HomeMy WebLinkAbout8499RESOLUTION NO. 8499
• RESOLUTION APPROVING A CONTRACT BETWEEN PUEBLO,
• MUNICIPAL CORPORATION AND THE STATE OF COLORADO
FOR THE USE AND BENEFIT OF THE STATE DEPARTMENT OF
TRANSPORTATION AND UNION PACIFIC RAILROAD COMPANY
RELATING TO CONSTRUCTION OF A NEW GRADE SEPARATION
STRUCTURE ON DILLON DRIVE AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
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The Contract between Pueblo, a municipal corporation and the State of Colorado, for the use and
benefit of the State Department of Transportation and Union Pacific Railroad Company, for construction of
a new grade separation structure on Dillon Drive (Project SP 0471 -021, 11931 (Dillon Drive)), a copy of
which is attached hereto, having been approved as to form by the City Attorney, is hereby approved, subject
only to annual appropriation for maintenance expense obligations in future years.
SECTION 2
The President of the City Council is authorized to execute and deliver the Contract in the name of
the City and the City Clerk is directed to affix the seal of the City thereto and attest same.
SECTION 3
This Resolution will become effective upon final passage.
ATTEST:
City Cler
INTRODUCED: August 24, 1998
By John Verna
Councilperson
APPROVED:
President oft City ouncil
SP 0471 -021, 11931
125 - E/Dillon Dr - N & S
(Dillon Drive)
CONTRACT
FOR CONSTRUCTION OF A NEW GRADE SEPARATION STRUCTURE
THIS CONTRACT, made this � day of CDC. CAE , 19�by and
between the State of Colorado for the use and benefit of THE STATE DEPARTMENT OF
TRANSPORTATION, DIVISION OF ENGINEERING AND MAINTENANCE, hereinafter
referred to as the State, the CITY OF PUEBLO, A MUNICIPAL CORPORATION, hereinafter
referred to as the Local Agency, and the UNION PACIFIC RAILROAD COMPANY, hereinafter
referred to as Railroad.
WHEREAS, authority exists in the Law and Funds have been budgeted, appropriated and
otherwise made available and a sufficient unencumbered balance thereof remains available for
payment in Fund Number 400, Appropriation Code 010, Object 2311 1 N, Function 3987,
Program 2000, Originating Unit 2250, Phase U, Contract Encumbrance Number 11931, Contract
Encumbrance Amount $0; and
WHEREAS, required approval, clearance and coordination has been accomplished from
and with appropriate agencies; and
WHEREAS, this contract is executed by the State under authority of Sections 43 -1 -110
and 43 -2 -144, C.R.S., as amended, by both the State and the Local Agency under authority of
Sections 29 -1 -203 and 43 -2 -144, C.R.S., as amended, and by the Local Agency pursuant to an
appropriate ordinance or resolution duly passed and adopted by the Local Agency, a copy of
which is attached hereto and hereby made a part hereof, and
WHEREAS, the segment of Dillon Drive for the project described herein, is part of the
Local Agency's city street system; and
WHEREAS, the State, with concurrence by the Local Agency, will advertise and award a
construction contract, which includes, in part, major widening and construction of a new grade
separation structure, Structure No. PUEDIL -0.2 -40TH, on Dillon Drive, which will cross over
Railroad property, located at railroad reference point WC 115.06A, more or less, National
Inventory ID No. 411 -736A, by utilizing State funds allocated under the State's Project No. SP
0471 -021, 11931; and
WHEREAS, in order to provide for separation of grades between the highway and the
railroad, the State and the Local Agency seek a contribution from the Railroad towards the cost
of constructing a new grade separation structure, Structure No. K- 18 -EK; and
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WHEREAS, the Colorado Public Utilities Commission, hereinafter referred to as "PUC,"
method of determining the railroad share of railroad/highway grade separation structure costs
requires estimating the cost of a Reasonably Adequate Facility, hereinafter referred to as
