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HomeMy WebLinkAbout6750RESOLUTION NO. 6750 A RESOLUTION AUTHORIZING THE EXECUTION OF A PIPELINE AGREEMENT FROM THE UNION PACIFIC RAILROAD COMPANY FOR A SANITARY SEWER INSTALLATION WHEREAS, the Union Pacific Railroad Company, on May 7, 1991, submitted a Pipeline Agreement to be executed by the City of Pueblo; and WHEREAS, upon acceptance of the agreement, the City will remit payment of $3,000.00 to the Union Pacific Railroad Company; and WHEREAS, such agreement is necessary to install a sanitary sewer main in the railroad right -of -way and has been approved as to form by the City Attorney; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The Pipeline Agreement submitted by the Union Pacific Railroad Company, which agreement is on file with the City Clerk, is hereby approved and accepted. SECTION 2 The President of the City Council is hereby authorized to execute the said Agreement on behalf of the City of Pueblo, a Municipal E Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. INTRODUCED May 28 , 1991 By DR. GILBERT GARBISO Councilman APPRO D: President of the Council ATTEST: wo Mi, , I " - ow 01, j WN ' city Cler"A -2- UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT B. W ZANDBERGEN ASSISTANT VICE PRESIDENT ROOM 1100, 1416 DODGE STREET OMAHA, NEBRASKA 68179-1100 FAX (402) 27 October 28, 1991 CITY OF PUEBLO, COLORADO ATTN: JIM DiIORIO 211 EAST "D" ST PUEBLO CO 81003 Gentlemen: J. A. ANTHONY DIRECTOR - CONTRACTS D. D. BROWN DIRECTOR -REAL ESTATE SALES D. H. LIGHTWINE DIRECTOR -FIELD OPERATIONS R. F NIEHAUS DIRECTOR- SPECIAL PROJECTS W. F. SOMERVELL DIRECTOR -JOINT FACILITIES 1371 -59 Attached is the City of Pueblo's original copy of the Pipeline Agreement, fully executed on behalf of the Railroad Company. The Railroad Company has authorized the installation of fiber optic cable facilities on its property in certain areas. Prior to using the Railroad Company's property covered herein, you should thoroughly review the terms and conditions of this document and contact the Railroad Company at 1 -800- 336 -9193 to determine if a fiber optic cable is buried on the subject property. All future insurance notices should be forwarded to: Mr. J. A. Anthony, Director - Contracts Contracts and Real Estate Department Union Pacific Railroad Company - Room 1100 1416 Dodge Street Omaha, Nebraska 68179 In accordance with the terms of this agreement, 48 hours in advance of entering the right of way you should arrange to notify our Superintendent's office: Manager of Administration 201 East 17th Street Cheyenne, Wy. 82001. 307 - 778 -3333 307 - 778 -3202 (Alternate number) \� Sincerel yours, QG�� J. BOBER Contracts - Representative PL E 890708 -Form Approved, AVP -Law PIPELINE AGREEMENT LONGITUDINAL ENCROACHMENT Folder No. 1371 -59 Mile Post 621.14 to Mile Post 621.45, Hoisington Subdivision Pueblo, Pueblo County, Colorado THIS AGREEMENT is made and entered into as of the day of C o , 19 by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the Licensor), and the CITY OF PUEBLO, COLORADO, a municipal corporation of the State of Colorado, to be addressed at 211 East "D" Street, Pueblo, Colorado 81003 (hereinafter the Licensee). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSE FEE. Upon the execution of this Agreement, the Licensee shall pay to the Licensor a license fee of THREE THOUSAND DOLLARS ($3000.00). Article 2. LICENSOR GRANTS RIGHT. In consideration of the license fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate an underground sanitary sewer pipeline encroachment (hereinafter the Pipeline) in the location shown and in conformity with the dimensions and specifications indicated on the attached print marked Exhibit A, dated May 3, 1991. Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article 4. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article 5. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of Contractor's Right of Entry Agreement and understanding of its terms, provisions and requirements, and will inform its PL E 890708 Form Approved, AVP -Law contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article 6. SPECIAL PROVISIONS - INSURANCE The Licensee, at the Licensee's own sole cost and expense, shall provide to the Licensor a Certificate of Insurance certifying to the effectiveness of insurance as follows: General Public Liability providing bodily injury and property damage coverage with combined single limit of at least $400,000 each occurrence, or up to the limits provided under state law, whichever amount is greater, a portion of which may be self - insured with the consent and approval of the Licensor. Such insurance shall be endorsed to provide contractual liability assumed by the Licensee under this Agreement, and that coverage shall not be cancelled or changed without giving thirty (30) days' prior written notice to Licensor, c/o Director - Contracts, 1416 Dodge Street, Omaha, Nebraska 68179. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the date first herein written. Witness: MISSOURI PACIFIC RAILROAD COMPANY Dir ctor - Contracts CITY OF PUEBLO, COLORADO X President of the City Council PL E 890708 Form Approved, AVP -law EXHIBIT B Section I. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, ammn operate, change, modify or relocate railroad tracks, signal, cunication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without li ability to the licensee or to any other party for compensation or da ages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION (a) The Pipeline shall be constructed, operated, maintained repaired, renewed modified and /or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Cannon Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made part hereof, except as may be modified and approved by the Licensor's Assistant Vice Pros ident - Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done under the supervision and to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the licensor, the Licensee shall submit to the licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if an required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Assistant Vice President - Engineering Services of the Licensor and then only under the supervision of the Assistant Vice President - Engineering Services or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time -of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, a11 i expense incurred by the Licensor in connection therewith, which expense shall include all ass gnable costs. (d) The licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before camiencingg any work. In all other situations, the licensee shall notify the licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE 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, relocation, removal or reconstruction of the Pipeline, including, any and ail expense which may be incurred by the licensor in connection therewith for supervision, inspection, flagging, or otherwise. Exhibit B Page I of Me PL E/A Section 5. RELOCATION OR REMOVAL Of PIPELINE (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, move all or any portion of the Pipeline to such new location or remove the Pipeline from such property, as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the licensor shall find such action necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, pproperty and facilities of the licensor, 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 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS (a) fiber optic cable systems may be buried on the Licensor's property Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the licensor at 1-800 -336 -9193 (a 24 -hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Licensor's premises. (b) In addition to other indemnity provisions in this Agreement, the licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorney s fees, court costs and expenses) arising out of any act or omission of the licensee, its contractor, agents and /or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (2) any injury or death of any person employed by or on behalf of any telecommunications company, and /or ts contractor, agents and /or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from 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. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall r y to the Licensor an equitable proportion of such taxes determined by the value of the censee's property upon property of the Licensor as compared with the entire value of such property. Exhibit 8 P 0 a 659n 2 of 4 PL E 890708 Form Approved, AVP -law Section 9. RESTORATION OF LICENSOR'S PROPERTY In the event the licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the licensee shall, as soon as possible and at licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from 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 disturbance of any other property of the licensor. Section 10. INDEMNITY As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, derrends, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: I. The prosecution of any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof; or 2. The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. Section II. REMOVAL OF PIPELINE UPON TERMINATION OF AGREEMENT Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and restoration under the supervision of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH The waiver by the Licensor 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 Licensor to avail itself of any subsequent breach thereof. Exhibit B Paggee 3 of 4 0410n PL E 890708 Form Approved, AVP -Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the licensor, shall terminate this Agreement. Section IS. SUCCESSORS AND ASSIGNS Sub'ect to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. Exhibit 8 04�On4 of 4