HomeMy WebLinkAbout2001 Resolution No. 047• I
RESOLUTION NO./[)
SERIES OF 200 I
A RESOLUTIO N APPROvlNG AN AGREEMENT FOR THE GRANTING OF A
LICENSE BY UNION PACIFIC RAILROAD COMP.-\NY TO THE CITY OF
ENGLEWOOD FOR THE BIG DRY CREEK TRAIL.
WHEREAS , the City ,s cooperating in an intergovernmental effort to comp lete the
Bi g Dt)" Creek connectio n from Belleview Park to the Platte River Trail; and
WHEREAS , as part of the imp lementation of this project the City Council of the
City of Englewood a pprove d Ordinance No. 2, 2000. in which the City accepted t he
property from RBI : Ord. 63. Series of 2000, in which tbe City accepted property from
King, and Ord. 65 , Series of 2000, which granted a Co nstruction Easement for the Big
Dry Creek Trail; and
WHEREAS, the prop011ed Big Dry (\·eek Trail ccnstruction plans require a tunnel
beneath the Union P acific Railroad Compa ny Right-O f-Way for the rail line ; and
WHEREAS, Union Pacific Railroad Company is willing to grant a license to the City
to allow for co nstruction of that tunn el across its Rig ht-Of-Wa y; and
WHEREAS , the cost of this license will be paid by the South Suburban Parka
Foundation.
NOW, THEREFORE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD , COLORADO, AS FOLLOWS :
~-The License Agreeme nt between the Union Pacific Railroad Company
and the City ofEnglewood. pertaining to the Big Dry Creek Trail, attached hereto, is
hereby accepted and approve d by the City Council of the City of Englewood.
~-The Mayor is authorized to e:<ecute and the City Clerk to attest the
L..,,L;1 se Agree ment fo r and on behalf of the City of Engl ewood .
;.!!OPTED _-\!'\jl) APPRO VF!J this 18" day of June, 2001.
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LICENSE FOR BICYCLE AND PEDESTRIAN
TRAIL CROSSING ON RAILROAD PROPERTY
Folok ,No.: 1112-62
IBIS AGREEMENT is made this .if...~ of~/ -, 2001, by and between UNION
PACIFIC RAILROAD COMPANY, a Dclaw~ ("UP") and the CITY OF
ENGLEWOOD, a municipal corporo lion of ".he Stale of Colorado ("Licensee").
IT IS AGREED as follows:
Section 1. RIGHT GRANTED.
a) In considenuion of a one time license e fee in lhe sum of SLX THOUSAl~D TWO HUNDRED
SEVENTY DOLLARS (S6,270 .00) lo be paid by Licensee 10 UP, upon 1he execu1ion and delivery of this
Agreement , the payment of the costs nnd expenses to be incurred by UP and/or Licensee pw-suanl 10 this Agreement,
and subject to the terms and conditions of this Agreement, UP hereby grnn1s 10 Licensee, its successon :ind assigns,
a license to construct maintain, use, repair, renew and reconstruct a public pedestrian and bicycle trail on, along and
under UP's right-of.way tracks at UP's Mile Post 9.19 on UP's Co lorado Springs Subdivision .it or near Englewood.
Anpahoc County, Colorado, in the location shown on the print dated May 31 , 2001, mad:eJ Exhibit A. and per
details as shown on the prints marked E1hlblt B, all attached hereto and hereby made a part hereof (hereinafter the
''Trail" or the "Property"), The Trail shall also consist of a galvllllizcd chain link fence at least six (6) feet high
along both sides oflhe Trail.
b) Licensee, at its sole cost and expense, will construct. maintain, re pair, renew and reconstruct the Trail and
all other nccessury fa ci lities , structures, appurtenances, warning signs, stop signs, fencing and concrete encasement
protection covers on the Property , and/or on adjacent UP right-of-way or Licensee's 11.djacent propeny, in
compliance with all design and construction specifications and r;ans that have been reviewed and :1pproved by UP .
c) Licensee , :lt its so le expen se, agrees to patrol, or cawe the Trail to be patroll ed by police officers with
lawful citation authority, and to vigorously enfo rce the prohibition agninst tn:spass ofUP's :adjacent light-of-way.
d) Licensee, 11.t its sole expense, shall promplly remove any g!"l niti thut the Trail users m11y paint or place on
UP's bridge structure or other property.
e) Licensee wi ll comply with all federal, state aml local laws, ordinances, rules and regulations which are
:applico.ble to the use, management and maintenance of the Trail.
f) The rights granted herein arc made subject to and subordinate to the prior and continuing right and
obligntion of UP , its successors o.nd assigns, to use all of the tracks and property underlying and above the Trail in
the performance of its duty as a common carrier, and thtrc is reserved unto UP, and its successors and assigns, the
right (consistent wi th the rights granted herein 10 Licensee) to construct, reconstruct. maintain, repair, use and
operate existing or future 3ddi1ional railroad tr:ick.s, track nppunemmccs , fiber optic or signal lines and facilities ,
pipe , and wire li nes over, under and across the Propeny.
g) The rights gronted herein are granted only insofa r as UP may lawfull y gr:int the same and UP makes no
covenant or warranty of title, or for quiet possess ion or ag11.inst encumbrances. No damages sho.11 be t:r:overnb le
from UP because of any dispossession of Licensee or bec:mse of failure of, or defect. in UP's title to the hopcrty.
