HomeMy WebLinkAbout1.09 RFTA access license agreement.pdfAttachment "I''
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Contract No. MP 37f.k/;;--37;. 7o Replace License 37 t. ;t> Public Access Road License Agreement This Public Access Road License Agreement ("License Agreement") is made and entered into,
effective December 23,2010 by and between THE ROARING FORK TRANSPORTATION AUTHORITY, hereinafter called the "Licensor" or "RFTA" and The TOWN OF CARBONDALE, a Colorado Home Rule Municipality
hereinafter called the "Licensee" or the "Town" and the STATE OF COLORADO acting by and through the Department ofNatural Resources for the use and benefit of the Division of Wildlife
and the Wildlife Commission, hereinafter called the "State", as a thirdparty beneficiary. RECITALS: WITNESSETH, On November 19, 1992, the Koziels and RFTA's predecessor, The Denver and
Rio Grande Western Railroad Company, entered into a Private Way License for use of the railroad right-of-way at Mile Post 371.35 to 3 71.70 (the "Private Way License"). The Private Way
License is recorded in the records of Garfield County, Colorado, April2, 1998, in Book 1061 at Page 9-13, reception No. 522909. WITNESSETH, On June 30, 1997, The Denver and Rio Grande
Western Railroad Company sold the railroad right-of-way to the Roaring Fork Railroad Holding Authority ("RFRHA"). In 2000, RFRHA assigned all of its rights and responsibilities of the
railroad right-of-way to RFTA. WITNESSETH, On December 23, 2010, the Koziels sold their property to the Town. Access to the Koziel's property runs through approximately 450 feet of the
railroad right-of-way. Provisions in the Private Way License states that Private Way License shall automatically tenninate if the Koziel property is ever sold and the new owner must
enter into a new license agreement with RFTA. WITNESSETH, that RFTA, for and in consideration of the covenants and agreements ofthe Licensee contained herein and upon the terms and conditions
stated, hereby licenses and permits the construction (if any), maintenance and use of a non-exclusive public access road ("Access Road") within RFTA's Railroad Corridor ("Corridor")
to Licensee. Licensee is the owner of the real property legally described and depicted on Exhibit "A" (the "Property") attached hereto and incorporated herein by this reference. The
Corridor at this location is approximately 200 feet wide, that is to say 100 feet on each side of the center line of the railroad tracks. The Access Road is described to wit: A 40 feet
wide public roadway encroaching on Licensor's right-of-way of the Aspen Branch License Page I of7
between Mile Post 371 plus 2,375 feet and Mile Post 371 plus 3,725 feet, near Carbondale, Colorado in Garfield County, being within the So nth Half of Section 28, Township 7 So nth,
Range 88 West of the 61h P.M. THIS LICENSE is expressly conditioned upon the performance by the Licensee of all the covenants and agreements hereinafter set forth, and it is also hereby
stipulated that a waiver by RFTA of any breach of any such covenant or agreement shall in no way impair the right ofRFTA to avail itself of any subsequent breach of the same or any other
covenant or agreement. The Access Road may be used as a non-exclusive public way for travel for pedestrians, livestock, non-motorized and motorized vehicles. Subject to the terms and
conditions set fmih herein, Licensee shall be allowed to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain underground utilities, fixtures and equipment
used or useable in connection therewith. Use of the Access Road shall be as required by RFTA, or which may at any time be required by any Local, State or Federal law, or by any order
of any Local, State or Federal officer or regulatmy board having jurisdiction over such matters. I. Maintenance and Repair. The Licensee shall, at its sole cost and expense, construct,
maintain, repair or reconstruct the Access Road and all its appurtenances whenever necessary and when required to do so by RFTA, in accordance with plans prepared by Licensee and in
a manner satisfactory to RFTA. RFTA, however, shall have the right, if it so elects, at anytime, though it shall be under no obligation whatever to do so, to construct, maintain, repair
or reconstruct, relocate or remove the Access Road and all or any of its appurtenances, notwithstanding the obligation of the Licensee to construct, maintain, repair or reconstmct, relocate
or remove the Access Road. The optional right ofRFTA to maintain, repair or reconstruct, relocate or remove the Access Road shall in no manner or degree relieve the Licensee's responsibility
to RFTA or to other persons or corporations for the failure of the Licensee to properly maintain, repair or reconstruct, relocate or remove the Access Road, or any other structure which
RFT A agrees to maintain, repair or reconstruct, relocate or remove. Notwithstanding the forgoing, RFTA agrees that the Access Road is a public way and is in the only location in the