"theoretical structure," including roadway approaches, and the State has prepared the estimate;
and
WHEREAS, the estimated cost of the theoretical structure and roadway approaches that
would be required at Dillon Drive is $3,169,870; and
WHEREAS, the Railroad has agreed to provide a lump sum amount of $1,584,935 for the
theoretical structure at Dillon Drive; and
WHEREAS, the State and the Local Agency require immediate possession and use of
certain property of the Railroad, as well as a permanent interest in that property, in order to
construct and maintain the new grade separation structure, and roadway approaches thereto; and
WHEREAS, in order for the State to construct the project, the State or its contractors will
need to use right of way of the Local Agency and the Local Agency now desires to grant to the
State or its contractors the right to enter Local Agency -owned right of way to construct this
Dillon Drive grade separation structure, in accordance with the plans and specifications prepared
by the State and as approved by the Local Agency; and
WHEREAS, the State and the Local Agency have made a joint application to the PUC,
requesting a PUC order providing for the Dillon Drive grade separation and will cooperate in
presenting all matters involved to said Commission at the hearing on such application; and
WHEREAS, the State and the Local Agency desire to cooperate in the performance of the
project work, and now desire to enter into a contract with the Railroad to provide for construction
of the Dillon Drive grade separation structure in accordance with the plans and specifications
prepared by the State and as approved by the Local Agency; and
WHEREAS, Railroad has reviewed the State's plans for construction of the new grade
separation structure number PUEDIIr0.2 -40TH; and
WHEREAS, the State's contractor will be required to perform "project work," as defined
herein, on and/or over Railroad property, that is necessary to construct the new grade separation
structure; and
WHEREAS, the State's contractor and subcontractors will cooperate with the officers and
the authorized representatives of the Railroad and its tenants to the end that the contractor's work
will be begun, conducted, and completed in such manner as to cause no interference whatsoever
with the safety or the continuous and uninterrupted use and operation of the tracks, wire lines,
and other facilities belonging to the Railroad or its tenants; and
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WHEREAS, the State will require the Railroad to install an underground signal poleline,
and provide flagging and protective services during periods of construction; and
WHEREAS, the State's contractor will notify the Railroad in advance when the poleline
is to be installed and when the flagging and protective services are required; and
WHEREAS, upon completion of construction of the highway /railroad grade separation
structure at Dillon Drive, the Local Agency will, at its sole cost and expense, maintain the grade
separation structure and roadway approaches, including embankment, slope paving, abutments,
substructure, superstructure from the top of the deck down, including handrails, as described
herein; and
WHEREAS, it is desirable, for the benefit convenience and safety of the traveling public,
that the improvements provided for herein be accomplished.
NOW, THEREFORE, it is hereby agreed that:
ARTICLE I
GENERAL PROVISIONS
SECTION A. DEFINITIONS
1. FHWA = Federal Highway Administration
2. CFR — Code of Federal Regulations
3. PUC = Public Utilities Commission of Colorado
4. CRS = Colorado Revised Statutes
The term "project work" shall consist of work done by the State's contractor to construct
the new grade separation structure and roadway approaches.
The term "railroad work" shall consist of work done by the Railroad's forces to install an
underground signal poleline and to provide flagging and protective services during periods of
construction as described herein.