The rights granted herein are also subjccl to any and all outstanding or existing lic e ses, leases, e3.Sements,
restrictions, conditions, covenams, claims of title o.nd other right= (w hether public or pri vate and whether recorded or
unrecorded) including, but not limited to, those for communica11o n, pipeline and wire line facilities and also to any
and all extensions and renewals !hereof. The Licensee shall not damage, destroy or interfere with the property or
right of nonp artics in, upon or relating to the Property, un less Licensee at its so le expense , settles with and obtains a
release from such nonparti es on mutuall y satisfac tory t~m,s.
1882 -6 2 C11yorEn1lewood, CO-Bia
DryCrttkTl'1.il UndcrCrouin1
P:asc l May Jl,2001
h) Llc:cnsce, by virtue of this granl , shall not encroach upon, or occupy or use any other property of UP,
extcpt a,; requil'fit for the consttuction of 1hc Trail, :ind empl;acement and maintenance of 1hc fencing, concrete
J)fOlct ll ve covers 1111d other items as herein required .
i) UJ'I grants 10 Licensee only the right for the purposes 11forej»Jid and Licensee shall not use or permit use of
1h~ Property for any odter purpose .
j) To enable UP to pcrfonn construc1ion, operation or maintenance work on its tracks, track appurtanances,
ri1i l11 of wiay, bridge, embankments, or other improvcmcnls on the Property, from time to time as UP, in its sole
d11cret1on may deem necesswy or convenient. UP may temporarily close the Trail after reasonable notice 10
Llccruce , unless such work is an emergency nalUre in which event UP may close 1he Trail without prior notice to
Licensee , In the event of such an emergency, UP will immediately notify Licensee .
k) If the righ t gnm ted herein shall re su h in a substantial operat ional or safety problem for UP , then the panics
shall negotiate in ,11ood foilh to reso lv e such problem to the mutual sa tisfaction of the panics.
I) Fiber opti c c:ible sys tems may hr buried on UP's right-of-way . Prote ction of the fiber optic cable system is
of cxireme im pon:ince since any break could disrupt service to users resulting in business interruption and loss of
revenue and protilS . Licensee, or its contractors, shall telephone UP during nonnal business bour.i (7:00 a.m. to 9:00
p.m., C<ninl Tim<, Monday throui;h Friday, except for holidays) at 1-8()().336-9193 (also a 24-bour seven day
number for cmrracncy coils) to de1ennine if fiber optic cable is buried anywhere on lhe right-of-way to be u.,cd by
Licensee . If it is, Licensee, or its contractors, will telephone the telecommunications cornpany(ics) involved,
amnae for a cable locat"lr, and make arrangements for relocation or other protection of the fiber optic cable prior to
bcgiMing any work on lhe right-of.way .
Section 2. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT: FLAGGING .
a) The Li~rnsee continns 1h11.t all work described herein, will be performed by a contractor or contractors
hired by the Licensee . The Licensee agrees to require each of its contractors, (and their respective subcontrllctors),
10 execute UP's fonn of Contractor's Right of Entry Agree!:',ent that is mark:cj i:.xhiblt C, hereto attached and
hereb y made a part hereof, ond to provide UP the ins urance binders or certificates set fo:th in Exhibit A-1 of the
Contracmr's Right of Entry Aarecmcnt before commencing any work rm any UP property .
b) The Licensee shall al10 require ill eontractors/subcontraclu,, to perfonn their construction work in such a
manner so as ""' to eP'lanaer or deh1y the m.3vemen: of trains , engi 1es or cars of UP, and so as not to injure or
endanger UP's offir.cn, !lqents, employees '>r duru11e ti-cir property. The Licensee shall also require its
contrilctors/subconu1c1ort110 givr precedence to th'! mJvemcnt of trains , engines and cars of UP, over the movement
of vehicles or equi:,mer , constru c1ion ac 1ivitlc.'! -:,f 1hc Licensee's contr..~tors/subcontractors .
c} If at ony time durin& th e consuuctlon of the Trail, L'P deems it necessary that flaggin e protection is
necessary , rucl.' n11n1ng shall be provided by UP at no cost to UP as set forth in the Contractor's Right of Entry
Agreement Jcscribco n Sec uo n 2A abov e.
Section 3.
