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HomeMy WebLinkAbout6157RESOLUTION NO. 6157 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY RELATING TO THE FOUNTAIN CREEK FLOOD CONTROL PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. An Agreement between the City of Pueblo and the Denver and Rio Grande Western Railroad Company, a copy of which is on file with the City Clerk and incorporated herein by reference, whereby the Denver and Rio Grande Western Railroad Company licenses and permits the con- struction, maintenance and use of a levee system upon their property near Pueblo, in the County of Pueblo, State of Colorado, after approval as to form by the City Attorney, be and is hereby authorized and ap- proved. SECTION 2. Funds for said license shall be paid from Account Number 02- 1987 - 510 - 000 - 040 -5104. SECTION 3. The President of the City Council is hereby authorized to execute said Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. INTRODUCED March 14 ,1988 B JOHN CALIFANO Councilman APPROVED: Preside t of the Council ATTEST: / D '�i - 2 - ..r . CONTRACT NO. 440. 1tWMV0 �I - . 3 - 0 M APR 12 1988 311_90 �, �.._.. PUMO COUNTY, COMAADO LEVEE AGREEMEW BOOf1 :i �ci�2 THIS AGREEMENT, Made and entered into this /st day of Ap.,t 1988, by and between THE DENVER AMID RIO GRANDE WESTERN RAILROAD COMPANY, a corporation of the State of Delaware, hereinafter referred to as "Licensor ", and the CITY OF PUEBLO, a municipal corporation of the State of Colorado, 211 E. "D" Street, Pueblo, Colorado 81003, hereinafter referred to as "Licensee ". wITNESSETH, That the Licensor, for and in consideration of the covenants and agreements of the Licensee herein contained and upon the terms and conditions hereinafter set forth, hereby licenses and permits the construction, maintenance and use of a levee system upon property of the Licensor near Pueblo, in the County of Pueblo, State of Colorado, more particularly described as follows: Longitudinal encroachment upon the property, premises and right of way of the Licensor along Fountain Creek as shown in yellow on the attached map, Dwg. No. P -577, near Pueblo, in the County of Pueblo, State of Pueblo. This License is expressly conditioned upon the performance by the Licensee of all and singular the covenants and agreements hereinafter set forth to be by said Licensee kept and performed, each of said covenants and agreements being hereby made a condition; and it is also hereby stipulated that a waiver by the Licensor to avail itself of any subsequent breach of the same or any other condition. The foregoing License is subject to all outstanding superior rights (including those in favor of telegraph and telephone companies, lessees of said property and others) and the right of the Licensor to renew and extend the same. 1. The Licensee shall, at the sole cost and expense of the Licensee, construct, operate, maintain, repair and reconstruct, whenever necessary or when required so to do by Licensor, said levee system and all its appurtenances in accordance with such plans, specifications and manner satisfactory to the Licensor. 2. Detailed plans and specifications for the levee system and all its appurtenances shall be furnished by or for the Licensee without cost to Licensor, and all such plans and specifications affecting the interests, property, right of way and premises of the Licensor shall be subject to approval by Licensor. All work performed on Licensor's property pursuant to this Agreement shall be done strictly in accordance with said plans and specifications, however, the Licensor shall not be liable or responsible in any manner for the location, design, supervision, construction, maintenance, repair or reconstruction of the levee system. 3. All work performed on the property, right of way and premises of the Licensor in connection with the levee system shall be done under the supervision of the Licensor. The Licensee agrees to bear all expenses incurred by Licensor for labor, materials and supervision in connection with said levee system and to pay therefor promptly upon presentation of bill or bills by Licensor. smx2393 PmF113 4. The Licensee agrees to pay to the Licensor, in advance, the sum of FIVE HUNDRED DOLLARS ($500.00), as consideration for the license and permit herein granted. 5. The Licensee shall not enter upon the premises for the purpose of constructing said levee system nor for the purpose of repairing or renewing the same, without special written license or permit first had and obtained from the Licensor, or the Licensor's duly authorized agent, except in cases of emergency when work is necessary to avert loss or damage to property. All work of construction, maintenance, operation or reconstruction shall be done by the Licensee in such manner as to cause no interference with the constant, continuous and uninterrupted use of the tracks and property of the Licensor as to operation, maintenance, renewals or possible new construction by the Licensor. 