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HomeMy WebLinkAbout24-64 Approving License Agreement Northern Colorado Water Conservancy District and New Coal Ridge Ditch Company Bridge Replacement Project 06-26-2024RESOLUTION NO.24-64 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO APPROVING A LICENSE AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND THE NORTHERN COLORADO WATER CONSERVANCY DISTRICT AND THE NEW COAL RIDGE DITCH COMPANY REGARDING THE COAL RIDGE DITCH BRIDGE REPLACEMENT PROJECT WHEREAS, in March 2022 the Colorado Department of Transportation's ("CDOT") Consultant inspected the Coal Ridge Ditch Bridge located within the Town of Firestone ("Town") and rated it in poor condition; and WHEREAS, the Town received a grant from CDOT's Off -System Bridge Program to replace the bridge; and WHEREAS, the bridge crosses the South Platte Supply Canal upon which the Northern Colorado Water Conservancy District ("Northern Water") and the New Coal Ridge Ditch Company ("Coal Ridge") have certain easements and fee interests and to replace the bridge the Town must therefore obtain permission from Northern Water and Coal Ridge; and WHEREAS, Northern Water and Coal Ridge are willing to grant the Town permission to replace the bridge subject to a License Agreement which sets forth their ability to continue use of the subject property for their designated purposes, review and approval of the Town's construction plans, ensure the Town has a qualified contractor and upon notice to the Town inspect the project and hold the Town responsible for any damage or loss to Northern Water or Coal Ridge's property, operations or facilities resulting from the project. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The License Agreement between the Town of Firestone and the Northern Colorado Water Conservancy District and the New Coal Ridge Ditch Company regarding the Town's Coal Ridge Ditch Bridge Replacement Project is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to execute the License Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this lWay of June 2024. i i' 00• ��� � h LICENSE AGREEMENT IK THIS LICENSE ("License"), executed this _W day of 2024, by and between the Northern Colorado Water Conservancy District, 9 quasi -municipal entity and political subdivision of the State of Colorado ("Northern Water") and The New Coal Ridge Ditch Company, a Colorado mutual irrigation company and nonprofit corporation ("Coal Ridge"), and the Town of Firestone, a Colorado statutory municipal corporation ("Licensee"). RECITALS A. Northern Water and Coal Ridge own certain easements or fee interests on a parcel of real property located in the southeast quarter of Section 17 and the northeast quarter of Section 20, both in Township 2 North, Range 67 West of the 6th P.M., in Weld County, Colorado (the "Property"), as depicted on the plans provided to Northern Water and Coal Ridge described as: 1. a 32 Page, Final Design plan set titled "Firestone WCR20 and Coal Ridge Ditch Bridge Replacement," prepared by Bohannon Huston, March 26, 2024; 2. a Hydraulic Analysis, prepared by Bohannon Huston, January 23, 2024; and 3. Bridge Replacement Geometric Layout, prepared by Bohannon Huston, October 18, 2023, collectively referred to and made a part hereof by this reference (the "Plans"). Licensee desires to replace the bridge over the South Platte Supply Canal ("Canal") at canal station 1286+59.4, in accordance with the Plans. B. The Canal, part of the Colorado -Big Thompson Project, is located on the Property. Coal Ridge and Northern Water own the Canal and Northern Water owns and operates the Colorado -Big Thompson Project. C. Licensee desires to obtain permission therefor from Northern Water and Coal Ridge to install the new Bridge on the Property (the "Licensed Facility") pursuant to the Plans. NOW, THEREFORE, for and in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. Northern Water and Coal Ridge grant to Licensee, its successors and permitted assigns, with respect to such title and interest as Northern Water and Coal Ridge may have in the Property, and upon the terms and conditions hereinafter stated, the permission and right to construct, operate, maintain, repair and replace the Licensed Facility on the Property. Such installation and construction shall be located within the Property as shown on the Plans. Licensee shall pay to Northern Water and Coal Ridge any amounts necessary to cover their reasonable legal, engineering, and costs of inspection incurred as a result of this License. 