1) To the e-xtent pennnted by Co lorado law , Licensee !hall save, protect. defend, indemnify and hold
hannless UP, and its respective affilhues, and lhe ir respective officer:., agents and employees, against and from any
and all liability, loss, dam:igcs, ch1im1, demands, co sts and expe01cs, fines and penalties of whatsoever nature,
including co un cos1s and anome y's fees, ans mg from am; growing out of any injury or death of persons
whomsoever (including officers , agents and employees of UP or 1he Licensee :md of any contractor as well as other
persons) or lo ss of or damnge 10 property wha tsoe ver (mcluding property of or in the custody of UP , the Licensee or
any contrac tor as we ll :is oth er property). Licensee's obli y:11.1 ion re indemnify shall accru e. when suc h injury , death,
loss or damage occu rs or 11rises from Licen see's or the general public's use of the Property and Tr:iil, or :i breach of
this Agreement , or any use or misuse of 1he Propert y tind Trail , including siruations when individuals used such
Property :md Trail 10 obt:un :1cccss to any othe r n:;lu -of-way or property of UP.
1882~2 City of En1lcwood, CO -Di&
Dry Crtek Trail Under Cnwm1
P:1102 MayJl ,2001
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Section 4. TERMINA TIONj W AIYER OF BREACH; TERM.
a) UP may terminate this Agreement by aiving Lice nsf"e notice of temtlnation if Licensee defaults under any
obligation of Licensee under this license and 1 if after wrinen uotice is given by UP to Licensee specifying the
default, Licensee fails either to immedi11tely beain to cure the defaul~ or to complete the cure expeditiously but in
any event within thirty (30) days 11fier the d-:fuult notice is given . A waiver by UP of a bre11ch of Licensee of any
covenant or condition of this Agri:ement shllll not impair tlte right of UP to avail itself of any subsequent breach
thereof.
b) UP may also terminate this Agreement by gi vi ng written notice to Licensee if safety lllld operational needs
of UP :ire mo.tcrially affected or impaired by Licensee's use of the Property, and UP and Licensee cannot come to
any mutunl obrecment or under~t:mding BS to how Licemel!, at Licensee's sole cost and expense , will elimin ate such
material effec: 0 1 impilinnent.
c) This Agre-:mcnt a,!rt 1he licen se and pem1ission herein gn.n1ed shall be effective as of the date first herein
written, and shnll rca~tain in full force llitd effect until 1crminated as herein provided, or until the Property and Trail
are abandoned as set fMth in Section 5 below.
Section S.
If Licensee, its succ ,·ssors 1md ass ig ns, shall .ibandon the Trail and Property, or any portion thereof, for the
purpose set forth herein for a ,·o nl inuous period oftwdve (12) months, then this Agreement and the-:":~hts granted
herein shall cease i1Utom11.1icall)· and tenninate with r~spcct 10 the portion of the Property so abandoned.
Section 6. REMOVAL OF TRAIL UPON
TERMINA TJ, JN OR ABANDONMENT .
Within ninr,ty (90) da ys after termination of this Agreement or Licensee's .iba.ndonment of the Trail and/or
Property, the Lir.ensee, at its sole ,:ost and expense, shall remove all of the Trail improvements from the Property or
adj.icenl UP right-of-way and reshlrc the Property and such right-of-way to its original condition, failing in which
'UP may perform such activities at the expense of Licensee .
Section 7.
Any notices required or desired to be given under this Agreement shall be in writing and personally servcdi
given by overnight express delivery, or given by mail. Telecupy notices shall be deemed valid only to the extent
they IU'e (a) aclUA!ly received by the individual to whom addressed, and (b) followed by delivery of actual notice in
the manner described above within three (3) business days thereafter. Any notice given by mail shall be sco~
postage p.epaid, by ccnified mail, return receipt reques1ed, addressed to the party to receive at the following address
or nt such other address as the party may from rime to time direct in writing :
UP : Union Pucific Railrond Company
ATTN : Director-Contracts
Real Estite Dcp:inment
1800 Farnam Street
Omaha, Nebnska 68102
Facsimile : (402) 997-3601/3602
Licensee : City of Euglewood
A 'ITN : Parks & Recreation
3400 South Eloti Sttw
Englewoof, Colorado 80110-2304
Facsimile@3 03) 761.-2320
Express delivery noti ces shall be di:emcd to be given upon receipt. Postal notices sh all be deemed to be given three
(3) d.iys after deposit with the Uni 1ed Sia.le~ Postal Service.
Sectio n 8. SUCCESSO 1(S AND ASSIGNS.
This Agreement sh:i:l be bind ing upon and inure to 1he benetil of the pnnies herc10 , their successors and
ilS->igns, but Licensee shall 1101 assign 1his Agrecmen1 01 any ngh1s hcrcm to any party with out the prior wrinen
consent of UP.
1882-62 Ci1y of Englewooc.l, CO -Big
Ory Creek Tnil Under Cros1i n1
Miyll,2001
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IN WITNESS WHEREOF, lbe pa~ics herelo bave callffll this Agm,r .. n1 tr. be executed in dupli~ u of
the day and ycur firsl above written.
