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HomeMy WebLinkAbout6160RESOLUTION NO. 6160 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE MISSOURI PACIFIC RAILROAD COMPANY RELATING TO PEDESTRIAN TRAILS IN CON- NECTION WITH THE FOUNTAIN CREEK FLOOD CONTROL PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: c,PrTTnM 1 An Agreement between the City of Pueblo and the Missouri Pacific Railroad Company, a copy of which is on file with the City Clerk and incorporated herein by reference, whereby the Missouri Pacific Railroad Company licenses and permits the construction, main- tenance and use of a pedestrian trail 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 approved. 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 By Michael A. Occhiato Councilman APPROVED: President of the Council ATTEST: P/M T4' City CTerk „2 J NQ. 435 RECORDED PUEBLO COUNTY COLORADO PUEBL.O..PED _�, 3g APR 181988 m2393 FA&F481 THIS AGREEMENT, executed in duplicate this day of 1988, by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware corporation, hereinafter called "Railroad ", and the CITY OF PUEBLO, a municipal corporation of the State of Colorado, hereinafter called "Licensee ", WITNESSETH: RECITALS p. Licensee desires to enter upon and reconstruct, install, maintain and use its, proposed 8 foot pedestrian trail on, along and across Railroad's right of way and under Railroad's Bridge No. 587 in Pueblo County, Colorado, at Pueblo, to which Railroad is agreeable but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the promises and agreements hereinafter contained, the parties hereto agree: 1. Railroad, solely to the extent of its right, title and interest, without any warranty, either express or implied, hereby grants to Licensee, its successors and assigns, license and permission, and subject to the terms, conditions and reservations hereinafter set forth, to enter upon and construct, install, maintain and use at Licensee's sole cost and expense, its proposed 8 foot pedestrian trail underpass and appurtenances thereto, hereinafter collectively referred to as "Facilities ", conforming substantially to specifications and notes on Railroad's print dated December 15, 1987, marked Exhibit "A" and attached hereto as part hereof, along and across Railroad's Main Track and Bridge No. 587, at Mile Post 617.3, hereinafter collectively called "Premises ", located at Pueblo in Pueblo County, Colorado, approximately where shown on Exhibit "A ". 2. It is expressly agreed that this license and permission is granted solely for the purposes above set out, and is expressly subject and subordinate to the present and future right of the Railroad, its successors, assigns, lessees, grantees and licensees to maintain, use, operate and renew on, beneath or above surface of Premises any telephone, telegraph, power, communication or signal lines, poles and /or appurtenances, fiber optic communications, tracks, roadways, pipe lines, structures, improvements or facilities of similar or different character, as now located; and to construct, install, establish, and thereafter maintain, use, operate and renew on, beneath or above the surface of Premises, any or all said things. eo%2393 FAU952 3. This grant of license and permission is further subject to the following terms, provisions and conditions, which Department hereby expressly accepts, to wit: (a) Licensee shall not begin, nor permit its con- tractor to begin, any work of any nature whatso- ever on or about Premises until Licensee or its contractor shall have given Railroad's Superintendent- Transportation Services, or his authorized representative, at least 72 hours' written notice in advance of starting same; (b) Licensee or its contractor shall perform its work hereunder at such time and in such manner as shall be agreed upon between Licensee and Railroad's said Superintendent- Transportation Services or his authorized representative. During the entire progress of Licensee's work on or about Premises, Licensee or its contractor shall maintain contact and liaison with Railroad's authorized representatives so as to ascertain the time of passage of trains at the site of Licensee's work and so as to permit free and safe flow of railroad traffic. All work of Licensee shall be performed without interference with Railroad's tracks and operations and Railroad's and its lessees' or licensees' structures or facilities. Licensee or its contractor shall use utmost care in protecting Railroad's and others' property and in avoiding accidents. Licensee shall leave Premises in a condition satisfactory to Railroad's authorized representative; (c) Licensee shall, at its sole cost and expense, operate and maintain the Facilities in good and safe condition and keep same free and clear of debris, sediment or obstructive matter which may or could interfere with or impede the proper functioning thereof; and (d) Licensee shall, at its sole cost and expense, move all or any portion of Facilities to such new location, or remove Facilities from Premises, as Railroad may designate, whenever in the furtherance of Railroad's operation of its railroad and in the improvement and use of its property, Railroad shall find such action necessary or desirable; and (e) Licensee shall, at Licensee's sole cost,expense, risk and responsibility, furnish or do, or cause to be furnished or done, any and all things, when, where and as from time to time required to accom- plish whatsoever Licensee attempts or is bound to do at any time hereunder. Said things, including �t= x=2393 w983 the time and manner of doing any work, each shall conform to the requirements of the Railroad as well as of any State, Federal or Municipal authority. 