2. Northern Water and Coal Ridge shall continue to have the right to use the Property for all purposes in connection with the Canal and the Colorado -Big Thompson Project, and the rights herein granted to Licensee for the use of the Property are subject to the rights of Northern Water and Coal Ridge to use the Propertyfor such purposes as described in Northern Water's easement deed, and under Colorado law. Northern Water and Coal Ridge reserve the right of their officers, agents, employees, licensees, and permittees at all proper times and places freely to have ingress to, passage over, and egress from all of the Property for the purpose of exercising, enforcing, and protecting the rights reserved herein. 3. Northern Water and Coal Ridge reserve the right to grant to others the use of the Property for any purposes whatsoever, provided that the same shall not unreasonably interfere, with the Licensed Facility. 4. Construction, Maintenance, and Repair. 4.1.A copy of this License shall be on the job site at all times. 4.2.Approval of Plans for the Licensed Facility by Northern Water and/or Coal Ridge shall not relieve Licensee of its sole responsibility to ensure the design and location of the Licensed Facility will not interfere with Northern Water and Coal Ridge's use of the Property. The Licensed Facility shall be constructed in accordance with such approved plans and specifications. 4.3. Except as provided in paragraph 15, Licensee shall notify the operational contacts for Coal Ridge and Northern Water at least three (3) working days (Saturdays and Sundays excluded) preceding the date of commencing work involving the construction, repair, or replacement of the Licensed Facility. Coal Ridge and/or Northern Water shall have the right to inspect the construction and any repair and replacement of the Licensed Facility by the Licensee. Licensee agrees to reimburse Coal Ridge and Northern Water respectively for the reasonable costs of such inspections. If Licensee conducts construction without notifying Coal Ridge and Northern Water as required herein, Coal Ridge and Northern Water, at their option, may require Licensee to excavate any fill or other material placed over the construction and may require Licensee to disassemble and reconstruct any structures or other work completed without providing the required notice. For purposes of this License, reimbursement shall be made by Licensee at the hourly rate for labor and equipment currently utilized by Coal Ridge and Northern Water in computing job costs. A statement for the total costs properly chargeable to Licensee hereunder will be forwarded to Licensee upon completion of the authorized construction or repair, and the same shall be paid to Coal Ridge and Northern Water respectively within thirty (30) days after the billing date. If payment has not been received by Coal Ridge and Northern Water respectively within thirty (30) days of the billing date, interest shall thereafter accrue on the unpaid balance at the rate of twelve percent (12%) per annum, and Coal Ridge and Northern Water, respectively, shall be entitled to all costs of collection including reasonable attorney fees incurred. 4.4. Licensee agrees no construction shall take place on the Property during the water delivery season, which is from April 1 through October 31 of any calendar year. 4.5. Northern Water and Coal Ridge shall have the right to inspect all facilities constructed or installed pursuant to this License. The instructions of any representative authorized by Northern Water or Coal Ridge to advise Licensee regarding the safety of facilities operated by Northern Water or Coal Ridge shall be made in writing, except in the event of an emergency, and provided to Licensee's operational contact listed in paragraph 13.2 below and followed by Licensee, its agents, contractors and employees. 4.6.Any damage done to facilities operated by Northern Water or Coal Ridge, or appurtenances to such facilities, resulting from the construction or during any operations, maintenance, repair, or replacement of the Licensed Facility shall be timely repaired at the expense of Licensee, and all portions of the Property or appurtenances which are damaged by the construction of the Licensed Facility shall be restored by Licensee to substantially the same as the original condition. If construction of the Licensed Facility results in resettling, Licensee shall restore the surface of the Property by grading and compacting any irregularities left after construction, maintenance, repair or replacement for a period of two years after the activity. 4.7.Licensee shall not do or permit to be done any blasting above, or underneath the facilities of Northern Water or Coal Ridge without first having received prior written permission from Northern Water and Coal Ridge. Any blasting shall be done in the presence of a representative of Northern Water or Coal Ridge. 