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HomeMy WebLinkAbout5270RESOLUTION N0. 5270 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. The Agreement between the City of Pueblo, a Municipal Corporation, and the Atchison, Topeka and Santa Fe Railway Company dated May 20, 1982 for the purpose of providing rail trackage to E. L. Farmer Pipe yard is hereby approved. SECTION 2. The President of the City Council is hereby authorized to execute same for and on behalf of the City and the City Clerk is authorized and directed to attest same and affix the seal of the City thereto. Introduced_ November 14. 1983 By HAROLD MABIE, JR. Councilman APPROVED: President of the City Council ATTEST: . �OL&Z69ff--ff.1 City C erk t - D D K''' _ _ f - � � I City of Pueblo Department of Transportation September 7, 1983 L 19 � ' 8 6 ^!r. R. L. Bunion General :tanager AtcAison, Topeka & Santa Fe R.R. Co. 900 Jackson St. P.C. Aox 1738 Tope a, Kansas 66628 Jean 'fir. B=union: Enclosed for your files are two agreements between the City of Pueblo and AT & SF Railway for the construction, operation and :maintenance of rail track serving E. L. Farmer and Company. - The City Attorney has proposed the addition of the following language to the Supplemental Agreement, paragraph 3, pa^ 2. if you are in agreement with this proposal, please prepare an amendment for execution by E. L. Farmer and the City. "T «d party shall indemnify and hold harmless Second Party from and :ai:.st any and . 11 claims, loss, damage, expense (including reGscna le attorney fees) or injury, including death, to persons or property resulting from or arising out of any act or omission of Third Party, its employees or agents or Third Party's failure to observe and be bound by all the covenants, terms and conditions of the Original Contract and this Supplemental Agreement, so far as the same apply to Third Party's use of the Track." The agreement which must be signed by E. L. Farmer is not presently available. We have contacted E. L. Farmer and they are in the p::occss of getting the agreement to the proper persons for signatures. As soon a5 this agreement is returned, I will forward it to your office. Sincerely, r Harold E. Bastin Director of Transportation. HE : - n:rz Encl: 2 CONTRACT FOR INDUSTRY TRACK AGREEMENT, Made as of this 20th day of May , 19 82 , between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporaTion, hereinafter referred to as "Santa Fe," and CITY OF PUEBLO COLORADO a municipal corporation of the State of Colorado hereinal er, whether one or more persons, corporations, or other entities, referred to as "Industry." RECITALS: Industry requires the construction of 450 feet of railroad track, along with the use and operation of - - _ - of existing track, if any, at or near the station of Baxter Pueblo Count in the State of Colorado , to serve a pipe storage yar (hereinafter called "Plant"), to be operated by Industry. Santa Fe shall construct 192 feet of such track, and if mutually agreed, Industry shall construct 258 feet of such track. All of such track, both new and existing, i any, is ereinafter in its entirety referred to as "The Track." That segment of The Track which shall be owned and maintained by Santa Fe, is shown by red coloring and that segment of The Track, if any, which shall be owned and maintained by Industry, is shown by yellow coloring, upon the print marked "Exhibit All which is attached hereto and made a part hereof. The red and yellow 'colored segments are hereinafter separately referred to as "Red Track" and "Yellow Track," respectively. Santa Fe shall operate over The Track and provide rail service to the Plant. If mutually satisfactory to all parties to this Agreement, a revised Exhibit A print may be attached to this Agreement, reflecting correct lengths and ownership of The Track, "as built," and such revised Exhibit A shall supersede the Exhibit A print originally attached hereto and made a part hereof. Therefore, in consideration of the mutual covenants of the parties herein contained, Santa Fe and Industry agree upon the 'ollowina terms and conditions. AGREEMENT: ARTICLE I Section 1. Industry shall and hereby does grant to the Santa Fe for the term of this Agreement, free of cost, a right of way, of such widths as are indicated on Exhibit A, or if Exhibit A does not indicate the, width, such right of way shall be eight and one -half (8 1/2) feet on each side of the center line thereof, for all that portion, if any, of Yellow Track which is located -on property belonging to Industry, with the right to operate Yellow Track thereon. Where any part of The Track will lie on a public street, alley or other thoroughfare, or upon property owned by third persons, corporations or other entities, Industry shall secure to Santa Fe by ordinance or grant, as the ca -se may be, in form satisfactory to Santa Fe's Counsel, and without cost to Santa Fe, the right, but not the obligation, to construct, maintain and operate The Track thereon, together with the right to remove the same; in the case of a grant, the right of way shall be of such widths as shown on Exhibit A, or if not shown, such right of way shall be eight and one -half (8 1/2) feet on each side of the center line of The Track. 