HomeMy WebLinkAboutResolution 2008-0044
CITY OF WHEAT RIDGE, COLORADO
RESOLUTION NO. 44-2008
TITLE:
RESOLUTION APPROVING A COMMON USE AGREEMENT
WITH THE COLORADO DEPARTMENT OF
TRANSPORTATION AND THE LANE DITCH COMPANY FOR
MAINTENANCE OF LANE DITCH IMPROVEMENTS
WHEREAS, the City Council wishes to cooperate with the Colorado Department of
Transportation concerning maintenance of improvements to the Lane Ditch in the City; and
WHEREAS, the City has negotiated a contract with the Colorado Department of
Transportation and the Lane Ditch Company for the City to maintain improvements to the Lane
Ditch proposed to be constructed by the Colorado Department of Transportation.
NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that:
Section 1. Contract AODfoved.
The contract between the City, the Colorado Department of Transportation and the Lane
Ditch Company for maintenance of improvements to the Lane Ditch along 44th Avenue is hereby
approved and the Mayor and City Clerk are authorized and directed to execute the same.
Section 2. Effective Date 21t 1/ :200'i? .
This Resolution shall be effective immediately upon adoption.
DONE AND RESOLVED this ~ day of ~A!.I1 .2008.
d/'1 o;rtd)A~
Jjrr't ytTullio, Mayor
ATTEST:
~
Michael Snow, City Clerk
COMMON USE AGREEMENT
This Agreement is entered into this ~ day of ~~I,,,,\u..o\( ,2008, by and
between the STATE OF COLORADO for the use and benefit of the DEPARTMENT OF
TRANSPORTATION, hereinafter referred to as "CDOT," whose address is 4201 East
Arkansas, Denver, Colorado, 80222, The Lane Ditch Company, hereinafter referred to as
"Lane Ditch," whose address is PO Box 381, Wheat Ridge, CO, 80034, and the City of
Wheat Ridge, Colorado hereinafter "Wheat Ridge," whose address is 7500 W. 29th
Avenue, Wheat Ridge, CO, 80033. CD aT, Wheat Ridge, and Lane Ditch are
collectively referred to as the "Parties."
FACTUAL RECITALS
A. The real property that is the subject of this Agreement includes both
existing Wheat Ridge, CDOT, and Lane Ditch rights of way, and new rights of way
("Right of Way") that CDOT has acquired or will acquire for CDOT Project No. 1M
0703-246, CDOT Project Code No. 12314, which includes Parcel Numbers 201, PE-
201,202, PE-202, A203, 204, PE-204, 205, PE-205, 206, PE-206, 207, PE-207, 208,
PE-208, and PE-209 and which is a project for modifications to the I-70/SH 58
interchange ("Project"); and
B. Should the project require changes to the parcels listed in Paragraph
A which would affect the Lane Ditch the parties agree that said changes must be
agreed to by all parties and will be memorialized by amending this Common Use
Agreement.
C. The Lane Ditch is the owner and operator of a prior existing ditch
system, and may be entitled to historic, prescriptive rights of way for the use, operation
and maintenance thereof for the purpose of diverting, controlling, transporting, carrying,
delivery and disposing of water ("Existing Ditch Facility") that are located in the Right
of Way. CDOT desires to modify such Existing Ditch Facility as part of the Project;
and
. D. The Right of Way and the Existing Ditch Facility of Lane Ditch are
illustrated in Exhibit "A" attached hereto; and a legal description for the Right of Way is
set forth in Exhibit "B" attached hereto.
E. Wheat Ridge is the owner and operator of an existing transportation
facility that is located within the Right of Way C'Existing Transportation Facility").
Such Existing Transportation Facility system will be modified as part of the Project.
After completion of the Project, CDOT and Wheat Ridge will be owners and operators
of the modified transportation facility; and
F. The Parties each have ownership interests in the Right of Way. The
Parties are willing to enter into this Agreement to acknowledge the existence of both the
Existing Transportation Facility and the Existing Ditch Facility located on the Right of
Way, and to allow for the construction, use and maintenance of modifications to such
facilities by CDOT on, over and under the Right of Way; and
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G. As part of the Project, CDOT will construct certain modifications to the
Existing Transportation Facility. After completion of such modifications, CD aT and
Wheat Ridge's facilities in the Right of Way will consist of elements of the Existing
Transportation Facility and newly constructed facilities (hereinafter collectively referred
to as the "New Transportation Facility"). Portions ofthe New Transportation Facility
may interfere with the Existing Ditch Facility. Therefore, as part of the Project, CDOT
will, at its expense, construct any and all necessary modifications to the Existing Ditch
Facility. After completion of such modifications, the Lane Ditch's ditch system in the
Right of Way will consist of elements of the Existing Ditch Facility and newly
constructed facilities (hereinafter collectively referred to as the "New Ditch Facility").
