HomeMy WebLinkAbout7345RESOLUTION NO. 7345
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION AND THE MISSOURI
PACIFIC RAILROAD COMPANY, AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME,
AND AUTHORIZING THE FILING OF AN APPLICATION
WITH THE COLORADO PUBLIC UTILITIES COMMISSION
FOR AUTHORIZATION TO CONSTRUCT THE IMPROVE-
MENTS CONTEMPLATED THEREIN
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Agreement dated April 11, 1994, between Pueblo, a municipal corporation, and the
Missouri Pacific Railroad Company, a copy of which is on file in the office of the City Clerk (the
"Agreement "), having been approved as to form by the City Attorney, is hereby approved.
SECTION 2
The President of the City Council is authorized to execute and deliver the Agreement on
behalf of the City, the City Clerk is directed to affix the seal of the City thereto and attest same, and
the City Attorney is authorized to file an appropriate application with the Colorado Public Utilities
Commission ( "PUC ") for approval of same and authorization to construct the improvements
contemplated therein.
SECTION 3
Funds payable by the City pursuant to the terms of the Agreement shall be paid from
Account No. 145- 1993 - 308 -0 -40 -8815.
SECTION 4
This Resolution shall become effective upon final passage and the approval of the
Agreement by the PUC.
INTRODUCED: April 11, 1994
ATTEST:
v
Ci Clerk
By FAY KASTFLIC
Councilperson
B YesiVnt of the Q City Council
-2-
EA
809345.PX
Reception #: 1096514 Date: 10/13/1995 Time: 1104 Book: 2837 Page: 362 Chris C. Munoz
Inst: AGREE R Fee: 65.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 16 Pueblo Co.C1k.&Rec.
AGREEMENT allowing the CITY OF PUEBLO permission to be on
and about Railroad property for the purpose of construction,
maintenance and use of a nonvehicular recreation trail between Mile
Post 894.64 and Mile Post 895.85 on the Hoisington Subdivision in
Pueblo, Colorado.
THIS AGREEMENT is made as of the 11th day of
.April , 1994 by and between MISSOURI PACIFIC
RAILROAD COMPANY, a Delaware corporation (hereinafter the
"Railroad ") and the CITY OF PUEBLO, a municipal corporation of the
State of Colorado (hereinafter called "Licensee ").
IT IS AGREED as follows:
Section 1. Right Granted
17-" C-70
A. The Railroad hereby grants Licensee the right,
during the term, hereinafter stated and upon and subject to each
and all of the terms, provisions and conditions herein contained,
to enter upon and have reasonable ingress to and egress from the
Railroad's right -of -way between the Railroad's Mile Post 894.64 and
Mile Post 895.85 on the Hoisington Subdivision at Pueblo, Colorado,
as shown on the attached print dated September 25, 1993, marked
Exhibit A, for the sole and exclusive purpose of constructing,
maintaining and using a 20- foot -wide concrete nonvehicular
recreational trail across Railroad's property and constructing a
10- foot -wide asphalt crossing surface across the Railroad's tracks
for use by pedestrians and maintenance vehicles. Railroad is
agreeable to allowing this operation to be undertaken, providing
the following conditions are met:
B. This agreement and the license and permission herein
granted shall be effective as of the date first hereinabove
written, and shall remain in full force and effect unless
terminated as herein provided.
C. The right hereby granted is subject and subordinate
to the Railroad's use of the railroad's property for railroad and
incidental purposes, and is subject to any and all encumbrances and
rights (whether public or private), irrespective of whether or not
they are recorded, existing at the time of granting said right, and
also to any and all extensions and renewals of said existing
encumbrances and rights. Licensee shall not damage, destroy or
interfere with the property or rights of nonparties in, upon or
relating to the Railroad's said property, unless Licensee, at
Licensee's own expense, settles with and obtains release from such
nonparties on mutually satisfactory terms.
Articles of Agreement
Page 1 of 7
Book: 2837 Page: 363 Chris C. Munoz
Page: 2 of 16 Pueblo Co.Clk. &Rec.
