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RESOLUTION NO. 6242
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
THE CITY OF PUEBLO AND THE DENVER AND RIO
GRANDE WESTERN RAILROAD COMPANY RELATING TO
PIPE LINE CROSSING IN CONNECTION WITH THE
FOUNTAIN CREEK FLOOD CONTROL PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that:
CFrTTnN 1
An Agreement between the City of Pueblo and The Denver and
Rio Grande Western Railroad, 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 permits the construction and main-
tenance of a pipe line crossing upon their property at 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.
CprTTnN 9
Funds for said pipe line crossing permit shall be paid from
Account Number 02- 1987 - 510 - 000 - 040 -5104.
CFrTTnN I
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 there-
to and attest the same.
INTRODUCED JULY 25 ,1988
By MICHAEL OCCHIATO
Councilman
APPROVED:
a
President of the Council
ATTEST:
i
City Clerk
- 2 -
RECCWDED J SEP 2 21988' BOOK2413 PAcf991
EUM0 COUNTY. COLOLAMO
Contract No. 24 2
PIPE LINE CROSSING AGREEMENT
THIS AGREEMENT, Made and entered into this 6th day of June, 1988, by and
between THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a corporation of the
State of Delaware (hereinafter called "Railroad Company "), party of the first part,
and CITY OF PUEBLO, a municipal corporation in the State of Colorado, mailing
address: 211 East "D" Street, Pueblo, Colorado 81003 (hereinafter called
"Licensee "), party of the second part,
WITNESSETH:
Section 1. The Railroad Company, for and in consideration of the
covenants and agreements herein set out, to be by Licensee kept, observed and
performed, hereby licenses and permits the Licensee, subject to the terms and
conditions hereinafter stated, to construct and thereafter to maintain and operate
the pipe line or pipe lines hereinafter described (hereinafter called "Pipe Line ")
upon or along or across the right of way and under the track or tracks of the
Railroad Company as herein specified, to -wit:
Two 48 -inch diameter reinforced concrete storm water pipe lines
crossing the right of way and beneath the trackage of the
Railroad Company's main track at Mile Post 117 plus 3122 feet, at
Pueblo, Pueblo County, Colorado, as shown on the attached
drawing, number P -586.
The foregoing License is subject and subordinate to the prior and
continuing right and obligation of the Railroad Company to use and maintain its
entire Railroad right of way in the performance of its public duty as a common
carrier, and is also subject to the right and power of the Railroad Company to
construct, maintain, repair, renew, use, operate, change, modify or relocate
additional railroad tracks, telegraph, telephone, signal or other wire lines, pipe
lines, and other facilities, structures or improvements upon, along or across any
or all parts of said right of way and said Pipe Line, all or any of which may be
freely done at any time or times by the Railroad Company, without liability to the
Licensee or any other party for compensation or damages. In the event the Railroad
Company elects to construct additional railroad tracks, structures or improvements
upon its right of way and over and /or across said Pipe Line, the Licensee shall,
upon notice of such election, extend said Pipe Line according to such plans and
specifications as the Railroad Company may prescribe.
The foregoing License is also subject to all outstanding superior rights
(including those in favor of telegraph and telephone companies, lessees of said
right of way and others) and the right of the Railroad Company to renew and extend
the same.
Section 2. The Licensee agrees to use the Pipe Line for the following
purpose and for no other, to -wit:
conveyance of storm water
Section 3. The Licensee agrees to pay to the Railroad Company, in
advance, the sum of $500.00 as consideration for the License herein granted.
1
MUMS FMF 992
Section 4. The Pipe Line shall be constructed, operated, maintained,
repaired, extended, renewed and /or reconstructed by the Licensee in strict
conformity with specifications prescribed by the Chief Engineer of the Railroad
Company and in such manner and according to such plans as said Chief Engineer may
deem best for the safety and proper protection of the tracks, roadbed and premises
of the Railroad Company.
The Licensee shall keep and maintain the soil over the Pipe Line
thoroughly compacted and the grade even with the adjacent surface of the ground.
All work performed on said right of way in connection with the
construction, maintenance, repair, extension, renewal or reconstruction of the Pipe
Line shall be done under the supervision and to the satisfaction of the Railroad
Company.