12- 10- 81 &M /0163L Section 2. (a) Industry shall pay Santa Fe, in advance, Twenty -five Thousand Two Hundred Seventy -nine and No /100 Dollars ($25,279.00) representing the cost of the Red Track, exclusive of all grading with lime stabilization and drainage structures to be performed and provided by Industry at its sole cost and expense in a manner satisfactory to Santa Fe. (b) Industry shall construct or have constructed by a private contractor, at its sole expense, trackage beyond Santa Fe's rooert line ' as shown on Exhibit A. Such trackage shall conform in all e ai s with Santa Fe's standards and specifications for design, materials and construction. Santa Fe shall have the right to have an Engineering representative inspect such trackage upon completion of construction and to refuse to place any and all of such trackage in service if it fails to conform with Santa Fe's standards and specifications. Section 3. (a) Industry shall pay to Santa Fe, from time to time, within twenty (20) days after bills are rendered therefor, the entire cost (or an equitable share thereof in case the Santa Fe shall make any other use of The Track in the exercise of the right reserved in Article III, Section 1) of maintaining and renewing that portion, if any, of the Red Track as shown on Exhibit A, the Santa Fe to be the judge of the necessity for and character of maintenance required on the Red Track. Industry shall also reimburse Santa Fe promptly upon receipt of bills for all expenses incurred by Santa Fe as a result of the existence of The Track including, but not limited to, the costs of grade crossing protection, roadway construction, drainage installation, lighting, signalling and special maintenance. (b) Industry shall at all times, and at its sole expense, maintain, or cause to be maintained, the Yellow Track, if any, in such safe and satisfactory condition as necessary to conform with Santa Fe's standards and specifications, and to conform with all applicable standards promulgated by the Federal Railroad Administration, Occupationai Safety and Healtn Administration, any successor agency or agencies, and all other governmental bodies having jurisdiction. Industry shall indemnify. and save harmless the Santa Fe from and against any and all liability for losses and damages resulting from the failure of Industry properly to maintain the Yellow Track or failure to conform with standards promulgated by governmental agencies respecting the condition and maintenance of the Yellow Track and Industry's property served by such track. Without relieving Industry from any of its obligations under this or any other provision of this Agreement, Santa Fe may, at its option, refuse to operate over or transfer cars upon the Yellow Track whenever Santa Fe, in its judgment, determines that the Yellow Track is unsafe or unsatisfactory for such operation. If and when, in Santa Fe's judgment, Industry has remedied such unsafe or unsatisfactory condition, Santa Fe shall resume such operation over and transfer of cars upon the Yellow Track. Section 4. Industry shall operate the Plant during the term of this Agreement. - 2 - Section 5. (a) Industry shall indemnify and hold harmless Santa Fe from and against any claim, loss, damage, expense or injury, including death, arising out of any act or omission of the Industry, its employes or agents, to the person or property of the parties hereto and their employes, and to the person or property of any other public body, individual, partnership, corporation, or other legal entity while on or about The Track or while exercising any right or performing any obligation, pursuant to this greement. If any claim, loss, damage, expense, injury or depth shall arise ;rum the joint or concurring negligence or misconduct of both parties hereto, it shall be borne by them equally; provided, however, such claim, loss, damage, expense, injury or death did not arise out of a violation of a statute, ordinance, rule, order, judgment, regulation or decision concerning clearances from railroad tracks, or from the installation, maintenance, use, removal, state of repair or presence of any gates, track scales, unloading pits, loading or unloading devices or other obstructions placed along, across, over or under The Track by Industry. (b) If any loss, expense, damage, injury or death shall arise from a violation of a statute, ordinance, rule, order, judgment, regulation or decision concerning clearances from railroad tracks, or from the installation, maintenance, use, removal, state of repair or presence of any gates, track scales, unloading pits, loading or unloading devices or other obstructions, then Industry shall bear the entire loss, damage or expense incurred, as provided in Section 6 of Article I hereof. (c) All of the provisions of this Section 5 are expressly applicable during the operative period of this contract, including specifically, but not exclusively, the period during which The Track is being constructed. Section 6. (a) Industry shall strictly comply with any and all statutes, ordinances, rules, orders, judgments, regulation or decision of all governmental bodies having jurisdiction in the State in which The Track is located, governing side clearances and overhead clearances frooi railroad tracks in that State. Notwithstanding any provision of Section 5, Article I o� this Agreement, Industry shall indemnify Santa Fe from and against any and all claims, loss, damage, expense, injury