D. The parties agree and understand that Railroad
operations may include blocking the subject crossing for periods of
time as necessary in the normal course of operation. The Railroad
will make reasonable efforts to keep the crossing clear when
switching is not being performed but it shall not be subject to any
liability, penalty or breach of this agreement by blocking the
crossing.
E. Said right is granted only insofar as the Railroad
lawfully may grant the same, and the Railroad makes no covenant or
warranty of title, for quiet possession or against encumbrances.
Said right includes only the Railroad's property identified in
Paragraph A of this section, and no other property; and Licensee,
by virtue of this grant, shall not encroach upon, occupy or use any
other property of the Railroad. Licensee's use of said property
shall be subject to the safety and performance of work provisions
set forth in Section 2 of this agreement.
F. The Railroad grants to Licensee only the right for
the purpose aforesaid, and no interest in land or estate. Licensee
shall not use or permit use of said property or any part thereof
for any other purpose. No nonparty shall be admitted by Licensee
to use or occupy any part of the Railroad's property for any
purpose except as specifically provided for herein without the
Railroad's written consent. Nothing herein shall obligate the
Railroad to give such consent, which, if granted, may be subject to
such terms and conditions as the Railroad, in the Railroad's sole
discretion, may deem to be necessary or convenient. If said
property of the Railroad, or any part thereof, shall cease to be
used for the purposes aforesaid or shall be used for purposes
unauthorized herein, then the right hereby granted as to such
property or parts thereof shall cease and terminate.
G. As compensation for the rights granted herein,
Licensee shall pay the Railroad, in advance, the sum of Two
Thousand Five Hundred Dollars ($2,500.00).
Section 2. Safety and Performance of Work
A. The Licensee shall furnish all labor, material,
equipment and supervision for, and shall install a ten - foot -wide
asphalt surface in the vicinity of Mile Post 894.64 in Pueblo,
Colorado, as shown generally on Railroad's Exhibit A print dated
September 25, 1993.
B. All work by or on behalf of Licensee on the
Railroad's property shall be performed by Licensee at Licensee's
own expense and without expense to the Railroad. All references
herein to work of Licensee shall include such work, whether
performed by Licensee or Licensee's agents, employees or
contractors.
Articles of Agreement
Page 2 of 7
Book: 2837 Page: 364 Chris C. Munoz
Page: 3 of 16 Pueblo Co.Clk. &Rec.
C. Before commencing any such work, Licensee shall give
the Railroad reasonable notice thereof, which notice shall be given
not less than one (1) week, exclusive of weekends and holidays,
prior to the time work is to commence. Railroad's representatives
to be contacted prior to entering upon Railroad's right -of -way is
Superintendent of Transportation Services in Kansas City, Missouri,
telephone (816) 245 -2796, and Manager -Track Maintenance in Scott
City, Kansas, telephone (316) 872 -2002. All of said work shall be
performed at reasonable times and in such manner as not to
endanger, interfere with, interrupt or delay the Railroad's
operations, nor damage the Railroad's property, nor cause injuries
to or death of persons or damage to or loss or destruction of
property of the Railroad.
D. Licensee shall exercise due care to prevent injuries
to or death of persons and damage to or destruction of property for
the safety of whom or of which the Railroad may be responsible, and
damage to or destruction of property of the Railroad. Licensee
shall and does assume all risk of damage to Licensee's own property
and injury to Licensee's own personnel, resulting from or
incidental to the prosecution of said work or from the presence of
Licensee's property and personnel upon or about the Railroad's
property, except to the extent such loss is caused by the
negligence of the Railroad, its officers, agents or employees.
E. . In performing said work on or in the vicinity of the
Railroad's property, Licensee shall exercise special care not to
cause or create instability of rock, earth or other material, or
cause slides of falling rock, earth or debris, nor to damage,
obstruct or interfere with drainage, whether natural or artificial.
F. The Railroad, at the expense of Licensee, which
expense Licensee agrees to pay promptly upon receipt of bill or
bills therefor, shall furnish and station such flagman or flagmen
as in the Railroad's judgment may be necessary or expedient to
protect the Railroad's property and operations at the site of all
such work by Licensee near any track of the Railroad. Licensee
shall not perform any work in the vicinity of any track or tracks
where the Railroad has determined a flagman or flagmen should be
stationed, unless such flagman or flagmen are present.