If the Railroad Company shall elect to construct said Pipe Line or a
portion thereof, and shall so notify the Licensee, the Licensee agrees to pay the
Railroad Company, in advance, such sum of money estimated to be $ NONE as shall
be necessary to construct such portion or all of said Pipe Line, including the cost
of all necessary material and the transportation thereof and the cost of all labor
and superintendence. If the amount to be advanced by the Licensee as herein
provided should be in excess of the amount required, the excess shall be returned
to the Licensee; if such amount should not be sufficient to cover the expense of
work clone by the Railroad Company, the Licensee shall pay such additional amount to
the Railroad Company on demand.
Prior to the commencement of any work by the Licensee in connection with
the construction, maintenance, repair, extension, renewal or reconstruction of the
Pipe Line where it passes underneath the roadbed and tracks of the Railroad
Company, the Licensee shall submit to the Railroad Company plans setting out the
method and manner of handling the work, and shall not proceed with the work until
such plans shall have been approved by the Chief Engineer of the Railroad Company
and then only under the supervision of said Chief Engineer, or his authorized
representative. The Railroad Company shall have the right, if it so elects, to
provide such support as it may deem necessary for the safety of its said track or
tracks during the time of construction, maintenance, repair, extension, renewal or
reconstruction of the Pipe Line, and in the event the Railroad Company provides
such support, the Licensee shall pay to the Railroad Company, within 15 days after
bills shall have been rendered therefor, all expense incurred by the Railroad
Company in connection therewith, which said expense shall include all assignable
costs plus 10 percent (10%) to cover elements of expense not capable of exact
ascertainment.
Section 5. The Licensee shall notify the Railroad Company at least 48
hours in advance of the commencement of any work upon said right of way in
connection with the construction, maintenance, repair, extension, renewal or
reconstruction of the Pipe Line except in cases of emergency when work is necessary
to avert loss or damage to the property of the Railroad Company.
Section 6. The Licensee shall bear the entire cost and expense incurred
in connection with the construction, maintenance, repair and renewal, and any and
all modification, revision, extension, relocation, removal or reconstruction of the
Pipe Line, including any and all expense which may be incurred by the Railroad
Company in connection therewith for supervision or inspection, or otherwise.
m2413 P*993
Section 7. The Railroad Company, however, shall have the right, if it so
elects, though it shall be under no obligation whatsoever to do so, to make
necessary or proper repairs, or to reconstruct said Pipe Line, notwithstanding the
obligation of the Licensee to maintain, repair and reconstruct, and, in the event
the Railroad Company at any time elects to repair or reconstruct said Pipe Line,
the Licensee shall, upon presentation of estimate, advance such sum of money as the
Chief Engineer of the Railroad Company may deem necessary for such repair or
reconstruction, or, upon bill being rendered for work already done, the Licensee
shall reimburse the Railroad Company for the cost of such repair or reconstruction.
The optional right of the Railroad Company at any time to make repairs or
to reconstruct said Pipe Line, shall in no manner or degree relieve the Licensee
from the responsibility to the Railroad Company or other persons or corporations
for the failure of the Licensee to properly maintain or reconstruct said Pipe Line
or any structure which the Licensee agrees hereunder to maintain and reconstruct.
Section 8. The Licensee shall, at its sole expense, make any and all
modifications or changes in the Pipe Line, or move all or any part thereof to such
new location as may be required by the Railroad Company at any time, in connection
with the construction, maintenance, repair, renewal, use, operation, change,
modification or relocation of railroad tracks, telegraph, telephone, signal or
other pole and wire lines, pipe lines and other facilities, structures or
improvements of the Railroad Company, upon said right of way.
All the terms, conditions, and stipulations of this Agreement, with
reference to the construction, maintenance, repair and renewal of the Pipe Line on
said right of way, in the location herei.nbefore described, shall apply to the Pipe
Line as modified, changed or relocated within the contemplation of this section.
Section 9. The Pipe Line shall be constructed and, at all times
maintained, repaired, extended, renewed and operated, in such manner as to cause no
interference whatsoever with the constant, continuous and uninterrupted use of the
tracks, property and premises of the Railroad Company, and nothing shall be done or
suffered to be done by the Licensee at any time that would in any manner impair the
safety thereof.
