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HomeMy WebLinkAboutC01-172 License for Bicycle and Pedestrian Trail with Union Pacific~~, ~~1 LICENSE FOR BICYCLE AND PEDESTRIAN TRAIL TH AGREEMENT (the "Agreement") is made and entered into this r - day of ~~~ , 2001, between UNION PACIFIC RAILROAD COMPANY, a De `are corporation ("Union Pacific"), and EAGLE COUNTY, a public subdivision of the tate of Colorado ("Eagle County"). RECITALS: Eagle County has constructed an at-grade public bicycle and pedestrian recreation trail across certain property of Union Pacific located at or near Edwards, Eagle County, Colorado, shown on the print attached hereto as Exhibit A, and hereby made a part hereof (the "Property") and will maintain and use certain recreational improvements consisting of an at-grade public bicycle and pedestrian recreational trail across the aforementioned property at or near Milepost 310.84 on the Tennessee Pass Sub (the "Trail"). The proposed Trail will intersect and cross an inactive railroad line owned by Union Pacific in the location shown on Exhibit A. Said right to use the Trail is granted insofar as the Union Pacific line is inactive, and in the event this line should become active, this Agreement shall terminate as provided herein. AGREEMENT: NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: Section 1. RIGHT GRANTED. A. For and in consideration of a one-time license fee of Two Thousand Seven Hundred Twenty-Three Dollars ($2,723.00), to be paid by Eagle County to Union Pacific upon the execution and delivery of this Agreement, Union Pacific hereby grants to Eagle County the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to use, maintain, repair and renew the Trail on, along and over the Property. B. This Agreement and the license granted herein shall be effective as of the date first herein written and shall remain in full force and effect for an indefinite term unless terminated as provided herein. C'\TEMP\EagleCounty Bicy&PedLic.doc C. The right granted herein is made subject to and subordinate to the prior and continuing right and obligation of Union Pacific, its successors and assigns, to use all of the Property in the performance of its duty as a common carrier, and there is reserved unto Union Pacific, its successors and assigns, the right (consistent with the rights granted herein to Eagle County) to construct, reconstruct, maintain, repair, use and operate existing or future additional railroad tracks, track appurtenances, fiber optic or signal lines and facilities, pipe, and wire lines over, under and across the Property. D. The right granted herein is granted only insofar as Union Pacific may lawfully grant the same and Union Pacific makes no covenant or warranty of title, or for quiet possession or against encumbrances. The right granted herein is also subject to any and all outstanding encumbrances, licenses, leases, easements, restrictions, conditions, covenants, claims of title and other rights (whether public or private and whether or not recorded or unrecorded) including, but not limited to, those for communication, pipeline and wireline facilities and also to any and all extensions and renewals thereof. Eagle County shall not damage, destroy or interfere with the property or right of nonparties in, upon or relating to the Property, unless Eagle County, at its sole expense, settles with and obtains a release from such nonparties on mutually satisfactory terms. E. Eagle County shall not use or permit use of the Trail or any part thereof for any other purpose than what is specified in this Agreement. No nonparty shall be admitted by Eagle County to use or occupy any part of Union Pacific's property for any purpose except as specifically provided for herein without Union Pacific's prior written consent. Nothing herein shall obligate Union Pacific to give such consent, which, if granted, may be subject to such terms and conditions as Union Pacific, in Union Pacific's sole discretion, may deem to be necessary or convenient. If the Trail shall cease to be used for the purposes aforesaid or shall be used for purposes unauthorized herein, then the right granted herein shall cease and terminate. Section 2. USE AND MAINTENANCE OF TRAIL. A. Eagle County, at its expense, shall patrol the Property by police officers having lawful citation authority and