Corridor by which Licensee can access the Property. Termination of the License Agreement for any reason, relocation or removal of the Access Road shall occur only if the entire RFTA
Board of Directors (the "Board") decides by a unanimous vote to do so, and only after written notice is delivered to Licensee thirty-six (36) months prior to planned tennination of the
License Agreement, relocation or removal of the Access Road. 2. Limitations on Rights Granted. RFTA reserves the right of title, use, and occupancy of the Access Road and Conidor, subject
to the rights granted herein, provided that RFTA shall not unreasonably interfere with the Licensee's exercise of the rights granted hereunder. RFTA shall have the continuing right to
all other uses of the Corridor, including the right to construct, use, maintain, repair, relocate (subject to the provisions of Paragraph 1 above) and renew in RFTA's sole discretion
any and all improvements, including without limitation tracks, overhead lines, pipelines, busways, trails and other facilities upon, along, over, under or across any or all parts of
the Corridor, all of which may be done at any time by RFTA without License Page 2 of7
prior notice and without liability to Licensee or to any other party for compensation or damages. This License is subject and subordinate to all existing leases, licenses, easements,
pe1mits, claims of title or other interests and as may in the future be modified, renewed or extended by RFTA, including but not limited to any fiber optic cable. 3. No Interference
with RFTA's Uses. Licensee acknowledge that RFTA's Conidor is not abandoned and is under the jurisdiction of the federal Surface Transportation Board. Licensee further acknowledges that
the Conidor is "rail banked" so that RFTA is required to preserve the Conidor for future rail use. 4. Protection of Drainage. Any and all cuts and fills, excavations or embankments necessary
in the maintenance or future alteration for Licensee's use of the Access Road shall be made and maintained in such manner, form and extent as will provide adequate drainage of the Access
Road, the Corridor, and adjoining lands. Wherever any such fill or embankment may obstmct the natural and pre-existing drainage from such lands, Licensee shall construct and maintain
sufficient culverts or drains as may be required to accommodate and preserve such natural and pre-existing drainage. 5. Environmental Protection. Licensee shall, at its expense, comply
with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental
protection, waste disposal, and water and air quality, and furnish satisfactory evidence of such compliance upon request ofRFTA with regard to activities on the Access Road. Should any
discharge, leakage, spillage, emission or pollution of any type occur upon or arise from the Access Road as a result of Licensee's use, presence, operations or exercise of the rights
granted hereunder, Licensee shall immediately notifY RFTA and shall, at Licensee's expense, clean all property affected thereby, to the reasonable satisfaction of RFTA (insofar as the
property owned or controlled by RFTA is concerned) and any governmental body having jurisdiction in the matter. RFTA may, at its option, clean RFTA's prope1ty of such discharge refened
to above, and Licensee, to the extent pennitted by law, shall indemnifY, defend and hold RFTA harmless from and against all claims, liability, costs and expenses (including without limitation,
any fines, penalties, judgments, litigation costs and attorneys' and consultants' fees and expenses) incurred by RFTA as a result of any such discharge, leakage, spillage, emission or
pollution by Licensee. 6. Protection of Underground Utilities. Licensee acknowledges that Qwest Communications Corporation or its successor has an easement for underground cable along
the Corridor and that fiber optic cable is buried through the Corridor and possibly under the Access Road. Licensee, at least five (5) days prior to perfonning any excavation activities
on the Corridor or Access Road, shall notifY RFTA at (970) 384-4971 and shall notifY Qwest Communication at 1-800-AT-FIBER (a 24-hour number) at least three (3) business days before
doing any digging. Prior to beginning any work on the Access Road, Licensee shall determine where any utilities are buried on or about the Access Road. Licensee shall pay special attention
to fiber optic cable and determine the names of the telecommunications company(ies) involved, License Page 3 of7
arrange for a cable locator, detennine whether arrangements for relocation or other protection of the fiber optic cable is required and shall so notify RFTA. Any such relocation or protection
shall be at Licensee's expense. 7. Protection of Trail and Conservation Easement. Licensee acknowledges that the Corridor is subject to and encumbered by a perpetual covenant running
with the land held by the State Board of the Great Outdoors Colorado Trust Fund for the protection of the Conservation and Trail Values. The Licensee agrees not to undertake any further