Section 10. Licensee shall fully pay for all materials, joined or affixed
to, and labor performed upon, said right of way in connection with the
construction, maintenance, repair, extension, renewal or reconstruction of the Pipe
Line and shall not permit or suffer any mechanics' or materialmen's liens of any
kind or nature to be enforced against said right of way for any work done or
materials furnished thereon, at the instance or request, or on behalf of the
Licensee, and the Licensee shall indemnify and hold harmless the Railroad Company
from and against any and all liens, claims, demands, costs and expenses of
whatsoever nature, in any way connected with or growing out of such work done,
labor performed, or materials furnished.
The Licensee shall promptly pay or discharge all taxes, rates, charges and
assessments levied upon, in respect to, or on account of the Pipe Line so as to
prevent the same becoming a charge or lien upon said right of way, or any other
property of the Railroad Company, and so that the taxes, charges and assessments
levied upon or in respect to said right of way and other property of the Railroad
Company shall not be increased because of the location, construction or maintenance
of the Pipe Line, or any improvement, appliance or fixture connected therewith,
placed upon said right of way, or on account of the Licensee's interest therein.
Where such tax, charge or assessment may not be separately made or assessed to the
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m2413 PaGF994
Licensee but shall be included in the assessment of the right of way, or other
property of the Railroad Company, then the Licensee shall pay to the Railroad
Company an equitable proportion of such taxes, determined by the value of
Licensee's property upon said right of way as compared to the entire value of said
right of way.
Section 11. In the event the Licensee shall take down any fence of the
Railroad Company or in any manner move or disturb any of the other property of the
Railroad Company in connection with the construction, maintenance, repair,
extension, renewal or reconstruction of the Pipe Line, then and in that event the
Licensee shall as soon as possible, and at its sole expense, restore such fence
and /or such other property to the same condition as it was in before such fence was
taken down or such other property was moved or disturbed, and the Licensee shall
indemnify and save harmless the Railroad Company from and against any and all
liability, loss, damages, claims, demands, costs and expenses of whatsoever nature,
including court costs and attorneys' fees, which may result from injury to or death
of persons whomsoever or damage to or loss or destruction of property whatsoever,
when such injury, death, damage, loss or destruction grows out of or arises from
the taking down of any fence or the moving or disturbing of any of the other
property of the Railroad Company.
Section 12. In the event the Railroad Company shall dispose of any of its
property upon which the Pipe Line is located, as herein provided, the license or
permit herein granted with respect to the portion of the Pipe Line located upon the
property so disposed of, shall forthwith cease and determine.
Section 13. The Licensee shall indemnify and hold harmless the Railroad
Company from and against any and all liability, loss, damage, claims, demands, cost
and expenses of whatsoever nature, including court costs and attorneys' fees, which
may result from injury to or death of persons whomsoever (including employees and
passengers of the Railroad Company) or damage to or loss of or destruction of
property whatsoever (including damage to the roadbed, tracks, equipment, or other
property of the Railroad Company or property in its care or custody) whether such
injury, death, loss, destruction or damage grows out of or arises from the bursting
of or leaks in the Pipe Line, or the explosion or ignition of gas or oil carried
therein, or escaping therefrom, or in any other way whatsoever is due to, or arises
because of, the existence of the Pipe Line or the operation, construction,
maintenance, repair, extension, renewal, modification, reconstruction, revision,
relocation or removal of the Pipe Line or any part thereof, or to the contents
therein or therefrom. And the Licensee does hereby release the Railroad Company
from all liability for damages on account of injury to the Pipe Line from any cause
whatsoever.
Neither the right of supervision by the Railroad Company of the location,
construction, maintenance, repair, extension, renewal, reconstruction or relocation
of the Pipe Line, nor the exercise or failure to exercise said right, nor the
approval or failure to disapprove by the Railroad Company of the location,
construction, maintenance, repair, extension, renewal or reconstruction of said
Pipe Line, nor the election of the Railroad Company to repair or reconstruct the
whole or any part of said Pipe Line shall be deemed a waiver of the obligation of
the Licensee contained in this section, or a release therefrom or from any other
obligation of this Contract resting upon said Licensee that is hereinbefore or
hereinafter expressed or implied.