4.8 Upon completion, Licensee shall notify Northern Water and Coal Ridge of completion of the Licensed Facility and shall fix a date within fourteen (14) days thereafter upon which representatives of Northern Water, Coal Ridge and Licensee shall jointly inspect the Licensed Facility. Licensee shall, at its sole expense, make any corrections necessary to bring the work within the requirements of this License. Licensee shall be responsible for the correction of any defects or failures of facilities operated by Northern Water and/or Coal Ridge which are due to faulty design or materials or poor workmanship of the Licensed Facility. Also, upon completion of the Facility, Licensee shall provide a set of "as builts" to Northern Water and Coal Ridge. Following inspection of the Licensed Facility and acceptance by Northern Water and Coal Ridge, Licensee shall not make any material modifications to the Licensed Facility without obtaining the prior written approval of Northern Water and Coal Ridge. 5. [Intentionally omitted]. 3 6. In the event that Licensee's use of the Property should, in the sole discretion of Northern Water or Coal Ridge, interfere with or constitute a hazard to the facilities, officials, employees, or contractors of Northern Water or Coal Ridge, or to the general public, Northern Water or Coal Ridge may require immediate relocation, modification, or removal of the Licensed Facility to eliminate such interference or hazard and may suspend Licensee's right to use the Property under this License until such relocation or modification is completed. If Licensee should fail to take such action as requested, Northern Water and/or Coal Ridge may take such action to eliminate the hazard at the expense of Licensee. 7. Licensee may not grant any license or other interest in the Property that in any way interferes with or threatens to interfere with use of the Property or any operation, maintenance, use or administration of the Colorado -Big Thompson Project by Northern Water or Coal Ridge. Prior to granting any license or interest in the Property, Licensee shall obtain the written permission of Northern Water and Coal Ridge. 8. Licensee shall not cause nor permit to be caused by any of its contractors, agents or employees, any hazardous substances, pollutants or contaminants as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), or hazardous wastes, as defined by the Resource Conservation and Recovery Act ("RCRA"), including, but not limited to asbestos, polychlorinated biphenyls ("PCB's") and/or urea formaldehyde, or any pollutants or toxic pollutants as defined by the Clean Water Act, and any amendments thereto, to be dumped, spilled, released, permanently stored, or deposited on, over, or beneath the Property. Any hazardous, toxic or flammable substances used by the Licensee or its agents, representatives, or independent contractors in the construction, operation, maintenance, repair or replacement of the Licensed Facility shall be utilized in a lawful manner and in compliance with all federal, state and local requirements relating to protection of health or the environment. Upon completion of such activities, any such hazardous, toxic or flammable substances shall be removed from the Property by Licensee. 9. Licensee shall, to the extent permitted by law indemnify, hold harmless, and defend Northern Water and Coal Ridge, their officers, agents and employees, from any and all claims, liability or expenses, including attorney fees, from any cause whatsoever arising or resulting from the construction, existence, repair, maintenance, operation or removal of the Licensed Facility or the activities of Licensee and its agents, employees and contractors on the Property. 10. Licensee understands and acknowledges that normal repair, reconstruction, and maintenance of the Canal facilities on the Property includes, but is not limited to, excavating the bottom and shaping the sides of the Canal with heavy equipment which travels on the bottom of the Canal or on its banks; installing and replacing riprap, replacing, adding or reconstructing water turnouts, headgates, valves, check dams, and other structures and facilities to direct or control the flow of water; reconstructing and replacing eroded, weakened or breached canal banks; construction of culverts or bridges across the Canal; and emergency actions taken in the event of overtopping or breach of the Canal; and that such activities are necessarily imprecise with respect to depth of excavations, bank dimensions, and the like. Northern Water and Coal Ridge shall only be responsible for any damage to the Licensed Facility resulting from their negligent activities and shall timely repair such damage at their expense to the reasonable satisfaction of the Licensee. 