G. Upon the completion of such work, Licensee shall
restore and leave the Railroad's property in a condition
satisfactory to the Railroad, including filling and leveling of all
holes and pits, if any.
Articles of Agreement
Page 3 of 7
Book: 2837 Page: 365 Chris C. Munoz
Page: 4 of 16 Pueblo Co.Clk. &Rec.
H. Licensee, at its own sole cost and expense, shall
determine the appropriate need for and design of warning signs at
the crossing and shall design, construct and install and maintain
those signs throughout the existence of this crossing. Licensee
accepts full responsibility for the design, construction,
installation and maintenance of such signs or signals and will hold
the Railroad harmless and indemnify the Railroad from any claims of
their inadequacy whatsoever.
Section 3. Claims and Liens for Labor and Material
Licensee shall not permit or suffer any mechanic's or
materialman's lien of any kind or nature to be enforced against the
Railroad's property for any work done or materials furnished
thereon at the instance or request or on behalf of Licensee.
Section 4. Compliance with Legal Requirements
Licensee, in performing the work, shall observe and
comply with all applicable federal, state and municipal and other
laws, ordinances, rules and regulations, and shall apply for and
obtain any and all public authority, permission and licenses
necessary therefor, including any permission or authority from the
Colorado Public Utilities Commission. Licensee shall indemnify and
hold harmless the Railroad from and against any loss, cost, damage
and expense, liabilities, penalties, claims and forfeitures
resulting from any failure of Licensee to comply with the
provisions of this section, or to comply with the requirements of
any public authority, license or permission obtained as aforesaid.
Section 5. Assumption of Risk; Indemnification
Licensee's use and occupancy of the Railroad's right -of-
way is at Licensee's own risk, and Licensee agrees to and does
assume all risks thereof and incidental thereto, including, without
limitation, risks incident to the Railroad's train operations
within the right -of -way. Licensee acknowledges that Licensee's use
of the Railroad's right -of -way permitted hereunder will subject the
Railroad's property and operations to additional hazards and
liability; and, as material consideration for this license,
Licensee shall indemnify and hold harmless the Railroad and other
railroad companies which use the property of the Railroad, their
officers, agents and employees, against and from any and all loss,
damages, claims, demands, actions, causes of action, costs and
expenses of whatsoever nature which may result from injury to or
death of persons whomsoever or from loss of or damage to property
whatsoever (including damage to the roadbed, track, equipment, or
other property of the Railroad and such other railroad companies)
when such injury, death, loss or damage is due to or arises in
connection with or as a result of the use of the Railroad's right -
of -way by Licensee or the agents or employees of Licensee, or by
others with the consent of Licensee, or by the general public, or
by the equipment on the right -of -way with the consent of Licensee,
or the breach of any covenant or obligation assumed by or imposed
Articles of Agreement
Page 4 of 7
Book: 2837 Page: 366 Chris C. Munoz
Page: 5 of 16 Pueblo Co.Clk. &Rec.
on Licensee pursuant to this agreement, or for failure of Licensee
to promptly and fully do any act or work for which Licensee is
responsible pursuant to this agreement, except to the extent such
loss is caused by the negligence of the Railroad, its officers,
agents or employees.
Section 6. Termination on Breach and Waiver of Breach
It is agreed that the breach of any covenant, stipulation
or condition herein contained to be kept and performed by Licensee
shall, at the option of the Railroad, forthwith work a termination
of this agreement and all rights of Licensee hereunder. A waiver
by the Railroad of a breach by Licensee of any covenant or
condition of this agreement shall not impair the right of the
Railroad to avail the Railroad of any subsequent breach thereof.
Section 7. Default
If Licensee shall fail, refuse or neglect to do, keep,
observe and perform each and all of the terms, provisions,
conditions and covenants of this agreement, the Railroad, in
addition to any other rights and remedies the Railroad may have,
may perform any work which in the judgment of the Railroad is
necessary to place the Railroad's property in such condition as
will not menace, endanger or interfere with the Railroad's
facilities or operations or jeopardize the Railroad's employees;
and Licensee will reimburse the Railroad for the expense thereof.