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m2M wF995
Section 14. For the further protection of the Railroad Company, the
Licensee, before any work is begun, agrees to procure and maintain at Licensee's
own expense, in a company acceptable to the Railroad Company, Comprehensive General
Liability Insurance in minimum limits of $500,000 each person, $1,000,000 each
accident for bodily injury, and $500,000 for property damage, which policy shall
specifically insure the liability assumed by the Licensee under Section 11 and 13
of this Agreement. Licensee shall furnish the Railroad Company Certificates of
Insurance, in duplicate, evidencing such.insurance to be in full force and effect
and that the same will not be cancelled without at least fifteen (15) days' advance
written notice by Insurance Company to the Railroad Company's Insurance Department,
P.O. Box 5482, Denver, Colorado 80217.
See Exhibit " A " attached hereto and hereby made a part hereof. Said
insurance shall be maintained throughout the period of construction only of the
facilities referred to in Section 1 hereof.
Section 15. Disuse of the Pipe Line continuing, at any time for a period
of one year, shall constitute an abandonment thereof, and in the event of such an
abandonment the Railroad Company may, at its option terminate this Agreement.
If the Licensee shall fail to keep and perform all or any of the covenants
and agreements herein contained, to be by it kept and performed, or if the Licensee
shall fail to make any of the payments which it is obligated to make hereunder, and
such default shall continue for a period of thirty (30) days after written notice
from the Railroad Company to the Licensee, specifying such default, then the
Railroad Company may, at its option, forthwith terminate this Agreement.
Notwithstanding anything to the contrary herein contained, it is agreed
that if at any time the maintenance and operation of said Pipe Line shall be
inconsistent with the use by the Railroad Company of its right of way for railroad
purposes, this License shall immediately cease, ipso facto.
Section 16. Within ninety (90) days after the termination of this
Agreement howsoever, the Licensee shall, at its sole expense, remove the Pipe Line
from those portions of said right of way not occupied by the roadbed and track or
tracks of the Railroad Company and shall restore, to the satisfaction of the
Railroad Company, said portions of said right of way to as good condition as they
were in at the time of the construction of the Pipe Line, and if the Licensee fails
so to do, the Railroad Company may do such work of removal and restoration at the
expense of the Licensee. The Railroad Company may, at its option, upon such
termination, at the expense of the Licensee, remove the portions of the Pipe Line
located underneath the said roadbed and track or tracks and restore said roadbed to
as good condition as it was in at the time of the construction of the Pipe Line, or
it may permit the Licensee to do such work of removal or restoration under the
supervision of the Railroad Company. In the event of the removal of the Pipe Line
as in this section provided, the Railroad Company shall in no manner be liable to
the Licensee for any damage sustained by the Licensee for or on account of such
removal, and such removal shall in no manner prejudice or impair any right of
action for damages or otherwise that the Railroad Company may have against the
Licensee.
Nothing in this section contained shall obligate the Licensee to remove
the Pipe Line because of the termination of this License under the provisions of
Section 12 hereof, in cases where the License shall have made arrangements for the
continuation of the Pipe Line with the grantee or grantees of the Railroad Company.
k,
m2413 F0,996
Section 17. The waiver by the Railroad Company of the breach of any
condition, covenant or agreement herein contained, to be kept, observed and
performed by the Licensee, shall in no way impair the right of the Railroad Company
to avail itself of any subsequent breach thereof.
Section 18. The Licensee shall not sublet, in whole or in part, the
License herein granted, and shall not assign this Agreement without the written
consent of the Railroad Company, and it is agreed that any transfer or assignment,
or attempted transfer or assignment of this Agreement, or any of the rights hereby
granted, whether voluntary, by operation of law, or otherwise, without such consent
in writing, shall be absolutely void, and, at the option of the Railroad Company,
shall terminate this Agreement.
Section 19. This Agreement shall take effect as of the day of
bay- 1988, and shall continue in full force and effect until
terrdinated as herein provided.
Section 20. Subject to the provisions of Section 18 hereof, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate as of the date first herein written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City ney
6/6/88 JMH 1
THE DENVER AND RIO GRANDE
WESTERN RAILROAD COMPANY
By
C i Engine r
CITY OF PUEBLO
By��
Mayor
6
D. & R. G. W. Form 3339
Rev. 2/88
EXHIBIT "A"
Cer tificate of Insurance
N.,me & Adress To Whom Issued
Tlw Denver and Rio Grande Western Railroad Co.
