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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 Page 5 of 7 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 Page 7 of 7