6. This License shall not be deemed to give the Licensee exclusive possession of any part of the premises described, but the Licensor shall have unimpaired right to retain its track or tracks as now awned and operated at the place of construction of such levee system, and nothing shall be done or suffered to be done by the Licensee at any time that shall in any manner impair the usefulness or safety of said track or tracks of the Licensor or of any track or improvement to be hereafter constructed. 7. The Licensee shall at all times protect, indemnify and save harmless the Licensor from any and all claims, demands, judgments, costs, expenses, and all damage of every kind and nature made, rendered or incurred by or in behalf of any person or corporation whatsoever, in any manner due to or arising out of any injury to or death of any person, or damage to property of any person or persons whomsoever, including the parties hereto and their employees, in any manner arising from or growing out of the construction, maintenance, operation, repair, extension, renewal, existence, use or removal of said levee system, or the failure to properly construct, operate, maintain, renew or remove the same, including any insecurity of the surface caused by the construction or use of said levee system, and from all costs and expenses including attorneys fees connected in anywise with the matters and things contained in this Agreement. Neither the right of supervision by the Licensor of the location, installation, operation and maintenance of said levee system, nor the exercise or failure to exercise said right, nor the approval or failure to exercise said right, nor the approval or failure to disapprove, by the Licensor of the location, installation, operation and maintenance of said levee system, shall be deemed a waiver of the obligations of the Licensee contained in this paragraph or a release therefrom, or from any other obligation of this Agreement resting upon said Licensee that is hereinbefore or hereinafter expressed or implied. 8. If the Licensee shall fail to locate, construct, operate, repair, extend, renew or remove said levee system in accordance with the terms of this Agreement, or shall fail to pay to the Licensor any sum of money for the construction, maintenance, repair, or reconstruction of said levee system, or shall fail to adjust the said levee system to any changes made by the Licensor, or shall in any respect fail to keep and perform any of the conditions, stipulations, covenants and provisions of this Agreement to be kept and performed by the Licensee, and any such breach, default, obligation or otherwise shall continue for a period of thirty (30) days 2 823:93 i14 after receipt of written notice from Licensor to Licensee, then the Licensor may, at its option, forthwith terminate this Agreement, and this License shall cease and the Licensor shall have the right to remove said levee system and restore the right of way and premises of the Licensor at any time thereafter at the sole expense of the Licensee. Any notice herein provided for shall be sufficiently given and delivered if mailed in an envelope properly stamped and addressed to the Licensee at the last known post office address, or if no address is known, at the post office nearest to the place where the said levee system is located. 9. As a requirement of any Contract between the Licensee and any contractor performing work on Licensor's property or right of way pursuant to this Agreement, the Licensee will require the contractor to enter into a CONTRACT AND LICENSE with the Licensor in the form, and containing the covenants, conditions and stipulations set forth therein, a representative copy being hereto attached, marked Exhibit "A ", and made a part hereof. 10. This License shall be construed and held to include and be binding upon the heirs, executors, administrators, successors and assigns of said Licensor and Licensee respectively; provided, however, that the Licensee shall not assign this License or any interest therein directly or indirectly, nor encumber the same, without the written consent of the Licensor first had and obtained. IN WI'T'NESS WHEREOF, the parties hereto have caused these presents to be duly executed the day and year first hereinabove written. `I� � �� i �1' It • N' It � 2/23/88 RCO 1 By Chief Engi eer V CITY OF PUEBLO, of the STATE OF COLORADO President of the City Council 3 sooK 2 393 ?ArF 115 CONTRACT AND LICENSE 004 18 I T A THIS AGREEMENT, Made and executed this day of , 19 , by and between THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a Delaware corporation, hereinafter called "Railroad ", and hereinafter called "Contractor ", WITNESSETH: WHEREAS, the hereinafter called and the Railroad have entered into an Agreement dated designated by the Railroad as covering, among other things, the construction of WHEREAS, said Contract provides that will require its Contractor to enter into a Contract with the Railroad. NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: 1. LICENSE - In consideration of the premises and of the covenants, conditions and stipulations herein after agreed to be kept and performed by Contractor and subject to the limitations hereinafter set forth, Railroad hereby licenses Contractor to enter upon the right of way and property of the Railroad. 