutual agreement of the Parties. 4. In the event of termination, Licensee shall not be entitled to receive a refund of any portion of the consideration paid herein for the License, nor shall Licensee be compensated for the cost of removal of Licensee's Underground Facilities from the License Area. 5. Removal Of Underground Facilities Upon Termination. Upon termination of this Agreement, the Parties agree that Licensee shall cut, clean, and remove all Licensee's Underground Facilities located on Town Property, unless such removal of Licensee's Underground Facilities is waived by the Town in its sole discretion, and Licensee shall cap and structurally fill any underground pipeline installed within the public right-of-way or Town street. SECTION 4. RESERVATION OF RIGHTS 1. Owner reserves all other rights in and to the License Area, including the Town's lawful exercise of its police powers and the prior and continuing right of the Town under applicable laws to use and occupy any and all parts of the License Area exclusively or concurrently with any other person or entity for any purposes whatsoever, including without limitation, other utilities and utility crossings, -3- irrigation systems, landscaping, vehicular and pedestrian access, or any other surface or underground improvements. 2. Should the Underground Facilities, for any reason, impede, restrict or limit in any manner whatsoever Owner's use of the License Area, Licensee shall be responsible for any incremental cost incurred by the Town to bypass or to avoid disturbing the Underground Facilities when designing, constructing, installing, or modifying any future improvements within the License Area. 3. Licensee's loss of use of the Underground Facilities arising out of or relating to the Owner's use of the License Area shall not entitle Licensee to any compensation for damages or loss from Owner, in any manner whatsoever. SECTION 5. MAINTENANCE; RELOCATION AND DISPLACEMENT; DAMAGE AND RESTORATION 1 Maintenance. (a) Licensee agrees to take such actions, at its sole expense, as are necessary to maintain the Underground Facilities in good and safe working condition at all times. Licensee further agrees to comply at alI times with the ordinances, resolutions, rules, and regulations of the Town in Licensee's use and occupancy of the Town Property when performing any maintenance activities. (b) In the exercise of its rights pursuant to this Agreement, Licensee shall avoid any damage or interference with any Owner installations, structures, utilities, or improvements on, under, or adjacent to the Town Property. 2. Relocation and Displacement of Equipment. Licensee understands and acknowledges that Town may require Licensee to relocate one or more of its Underground Facilities. Licensee shall at Town's direction relocate such Underground Facilities at Licensee's sole cost and expense not later than one hundred and twenty (120) days after receiving written notice that the Town reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction, completion, repair, relocation, or maintenance of a Town facility or public right -of --way; (b) because the Underground Facilities are interfering with or adversely affecting proper operation of street lights, traffic signals, governmental communications networks or other Town property; or (c) to protect or preserve the public health or safety. In any such case, Town shall use its best efforts (but shall not be required to incur financial costs) to afford Licensee a reasonably equivalent alternate location. If Licensee shall fail to relocate any Underground Facilities as requested by the Town within one hundred and twenty (120) days after the above -referenced notice in accordance with the foregoing provision, Town shall be entitled to relocate the Underground Facilities at the Licensee's sole cost and expense, without further notice to the company. To the extent the Town has actual knowledge thereof, the Town will attempt promptly to inform Licensee of the displacement or removal of Underground Facilities. 3. Damage and Restoration. (a) Licensee shall be responsible for all damage to the License Area or Town Property arising out of or resulting from the Underground Facilities, or its use of the Underground Facilities or License -4- granted herein. Licensee, at its sole expense, shall restore the surface of the License Area and shall restore any improvements, landscaping, and other facilities located in the License Area to the conditions that existed immediately prior to the commencement of any of Licensee's activities permitted hereunder. (b) Whenever the removal or relocation of Underground Facilities is required or permitted under this Agreement, and such removal or relocation shall cause the License Area to be damaged, Licensee, at its sole cost and expense, and within thirty (30) days after such damage occurs, repair the damage and return the License Area in which the Underground Facilities are located to a safe and satisfactory condition in accordance with applicable laws. If Licensee does not repair the damage and License Area as just described, then the Town shall have the option, upon fifteen (15) days' prior written notice to Licensee, to perform or cause to be performed such reasonable and necessary work on behalf of Licensee and to charge