to vigorously enforce the prohibition against trespass of Union Pacific's adjacent right of way. B. Eagle County, at its sole expense, will maintain the entire Trail located on the Property including the portion that lies over Union Pacific's track. Section 3. CHANGE IN GRADE. If at any time, Union Pacific shalt elect, or be required by competent authority, to raise or lower the grade of the trackage within the Trail area, Eagle County, at its sole expense, shall conform the Trail located within the Property to conform with the change of grade of the railroad trackage. C:\TEMP\EagleCounty Bicy&PedLic doc 2 Section 4. COMPLIANCE WITH LEGAL REQUIREMENTS. Eagle County, in performing any maintenance and reconstruction and in allowing the public to use the Trail, shall observe and comply with all applicable federal, state and municipal and other laws, ordinances, rules and regulations, including, without limitation, all State of Colorado PUC orders and recommendations (if any) and shall apply for and obtain any and all public authority, permission and licenses necessary therefor. Eagle County shall indemnify, to the extent it may lawfully do so, and hold harmless Union Pacific, from and against any loss, cost, damage and expense, liabilities, penalties, claims and forfeitures resulting from any failure of Eagle County to comply with the provisions of this Section, or to comply with the requirements of any public authority, license or permission obtained as aforesaid. Section 5. ASSUMPTION OF RISK; INDEMNIFICATION. Eagle County's use and occupancy of Union Pacific's right-of--way is at Eagle County's own risk, and Eagle County agrees to and does assume all risks thereof and incidental thereto. To the extent it may lawfully do so, Eagle County shall indemnify, defend and hold harmless Union Pacific, its officers, agents and employees, from and against any and all loss, damages, claims, demands, actions, causes of action, costs and expenses of whatsoever nature, including court costs and reasonable attorney fees, which may result from injury to or death of persons whomsoever, or from loss of or damage to property whatsoever, including damage to the roadbed, track, or other property of Union Pacific or property in its care or custody, when such injury, death, loss or damage is due to or arises in connection with or as a result of (i) any negligent, reckless, willful or intentional misuse of the Property by Eagle County or the agents or employees of Eagle County, or by others with the consent of Eagle County, or by the general public using the Trail, including, without limitation, situations when individuals used the Property to obtain access to any other right of way or property of Union Pacific, (ii} the breach of any covenant or obligation assumed by or imposed on Eagle County pursuant to this Agreement, or (iii) the failure of Eagle County to promptly and fully do any act or work for which Eagle County is responsible pursuant to this Agreement. Section 6. NOTICES. Any notice required or desired to be given under this Agreement shall be in writing and personally served, given by overnight express delivery, or given by mail. Telecopy notices shall be deemed valid only to the extent they are (a} actually received by the individual to whom addressed, and (b) followed by delivery of actual notice in the manner described above within three (3) business days thereafter. Any notice given by mail shall be sent, postage prepaid, by certified mail, return receipt requested, addressed to the party to receive at the following address or at such other address as the party may from time to time direct in writing: C'\TEMP\EagleCounty Bicy&PedLic doc '3 Union Pacific: UNION PACIFIC RAILROAD COMPANY ATTN: Director-Contracts Real Estate Department 1800 Farnam Street Omaha, NE 68102 Facsimile: (402) 997-3601/3602 Eagle County: EAGLE COUNTY ATTN: County Attorney 3289 Cooley Mesa Road P.O. Box 1070 Gypsum, Colorado 81637 Facsimile: ~) Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be deemed to be given three (3) days after deposit with the United States Postal Service. Section 7. TERMINATION; WAIVER OF BREACH. A. Union Pacific may terminate this Agreement by giving Eagle County notice of termination if Eagle County abandons the Trail as set forth in Section 8 or defaults under any obligation of Eagle County