P O Box 5482, Denver, Coloi ado 80217
This is to certify that the following policy or policies, have been issued by this Companv:
Type of Insurance
Policy
Number
Effective
Date
Expiration
Date
Limits of Liability
Manufacturers' or
Contractors' (Bodily Injury)
SEE ATTA=
s Each Person
S Each Accident
Manufacturers' or
Contractors' (Property Damage)
S Each Accident
S Aggregate
Comprehensive General
Bodily Injury
S Nowam Each Person
Each Accident
A
$ ygregate Products
Comprehensive General
p
Property Damage
$ Each Act :,dent
S Aggregate Operations
$ Aggregate Protective
5 Aggregate Products
S" Aggregat+ Contractual
Automobile (Bodily Injury)
1N1P078068375
2/01/88
2/01/89
_ .qT, Eac h Pr r io n
S Each Accident
Automobile (Property Damage)
1NP078068375
2/01/88
2/01/89
$ included Each Accident
Notwithstanding anything contained therein to the contrary, policy hereinabove referred to is extended
�
to specifically insure liability assumed by g L&M Enterprises, Inc.
under section Isl 11 and 13 of Pipe Line Crossing
Agreement dated June 6, 1988 with The Denver and Rio Grande Western Railroad Company
covering crossing of the Railroad Company's tracks at or about Mile Post 117 plus 3122 feet at Pueblo,
Colorado
In event of any change or cancellation of coverage afforded by this Certificate, at least fifteen (15)
days' advance notice shall be given to Insurance Department of The Denver and Rio Grande Western Railroad
Company, P. O. Box 5482, Denver, Colorado 80217.
Date 9/01/88/cr
m2413 mGF997
Insured Name & Address
L and M ENTERPRISES, INC.
P.O. Box W
U S F &_ INSURANCE COMPAN
(Name of Insurance Company)
By
_ _ - - - -_ —
-- -- - .._ - - * g a ls ISM
ACORD 25-S (11/85) M i IIW vuniwwRD C0R vRA11wN two
�_ (A
CERTIFICATE OF INSURANCE.
ISSUE DATE (MMIDDIYY)
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
Yl e T albert C o r ' I✓ oration
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
1001 Lincoln
P. Box 9 364
COMPANIES AFFORDING COVERAGE
Denver, CO 80209
COMPANY A
LETTER
COMPANY B
INSURED
LETTER
COMPANY C
LETTER
L ana M Enterprises, Inc.
P.O. Box W
COMPANY D
LETTER
Berthoud CO 80513
COMPANY
LETTER
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW °HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS.
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
A TYPE OF INSURANCE POLICY NUMBER DE ( EFFECTIVE FEC n POLICY EXPIRATION ALL LIMITS IN THOUSANDS
A
GENERAL LIABILITY
1 M P 0 7 8 0 b 8 3 7 5
2/
2/01/89
GENERAL AGGREGATE
COMMERCIAL GENERAL LIABILITY
PRODUCTS•COMP/OPS AGGREGATE
$
PERSONAL d ADVERTISING INJURY
,$
CLAIMS MADE 0 OCCURRENCE
EACH OCCURRENCE
$
OWNER'S 8 CONTRACTORS PROTECTIVE
FIRE DAMAGE (ANY ONE FIRE)
,$
MEDICAL EXPENSE (ANY ONE PERSON)
$
AUTOMOBILE LIABILITY
aL
$
ANY AUTO
ALL OWNED AUTOS
t�Ri
SCHEDULED AUTOS
(PER PERSON)
$
�p
HIRED AUTOS
ODENT1
$
NON-OWNED D AUTOS
GAR LIABILITY
�
DAMAGE
$
EACH Af36REOATE
EXCESS LIABILITY
OCCURRENCE
OTHER THAN UMBRELLA FORM
STATUTORY
WORKERS' COMPENSATION
$ (EACH ACCIDENT)
AND
$ (DISEASE - POLICY LIMIT)
EMPLOYERS' LIABILITY
$ (DISEASE-EACH EMPLOYEE)
OTHER
c•
DESCRIPTION OF OPERATIONS/ LOCATIONS/VEHICLES/ RESTRCTIONS/ SPECIAL ITEMS
PIPE LINE CROSSING
CERTIFICATE HOLDER CANCELLATION
THE DENVER AND RIO GRANDE
WESTERN RAILROAD CO.
P.O. BOX 5482
DLNVrR, CO 80217
AUTH D P E
ACORD 25-S (11/85) M i IIW vuniwwRD C0R vRA11wN two
�_ (A