Licensee for the proposed costs to be incurred or the actual costs incurred by the Town at Town's standard rates. Upon the receipt of a demand for payment by the Town, Licensee shall promptly reimburse the Town for such costs. In the case of fire, disaster or other emergency, the Town may remove or disconnect Licensee's Underground Facilities located in the License Area or on any other property of the Town. The Town shall provide reasonable notice to Licensee prior to taking such action and shall provide Licensee with the opportunity to perform such action within twenty-four (24) hours unless, in the Town's reasonable discretion, the imminent threat to public health safety or welfare makes such notice impractical. SECTION 6. INSURANCE 1. Coverages. Licensee shall procure and maintain or self -insure, at its own cost, a policy or policies of insurance sufficient to insure against, claims, demands, and other obligations assumed by Licensee pursuant to this Agreement. All of Licensee's contractors shall be insured pursuant to their master service contracts with Licensee. Such coverages shall include: (a) Worker's Compensation insurance as required by law. (b) Commercial General Liability insurance with minimum combined single limits of $2,000,000 per occurrence for bodily injury and property damage and $5,000,000 general aggregate including premises and operations, personal and advertising injury, blanket contractual liability, and products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees and contractors as additional insureds to the extent of the liabilities assumed by Licensee herein. (c) Excess or Umbrella Liability insurance, on an occurrence basis, in excess of the Commercial General Liability insurance, with coverage as broad as such policy, with a limit of $2001000. 2. Form. Such insurance shall be in addition to any other insurance requirements imposed by law. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees or its contractors shall be excess and not contributory insurance to that provided by Licensee. Licensee shall be solely responsible for any deductible losses under any policy. -s- 5. Indemnification. Licensee agrees to indemnify, defend and hold harmless Owner, its officers, employees, and insurers from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with: (i) the existence of the Underground Facilities; or (ii) the use, maintenance or repair of the Underground Facilities and the use of the License Area pursuant to this Agreement, but only to the extent such claim, damage, loss, liability or expense is caused or alleged to be caused, in whole or in part, by any negligent, reckless, or intentional act or omission of Licensee or anyone directly employed by Licensee or anyone for whose acts Licensee may be liable. Licensee agrees to investigate, handle, respond to, and to provide defense for and defend against any such liability, claims or demands at its sole expense. 6. Mechanics' Liens. Licensee shall not allow any mechanics' or similar liens to be filed against the Town's Property arising from any work done by Licensee on the Town's Property, and Licensee shall indemnify and hold Town harmless with respect thereto, including any attorney's fees incurred by Owner in connection with any such lien or claim. If any mechanics' or other liens shall be created or filed against the Town's Property by reason of labor performed by, or materials furnished for, the Licensee, the Licensee shall, within 30 days thereafter, at the Licensee's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any Notices Of Intention To File Mechanic's Lien that may have been filed. 7. Attorneys Fees. If any action is brought in a court of law by either party to this Agreement concerning the enforcement, interpretation or construction of this Agreement, the prevailing party, either at trial or upon appeal, shall be entitled to reasonable attorney's fees as well as costs, including expert witness's fees, incurred in the prosecution or defense of such action. 8. Waiver. The failure of either party to exercise any of its rights under this Agreement shall not be a waiver of those rights. A party waives only those rights specified in writing and signed by the party waiving its rights. 9. Govermmental Immunity. The parties hereto understand and agree that Town is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, etseq., C.R.S., as from time to time amended, or any other law or limitations otherwise available to Town, its officers, or its employees. 10. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. Any such prior agreement shall be deemed to be null and void and of no further effect. 11. Modification. This Agreement may not be amended except in writing by mutual agreement of the parties, nor may rights be waived except by an instrument in writing signed by the party charged with such waiver. 12. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. -7- 13. Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in accordance with the laws of the State of Colorado, without reference to its conflicts of law principles. If suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Colorado, County of Weld. [Signatures and acknowledgments on following page) EXHIBIT "A" WCR 19 rig; of --way between WCR 24 to approximately 900 no, of WCR 24 -lo-