and death arising out of any breach or alleged breach by Industry of the obligations of this Section o, regardlass of whether such claim, loss, damage, expense, injury or death be caused or contributed to by the negligence or alleged negligence of the Santa Fe, its agents or employes, or otherwise. Industry shall also reimburse Santa Fe for any money which Santa Fe has paid as a result of a violation or alleged violation by Industry of any statute, ordinance, rule, order, judgment, regulation or decision referred to in this Section 6. (b) In the event Industry desires to install any gates across and adjacent to The Track, or to install a track scale, unloading pit, loading or unloading device, adjustable loading docks or doors at warehouses, or any other structure which will impair the required clearances along The Track, Industry shall first secure any and all required authority from the State or other govenmental body or agency having jurisdiction, prescribed by statute or Order of competent public authority, and shall furnish Santa Fe - 3 - with a copy of such Order approving installation of the facility which will Impair required clearances. Industry shall submit to Santa Fe the plans and specifications for such facilities, and shall secure Santa Fe's written approval thereof before any construction of such facilities is undertaken. (e) Industry shall install, use and maintain all facilities described in paragraph (b) of this Section o, at its sole cost and expense, in such a manner and of such materials, satisfactory to Santa Fe, and as will not at any time be a source of danger to or interference with the safe operations by Santa Fe on The Track and on its railroad. Gates across The Track shall be opened whenever necessary to enable Santa Fe to operate over The Track. Unloading pits shall be securely covered when not in actual use and at all times when The Track is being switched. Doors shall be firmly secured, and adjustable loading docks at warehouses shall likewise be securely fastened in an upright position when not in actual use and at all times when The Track is being switched. During installation and when using and repairing these facilities, Industry shall exercise utmost and extraordinary diligence LO prevent damage to property of Santa Fe or injury to its agents or employes. (d) Vertical and horizontal clearances from The Track at entrances to buildings, and such clearances from The Track for the facilities referred to in paragraph (b) of this Section 6, shall conform with those specified in the Order authorizing such reduced clearances along The Track. (e) Notwithstanding any provision of Section 5, Article I of this Agreement, Industry shall indemnify and save harmless the Santa Fa from and against any and all claims, loss, damage, expense, injury and death arising or growing out of loss of or damage to property, including without limitation, the facilities described in paragraph (b) of this Section 6, and injury to or death of persons, including without limitation, employes and agents of Santa Fe, resulting in any manner from the construction, installation, maintenance, use, state of repair, presence or removal of such facilities along, under, across and adjacent to The Track, regardless of whether such loss, damage, injury or death be caused or contributea to by the negligence or alleged negligence of the Santa Fe, its agents, or employes, or otherwise; and Industry shall, promptly upon receipt of bill, pay to Santa Fe the full amount of any loss or damage that Santa Fe may sustain, incur or become liable for, and all sums which Santa Fa may pay or be -,cmpellad to pay in settlement of any claims on account thereof. Section 7. Notwithstanding any other provisions of this Agreement, Industry shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards "), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority "), relating to Industry's use of The Track and its maintenance of the Yellow Track and right of way therefor. In its use of The Track and its maintenance of the Yellow Track and right of way therefor, Industry shall at all times be in full compliance with all Standards, present or future, set by any authority, including, but not limited - 4 - to, Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event Industry fails to be in full compliance with Standards set by any Authority, Santa Fe may, after giving reasonable notice of the failure to Industry, and Industry, within thirty (30) days of such notice, fails either to correct such non - compliance or to give written notice to Santa Fe of its intent to contest the allegation of non - compliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to bring The Track into compliance. Industry shall reimburse Santa Fe for all costs (including, but not limited to, consulting, engineering, clean -up and disposal costs, and legal costs) incurred by Santa Fe in complying with such Standards, and also such costs incurred by Santa Fe in abating a violation of such Standards, protecting against a threatened violation of such Standards, redesigning or reconstructing The Track to comply with any Standard, and installing any devices necessary to comply with any Standard, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. Industry shall assume liability for and shall save and hold harmless