SECTION B. EXHIBITS
The exhibits listed below are attached hereto and made a part of this contract:
Exhibit A - Civil Rights Exhibit
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Exhibit B - Contractor's Right of Entry Agreement
Exhibit C - Structure Number PUEDIL -0.2 -40TH - General Layout and
Proposed Improvements
Exhibit D - Right of Way Map and Legal Descriptions for the
Permanent Easements
Exhibit E - State's Cost Estimate for the Theoretical
Structure
Exhibit F - Railroad's Cost Estimate
Exhibit G - Local Agency Ordinance or Resolution
SECTION C. REFERENCE DOCUMENTS
The following are made a part of this contract by reference, the same as if attached hereto,
including any supplements or amendments thereto dated prior to the date of this contract:
23CFR
Part 140
Subpart I
23CFR
Part 646
Subpart A
23CFR
Part 646
Subpart B
ARTICLE II
COMMITMENTS ON THE PART OF RAILROAD
SECTION A. RIGHT OF WAY
1. Permanent Easement By separate Right of Way agreement, Railroad shall convey to
the State permanent easements, including ingress and egress, for the State to take all actions
reasonably necessary for the performance of the project work, i.e., construction, use, repair and
maintenance of aforesaid Dillon Drive improvements on the property. The parties shall
commence negotiations in good faith for the direct purchase by the State of the permanent
easement no later than 30 calendar days after the date of this contract. Before commencing
negotiations, the State shall perform an appraisal to determine present day fair market value of
the permanent easement and shall provide a copy of the appraisal to the Railroad. If the Railroad
disagrees with the value established by the State appraisal, the Railroad shall, on written notice to
the State, have the right to hire an appraiser of their own choosing to appraise the value of such
right of way over the property. If the property has an estimated value of $5,000 or more, the
State shall reimburse the Railroad the reasonable cost of the appraisal provided such appraisal is
made using sound, fair and recognized appraisal practices which are consistent with law. The
Railroad shall provide a copy of such appraisal to the State within 90 days of the date of the
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above written notice. The just compensation to be paid by the State for the easement shall be
based on the appraisal(s), shall be contained in the Right of Way Agreement, and shall be paid
upon execution of the permanent easement documents.
2. Failure of Negotiations If the State and Railroad have not agreed upon a negotiated
price for the purchase of the easement and executed the Right of Way Agreement within a
reasonable time after the execution of this contract, as determined by the State, but not later than
90 calendar days after the execution of this contract, then the negotiations shall be deemed futile
and the State shall begin proceedings in eminent domain, pursuant to Section 43 -1 -208 and to
Articles 1 to 7 of Title 38, CRS, to acquire the easement over the property.
3. Appraised Valuation of Easement If proceedings in eminent domain are begun the
valuation date for determining the amount of just compensation shall be the date on which the
above payment was tendered to the Railroad, and this contract shall continue in effect until either
a settlement is reached or a rule and order as provided by Section 38 -1- 105(3), CRS, as amended,
is entered by the court.
SECTION B. RAILROAD ESTIMATE
The Railroad shall prepare an estimate of the cost of the railroad work (installation of the
underground signal poleline) to be performed by its forces on a force account basis and shall
attach the estimate to this contract as Exhibit F. Such estimates of required materials and labor
for any work done by the Railroad shall conform to the requirements of 23CFR, Part 140,
Subpart I, and shall be of the form prescribed in 23CFR, Part 646, Subpart B. Railroad costs for
flagging and protective services are estimated to be $500 per day based on a 12 hour day. Any
Railroad use of an engineering consultant to perform the Exhibit F cost estimate must comply
with all applicable provisions of, and obtain approvals required by paragraph 646.216(b) of
23CFR.
SECTION C. CONSTRUCTION
Detailed plans, specifications and project special provisions for Project No. SP 0471 -021,
11931, which provide for construction of major widening and construction of structure no.
PUEDIL -0.2 -40TH, are made a part hereof by reference and a copy of the plans, specifications
and project special provisions affecting the interests of the Railroad shall be subject to approval
by the Railroad. All work performed on Railroad property pursuant to this contract shall be done
strictly in accordance with said plans, specifications and project special provisions as heretofore
or hereafter approved by the State, and the Railroad but notwithstanding any consents or
approvals given by the Railroad, the Railroad shall not be responsible for the design, details or
construction.
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SECTION D. RAILROAD'S RELATIONS WITH THE STATE'S CONTRACTOR
1. Insurance - Notice to State The State agrees that it will not authorize any contractor
to enter upon or perform any work contemplated by this contract upon Railroad property unless
or until the insurance specified in the Contractor's Right of Entry Agreement required by Article
III, Section B, paragraph 2c hereof shall be delivered to and accepted by the Railroad; and that
said insurance shall be kept in full force and effect by the contractor during the times any work is
being performed on Railroad property by any contractor or subcontractor. Railroad further
agrees to notify the State within twenty (20) calendar days following delivery of said certificates
and policies of insurance to the Railroad, whether said insurance has been accepted or rejected.