4. In addition to the requirements set forth elsewhere in this Agreement, Licensee shall submit the design of Facilities to the Railroad's Superintendent- Transportation Services or his representative, for approval. No work shall be performed in connection with Facilities prior to receipt of Railroad's approval. No approval by Railroad of Licensee's or its contractor's plans shall relieve Licensee or its contractor of any responsibility or liability hereunder. 5. Licensee further hereby agrees that Railroad shall not, at any time, be required to bear or assume any cost or expense in or incident to the construction, operation and maintenance of the facilities; Licensee hereby expressly agrees to bear and assume all cost and expense. Railroad, for the purpose of protecting and safeguarding its property, traffic, employees and patrons, may at any time, with or without prior notice to Licensee, provided materials for and perform any maintenance, repair, renewal or adjustment which it may deem necessary, at the sole cost of the Licensee, and Licensee shall reimburse Railroad for any such cost. 6. Licensee, without any cost or expense to Railroad, shall furnish or cause to be furnished the necessary labor, material, equipment and instrumentalities and shall perform or cause to be performed all the work of constructing, reconstructing, installing and improving said facilities. 7. During any periods when work is being performed on adjacent to Premises by Licensee or its contractor in connection with the construction and improvement of Facilities, Railroad is authorized to furnish flagmen or other protective services or devices and to take such other action as in Railroad's opinion may be necessary for Railroad's protection in the conduct of railroad operations; and Licensee, upon receipt of bill therefor, shall reimburse Railroad for any costs so incurred, such cost to be computed in accordance with Railroad's customary practices. The providing of this service shall not relieve Department or its contractor of any responsibility or liability. 8. (a) Fiber optic cable systems may be buried on Railroad's property. Before commencing work on the Premises, Licensee shall telephone Railroad at 1- 800 - 336 -9193 (a 24 -hour number) to determine if fiber optic cable is buried anywhere on or about the Premises defined herein. If it is, Licensee will telephone the telecommunications company(ies) designated by Railroad, arrange for a cable locator, and make arrangements for relocation or other protection for the fiber optic cable prior to beginning any work on the Premises. - 3 - 9=2393 W984 (b) In addition to the liability terms elsewhere in this Agreement, Licensee shall indemnify and hold 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 contrib- uted to by any act or omission of Licensee, its contractor, agents and /or employees, that causes or in any way or degree con- tributes to (1) any damage to or destruction of any telecommu- nications system by Licensee, and /or its contractor, agents and /or employees, on Railroad's property, (2) any injury to or death of any person employed by or on behalf of any telecommuni- cations company, and /or its contractor, agents and /or employees, on 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 telecommunications company(ies). 9. Licensee shall procure, or require any contractor: engaged or employed to perform any work hereunder on behalf of Licensee on any part of Premises to procure, and keep in effect during the period of such work Workmen's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $1,000,000 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 $2,000,000 for all damages arising out of bodily injury to or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of injury to or destruc- tion of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $2,000,000 for all damages arising out of injury to or destruction of property during the annual policy period. If any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. Any limitation in the foregoing insurance which excludes work performed within fifty (50) feet of a railroad track shall be exempted out of said policies. 