The New Transportation Facility and the New Ditch Facility are illustrated on the
engineering plans and specifications for the Project; and
H. This Agreement is executed by CDOT tmder authority of Sections 43-1-
106 and 43-2-144, C.R.S., by 23 CFR 645.213, and by Wheat Ridge under Authority of
C.RS. 29-1-201 et sea.
I. CDOT has offered to carry out the covenants and agreements hereinafter
stated to be complied with and performed by CD aT and Wheat Ridge, and the Lane
Ditch agrees to carry out the covenants and agreements hereinafter stated upon the
following terms and conditions.
J. Exhibits A, B, and C are incorporated herein by this reference. To the
extent there is any conflict between this Agreement and the Exhibits, the terms of this
Agreement shall prevail.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE 1. GRANT AND CONFIRMATION OF RIGHT OF WAY
1.1 Wheat Ridge, CDOT and Lane Ditch each acknowledge the right of the
other to have its facilities, old and new, located within the Right of Way, together with all
and singular any rights, privileges, hereditaments, and appurtenances thereunto belonging,
or in any way pertaining to the use, operation and enjoyment of said Right of Way
including, by way of description and not limitation, vehicular and pedestrian access to and
along the Right of Way, the New Transportation Facility and the New Ditch Facility with
all rights necessary to the use, construction, maintenance, repair, replacement, removal
and operation of said facilities.
ARTICLE 2. WORK
2.1 CD aT shall prepare preliminary and final engineering plans and
specifications and complete all construction of the New Transportation Facility and the
New Ditch Facility described below within the Right of Way and the Lane Ditch
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Existing Ditch Facility (hereinafter referred to as the "Work"). The Work is more
specifically described in the preliminary engineering plans and specifications for the
Project attached for information as Exhibit "C." Approval of the final engineering plans
and specifications is described in Paragraph 3.1 below.
2.2 Lane Ditch, without warranting the right, title or privilege, grants to CDOT,
the right to conduct the Work, subject to the terms and conditions of this agreement. The
location of all Work shall be as depicted in Exhibit "A" and within the boundary defined
by Exhibit "B."
ARTICLE 3. PLANS AND SPECIFICATIONS
3.1 Prior to CDOT's commencement of any work on the New Ditch Facility,
the final engineering plans and specifications for such Work shall be submitted to and
accepted by the Lane Ditch and Wheat Ridge and upon acceptance are incorporated by
reference herein as Exhibit "c." Said acceptance will not be unreasonably withheld.
ARTICLE 4. SUPERVISION
4.1 The Work shall be performed by CDOT or its agents under the
supervision of a registered professional engineer and in accordance with the Exhibit "C"
Final plans and specifications, unless a modification thereof is agreed to in writing by the
Parties. CDOT shall supply the Lane Ditch and Wheat Ridge with "as constructed"
drawings of the Work upon completion and acceptance. The Lane Ditch and Wheat
Ridge agree that they will not unreasonably withhold their acceptance.
ARTICLES. PROJECT SCHEDULE
5.1 CDOT shall not commence any construction of the Work without first
notifying and obtaining Lane Ditch consent to the commencement and scheduling of the
Work. The Parties recognize that time is of the essence and such consent shall not be
unreasonably withheld. Thereafter, CDOT shall organize, commence, conduct and
complete all construction and maintenance activities with all necessary speed and
diligence and in such a fashion as to avoid interference with the Existing Ditch Facility,
. .
the New Ditch Facility or the full, free flow'ofwater through the Existing Ditch Facility
and the New Ditch Facility from April 1st to October 1st. Any and all excavations made
as part of the Work shall be leveled off, and any damage to the canals and laterals,
embankments, fences, roads or other improvements of Lane Ditch as a result of the Work
shall be repaired by CD aT at CDOT's sole cost.