2. Contractor's Methods and Procedures - Notice to State The Railroad agrees to advise
the State, in writing, within 20 days after submission thereof by the contractor, or the State, to the
Railroad whether or not the contractor's proposed methods and procedures for performing the
project work on its properties are satisfactory.
3. State's Construction Contract Requirements In conformity with the requirements of
23CFR, Part 646, Subpart B, and Part 140, Subpart I, the Railroad agrees to furnish the State
detailed information set forth in Article III, Section A, paragraph 6 hereinafter, which data shall
be included in the State's Construction Contract Provisions for the project.
4. Railroad's Right to Stop Work If the State's contractor shall prosecute the project
work upon the Railroad's properties contrary to State's plans and specifications or if such
contractor shall prosecute said work on Railroad properties in a manner deemed hazardous by the
Railroad to its properties and facilities or the safe and expeditious movement of traffic thereon,
or if the insurance prescribed in Article III, Section B, paragraph 3 hereof shall be canceled
during progress of said work, the Railroad shall have the right to stop said work on its properties
until the acts or omissions of such contractor have been fully rectified to the satisfaction of the
Railroad or until additional insurance has been delivered to and accepted by the Railroad's
Insurance Department. Such work stoppage shall not give rise to or impose upon the Railroad
any liability to the State or any contractor. In the event the Railroad shall stop the project work
herein provided, the Railroad agrees to give immediate notice thereof, in writing, to the Chief
Engineer, Colorado Department of Transportation, 4201 East Arkansas Avenue, Denver, CO
80222. Railroad also agrees to give immediate written notice to the State when any such acts or
omissions have been rectified to the satisfaction of the Railroad.
5. Pipeline Installation The State's contractor shall notify the Railroad when the
underground signal pipeline is to be installed by Railroad forces.
6. Flagging and Protective Services The Railroad shall assign to the State's contractor
flagmen for the protection of train operations. The State's contractor shall notify the Railroad in
writing 72 hours prior to beginning and 48 hours prior to stopping any work which will require
protective services.
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7. Railroad's Billing to State's Contractor Railroad shall provide its final and complete
billings of all incurred costs to the State's contractor within one year following completion of the
installation of the underground signal pipeline, and the flagging and protective services (the
estimated daily cost for flagging is $500 based on a 12 hour day), all performed by the Railroad
at the State's /contractor's request. The billing for such work shall reference the State's Project
No. SP 0471 -021, 11931. The State shall provide the Railroad with written notice of the
completion of work, thus marking the beginning of the one year period. If the Railroad does not
present the final bill to the State's contractor within that one year time period, as required by
paragraph 140.922 of 23CFR, then previous payments to the Railroad for the railroad work may
be considered as final and complete reimbursement for that work, and the State may close out the
project with no further financial obligation. Railroad's billings for incurred costs for the railroad
work shall be audited by the State for compliance with 23CFR, Part 140, Subpart I.
SECTION F. CIVIL RIGHTS
Railroad, in its prosecution of the railroad work herein prescribed, will adhere to the
requirements of the Civil Rights Exhibit and will include the provisions of said Civil Rights
Exhibit in every subcontract, including procurement of materials and leases of equipment, unless
exempt by the Regulations, orders or instructions issued pursuant thereto. For interpretation of
said Civil Rights Exhibit, the Railroad shall be known as the Contractor.
ARTICLE III
COMMITMENTS ON THE PART OF THE STATE
SECTION A. STATE ACTIVITIES
1. Advertisement for Bids - Contract. The State will advertise the Invitation for Bids and
with concurrence by the Local Agency enter into a construction contract with the lowest
responsible bidder for the project work on and adjacent to the property described in Exhibit D in
accord with the terms of this contract.
2. Construction by the State. The State shall perform, or cause to be performed, in a
manner acceptable to the Railroad, all project work on and adjacent to the property, in
accordance with the approved plans, specifications and project special provisions.