WITNESS :
B y _______________ _
Pursuant to Aull,ority Provided in City
Resoluti on No . __ 47 _____ _
dated uwie 18, 20ul
I S82-62 City of Ena le wood, CO -Big
DryCrtekTnil UndcrCm~in1
Pagc4
UNION PACIFIC RAIROAD COMPANY
By ______ A~Vl'~-REA=L-ES=TAT-"E~-----
CITY O.f ENGLEWOOD
·:.~/b;,_
~-by 31,2001
'#KENYON
WORK TO BE PERFORMED:
Propo sed construction of an underpass pedcs1rian cross ing fo r
1he Big Ury Creek Trail Project
Sla-.1 l)im.
IA.• t TLETON '1
SLOGAN\
EOR.tiVES
• u, W SH EPP'ER O E O KA.RO LN
~~!P Sp~ { fAIRLN
EXHIBIT A
UNION PACIFIC RAILROAD COMPANY
COLO RADO SPRI NGS SU BDI VISION
MILE POST 9.20
GPS: N 39' 37.751°, W 105'00.lll°
ENGLEWOO D, ARAPAHOE CO .. CO .
Hlusm1uvc prin1 showi ng loc:ltion of an undL-rpass pedestrian cms..ing
consuucuon proJctl with the CITY OF ENGLEWOOD .
Fold1..-r No. 18 82-62 Du11:: May J I, 200 1
WARNING
IN All OCCASIONS. U ,.C'OMMUHICATIONS DE l'ARTMEJlT MUST B£CO' TACT£0 IN ADVA1'iCE Of
AJl<''WOU 10 Dl!TElMINE f.JCtSTENa ANOLOCATIOHOFFIB Ol'HCCAILE.
l'HON£.l~lllMl9l
CONSTRUCTION DRAWINGS FOR
BIG DRY CREEK TRAIL IMPROVEMENTS
PHASE 1 -S. WN>ERt.EAE ST. TO S. SANT A FE DRIVE
SOUTH SUBURBAN PARK AND RECREATION DISTRICT
ENGLEWOOD, COLORADO
PRAJUNG INDEX
L com SHEET
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1 T1WL l'WI
4. TIWL SICTIONS
5. TlUll. SICTU>NS
8. LOI WA.TEI CROSSIHC DETAD.3
7. LOI l'.m:I CJIOSSDfG D&'l'!ll.1
a IWU!OAD UHDDP.ASS lltTAD..!
,. 1asca.uur.oos tcrJILS
JO. 1DfCI .um mcr:u.tJiJX)IJS DEJ'.ULS
FEBRUARY 2000
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Sl=:...: .. --..-::-~-:..-
_.__,,.
IIC.UIUl••IEIOCD&.UI
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EXHIBIT B
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south suburban park and recreation district •
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EXHIBITC
Exhibit C shall be the Contractor's Right of Entry Agreement to allow the Contrn ctor to construct the
pedestrian and bicycle trail upon. over and/or under the Railroad Company's property .
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R.0.Uhricl'I
A&llt1an1VlcePr111den1
J.A.-
OnciOf-O)l'llractl
0.0. B1own
Onc:tor·RellEttlte
M.W.Cu.y
Gtntral OlrtcU>f•SC>tdal P,operUet
J.P. Gade
Olrecior•Facility Managem.nt
To the Contractor:
UNION PACIFIC RAILROAD COMPANY
Real Estate Department
1800 Farnam SltMI
Omtha, Ntbtuka 68102
Fax: (402) 997-3601
May 31, 2001
J.LHawkm
Dnaot-Oplradons Support
M.E.HMMn
Olrtctor·Admlnlslrallon & &dgell
O.H.~
Onctot·AHI Estala
T.K.UM
Dnclor•Rtal Estala
Folder No .: 1882-62
Before Union Pacific Railroad can pennit you to perfonn work on its propeny for the ins1alfotion of a bicycle :ind
pedestrian trail underneath o. Rnilroad bridge, it will be necess;iry to complete two originals of the enclosed Right of Entry
Agreement as follows :
1. Fill in the complete legal name of the contractor in the space provided on Page I of the Contractor's Right of Entry
Agreement. If a corporation , give the state of incorporation. If a partnership, give the names of all partnen.
2. Fill in the date construction will begin and be completed in Anicle 5, Paragraph A.
3. Fill in the name of the contractor in the space provided in the signature blxk at the end of the Contractor's Right of
Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate
officer.
4. Return all copies of the Contrac tor's Right of Entry Agreement together with your Cenificate of Insurance as
required in Exhibit B• I, in the attached , seJf.addressed envelope .
5. Check made payable to the Union Pacific Railroad Company in the amount of $S00.00 . If you require formal
billing , you may consider this letter as a fonnal bill . In co,npliance with the b.temal Revenue Services' new policy
regarding 1heir Fonn 1099, I certify that J3.640Q825 is the Railroad Company's correct Federal Taxpayer
Identification Numbe r and that Union Po.cific Railroad Company is doing bwiness as a corporation.
After approval of the Right of Enny Agreement and insurance certificate , one fully executed counterpart of the
agrecmen1 will be rcrumed 10 you. In no event should you ..,:gin work until you have received your counterpart of the fully
executed agreement.