activity within the Corridor other than customary maintenance and repair without first obtaining the written approval of RFTA. The notice addresses are as follows: If to RFTA: RFTA C/o
Corridor Manager 0766 Industry Way Carbondale, Colorado 81623 If to Licensee: Town of Carbondale c/o Town Manager 511 Colorado Avenue Carbondale, Colorado 81623 970-963-2733 8. Licensee's
Dutv to Install Safetv Improvements. If at any time after the installation of the Access Road, any Local, State or Federal law or regulation, or any Local, State or Federal officer or
regulatory board or commission having jurisdiction shall require any alterations, changes or improvements of the Access Road, as herein defined, or any additional safeguards, protection,
signals or warnings, the same shall be constructed, maintained and operated at the sole expense of the Licensee. 9. Any Future Work to Require Permit. Licensee shall not enter upon the
Access Road or Corridor for the purpose of constructing, repairing or reconstructing, the Access Road without obtaining a special written pennit from RFTA, except in cases of an emergency
when work is necessaty to aveti injury to persons or loss or damage to propetiy. All work of construction, maintenance or repair shall be done by the Licensee in such manner as to cause
no interference with the constant, continuous and unintenupted use of the tracks, trails, buildings or other improvements of RFT A now in place or as may be installed in the future by
RFTA in RFTA's discretion. 10. RFTA's Right to Alter, Relocate, or Remove. This License shall not be deemed to give the Licensee exclusive possession of any part of the premises described,
but, subject to the provisions of Paragraph I above, RFTA shall have the unimpaired right to construct, maintain, repair, relocate or remove track, trails, buildings or appurtenant structures
or other improvements deemed appropriate in RFTA 's discretion and nothing shall be done or suffered to Ucense Page 4 ofl
be done by the Licensee at any time that shall in any manner impair the usefulness or safety of any property of RFT A or of any track, trail, building or appurtenant structure or other
improvement to be hereafter constmcted. RFTA shall have the right at any and all times hereafter to construct, maintain and operate such additional tracks, trails, buildings, appurtenant
structures or other improvements where the Access Road is located, as RFTA may from time to time elect. In case of any such change by RFTA requiring in RFTA's discretion the alteration
of the Access Road structures, the structures shall be altered as directed by RFT A at the sole cost and expense of the Licensee, in such manner as may be deemed necessary by RFTA to
confonn to the tracks, trails, buildings, appurtenant structures or other improvements on the Corridor or Access Road as so changed, altered or improved, and if the Licensee shall fail
to do any of the things in this paragraph enumerated, RFT A may do or cause the same to be done at the cost of the Licensee. RFTA shall use its best efforts to keep the Access Road in
the same location as it is presently located if it determines that the cunent Access Road must be modified for the purposes stated herein. II. No Liens to be Filed. Licensee shall pay
in full all persons who perform labor on the Access Road for Licensee and will not allow any mechanics' or materialmen's liens to be enforced against RFTA's Corridor for work done or
materials furnished at Licensee's instance or request. If any such liens are filed thereon, Licensee agrees to remove the same at Licensee's own cost and expense and to pay any judgment,
which may be entered thereon or thereunder. Should Licensee fail, neglect or refuse to do so, RFT A may pay any amount required to release any such lien or liens, or to defend any action
brought thereon, and to pay any judgment entered therein, and Licensee shall be liable to RFTA for the payment of any such liens or judgment and any and all costs, expenses, damages,
attorneys' and consultants' fees and expenses, and any other amounts expended in defending any such proceedings. 12. Licensee's Assumption of Liability. Licensee assumes all liability
for damage to or destruction ofpropetiy, injury to or the death of persons resulting from the use of the Access Road by persons other than those for whose benefit the Access Road is
licensed hereunder. 13. Indemnification. To the extent permitted by Colorado law, Licensee agrees to cause its contractors, subcontractors, agents, and representatives to agree, to indemnify,
release, reimburse, and save harmless RFTA, its Board, officers, agents, and employees, (1) from and against any and all loss of or damage to property, or injuries to or death of any
person or persons, including property and Board, officers and employees ofRFTA; and (2) ti·om any and all claims, damage, suits, costs, expenses, liability, actions, or proceedings of