2. CONTRACTOR'S OPERATIONS - In consideration of the premises and of the License hereby granted, Contractor hereby agrees to keep and perform the following covenants, conditions and stipulations. A. NOTICE - Contractor shall notify Railroad through its Superintendent at , at least ten (10) days in advance of the date on which Contractor expects to begin any work on Railroad's premises. B. CARE IN PERFORMANCE - During the entire progress of work on Railroad's property, Contractor shall maintain contact and liaison with such Railroad officer as shall be designated by Railroad so as to ascertain time of passage of trains at the project site and so as to clear Railroad's tracks and facilities of men, equipment and obstructions to permit free flow of railroad traffic. Contractor shall perform all work on Railroad's premises without interference with Railroad's tracks, structures and facilities, operations or the operations of Railroad's tenants, or with communication and signal lines upon said premises, except under arrangements effected between Contractor and Railroad. Contractor shall use the utmost care in protecting Railroad's property and in avoiding accidents. Contractor shall keep Railroad's track and grade free of earth, rock, construction materials, debris and obstructions in any goox2393 PAGAIG manner deposited by reason of Contractor's operations, so as to permit safe and expeditious movement of railroad traffic. C. CONTRACTOR'S METHODS AND PROCEDURES - Unless methods and procedures are provided for in the Plans and Specifications approved by Railroad and , Contractor and Railroad shall agree, in advance of Contractor's performing the work concerning methods and procedures covering all construction on Railroad's property, and, when required by Railroad, Contractor shall submit such proposals in writing. Contractor shall at all times keep covered all pits or openings near or under Railroad's tracks, except during the time required for actual operations in making such pits or openings and performing work therein. No provisions of this paragraph shall be construed as relieving Contractor of or subjecting Railroad or to any responsibility or liability for Contractor's operations, methods and procedures. D. CLEARANCES - Unless otherwise agreed upon between Contractor and Railroad, Contractor shall refrain from placing or permitting to be placed or to remain any scaffold, structure, material or other obstructions closer to Railroad's tracks and structures than the clearances specified by E. CROSSINGS AND ROADWAYS - No new crossing at grade of Railroad's tracks or roadways on Railroad's right of way shall be established or used by Contractor except under plans and specifications, at such places and under such flag protection or protective devices as shall be approved or designated by. Railroad's Chief Engineer. Railroad may perform all or any part of the work incident to establishing any such crossing or grade or roadway or of removing same and restoring its track and roadbed, or Railroad may require Contractor to perform all or any portion of such work. Contractor shall maintain any such crossing so established in first -class condition at all times and shall keep flange -ways free from ice, snow, dirt, rock and debris. Contractor shall install, operate, maintain and remove In manner satisfactory to Railroad's Chief Engineer suitable barricades adequate to prevent unauthorized vehicles or equipment from using any such crossing or roadways. All cost and expense incident to establishment, maintenance, operation and removal of any such crossings or roadways and barricades, whether the work be performed by Railroad or by Contractor, shall be borne and paid by Contractor. Notwithstanding anything elsewhere contained in this Contract, it is understood and agreed that Contractor shall at no time cross Railroad's tracks with vehicles or equipment of any kind or character, except at existing public crossings or at crossings established as provided for in the preceding paragraph. 2 BOOK2393 PAGA -1- 7 F. UTILITIES - Contractor shall take such measures as may be agreed upon between the Railroad and the respecting any utilities located upon Railroad's property. It is understood and agreed that the owner of any utility in, on or above Railroad's property retains the right to move, repair, recondition or relocate the same. If, during progress of the work, Contractor shall discover any utility not specifically mentioned and provided for elsewhere in the documents constituting this Contract, which utility has to be moved, repaired, reconditioned or relocated because of the construction of this project, Contractor shall give immediate notice thereof to and Railroad and will furnish directions respecting the same; but, unless otherwise agreed upon between and Railroad, and directed by Contractor shall make only such temporary or emergency repairs as may be required to protect and safeguard the utility and the property of Railroad as are