Under ~xhibit s.1 of the enclosed Con tractor's Right of Entry, you arc required 10 procure Railroad Protective
Liability Insurance (RPLI) fo r the duration of th is project. Union Pacific is making this coverage available 10 you and if you
ii.re interested in ac quir. :g !his cov erage from the Railroad. please contac t Ms . Judi Scott a1 (402) 271•22 15.
If you have any que stio ns co ncerning the agreement, please contact me al (402) 997•3620. Have a safe day!
Sincere!y,
PA UL G. FARRELL
MANAGER CONTRACTS
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CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of ______ ~ 2001 ,
by and bc1>.·ccn UNION PACIFIC RAILRJAD COMP ANY , a Delaware corpo11tion (hereinafter
referred 10 as the "Railroad"); and ________ --=-:----:-=----,---------~
(Nam,, o/Ccn:•actor)
_____________ corporation (hercinafkr 1derred to as .he "Contractor").
(Contractor's corpora te stallls)
RECITALS :
Contr.tctor has been hired by the City of E1tglewood (hereinafter "City") to perform work relating to the
construction of a recreational trail on Railroad's right-of-wuy and under Railroad's tracks at Railroad's Mile Post
9.19 on the Colorado Springs Subdivis ion at or near Englewood, Arapahoe County, Colorado, which work is subject
toa
Contract dated _____________ between Railro ad and City.
(Date of Pedestrian/Bicycle Trail Agreement)
Contractor h3S requested Railroad to permit it to perform the work on Railroad property, and Rcilroad is
agreeable thereto, subject to the following terms and conditions .
AGREEMENT:
NOW, THEREFORE, it is mutJ:dly agreed by and between the Rnilroad and Contractor, as follows:
ARTICLE I -DE:<'INITION OF CONTRACTOR
For purposes of this agreement, all references in this agreement to the Contractor shall include the
Contractor's co--tr.tctors, subc ontrac tors, officers , agents and employees , and othen act ing under its or their
authority .
ARTICLE 2 • RIGHT GRANTED; PURPOSE
The Railroad hereby grants to the Contractor the right, during the lenn hm:ina.~cer stated and upon and
subject 10 ea ch and all of the tenns , provisions and conc!itions herein contained, to enter upon and have ingress to
and egress fr om the propeny desc ribed in the Recitals for the purpose of performing any work described in the
Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically
dcscnbcd herein, or as designated by the Railroad Representative named in Article 4.
ARTICLE 3-TERJIIS AND CONDITIONS CONTAINED IN EXIIlBITS A AND A-I
The terms and conditions contained in Exhibits A 11nd A-I, attached hereto, are hereb y made a part of this
agreement.
ARTICLE 4 -ALL EXPENSES TO BE BORNE llY CONTRACTOR; RAILROAD REPRESENTATIVE
The Contracto r shall beu :u ,y and all costs and expenses associated with an y work performed by the
Contractor , or o.ny costs or expenses ir,curred by the Railroad relating to this o.greement. All work performed by
Contractor on R:iilroad's property shaii be pcrfomtcd in a maM:r satisfactory to the Railroad's Manager of Track
Maintenance or bis authorized reprcsc:n!ative (hereinafter the "Railroad Representative") identified below :
1882-62 CROI!
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Blcycle&-..TT111°"""'1CROE 0I0lll
• Ponn App,oved, A VP-Le.w
John G1timez
Mnnaee, Track Maintenance
Union Pacific Rai 'road Compan y
1400 West 52nd Avenue
Denver, CO 80221
Pbone : (303) 812-2433
FAX : (303) 812-2772
ARTICLE 5 · TE RM; TERMINATION
Folder No.: 1112-62
a) The grant of right herein made to Contractor shall commence on the dale of this agreement, and continue
until --~--~---~ unless sooner terminated a~ herein provided, or at such time as Contractor has
(Expirar:;n Dare)
completed i1s work on Raih .~::i.d's propeny, whichever is earlier . Contractor agrees to notify the RD.ilroad
Representative in writing when ·, has completed its work on Railroad property.
b) This agreement may be terminated by either party on ten (10) days wrinen notice to lhc otherpwty.
ARTICLE 6 • CERTinCATE OF INSURANCE
a) Before commencing uiy work. Contractor will provide Railroad with a Certificate issued by its insun::i.ce
carrier providing the ;nsur .. ncc covcra"e required pursuant to Exhibit A•l of this agreement in a policy which
contains the follt1wing type of endonement:
Union Paci':ic Railrond Company is named as additionnl in.sured with re spcc~ to all liabilities
nrising out of lnsured's, as Contrac tor, performance of 31' ~• ".'O rk on the property of the Railroad.
b) Contractor wlllr.lots that this agree.nen: J,,_;_. ocen thoroughly reviewed by its insurance a.gent(s),l u ,,\:er(s)
and that said agent(s)/broker(s} has been mstr:ic1ed to procure insunmce coverage and an endorsement as re(utrCd
herein .
c) All insurance correspondence sh.,11 be directed to :
Folder No .: 1882-62
Union Pacific Railroad Company
Director • Contrncts
Ann: Paul Farrell
1800 Farnam Street,
Omaha, Nebrask• 68102
ARTICLE 7. CHOICE OF FORUJII
This agreement sh3ll be governed, construed and enforced in accordance with 1he laws of the state of
Co lorado . Litigation arising out of or connected with this agreement may be instituted and 1r.aint11incd in the courts
of the state of ?vebraska and Colorado only, and the parties consent to jurisdiction over their person 3nd over tl-:,e
subject matter of any such litigation, in those co urts , and consent to service of process ;ssued by such courts .