Santa Fe from any claim of a violation of such Standards regardless of the nature thereof or the Authority or person asserting such claim, which results from Industry's use of The Track, and its maintenance of the Yellow Track and right of way therefor, whether such claim arises in whole or in part from the negligence or alleged negligence of the Santa Fe or otherwise. Industry, at its cost, shall assume the defense of all such claims regardless of whether they are asserted against Industry or Santa Fe. Section 8. (a) In addition to the rights and obligations of Industry and Santa Fe provided in Section 7, Article I of this Agreement, relating to Industry's compliance with Standards issued by any Authority concerning hazardous substances and hazardous waste and notwithstanding Industry's other indemnity obligations described elsewhere in this Agreement, Industry agrees that, with respect to its use of the Red Track, it shall periodically furnish Santa Fe with proof, satisfactory to Santa Fe, that Industry is in full compliance with Standards .issued by any Authority concerning hazardous substances and /or hazardous waste. Should Industry fail to comply with such Standards concerning hazardous substances and /or hazardcus waste, notwithstanding any other provision of this Agreement and in addition to and not exclusive of any other rights of the Santa Fe, Santa Fe may at its option terminate this Agreement upon reasonable notice; however, any waiver by Santa Fe of any breach of Industry's obligations shall not constitute a waiver of the right to terminate this Agreement for any subsequent breach which may occur or to enforce any other provision of this Agreement. Further, regardless of any negligence or alleged negligence of the Santa Fe, Industry shall assume liability for and save and hold harmless the Santa Fe from and against all injuries to any person and damage to any property, including without limitation, employes and property of Industry and Santa Fe, together with all related expenses, including without limitation attorneys' fees, investigators' fees, and litigation expenses, resulting in whole or in part from Industry's failure to comply with any Standard issued by any Authority concerning hazardous substances and /or hazardous waste. -5- 12- 10- 81- C&M/0163L (b) It is understood and ;agreed that an Industry who does not now, or in the future, generate, handle, transport, treat, store, or dispose of hazardous waste or hazardous substances, Las "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state or local governmental agency or body, is not subject to the provisions of this Section 8. Section 9. Upon written notice from Santa Fe, Industry agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Santa Fe by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which Industry has an obligation to assume liability for and /or save and hold harmless the Santa Fe. Industry shall pay all the costs incident to such defense including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section 9 including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by any statute or ordinance, state or federal. ARTICLE II Section 1. Subject to the provisions of Sections 2 and 3 of Article I hereof, Santa Fe agrees to construct and maintain the Red Track during the term of this Agreement, unless its obligation so to maintain it may be sooner terminated as herein provided, and to transfer cars, loaded or empty, over The Track to and from the Plant, subject to any lawful charges that may be imposed by Santa Fe for such transfer; provided, however, that Santa Fe assumes no obligation to transfer cars over the Yellow Track in the event the Industry fails to maintain the Yellow Track in accordance with Section 3 of Article I hereof. Section 2. All operations by Santa Fe over The Track and all maintenance and construction work on The Tack shall be in compliance with all statutes, ordinances, rules, orders, decisions and other actions of all governmental bodies having jurisdiction over the conduct of Santa Fe's railroad business. Santa Fe's obligations under this Agreement are expressly subject to such statutes, ordinances, rules, orders, decisions and other actions. Section 3. Whenever in the judgment of Santa over the Yellow Track or any segment thereof involves injury to persons or property located on or near the may cease operations over the Yellow Track until such cessation of operations shall not constitute a breach Santa Fe. Fe operation of trains a significant risk of Yellow Track, Santa Fe risk is removed. Such of this Agreement by - 6 - 12- 10- 81- C&M/0163L Section 4. Industry shall promptly report to Santa Fe any conditions or activities upon The Track which create an unreasonable risk of harm to persons or property and shall take whatever action is reasonably necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Industry's reporting to Santa Fe shall not relieve Industry of any obligation whatsoever imposed on it by this agreement. Section 5. Industry shall take whatever action is necessary to prevent unauthorized persons or property from coming upon the Yellow Track or remaining thereon. Notwithstanding any other provisions of this Agreement, Industry shall be solely liable for any injury to or caused by such unauthorized persons or for damage to or caused by any unauthorized