necessary prior to commencement of work thereon by the owner of the utility or the Railroad. Whenever or whatever such operations are undertaken by the owners of the utility or the Railroad, the Contractor shall cooperate therewith to the extent that ample protection of their work will be provided to the end that the entire improvement contemplated by this agreement may be expedited to the best interest of all concerned. The terms "utility" and "utilities" as used herein include all properties and facilities of any person, 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. G. PROTECTIVE SERVICES AND DEVICES - NOTICE - Contractor shall bear and pay all costs of protecting Railroad property and traffic made necessary or occasioned by Contractor's operations under this Contract. Railroad will assign to the Contractor, at the sole cost and expense of Contractor, such switch tenders, flagmen, telegraph and telephone operators, watchmen and other protective services and devices, including inspectors, as, in the judgment of Railroad's Chief Engineer, are required to insure the safety and continuity of railroad traffic during Contractor's operations on Railroad's property. All flagging and protective services shall be performed strictly in accordance with the directives and instructions issued by Railroad. Contractor shall confer with Railroad's Chief Engineer, prior to commencing any operations on Railroad's property, with respect to the protective services and devices which will be required by Railroad, and Contractor agrees to use said Railroad right of way and property and to cross Railroad's tracks, in performing its said Contract with said only in the manner, and at such times and locations, and under such 3 ww2398 X118 protective measures as are designated by Railroad's Chief Engineer or his duly authorized representative. Contractor shall notify Railroad's Chief Engineer in writing seventy -two (72) hours in advance of commencing any operations on Railroad's property which require protective services or devices. H. DELAY TO TRAINS - Contractor shall be responsible to Railroad and its tenants for.all damages for delays which may be sustained by Railroad or its tenants, its or their employees, passengers or freight in its or their care, caused by any interference which could have been avoided by proper handling of said work. I. REIMBURSEMENT TO RAILROAD BY CONTRACTOR - Contractor shall reimburse Railroad for the cost of all services and materials supplied to and work performed for Contractor, and for premiums advanced by Railroad for the insurance herein specified, within thirty (30) days after receipt of bills there for. Cost of labor furnished to Contractor by Railroad, including protective services, will be charged in accordance with the working agreements between the Railroad and its employees. Reimbursement costs shall include, but shall not be limited to, actual cost of wages paid, plus 10% for supervision, accounting and the use of small tools, plus unemployment and retirement taxes, other similar payroll taxes, vacation and holiday allowances, and other customary charges incident thereto, rental of equipment at Railroad's current rental rates, as well as cost of any materials and supplies, f.o.b. Railroad's rails, plus i5% to cover transportation and handling, plus any excise taxes on such materials and supplies. J. INDEMNITY - Coptractor hereby assumes and agrees to protect, indemnify, save harmless and defend Railroad and its tenants, and Its and their respective successors and assigns, and its and their officers, agents and employees, from all liability for any and all personal injuries or death which may be sustained by Contractor, Subcontractor, and the officers, agents and employees of either, while on the premises of Railroad in connection with the performance of the work contemplated by this Contract, and from all liability for loss, destruction or damage to property of or in the possession of Contractor, Subcontractor, or officers, agents and employees of either, upon the premises of Railroad for such purposes. Contractor hereby assumes and agrees to protect, indemnify, save harmless and defend Railroad and its tenants, and its and their respective successors and assigns, and its and their officers, agents and employees, from and against any and all liability, claims, suits, damages, losses or expenses whatsoever, on account of injury to or death of persons, including the officers, agents and employees of Railroad and its tenants and passengers and persons upon its or their trains, engines or cars, or on account 4 Boox2393 FAGF1119 of damage to or loss or destruction of property, including any property of Railroad and its tenants or any property in its or their care, custody and control, when said injury, death, damage, destruction or loss shall arise, in whole or in part, proximately or remotely, out of or be connected with the work contemplated by this Contract, or which shall occur or be occasioned in whole or in part, proximately or remotely, by reason of the presence of Contractor, Subcontractor, its or their