ARTICLE 8 • DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE
At the request of Railroad, Contractor sha ll remove from Railroad property any emp loyee of Contractor or
any subcontractor who fails to conform to the instru ctions of 1he R:iilro:id Representati\'C in connection with the
work on Railroad's property, :ind any right of Contractor shall be suspe nded unul such removal has occurred.
Contractor sha ll indemnify Railroad agt1inst any clamu arising fr om the remova l of any such employe e from
R.ilrood property .
1182-0ZCROE Pagt 2 Mayll,2001
•
l'olderNo.: 1112.a
ARTICLE 9 • ADMINISTRATIVE FEE
Conrnctor shall pay to Roilroad FIVE HUNDRED DOLLARS ($500.00) u re1D1bunement for clerical,
administrative and handling expenses in coMcction with the proccuing of this 11grcement
ARTICLE 10 • SPECIAL PROVISIONS
a) No additional vehi cular crossings (including temporary haul roads) or pedestrian crossings over Railroad's
trackage shall be instolled or used by Contractor without the prior written pcnnission of Railroad.
b) Explosives or other highly fl:inll1lllb !e s'Ubstanc1'! shall not be stored on Railroad propcny without the prior
written approval of the Railroad Representative.
IN \VITNESS WREREOF, the parties hereto have executed this agreement in duplicate as of the date first
herein written.
(Name o/ r ontractor)
By ____________ _
Title: _____________ _
Ui,. 'lN PACIFIC RAILROAD COMPANY
By ___ ~M~A~NA~G~E=R~CO~NTRA=~crs=----
1182-62 CROE Pase J MayJl ,2001
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QUINN -~i ~OGEMORE i -;--' -'
~ W !lvrgERs -
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LOCATION OF NEW
BICYCLE & PEDESTRIAN TRAIL
CROSSING CONSTRUCTION
PROJECT
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OXFORD
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WORK TO BE PERFORMED :
Proposed construction of an underpass pedestrian crossing for
the Big Dry Creek Trail Project .
EXHIBIT A
UNION PACIFIC RAILROAD COMPANY
COLORADO SPRINGS SUBDIVISION
MILEPOST9.20
OPS : N 39° Ji.i ll', W 105'00.lll'
ENGLEWOOn. ARAPA,IOE CO ., CO.
ll iu smuivc pnn1 showing location or an underpass pedcsrrian crossing
construction project with the CITY OF ENGLEWOOD.
Folder No , I 8J2-62 Do.te : Mt1.y JI, 200 I
WARNING
IN AU. OCCASIOt.'S, U I' COMJ.IUNICA TIONS DEl'AlTMENT MUST a& CONT ACTED Di' ADV ANC6 IJF
A'HY WOll 10 OITUMl'HE 6XISTE1<1 AND l.OCAT10NOI' P11U Ol'TIC CABUl
l'HO!'I!. 1-(IOOl l >MIH
ElllillllI..A
IO CONTRACTOR'S RIGHT Of ENTBYAGREEMOO
Section I. NOTICE Of COMMt,NCEMENTOF WORK -FV,GGING .
a) The Contractor agrees 10 notify the Railroad Representative at least IO working days in advance of Contractor commencing
Its work and al least 5 working daya In advance of proposed perfonnance of any work bot the Contractor ln which any person or
equipment will be within 25 feet of any track. or will be neor enough to any trock that any equipment extension (such as, but not
limited lo, a crane boom) will reoch to within 25 feet of any track. No work: of any kind shall be performed, and no person. equipmenL
mochlnery, tool(s), material(,), vehlcle(s), or thlng(s) shall be located, operated, placed, or stored within 25 IHI of any of Railroad'•
track(s) at any time, for any reason. unless and until a Railroad flagman Is provided to watch for trains. Upon receipt of such S-day
notice, the Railroad Representative will determine and infonn the Contractor whether a flagman need be present and whether the
Contractor need lmplemenl any speclal protocllve or safety measures. If flagging or other special protective or safety measures are
performed by the Railroad. such services 'Nill be provided al Contractor's experae wilh the understanding that U the Raihoad
provides any flagging or other iervices, the Contractor shall not be relieved of any of Its responsibilities or liabilities set forth herein.