10. Notwithstanding of the insurance provisions set forth in Section 8 hereof, Licensee shall further require any contractor engaged or employed to perform any of the work referred to herein on any part of Railroad's property covered by this agreement to procure and keep in effect during the period of such work Railroad Protective Liability Insurance, in form set forth in Federal Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 2, dated October 25, 1974, issued by Federal Highway Administration, as amended, on behalf of Railroad, in amount of $2,000,000 combined single limit per occurrence for bodily injury, death and property damage, with an aggregate limit of $6,000,000 for the annual term of the policy; such insurance shall be in form and in a company satisfactory to Railroad; and Licensee or its contractor shall not attempt to perform any work on or about Premises until notified by Railroad that the Railroad - 4 - 9ox2393 FAG[985 Protective Liability policy required hereunder is in form satis- factory to Railroad. 11. Licensee hereby agrees to bear and assume any and all costs of repairing or replacing any property of Railroad or others damaged or destroyed in connection with the performance of any work hereunder by or on behalf of Licensee, or as a result of the exercise of the rights herein granted, or as a result of vandalism to any property. 12. Railroad assumes no liability for injury to or death of persons or loss of or damage to property arising or growing out of, or which may be due, in any manner, to or in connection with the Licensee's aforesaid use of the Premises 13. (a) The term hereof shall begin with the date first above written and continue thereafter until terminated (a) by expiration of thirty (30) days following serving by either party on the other of written notice of such being the intention, (b) by Licensee failing for ten (10) days to cure any default after written notice thereof, or (c) at Railroad's election without notice by Licensee's nonuser of Facilities for any six consecutive months. Any notice of Railroad shall be deemed served when posted conspicuously on or about Facilities or when deposited, postage prepaid, in U. S. Mail addressed to Licensee as aforesaid. (b) Not later than last day of the term hereof (or such later date as Railroad may specify), Licensee shall remove Facilities and restore to the satisfaction of Railroad, Railroad's property or facilities thereon to as good condition as it was in before Facilities were constructed. Any of Facilities not so removed shall, at Railroad's election, without notice, be deemed abandoned; or Railroad may effect such removal and restoration at the cost of Licensee, which cost Licensee agrees to pay or reimburse Railroad on demand, and in effecting such removal and restoration Railroad shall be under no duty to preserve, protect or store Facilities, but may wreck and scrap or convert the same to its own use, without liability in any event for compensation or damages therefor; provided, Railroad shall pay Licensee the net salvage actually realized by whatever methods are adopted by Railroad after deducting all costs or removal, wrecking, scrapping, disposition and restoration, and any other amount owed by Licensee to Railroad. In the event any person other than Licensee shall have any interest in or lien on Facilities, Licensee agrees to hold Railroad harmless from any claim or such person in connection therewith or any action of Railroad pursuant hereto with respect to Facilities. 14. The rights herein granted by Railroad are limited to such right, title or interest as Railroad may have in Premises and are made without any warranty, express or implied. It is understood by the parties hereto that such rights are granted =W= m2393 PAGE 989.' subject to the existing rights therein of any third party, if any. It shall be Licensee's sole obligation to obtain such addi- tional permission, license and grants as may be necessary on account of any such existing rights. No damage shall be recover- able from Railroad because of dispossession of Department or because of failure of, defect in or extinction of Railroad's title. 15. This agreement and all of the covenants and condi- tions hereof shall inure to and bind each party's successors and assigns; provided, no right of Licensee shall be transferred or assigned, either voluntarily or involuntarily, except by express agreement acceptable to Railroad. Either party hereto may waive any default at any time of the other without affecting, or impairing any right arising from, any subsequent or other default. 16. Licensee, when returning this agreement to Railroad, (signed), shall cause same to be accompanied by such order, resolution, or ordinance of the governing body of Licensee, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of Licensee with the power so to do and which shall certify that funds are available and have been appropriated for the payment of any sums agreed to be paid by Licensee hereunder. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. MISSOURI PACIFIC RAILROAD COMPANY By Tit e : n ,. r 3.* CITY OF PUEBLO COLORADO ecretary 7#Ttl e: