HomeMy WebLinkAbout6161RESOLUTION NO. 6161
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE
CITY OF PUEBLO AND THE MISSOURI PACIFIC RAILROAD
COMPANY RELATING TO FLOOD LEVEES IN CONNECTION
WITH 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 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 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 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 Sam Corsentino
Councilman
APPROVED:
President 'of the Council
ATTEST:
City Clerk
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No 860 RECORDED • YU ��
PUfato COUNTY, COLORADO
PUEBLO.- .REP.. v
APR 181988 sm2393 pw g
THIS AGREEMENT, executed in duplicate this 1�, 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
Licensee desires to (1) enter upon and
reconstruct, install, maintain and use its
proposed temporary construction access road§ .'_
§ j3
and a proposed levee with rip -rap slope
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protection to tie into the backwall of Bridge
No. 587; and (2) to enter upon and use for a
temporary construction site for the removal
and hauling away of sediment material from
the river channel, on, along, and across the
Railroad's right of way and under Bridge No.
587 in Pueblo County, atPueblo, to which the
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, subject to the terms, conditions and reservations
hereinafter set forth, to enter upon and construct, install,
maintain and use its proposed temporary construction access road
and its proposed levee, and to enter upon and use for a temporary
construction site, 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, on, along and across
Railroad's right of way and under Railroad's Main Track and
Bridge No. 587, at Mile Post 617.3, hereinafter collectively
called "Premises ", located at Pueblo, in Pueblo County, Approxi-
mately 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,
m2393 pw 989
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.
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; The temporary construction
access road shall be removed following the completion
of the removal of the sediment material from the
river channel; 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
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necessary or desirable.
(e) Licensee shall, at Licensee's sole cost, risk and
responsibility, furnish or do or cause to be
furnished or done any and all things, and 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
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, 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 the roadway material, the levee fill material and
rip -rap slope protection, and the hauling away of the sediment
material taken from the river channel of said facilities.
6. 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 such 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, provide 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.
7. During any periods when work is being performed
within ten (10) feet of any Railroad track or will be near enough
to any track that any equipment or equipment extension (such as,
but not limited to, a crane boom) will reach to within ten (10)
feet of any track on or 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
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IM2393 WF991
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.
(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 the insurance provisions set forth
in Section 9 hereof, Licensee shall further require any
contractor engaged or employed to perform any of the work
referred to herein
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a =2393 Fw992
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
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 said right of way
lands.
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
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m2393 FmE9:93
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
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.
9= 2393 Pw994
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 r2l r
Title:
Dig =C6*6 ds & Real ES *
CITY OF PUEBLO COLORADO
By
'^' _ �• tr��, � ecretary Title:
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