Contractor shall promptly pay to Railrood all charges coMected with such services within 30 clcrJs after presentation of a bill therefor.
bl The rate of pay per how for each man will be the prevailing howly rate in efiect for an e ight hour day for lhe class of men
used during regularly assigned hows and overtime In accordance with Labor Agreements and Schedules In effect at the lime the
work Is performed. In addition lo the cost of such labor, a comj'X)sth.' charge for vacation. holiday, health & wellare, aupplemental
sickneos, Railroad Retirement & UC, supplemental pension, Empl. Uabllity & Property Dam:,ge and Admfnlatratlon wtl1 be Included,
computed on actual payroll. The composite charge will be the prevaillnq composite charge in effect on the day of execution of 1his
agreement. One and one-half times the current hourly rate Is paid for overtime, Saturdays and Sunday,,; -and one-hall limes
current howly rate for holidays . Wage rates are subject lo change, at any time, by law or by agreement between the railroad and Us
employees, and may be retroactive as a result of negotiatlona or a ruling of an authorized Governmental Agency. Additional charges
on labor are also :subject to change. If the wage rate or additional charges are changed. the Contractor shall pay on the lx:tsls of the
new rates and charges .
c . Reimbursement to the Railroad will be required covering the full e'9ht hour day during which any flagman Is
furnished., ur,!•J :ss he can be assigned to other Railroad wed: during a portion of such day. in wh-ch event relmbursement will not be
•
roquired. for the portion of the day during which the flagman Is engaged In olher Railroad work. flelmbursement will also be required
for any day not acluolly worked by sold flagman following hi, assignment to work on lhe prcj,,cl for wbfch the Railroad Is ~ to
-p<r/ the flagman and which could not reasonably be avoided by the Railroad Company by assignment of such Oagmon to other work
, even though the Contractor may not be work:ir..g dwing such time.
Section 2. LIMITATION AND SUBORDINATION Of RIGHTS~
a . The foregoing grant of right 111 subject and subordinate to the prior and continuing right and obligation of the
Railroad to use cmd maintain Its entire property including the right and power of the Railrood to construct. maintain. repair, renew,
use. operate, change, modify or relocate railroad tracks, roadways, signal, communication. fiber optics, or other v.irelines, pipelines
and other fac ilities upon , along or across any or all parts of its property, all or any of which rrv::ry be freely done at any tlrne or times by
!he Railroad without lia bilily to 1ho Licensee or to any other party for compensation or damages .
b. The foregoing grant is a lso subject lo all outstanding SUf"9rior rigti~ (including those ln favor of licensees and
lessees of the Railrood's property. and others) and the right of the Railroad to ren JW and e,1.-. ,rl Lli.e same, and Is made without
covenant of title or for quiet enjoyment.
Section 3. NO INTERFERENCE W!Tii RAILROAD'S OPERATION .
No work per!ormed by Contractor shall cause any interference with the constant. continuous and unintenupted use of the
tracks, property and facilitie ~ of the Railroad Us lessees. licensees or others. unless specifically permitted under this agreement, or
specifically authorized. in advance by the Ra ilroad Representative. Nc thing shall be done or suffered. to be done by the Contractor at
any time that would in any manner unpair the safety thereof . When not in use, Contracto r's machinery and materials shall be kept at
least SO feel from the centerli ne of Railroad's :-:earest track, and !here shall be no vehicular crossin gs of Railroad's track.:s except at
exi:sling open publ!c cross ings.
Section 4. MECHANICS LIENS .
•
The Cont racto r shall pa'/ in ful l all persons who perform la bor or provide matarials fo r the .,,-erk to be performed by
Contractor. The Contractor ohall not creat e, permit or suffer any mechanic's or mat&rialmen's liens of any kind or nature to be
creo1.ed or enforced. against any property of the Railroad fo r any such v.-ork performed . The Con1toctor shall indemnify and hold
harmless the Railroad from and against any and a ll liens , claims, demand:s, costs or expenses of wha tsoever nature in any wa"f
connected with or grov.ing oul of such work dor.e, labor performed, or materials furnished .
G:\share\eshibiib\b1kepedxc ore .exb Page I Exhibit B
BIKBAl'IIDTRAJLXCROUXll 010115
Form Approved, A VP-Law
Secllon S, PBOTECDON OF F!BER oenc CABLE SYS'IU!lS ,
a . Aber optic cable systems may be buried on Iha Ra!lroad'a property . Protection of the fiber opllc cable system, t, ol
·extreme lmportance since any break could dlsrupt aeMCa to users resulUng In l:,u1inea1 lnlerruptlon and lo■a of revenue and profi11.