3. Supervision by the State. The State shall maintain supervision over the operations of
its contractor while performing project work upon or adjacent to the property. However, at all
times such contractor shall be considered an independent contractor and not an employee of the
State.
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4. Plans and Specifications. Detailed construction plans and specifications for the
project work for the State's Project No. SP 0471 -021, 11931, shall be furnished to the Railroad
by the State. Work upon the property not provided for by said plans and specifications, shall be
done or performed only by and with the prior written consent of the Railroad.
5. Utilities. The State's construction contract will include provisions that its construction
contractor take such measures as the Railroad and the State may agree upon in writing respecting
any utilities located upon the Railroad's right of way as hereinafter provided. It is understood and
agreed that the owner of any utility, in or above the property, retains the right to move, repair,
recondition or relocate the same. The State shall require that if, during progress of the project
work, the State's contractor shall discover any utility that has a right to be on the Railroad's right
of way, but that is not specifically mentioned and provided for elsewhere in the plans for the
project work, which utility must be moved, repaired, reconditioned or relocated because of the
construction of this project, the State's contractor shall initiate immediate notice thereof to the
State and the Railroad, and the State will furnish directions respecting the same; but, unless
otherwise agreed upon between the State and the Railroad, the State will authorize its contractor
to make only such temporary or emergency repairs as may be required to protect and safeguard
the utility and the property of the Railroad prior to commencement of work thereon by the owner
of the utility or the Railroad. When such operations are undertaken by the owners of the utility or
the Railroad, the State will require its contractor to cooperate to the extent that ample protection
of such work will be provided, to the end that the entire project contemplated by this contract
may be expedited. The terms "utility" and "utilities" as used herein include all properties and
facilities of any persons, firm or corporation constituting any part of the utility system, including,
but not limited to pipe lines, tube lines, water and gas mains, electrical conduits, sewer pipes,
overhead wiring, and supporting structures and appurtenances.
6. Protective Services (Specifications for Construction) In consideration of the
requirements of 23CFR, Part 646, Subpart B, and Part 140, Subpart I, the State agrees that any
contract awarded to any contractor as herein provided will include in the specifications for
construction the following general information:
a. The provisions of this contract applicable to the protective
services the Railroad will require during the performance of
the project work upon or adjacent to the property of the Railroad.
b. The estimated daily cost for flagging is $500 based on a 12 hour day.
C. The times and manner in which the Railroad will submit its
billings to the State's contractor.
SECTION B. STATE'S CONSTRUCTION CONTRACTOR ACTIVITIES
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1. Contractor's Defaults, Omissions and Indemnification. To the extent authorized by
law, the State shall require its contractor to correct or eliminate any defaults or omissions of the
State's contractor for all project work performed relative to this contract. In addition to any other
liability imposed upon the contractor, the contractor shall indemnify and hold the Railroad
harmless against and from all cost, liability, and expense whatsoever (including, without
limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed
to by any act or omission of the contractor, his subcontractors, agents and/or employees, that
cause or in any way or degree contributes to (1) any damage or destruction of Railroad property
or that of its clients, (2) any injury or death of any person employed by or on behalf of the
Railroad, (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of
service by a customer or user of Railroad services, and/or (4) any claim, injury or death to
possible third parties not directly involved in the contract or project work.
2. Contractor's Operations In consideration of the premises and of the rights granted to
the State in Article H, Section A, hereof, the State hereby agrees to include in its construction
contract provisions which require its contractor to keep and perform the following covenants,
conditions and stipulations:
a. Notice The State will require its contractor to notify the
Railroad at least 72 hours in advance of commencing any
operations which require protective services and 48 hours
in advance of discontinuance of such protective services.
b. Contractor's Methods and Procedures Unless methods and
procedures are otherwise provided for in the construction
plans and specifications approved by the Railroad and the
State, the State's contractor and the Railroad shall agree,
in advance of the contractor performing the project work,
upon methods and procedures covering all construction on
Railroad's properties, and, when required by the Railroad,
the contractor shall submit such proposals in writing. The
contractor shall at all times keep covered all pits or openings
near or under tracks, except during the time required for
actual operations in making such pits or openings and
performing work therein. Provisions of this paragraph shall
not be construed as relieving the contractor of or subjecting
the Railroad or the State to any responsibility or liability for
the contractor's operations, methods and procedures.
