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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 I 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 2 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. 3 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 4 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 5 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 6 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 7