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.
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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
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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
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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.
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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
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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
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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
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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.
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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
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