Contract and License. The State will require in its contract
with its contractor performing project work under State's
Project No. SP 0471 -021, 11931, on Railroad properties
pursuant to this contract, that its contractor will enter into
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an agreement with the Railroad in the form of attached
Exhibit B, and containing the covenants, conditions, and
stipulations set forth therein.
3. Contractor's Insurance The State shall require its contractor to furnish to the State the
certificates and policies of insurance as described in the Contractor's Right of Entry Agreement,
and the State shall deliver the same directly to the Railroad. All certificates and policies of
insurance required hereunder shall comply with the requirements of 23CFR, Part 646, Subpart A.
Such insurance coverage shall be for:
a. All damages arising out of bodily injuries to or death of
one or more persons.
b. All damages arising out of injury to or destruction of
property.
The State's contractor or its subcontractors, shall not be allowed to enter upon or perform any
project work on Railroad's properties unless or until the aforesaid insurance shall have been
accepted in writing by the Railroad. All such insurance shall be kept in full force and effect
during all times the State's contractor is performing any such work on or adjacent to the
Railroad's properties.
4. Clearances. The State shall include provision in its construction contract which
require its contractor to abide by all clearance requirements as described in the Contractor's
Right of Entry Agreement.
5. Crossings and Roadway The State shall include provision in its construction
contract which require its contractor to observe requirements for crossings at grade of Railroad's
tracks, if any, or roadways as described in the Contractor's Right of Entry Agreement.
6. Delay to Trains The State shall include provision in its construction contract which
require its contractor to be responsible to the Railroad for delay to trains, if any, as described in
the Contractor's Right of Entry Agreement.
7. Advance Warning Protection. The State will require its contractor to furnish, maintain
and install, during performance of the project work, all advance warning signs or barricade
protection that are expressly required by the Railroad for the duration of the project work.
8. Reimbursement of Railroad by Contractor The State will require its contractor to
reimburse the Railroad for the cost of all services, including installation of the underground
signal poleline and flagging and/or protective services, and for any insurance premium payments
advanced by the Railroad for the insurance coverages herein provided, within thirty calendar days
after the Railroad has formally billed said contractor.
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9. Protection of Fiber Optic Cable System. The State agrees to include the following
provisions in its contract with any contractor performing any project work on the Railroad's
property:
"Fiber optic cable systems may be buried on the Railroad's
property. Protection of the fiber optic cable systems is of extreme
importance since any break could disrupt service to users resulting
in business interruption and loss of revenue and profits. The
contractor shall contact the Railroad to determine if fiber optic
cable is buried anywhere on the Railroad's premises within the
limits of the project. If it is, the contractor shall telephone the
telecommunications companies involved, arrange for a cable
locator and make arrangements for relocation or other protection of
the fiber optic cable prior to beginning any work on the Railroad's
premises. In addition to any other liability imposed upon the
contractor, the contractor shall indemnify and hold the Railroad
harmless against and from all cost, liability, and expense
whatsoever (including, without limitation, attorneys' fees and court
costs and expenses) arising out of or in any way contributed to by
any act or omission of the contractor, its subcontractors, agents
and/or employees, that causes or in any way or degree contributes
to (1) any damage to or destruction of any telecommunications
system by the contractor, and/or its subcontractors, agents and/or
employees, on the Railroad's property; (2) any injury to or death of
any person employed by or on behalf of any telecommunications
company, and/or its contractor, agents and/or employees on the
Railroad's property, and/or (3) any claim or cause of action for
alleged loss of profits or revenue by, or loss of service by a
customer or user of, such telecommunication company(ies) ".
10. Subcontractors The State will require its contractor to be and remain primarily liable
and responsible to the Railroad for all acts or omissions of any subcontractor as described in the
Contractor's Right of Entry Agreement.