5.2 CDOT acknowledges the requirement for the continuous flow of water
from April 1st to October 1st of each year and agrees that CD aT shall not interfere with
the flow of water within the Existing Ditch Facility or the New Ditch Facility during that
time. The Parties recognize and agree that substantial damages may be suffered by the
Lane Ditch and its shareholders if the delivery of water is interrupted in any manner as a
result of the Work agreed to herein or other actions of CD aT. However, all parties
acknowledge that when emergency repairs need to be made CDOT may interrupt the flow
of water to make said emergency repairs.
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5.3 CDOT shall not commence the Work until this Agreement has been duly
executed by Wheat Ridge, CDOT, and Lane Ditch and delivered for recording in the
records of the Clerk and Recorder of Jefferson County, Colorado.
ARTICLE 6. RE-ROUTlNG AND ENCLOSING DITCH
6.1 The Lane Ditch shall have the right to inspect any relocation, construction,
installation or removal of any Existing Ditch Facility structure by CDOT to assure that such
will not interfere with the full free flow of water or otherwise impair the operation or use
of the Existing Ditch Facility and the New Ditch Facility. The Work shall not be deemed
satisfactorily completed until inspection and acceptance thereof by the Lane Ditch. The
Lane Ditch agrees it will not unreasonably withhold its acceptance and that such
inspection and acceptance will be completed within a reasonable amount of time.
6.2 Within ninety (90) days after completion, CDOT shall furnish to the Lane
Ditch complete as-built drawings of the New Ditch Facility and the New Transportation
Facility, and the Lane Ditch shall be entitled to rely on such drawings in its use of the New
Ditch Facility.
ARTICLE 7. PERMITS
7.1 CDOT shall obtain all required government approvals and permits for the
Work. The Lane Ditch agrees to cooperate with CDOT's efforts to obtain said permits
sought in furtherance of the Work described herein.
ARTICLE 8. MAINTENANCE
8.1 During the time that CDOT is completing the Work on the New Ditch
Facility, the maintenance and repair of the New Ditch Facility shall be the sole legal and
financial responsibility of CDOT.
8.2 CD aT shall be responsible for all maintenance and upkeep, including the
structural integrity, of those portions of the New Ditch Facility which run under all CDOT
interstate ramp facilities.
8.3 Wheat Ridge shall be responsible for all maintenance and upkeep ofthe
New Ditch Facility, including the structural integrity, for all portions of the New Ditch
Facility except those portions which run under all CDOT interstate facilities.
8.4 CDOT and Wheat Ridge shall be responsible for all maintenance and
upkeep of the New Transportation Facility. The allocation of responsibility as to CDOT
and Wheat Ridge for maintenance of certain facilities that make up the New Transportation
Facility shall be defined in a future agreement between those parties. The Lane Ditch shall
not have any responsibilities for maintenance or upkeep of the New Transportation
Facility.
ARTICLE 9. DAMAGE TO OTHER FACILITY
9.1 CDOT covenants to perform all work, construct any structure permitted
hereunder and to make any and all necessary modifications to the Lane Ditch, the Existing
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Ditch Facility or the New Ditch Facility (if any) in a workmanlike manner and with such
material as will safely perform the purpose for which the work, structures and necessary
modifications are installed.
9.2 The Lane Ditch agrees to take due care to avoid damage to the New
Transportation Facility in the use, maintenance or repair of the New Ditch Facility. As
provided by law, should any damage to the New Transportation Facility occur in the
course of the use, maintenance or repair of the Lane Ditch system, Existing Ditch Facility
or New Ditch Facility as a result of any work by the Lane Ditch, Wheat Ridge or CDOT
shall cause the New Transportation Facility to be repaired to its pre-existing condition at
the sole cost to the responsible party.
ARTICLE 10. FUTURE FACILITY MODIFICATIONS
10.1. Each party shall provide the other with design and construction plans for
any future modifications to the New Ditch Facility or New Transportation Facility for
review and approval by the other party prior to the start of any modification of the New
Ditch Facility or the New Transportation Facility. Each party shall be solely responsible
for the accuracy and completeness of its plans.