officers, agents, employees, equipment or property upon Railroad's premises. K. INSURANCE - Contractor, at the sole cost and expense of Contractor, shall procure, in a company or companies acceptable to Railroad Company, and containing provisions acceptable to Railroad Company, the following insurance protection covering all of Contractor's operations on the property of the Railroad Company: (1) Comprehensive General Liability (including automobile) providing for a limit of not less than $ for all damages arising out of bodily injuries to or death of one person and subject to that limit for each person, a total limit of $ for all damages arising out of bodily injuries to or death of two or more persons in any one occurrence; and regular Contractor's Property Damage Liability Insurance providing for a limit of not less than for all damages arising out of injury to or destruction of property in any one occurrence and subject to that limit per occurrence, a total (or aggregate) limit of $ for all damages arising out of injury to or destruction of property during the policy period. (2) Railroad's Protective Liability and Property Damage Insurance providing for a combined single limit of not less than $ per occurrence with an aggregate limit of $ applying separately to each annual period 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. Said policy or policies of Railroad's Protective Liability and Property Damage Insurance, shall name The Denver and Rio Grande Western Railroad Company as the insured, and provide terms of coverage and be in a form acceptable to the Railroad Company. Original of this policy shall be furnished Railroad Company. (3) Workmen's Compensation Insurance in Statutory Limits as 5 sooK2393 ParF120 prescribed by the Workmen's Compensation Act of the State in which work is to be performed. All of the aforesaid insurance shall be made subject to cancellation only upon not less than thirty (30) days' written notice delivered to the Insurance Department of the Railroad Company. Contractor shall cause Certificates of Insurance, in duplicate, covering the insurance specified in (1) and (3) above and the original policy or policies specified in (2) above to be delivered to the for delivery to the Insurance Department of the Railroad Company. Contractor shall not enter upon or perform any work upon the property of Railroad Company until the specified insurance certificates and policies have been delivered to and accepted by Railroad Company. The insurance hereinabove specified shall be carried until -all work required to be performed under the terms of this Contract is satisfactorily completed as evidenced by the formal acceptance by the Railroad Company and by the . In the event Contractor shall fail to keep in effect the insurance hereinabove specified, Railroad Company, at the sole cost and expense of Contractor, is authorized, but shall not be required to obtain and keep in effect such insurance. L. RAILROAD'S RIGHT TO STOP WORK - If Contractor shall fail to keep and perform any of the obligations imposed by this Contract and License or by the Contract between and Contractor, with respect to work performed upon Railroad's property, or if Contractor shall conduct operations in any manner deemed hazardous by Railroad . to the safe and expeditious operation of Railroad's trains engines, cars and equipment, Railroad shall have the right to stop Contractor's operations on Railroad's property until the acts or omissions of Contractor have been fully rectified to the satisfaction of Railroad's Chief Engineer, and no such work stoppage shall create or impose any liability upon Railroad or or relieve Contractor of any obligations imposed by this Contract and License. 3. SUBCONTRACTORS - All of the limitations and obligations imposed upon Contractor and all rights reserved to Railroad by this Contract and License shall apply with equal force and effect to any Subcontractor performing all or any part of the work contemplated hereunder upon Railroad's property. Contractor shall be and remain primarily liable and responsible to Railroad for all acts or omissions of any Subcontractor employed upon Railroad's property. Nothing herein contained shall be construed so as to preclude Railroad from proceeding against Contractor and Subcontractor individually or collectively. Any Subcontractor whose operations are not covered by the insurance provided for hereinabove will not be permitted by the Contractor to work upon Railroad's property. 4. ASSIGNMENT - This Contract and License shall not be assigned by Contractor to any person, firm or corporation without the express written consent of Railroad first had and obtained. 6 sooK2393 mG421 5. SUCCESSORS - Except as limited by the foregoing Section 4, this Agreement shall inure to the benefit of and be binding upon the parties hereto, their (heirs, personal representatives) successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be executed the day and year first hereinabove written. THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY ATTEST: Secretary By Chief Engineer By , President 7