SECTION C. STATE OBLIGATIONS
1. Obligation to Railroad's Tenants The Railroad shall have no obligation with respect
to removing, relocating, or reinstalling the facilities of its lessees or licensees, required to be
removed, relocated or reinstalled as a result of the State's construction. The State shall make all
arrangements with the lessees and/or licensees, which arrangements shall be subject to the
approval of the Railroad.
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2. Coordination of Work The State's Regional Transportation Director, Region 2, 905
Erie Ave., P. O. Box 536, Pueblo, CO 81002, telephone (719) 546 -5452, is designated to
coordinate the railroad work and the project work provided for herein.
ARTICLE IV
COMMITMENTS ON THE PART OF THE LOCAL AGENCY
SECTION A. CONSTRUCTION RIGHTS
In order for the State to construct the project, the State or its contractors will need to use
right -of -way of the Local Agency and the Local Agency now desires to grant to the State or its
contractors, the right to enter Local Agency -owned right of way to construct this Dillon Drive
grade separation structure, in accordance with the plans and specifications prepared by the State
and as approved by the Local Agency. Any damage to the right of way, including without
limitation, damage to roadway, traffic devices and controls, pavement markings, curbs, gutters,
sidewalks, drainage facilities, utilities and other improvements, which is caused by or arises from
such use of the Local Agency's right of way by the State's Contractors, shall be repaired,
replaced or restored to their pre- existing condition by and at the expense of the State's
Contractors.
SECTION B. MAINTENANCE
1. Upon completion of construction of grade separation structure no. PUEDIL -0.2 -40TH,
in accordance with the plans and specifications, and any modifications thereto, approved by the
Local Agency, the Local Agency will, subject to repair or correction as provided in accordance
with paragraph 2 of this Section B, maintain, at Local Agency expense, roadway approaches,
including embankment, slope paving, abutments, substructure, superstructure from the top of the
girders up, including handrails, all in accordance with the Local Agency's standard maintenance
procedures. These maintenance requirements do not impose upon the Local Agency any
responsibility for care or maintenance of pre - existing drainage not affected by or directly related
to rehabilitation of the existing structure herein described. The Local Agency shall have no
obligation for maintenance of the Railroad's roadbed, tracks and appurtenances under terms of
this contract.
2. Upon and after acceptance of the grade separation structure by the Local Agency for
maintenance, at the request of the Local Agency, the State shall assign and transfer to the Local
Agency all rights, claims, remedies, warranties, and guaranties it has or may have against the
State's Contractors under law or the terms of any contract between the State and the State's
Contractors relating to the grade separation structure or any part thereof, including, without
limitation, any rights of the State against the State's Contractors for latent defects, fraud, gross
mistakes or under any product or material warranty or guaranty. In the event any such
assignment or transfer would be void, voidable or unenforceable under the terms of any contract,
warranty or other instrument, the State shall cooperate with the Local Agency, at the Local
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Agency's sole cost and expense, in the assertion of such rights, claims, remedies, warranties and
guaranties for the benefit of the Local Agency, such cooperation to include, without limitation,
the issuance of notices and performance of conditions precedent to assertion of rights and
participation as a nominal party in any judicial action, arbitration or alternate dispute resolution
proceeding.
3. The Local Agency agrees the State shall have no obligation for maintenance described
in this Section, provided that the grade separation structure is constructed in accordance with the
plans and specifications approved by the Local Agency.
ARTICLE V
ADDITIONAL PROVISIONS
SECTION A. COST TO RAILROAD
The Railroad recognizes that it is to take part in the cost of a portion of the theoretical
structure described herein. The State's estimate (Exhibit E) for the cost of the theoretical
structure and approaches in which the Railroad is to take part, is estimated at $3,169,870. The
Railroad shall pay the State a lump sum amount of $1,584,935. The State will bill the Railroad
for the railroad amount and the Railroad shall be responsible for reimbursing the State within 180
days following receipt of the State's billing. Provided, however, that if such reimbursement (or
portion thereof) would result in the Railroad paying more than the Section 40- 4- 106(3) (b), CRS,
as amended, maximum amount of $1,250,000 in that calendar year, then the Railroad may
postpone that reimbursement (or portion thereof). But in the event of such a postponement, the
Railroad shall make such reimbursement (or portion thereof) as soon as possible in the first
calendar year thereafter in which it can do so without exceeding its annual statutory maximum
amount, and it shall make such reimbursement before it makes any cost payment on any Section
40 -4- 106(3) (b) project that was approved by the PUC after the date the within project was
approved.