under this license and, if after written notice is given by Union Pacific to Eagle County specifying the default, Eagle County fails either to immediately begin to cure the default, or to complete the cure expeditiously but in any event within thirty (30) days after the default notice is given. A waiver by Union Pacific of a breach of Eagle County of any covenant or condition of this Agreement shall not impair the right of Union Pacific to avail itself of any subsequent breach thereof. B. Upon approval of the Colorado Public Utilities Commission, Union Pacific may also terminate this Agreement by giving thirty (30) days written notice to Eagle County if Union Pacific deems it necessary to resume rail service on the line of railroad that crosses the Property. Section 8. ABANDONMENT. If Eagle County, its successors and assigns, shall abandon the Trail, or any portion thereof, for the purpose set forth herein for a continuous period of twelve (12) months, then this Agreement and the rights granted herein shall terminate and cease automatically. Section 9. REMOVAL OF TRAIL UPON TERMINATION OR ABANDONMENT. A. Prior to termination (if Union Pacific terminates this Agreement pursuant to Section 7.B.) or within ninety (90) days (if this Agreement terminates due to Eagle County's abandonment of the Trail), Eagle County, at its sole cost and expense, shall C \TEMP\EagleCounty.Bicy&PedLic.doc 4 remove the entire Trail located on the Property, and Eagle County, at its sole cost and expense, shall also remove all of the remaining portions of the Trail improvements from the Property or adjacent Union Pacific right-of--way and restore the Property to its original condition, failing in which Union Pacific may perform such activities at the expense of Eagle County. B. If Union Pacific terminates this Agreement so as to resume rail service, and it incurs any expenses in reconstructing the track structure, Eagle County shall reimburse Union Pacific for all of such expenses. Section 10. MISCELLANEOUS. A. All the covenants, promises and future obligations and responsibilities herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. B. Neither party may assign this Agreement or any part hereof without the prior written consent of the other party. C. This Agreement embodies the entire agreement between the parties and shall not be altered except through a written instrument signed by both parties. D. This Agreement shall be governed by the laws of the State of Colorado. E. This Agreement is solely for the benefit of the parties and is not intended to and does not confer any benefits on any third parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in triplicate as of the date first written above: UNION PACIFIC RAILROAD COMPANY By_ Its: EAGLE COUNTY ~`~ '~ " ~, ,~ .~ By - * ~ Its: ~- Q Chairman of the Board of Eagle County Com ss oners C:\TEMP\EagleCounty.Bicy&Pedt.ic.doc C EXHIBIT A Exhibit A will be the legal description of the portion of the Eagle County's Trail G \LAWADM\PARIKJO\EagleCounty Bicy&PedLic doc N yy® ®°E S ~~_~ }~7 ~~ ~~7 ~~~~~~7 ~L~11~Y ~~~~ MP 310.84 -Tennessee Pass Subdivision Edwards At-Grade Pedestrian Trail Construction Project WORK TO BE PERFORMED: Proposed construction of a new at-grade pedestrian trail crossing. EXIIIBIT "A" UNION PACIFIC RAILROAD COMPANY TENNESSEE PASS SUBDIVISION MILE POST 310.84 GPS: N 39° 38.579', W 106° 35.192' EDWARDS, EAGLE CO., CO. Illustrative print showing location of new at-grade pedestrian trail crossing construction project with EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY. Folder No. 1855-63 WARNING Date: May 10, 2001 IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANV WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: I-(R00) 336-9193 E.C.R.~T:A'. ID~9707A80710 NOV 16'00_ ~34 No .001 P.04 ^N ' '' .. - ^a - - ~ i .. ,~ ~ 1 i ' 1 r _ ~ ~ i ~ ~ 1 A -.1 _ i ~~ 1 .,~ ~ )~ J I ~ ltBDwoN.M' /T/ . ~ L I t ~ ~ e ~ ~* I ' ~ ~ R, i i ~- -- ~ ~~ - .` _ ,~: - _ ~ ~ -r+,w~.+onae.wouarommewi,.e~ ~ NKppgpy~rwlN rNE YRm. CROSSING PLAN `'""` ' ' - - .~ ~..~.• ~~ K. per. ~antwtn+ y1C N~O~ ,- I.. - N~a d rYlllVa d NtY4~ ~ lOi MOK6L~ MQ SECTION A-A ~~~~P~ "~~~'~ ~.NN puw na w~ ^w ~ .o.nw SECTION B-B ~~ ~ ~,~ -~ E. EDWARDS TRAIU m"""° """' "'"""` UNION PACIFIC RAILROAD CROSSING NFI~R EpWAADS. CO pp11BR'H-SfiEPtJW _ _ NOU 16 2000 09 44 9707480710 PAGE.04