Section 8. Insurance
A. 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 Worker's Compensation Insurance in
statutory limits, and Contractor's Public Liability Insurance
providing for a limit of not less than $1,000,000.00 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
$1,000,000.00 for all damages arising out of bodily injury or death
of two or more persons in any one occurrence, and Property Damage
Liability Insurance providing for a limit of not less than
$1,000,000.00 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 $1,000,000.00
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.
Articles of Agreement
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Book: 2837 Page: 367 Chris C. 14unoz
Page: 6 of 16 Pueblo Co.Clk. &Rec.
B. Regardless 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 the form set forth in Federal
Highway Program Manual, Volume 6, Section 2, Subsection 2, dated
October 25, 1974, issued by Federal Highway Administration, as
amended, on behalf of railroad, in amount of $2,000,000.00 combined
single limit per occurrence for bodily injury, death and property
damage, with an aggregate limit of $6,000,000.00 for the annual
term of the policy; such insurance shall be in the 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 satisfactory to Railroad.
C. Licensee shall further, at its own sole cost and
expense procure and maintain in effect General Public Liability
Insurance providing bodily injury, including death, personal injury
and property damage coverage with a combined single limit of at
least $1,000,000.00 each occurrence or claim and aggregate limit of
at least $1,000,000.00. This insurance shall contain broad form
contractual liability covering the indemnity provisions contained
in this agreement. If coverage is purchased on a "claims made"
basis, it shall provide for at least a two (2) year extended
reporting or discovery period, which shall be invoked should
insurance covering the time period of this agreement be cancelled.
D. The contractor shall furnish to Railroad
certificates) of insurance evidencing the required coverage and
endorsements and upon request a certified duplicate original of any
of those policies. The insurance company(ies) issuing such
policy(ies) shall notify the Railroad in writing of any material
alteration, including any change in the retroactive date in any
"claims made" policies, or substantial reduction of aggregate
limits if such limits apply, or cancellation thereof at least
thirty (30) days prior thereto. The insurance policies shall be
written by a reputable insurance company acceptable to the Railroad
and authorized to transact business in Colorado.
E. Anything in this Agreement to the contrary
notwithstanding, the Railroad has been advised that the Licensee is
self- insured for general public liability insurance for which the
Licensee shall be responsible under this Agreement and arising out
of Licensee's obligations to Railroad under this Agreement.
Railroad agrees that so long as Licensee maintains its self- insured
status, no additional or supplemental insurance coverage shall be
required under this Agreement.
Articles of Agreement
Page 6 of 7
Book: 2837 Page: 368 Chris C. Munoz
Page: 7 of 16 Pueblo Co.Clk. &Rec.
Section 9. Fiber Optic Cable Warning
A. Fiber optic cable systems may be buried on the
Railroad's property. Licensee shall telephone the Railroad at
1- 800 - 336 -9193 (a 24 -hour number) to determine if fiber optic cable
is buried anywhere on the Railroad'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 Railroad's premises.
B. In addition to other indemnity provisions in this
agreement, the Licensee shall indemnify and hold the Railroad
harmless from and against all costs, liability and expense
whatsoever (including, without limitation, attorneys' fees, court
costs and expenses) arising out of any act or omission of the
Licensee, its contractors, agents and /or employees, that causes or
contributes to (1) any damage to or destruction of any
telecommunications system on Railroad's property, and (2) any
injury to or death of any person employed by or on behalf of any
telecommunications company, and /or its contractor, agents and /or
employees, on Railroad's property. Licensee shall not have or seek
recourse against Railroad 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
Railroad's property or a customer or user of services of the fiber
optic cable on Railroad's property.
Section 10. Successors and Assigns
This agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns, but
Licensee shall not assign this agreement or any right hereunder
without the written consent of the Railroad.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed, in duplicate as of the day and year first
herein written.
Attest:
i
�le
MISSOURI PACIFIC RAILROAD COMPANY
By
Title: Assistant Vice President -
Contracts and Real Estate
CITY OF PUEBLO
By
/ TA tld:
Pursuant to attached XKKIINOW
Resolution dated April 11 , 19 94
Articles of Agreement
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