SECTION B. APPLICATION TO PUBLIC UTILITIES COMMISSION
The State and the Local Agency have made joint application to the PUC for its approval
of the construction of the aforesaid grade separation structure and roadway approaches, and for
approval of the continuing maintenance provisions herein agreed to by the parties. The parties
shall cooperate in presenting all matters involved to said Commission at the hearing, if any, on
such application. The provisions of this contract pertaining to the project work shall not become
effective until approval thereof has been obtained from the PUC.
SECTION C. CONTRACT MODIFICATIONS
Changes in the terms of this contract may be negotiated between the parties and, if
acceptable, this contract shall be modified accordingly by a written supplemental contract
13
authorizing the changes. Any such changes shall not become effective until the effective date of
the written supplemental contract. Requests by the Railroad to change the terms of this contract
or any supplemental contract shall be made in writing prior to performance of the work subject to
any request, or to be covered in the anticipated supplemental contract. Any work on this project
that is performed or a change made without such prior written supplemental contract authorizing
said work or change, shall not be reimbursed, but shall be deemed to be covered in the
compensation and time provisions of this contract.
SECTION D. SUCCESSORS AND ASSIGNS
All of the covenants and provisions hereof shall inure to the benefit of and be binding
upon the parties hereto, their successors and assigns.
SECTION E. SPECIAL PROVISIONS
The Special Provisions attached hereto immediately following the signature page are
hereby made a part of this contract. For the purpose of interpretation of said Special Provisions,
the Railroad shall be known as the contractor.
SECTION F. SIGNATURE AUTHORITY
Railroad represents and warrants that it has taken all actions that are necessary or that are
required by its procedures, bylaws, or applicable law, to legally authorize the undersigned
signatory to execute this contract on behalf of the Railroad and to bind the Railroad to its terms.
SECTION G. TERM
The term of this contract, except for the provisions regarding maintenance, shall continue
through completion and final acceptance of this project by the State. The covenants regarding
maintenance under this contract shall remain in effect in perpetuity or until such time as the
State, the Local Agency, or Railroad is, by law or otherwise, relieved of such responsibility.
14
Page 1 of 2 Signature Pages
Project SP 0471 -021, 11931
(Dillon Drive)
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
by their duly authorized officers the day and year first above written. In order to expedite
contract execution, the parties hereto will execute separate signature pages and said pages are
considered as part of the same document.
ATTEST:
STATE OF COLORADO
ROY ROMER, GOVERNOR
_ BY
&s4 Chief Clerk xecutive Dire for
DEPARTMENT OF TRANSPORTATION
ATr'P cT-
L-9
UNION PACIFIC RAILROAD COMPANY
Tit
CHIEF ENGINEER
Federal Employer Identification No.
13- 6400825 A
P. O. Box 3400
Omaha, NE 68103 -0480
APPROVED:
CLIFFORD W. HALL
State Controller
GALE A. NORTON
Attorney G al
By
BARRY B. RYAY
Assistant Attorney General
Civil Litigation Section
Page 2 of 2 Signature Pages
Project SP 0471 -021, 11931
(Dillon Drive)
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
by their duly authorized officers the day and year first above written. In order to expedite
contract execution, the parties hereto will execute separate signature pages and said pages are
considered as part of the same document.
ATTEST:
'na Dutcher
Title City Clerk
CITY OF PUEBLO, COLORADO
By
Cath A. darcia
Title President of City Counci
Federal Employer Identification No.
84- 6000615
P. O. Box 1427, Pueblo, CO 81002