10.2 Each party shall give advance notice of at least 48 hours to the other party
before the start of any construction, maintenance, or repairs, which may interfere with the
other party's use of its facilities. CDOT, Wheat Ridge, and the Lane Ditch each agree it
will not unreasonably withhold its approval. Lane closures and detours affecting the
Wheat Ridge city street or CDOT state highway shall be approved by CDOT and/or
Wheat Ridge prior to starting any construction, maintenance, or other repairs requiring
such items. Wheat Ridge and CDOT's approval shall be contingent on the Lane Ditch
obtaining permits or other govemment approvals which are required to perform any such
construction, maintenance or repairs. In the event of emergency repairs, the advance
notice shall be waived, however notice of such activities shall be provided as soon as
possible.
ARTICLE 11. NOTICE
11.1 Each party shall keep the other informed, in writing, of the current names,
addresses and phone numbers of its personnel who can be contacted in case of emergency.
This information shall be provided to the CDOT Region 6 Regional Transportation
Director, Wheat Ridge Director of Maintenance and Operations, and the Lane Ditch Board.
The initial parties to be notified shall be:
For the Lane Ditch:
For CDOT:
Vemon A. Evans
2755 Indiana
Golden, CO 80401
303-278-8376
Randy Jenson
CDOT Region 6 Regional
Transportation Director
2000 South Holly
Denver, CO 80222
303-757-9459
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For Wheat Ridge:
Public Works Director
City of Wheat Ridge
7500 W. 29th Avenue
Wheat Ridge, CO 80033
ARTICLE 12. EXPENSES AND COMPENSATION
12.1 The Lane Ditch acknowledges that it has the right to receive compensation
and or reimbursement from CDOT for its reasonable engineering and legal expenses for
reviewing and accepting the final plans and specifications. However, the Lane Ditch agrees
to forego its right to receive compensation and or reimbursement for said expenses.
12.2 CD aT acknowledges that the Lane Ditch, by allowing CDOT to move its
existing ditch facilities to CDOT's new rights of way, will be giving up any historic and/or
prescriptive rights it has in the ditch's current location. As compensation for relinquishing
those rights CDOT agrees to pay and the Lane Ditch agrees to accept $10,000 as full
compensation.
ARTICLE 13. COVENANTS RUN WITH LAND
13.1 The covenants, terms and conditions hereof are intended to run with the
land and shall be binding upon and inure to the benefit of the Parties hereto and their
respective agents, heirs, executors, administrators, personal representatives, successors
and assigns.
ARTICLE 14. CONTRACT DOCUMENTS
The Contract Documents which comprise the entire Agreement between CDOT,
Wheat Ridge, and the Lane Ditch concerning the Work consist of the following:
14.1 This Agreement.
14.2 Exhibits to this Agreement.
14.3 Engineering plans and specifications for the Project.
ARTICLE 15. MISCELLANEOUS
15.1 CDOT, Wheat Ridge, and the Lane Ditch each binds itself, its successors,
assigns and legal representatives to the other party hereto, its successors, assigns and legal
representatives in respect to this Agreement.
15.2 Any provision or part of this Agreement held to be void or unenforceable
under any law or regulation shall be deemed stricken, and all remaining provisions shall
continue to be valid and binding upon CDOT, Wheat Ridge, and the Lane Ditch who
agree that this Agreement shall be reformed to replace such stricken provision or part
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thereof with a valid and enforceable provision that comes as close as possible to expressing
the intention of the stricken provision.
15.3. Each party represents and warrants that it has taken all actions that are
necessary or required by applicable law, to properly authorize the undersigned signatory
to lawfully execute this Agreement on behalf of such party and to bind the party to its
terms.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
Agreement to be executed the day and year first above written.
DEPARTMENT OF TRANSPORTATION
STATE OF COLORADO
ATTEST:
By
Pamela Hutton, Chief Engineer
Bv
Bernhardt K. Rasmussen, Chief Clerk
THE LANE DITCH COMPANY
By
Authorized Representative
APPROVED AS TO FORM:
By
VernonA. Evans, Esq. #21343
Counsel for the Lane Ditch Company
THE CITY OF WHEAT RIDGE
~
B'riJ1?/e~:llidg,
ATTEST:
By M~h~,~ \V't^~
By "'~~ 'lJiJ;)
Ge ahl t/
Attorney for City of Wheat Ridge
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