property occuring on or near the Yellow Track which Industry should have either prevented from coming upon or removed from the Yellow Track. ARTICLE III Section 1. The title to the Red Track and to all property furnished in the maintenance thereof shall be in Santa Fe. The title to the Yellow Track and to all property furnished in the maintenance thereof shall be in Industry. Santa Fe shall have the right to use The Track for other than the express purpose of serving the Plant. Section 2. (a) If the Industry shall fail for a period of eight months in any period of twelve months to operate the Plant, or shall fail or refuse to comply with or carry out any of the covenants or agreements herein contained, Santa Fe may, at its option, expressed in writing, terminate this Agreement. If Industry fails to remedy, or to take appropriate action to remedy, any condition on or about the Yellow Track for a period of 30 days following written notice of the condition by Santa Fe, Santa Fe may, at its option, terminate this Agreement on 30 days' written notice to Industry. With the exception of the notice requirement, the provisions of Section 3, Article III shall apply to such termination. (b) No termination shall release Industry from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination. Section 3. Unless earlier terminated as herein provided, this Agreement shall be in force for the term of FOUR YEARS AND SIX MONTHS from its date and thereafter until terminated by either party giving to the other six months' written notice of its desire to terminate the same. Upon such or any other termination, Santa Fe shall pay to the Industry the salvage value of the materials, less cost of removal, in such portion of the Red Track as shall have been paid for by the Industry or its predecessors on other than a refund basis, such salvage to be based on value at the date of termination, or the amount originally paid the Santa Fe for such materials by the Industry, whichever is less, and the Santa Fe shall have the right to remove the Red Track and every part thereof. This Agreement shall also terminate forthwith in the event Santa Fe shall be dispossessed of the right to operate over any privately owned track of which The Track or any part thereof is an extension. - 7 - 12- 10- 81- C&M /0163L Section and any notice t to be properly Service, or its parties hereto, Agreement. Section 5. In the event that Industry embraces two or more persons, corporations or entities, all the covenants and agreements of Industry herein shall be the ,joint and several covenants and agreements of such persons, corporations or entities. Section 6. All the covenants and provisions of this Agreement shall be binding upon the successors, heirs, legal representatives and assigns of Industry to the same extent and effect as the same are binding upon Industry, and each and every covenant herein shall inure in favor of and run to the successors and assigns of Santa Fe and to each and every person, firm or corporation which may hereafter own or be in possession of or operate the rail.:oad of the Santa Fe to 'Che same extent and as fully as though such person, firm or corporation were specifically named in this Agreement in the place and stead of the Santa Fe; provided, however, no assignment hereof by Industry, its successors, heirs, legal representatives or assigns, or any subsequent assignee, shall be binding upon the Santa Fe without the written consent of Santa Fe in each instance. Section 7. All questions arising under this Agreement shall be decided according to the laws of the State in which The Track is located. Section 8. This Agreement represents the full and complete agreement of Santa Fe and Industry with respect to all matters relating to the construction, maintenance and operation of The Track and supersedes all other agreements, contracts, understandings, and negotiations between the parties relating to the construction, maintenance and operation of The Track. 4. Any notice to be given by Santa Fe to Industry hereunder, o be given by Industry to Santa Fe hereunder, shall be deemed served if it be deposited with the United States Postal successor, postage prepaid, addressed to the other party or at the addresses shown on the signature page of this Section 9. This Agreement shall supersede and cancel the following Contracts for Industry Track between the parties hereto or their predecessors, covering trackage at this location; and, the assumption by Santa Fe, under Section 3, Article III of this Agreement, of an obligation to pay to the Industry the salvage value of all or part of the Red Track upon termination of this Agreement, shall be deemed to constitute full and complete fulfillment and discharge of any similar obligation to pay to the Industry the salvage value of trackage paid for by the Industry or its predecessors under any or all of such Contracts so cancelled. Santa Fe's Secretary's Contract No. Da ted_ Number of Feet of Red Track Paid For By Industry on Other Than a Refund Basis No Contracts for Industry Track to be terminated by this Agreement. - 8 - 12- 10- 81- C&WO163L N WITNESS WHEREOF, the parties hay e xe ed th i is Agreement to I as of the day and year duplicate THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY Address: P. 0. 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