11. Notwithstanding any other provisions of this License, Northern Water and Coal Ridge shall not be responsible for any loss or damages to property arising from this License, including, but not limited to, the Licensed Facility, damages to growing crops, animals, and machinery; or injury to Licensee or its associates, officers, agents, employees, guests, invitees, trespassers, family, or any others who are on the premises; or for damages or interference caused by natural phenomena. 12. The cost of any repairs or maintenance to the Canal that are directly the result of, the Facilities or activities of Licensee on the Property, and not timely remedied by Licensee pursuant to paragraph 4.6, shall be reimbursed by Licensee to Coal Ridge and/or Northern Water, as the case may be, within thirty (30) days of billing. 13. Communications: 13.1. Any written communication or correspondence to any of the parties shall be directed to: Real Estate Management Department Northern Colorado Water Conservancy District 220 Water Avenue Berthoud, CO 80513 and to: New Coal Ridge Ditch Company 10879 Weld County Road 17 Longmont, CO 80504 with a copy to: JeffreyJ. Kahn Lyons Gaddis P.O. Box 978 Longmont, CO 80502-0978 and to: Town of Firestone Nathan Haasis Town of Firestone 9950 Park Ave. Firestone, CO 80504 With copy to: 13.2. For operational contacts, the following persons are designated as the entities' contacts: Northern Water: Coal Ridge: Brian Flockhart, Real Estate Department Javier Carrera, Superintendent E-mail: bflockhart@northernwater.org E-mail: jcarrera33388@icloud.com Office: 970-622-2270 Cell: 720-582-6644, Cell: 970-686-2806 Licensee: Town of Firestone: Nathan Haasis, PE Email: nhaasis@firestoneco.gov Office: 303-531-6274 13.3. In the event of an emergency, as described in paragraph 15, Coal Ridge, Northern Water, or Licensee shall provide notice to the other parties as soon as practicable at the emergency contacts identified below. EMERGENCY CONTACTS: Coal Ridge: Northern Water: Javier Carrera, Superintendent Cell: 720-582-6644 Brian Flockhart, Office: 970-622-2270 Cell: 970-686-2806 9 Jim Struble or Office:970-622-2243 Cell: 970-593-2074 Licensee: Nathan Haasis, PE Office: 303-531-6274 Email: nhaasis@firestoneco.gov 13.4. The parties may change the personnel and addresses to which notice is given, by written notice to the other parties at the addresses listed in paragraph 13.1 above. 14. In the event of an emergency, Coal Ridge, Northern Water, or Licensee may conduct maintenance or repair work immediately, giving notice to the other party as soon as practicable at the emergency contacts identified in paragraph 13.3. Any party performing emergency work shall be reimbursed by the other party for their actual costs and expenses if the work was required as a result of the actions of the other party or parties. Except for their negligent actions, Coal Ridge and/or Northern Water shall not be responsible or held liable for damages to the Licensed Facility resulting from maintenance or repair. 15. Northern Water and Coal Ridge shall furnish Licensee with information regarding the terms of Northern Water and Coal Ridge 's interests in the Property that are necessary for Licensee to plan its installation of the Licensed Facility. 16, The License shall terminate upon the abandonment of the use of the Licensed Facility by Licensee. Abandonment shall be deemed to have occurred when the Licensed Facility has not been used for a continuous period of five years or if the Licensed Facility has not been installed within a period of three years from the date of this License. Licensee shall bear all costs of restoration of the Canal and its right-of-way to substantially its original condition upon abandonment of Licensee's facilities. In the eventthat Licensee fails to restore the Canal and its right-of-wayto substantially its original condition, Coal Ridge and Northern Water may upon written notice to License do so at Licensee's expense. Upon termination of this License for any reason, Licensee shall remove the Licensed Facility from the Property and substantially restore the Property to its condition prior to this License taking effect. If Licensee should fail to remove the Licensed Facility and restore the Property, Northern Water and Coal Ridge may, at the expense of Licensee, remove the same; dispose of all removed materials and equipment so removed by such means as Northern Water and Coal Ridge, in their sole discretion, deem reasonable and restore the Canal and right-of-way at Licensee's expense. 