Loading...
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 ,,.$ 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 r 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 2 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 3 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 El 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. E 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. Z 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. VA 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 E:3 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 0 M 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. IN 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. 11 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 12 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