any kind or nature, of or by anyone whomsoever, in any way resulting from, or arising, directly or indirectly, out of the use of the Corridor or Access Road, or of any other portion
ofRFTA's property, by Licensee and its agents, and representative; except however, to the extent caused by the negligence of RFT A or its agents, servants, or employees. Nothing herein
shall be construed as a waiver of the protections afforded by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et. seq., as amended. License Page 5 of7
14. Waiver. Neither the right of supervision by RFTA of the location, installation, operation and the maintenance of the Access Road, nor the exercise or failure to exercise the right,
nor the approval or failure to disapprove, by RFT A of the location, installation, operation and maintenance of the Access Road, nor the election ofRFTA to repair, construct, reconstruct
or remove the whole or any part of the Access Road, shall be deemed a waiver of the obligations of the Licensee contained in this License Agreement, expressed or implied. 15. RFTA's
Right to Tenninate License. If the Licensee shall fail to locate, construct, operate, use, repair, extend, renew, relocate or remove the Access Road in accordance with the terms of this
License Agreement and to the entire satisfaction of RFT A, or shall fail to pay to RFTA any License Fee or any other sum of money for the construction, repair, extension, renewal, relocation
or removal ofthe Access Road, or shall fail to adjust the Access Road to any changes made by RFT A, or shall in any respect fail to keep and perform any of the conditions, stipulations,
covenants and provisions of this License Agreement to be kept and performed by the Licensee, RFTA shall provide Licensee ninety (90) days written notice and opportunity to cure the breach
described in said notice. If such breach is not cured within the ninety (90) day period, but in no event longer than one hundred and eighty (180) days, this License Agreement may be
terminated in accordance with the provisions of paragraph I, above. Any notice herein provided for shall be deemed given and delivered if mailed in an envelope properly stamped and addressed
to the Licensee at the address of Licensee's provided herein or at the address of Licensee subsequently given to RFTA at RFTA's address stated herein. 16. License Non-Assignable. The
Licensee shall not assign this License or any interest therein directly or indirectly, nor encumber the same without the prior written consent of RFT A consent. The covenants, stipulations
and conditions of this License shall extend to and be binding upon RFT A and, if assigned, its successors and assigns, and shall extend to and be binding upon the Licensee and the heirs,
administrators, executors, successors and assigns of the Licensee. 17. Headings. The section headings contained in this License Agreement are inserted for convenience only and are not
intended to in any way affect the meaning or interpretation of any such section or provision of this License Agreement. 18. Governing Law. This License Agreement shall be governed and
construed in accordance with the laws of the State of Colorado and jurisdiction and venue for any litigation will be the 9'h judicial District, Pitkin County or Garfield County. 19.
Amendments and Waivers. No amendment of any provision of this License Agreement shall be valid unless the same shall be in writing and signed by RFTA. No waiver by RFT A of any default
or breach of any covenant or agreement hereunder shall be deemed to extend to any prior or subsequent default or affect in any way any ofRFTA's rights arising by virtue of any prior
or subsequent default. License Page 6 of7
20. Severability. Any tenn or provision of this License Agreement that is held by a court of competent jurisdiction to be invalid or unenforceable shall not affect the validity or enforceability
of the remaining terms and provisions of this License Agreement. 21. Entire Agreement. This License Agreement constitutes the entire agreement between the parties and supersedes all
prior understandings, agreements or representations among them, written or oral, that may have related in any way to the subject matter hereof. 22. No Third Party Beneficiaries. Except
for the State, which is a named third-party beneficiary ofthis License, this License Agreement defines the rights and duties of the parties hereto and may not be relied upon by any third
party as the basis of a claim. 23. SUBJECT TO APPROPRIATION. Any monetary obligations of RFTA under this License Agreement shall extend only to monies appropriated for the purpose of
this License Agreement by RFT A's Board and encumbered for the purposes of this License Agreement. IN WITNESS WHEREOF, the parties hereto have executed this License Agreement. LICENSOR:
ROARING FORK TRANSPORTATION AUTHORITY By~~-::-, Michael Hennes, Director of Facilities LICENSEE: TOWN OF CARBONDALE Date: /_2 ·Z-3 ·/0 License Page 7 of7