17. If Licensee constructs or maintains the Licensed Facility in any manner that is not in accordance with the designs and specifications provided by Licensee, Northern Water and Coal Ridge may require Licensee to remove or correct any nonconforming portion of the Licensed Facility at Licensee's sole expense or may terminate this License. 7 18. Licensee shall require all contractors working on the Licensed Facility to provide and keep in full force and effect during the construction of the Licensed Facility) a builder's risk policy in the amount of at least $1,000,000 per occurrence and the aggregate, ii) commercial general liability insurance, including contractual liability coverage and completed operations coverage, in the amount of at least $1,000,000 per occurrence and in the aggregate, iii) automobile liability coverage in the amount of at least $1,000,000 per occurrence and in the aggregate, iv) excess liability coverage in the amount of at least $1,000,000 per occurrence and in the aggregate, v) pollution liability coverage in the amount of at least $1,000,000 per occurrence and in the aggregate, and vi) worker's compensation coverage in the amounts prescribed by Colorado law covering all employees entering upon the Property. Said policies shall, except for the worker's compensation policy, name Northern Water and Lower Boulder as additional insureds under the policy. The completed operations coverage shall extend for a minimum of three (3) years after project completion. Licensee shall provide Northern Water and Coal Ridge with certificates of insurance showing that the required coverage is in effect prior to beginning construction of the Licensed Facility. 19. This License is issued subject to any prior licenses, easements, or leases granted by Northern Water and Coal Ridge on the Property for improvements of other parties. 20. This License shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. This license shall be recorded with Weld County Clerk and Recorder. 21. Licensee shall bear the sole obligation of obtaining from the fee title owner of the Property or any other owner of a proprietary interest in the Property such authority or rights as Licensee may need in addition to the rights provided in this License for the Licensed Facility. 22. This License shall not be assigned by any party without the prior written consent of the other parties. Any assignees or successors to the rights of any of the parties hereunder shall be liable and bound under all provisions of this License. 23. Nothing in this License shall constitute a waiver, in whole or in part, of the governmental immunities, rights, or protections provided to Licensee or Northern Water by the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101 to -120, or any successor or similar statutes of the State of Colorado; or any protections offered to Coal Ridge under Colorado law. 24. Additional conditions: 24.1. Where compacting of earth materials is required around the Licensed Facility, the material shall be clay deposited in horizontal layers and compacted by using pneumatic and/or other suitable mechanical tampers. Backfill materials shall be deposited in horizontal layers of not more than six (6) inches in thickness after being s compacted. Prior to and during compaction operations, backfill material shall have optimum practicable moisture content required for the purpose of compaction as determined by Northern Water and Coal Ridge. A minimum of 95 percent compaction required. 24.2. All buried lines within the right-of-way shall be marked at the point of entrance into, and exit from, the right-of-way on both sides with the appropriate signs identifying their location. 24.3. Licensee shall bear sole responsibility for the installation of any and all signage required by federal, state or local rules and regulations and/or required by either Northern Water or Coal Ridge, 25. The Parties acknowledge receipt and acceptance of these conditions by executing the signature and date spaces below and returning the executed License to the other Parties For purposes of this License, electronically transmitted signatures shall be considered original signatures. This Agreement may be executed in counterparts. Licensee may proceed with the authorized activities upon receipt of a copy of the executed License and Licensee has given the proper notice pursuant to paragraph 4.3 above. IN WITNESS WHEREOF, this instrument has been executed the day and year first above written. NORTHERN COLORADO WATER THE NEW COAL RIDGE DITCH COMPANY CONSERVANCY DISTRICT A Title: Title: Title: Mayor 9