Conlraclor shaU telephone the Railroad during normal bu1lne11 hours (7 :00 a.m. lo 9:00 p.m., Central Time, Monday through
Friday, except for h0Uday1) at 1-800-336-9193 (also a 24-hour seven day number for emergency caU,) to determine U flbor opllc cable
1' buried anywhere on the Railroad', premlaea 10 be used by the Conlraclor. If 1111, Contractor will telephone the telecommunlcatlona
company(lesl involved, arrange for a cable locator, make ammgement1 for relocation or other protection of the fiber opt1.c cable, and
will commence no work on the right of wa'f until all such protection or relocation has been accompliahed.
b. In addition lo other Indemnity provisions In lhis Agreement, the C<-ntraclor shaU lndemnlfy and hold Iha Railroad
hannless from and againat all coats. liablllty and expense whatsoever Uncludlng, without llmitaUon. attorney,' fees, court costs and
expenses) arising out of any act 01 omission of the Contractor, its contractor, agents and/or employees, that causes or contributes to
(I) any damage to or destruction of any telecommunications system on Railroad'e property, and/or (2) any injury to or death of any
person Amployed by or on behalf of any telecommunications company, and/or Its contractor. agents and/or empk,yees, on Railroad'•
property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profit r or
revenue or loss of service or other consequential damage lo a telecommwlicat!on company using Railroad's property or a customer
or user of services of the fiber optic cable on Railroad's property.
Section 6. COMPUANCE WITH v,ws.
In the prosecution of the work covered by thi! agreement, the Contractor shall secure any and all necessary permits and
ahall comply with all applicabl9 federal stale and local laws, regulations and enactrr.ents affecting the work. The Contractor shall
use only such methcds as are consistent with safety, both as concerns the Contractor, the Controctor's agents and employees. the
officers, agents, employees and property of Iha Railroad and the public In general. The Contructor (wllhoul limiting the generality ol
the foregoing) shaU comply with aU applicable slate and fe:!eral occupational safely and health acts and regulations. All Federal
Railroad AdministraHon regulal!ons ,!.aU be followed when work ls performed on Iha Railroad's property. U any failure by the
Contracior to comply with any aucn laws, regulations, and enactments, shall result in any fine, penalty. cost or charge being
assesaed, lmposed or charged against the Railroad. the r.:mtraclor shall reimburse and indemnify the Railroad for any such fine,
penalty, co&t. or charge, including without limitation attorneys' fees, court costs and expenses . The Contractor further agrees In the
event of any such action, upon notice thereof being provided by the Railroad. to defend such action free of cost, charge, or expense
to the Railroad .
Se<1ion 7. SAFETY INSTRUCOQNS .
Safety ')f personnel. property. rail operations and the public ls of paramount importance in the prosecution of the Work
pursuant to this agreement. As reinforcement and in furtherance of overall &afety measures lo be observed by the Contractor (and
not by way of limitation), Iha foUowlng special safely rules sh'111 be foUowed :
a . The Contractor shall keep the jo b site free from safety and heaJth hazards and ensure that Its employees are
competent and adequately trained in all safety and health aspects of the job. The Contractor shall have proper first aid supplies
available on the job site so that promp1 first aid services can be provided. lo any person that may be lnjured on the job sile. The
C.Ontractor shall promptly notify the Railroad of any U.S. Occup::Jttonal Safety aOC.: Health Adminis tratio n reportable injuries occurring
to arr/ person that may arise during the worlc. performed on the job site . The Contractor shall have a non-delegable duty lo control its
employees while they are on the job site or any other property of the Railroad to be cer1ain they do not use, be under the influence of,
or have in their possession any alcoholic beve rage, drug, narcotic or other substance that may inhibit the safe perfom1ance of work
!,or the er:iployee.
b. n-.e employees of the Cc.ntraclor shall be 3wtc:bly dressed to perform their dut!es safely and in a manner thct will
not interfe re with the !r •r.:-!:-n, hearing or free use of their hands or feet. Only waist length shirts •,•nth sleeves and trousers tha1 cover
the entire leg ore to be \'/Om . If flare-legged trousers are worn. the trouser bottoms must be tied to prevent catching. The empl()}-ees
should wear sturdy and protective work boots and at least the following protective equipment:
(I) Protective head gear that meets American National Standard.Z89. I-Iatest revision. It Is suggested that all hardhats
be affixed Y.ith Contractor's or subcontractor's company logo or name.
(2) Eye protection that m'!e!s American National Standard for occupational and educational eye and face protection.
287 .1-latest revision . Additional eye protection must be provided to meet specific jol, situations such as welding. grinding,
burning, etc .; and
(3) Heanng protection which affords enough attenuation to gtve protectien from noise !evels that wil! be occurring on
the lob sile .
c . All heavy equipment provided or leased by the Contractor shall be equipped with audible back-up warning
devices . U in the opinion of the Railroad Representative any of Contractor'a or any of lls subcontractor's equipment la unsafe for use
G:\shme\eshibiib\bikeped>.oore.exb Page2
on the Railroad's right-of.y,-ay, the Contractor. at the request of the Railroad Repreaen'.atiw, aholl remove such equtpmant from the
Railroad's right-of-way.
fiection 8.
a, M used ln this Section. "Railroad• lncluclea other railroad comprmlea using ,.,1e Railroad's property at or near the
location of the Contractor's lnstallaUon and their olllcera, agents, and emplnyeer,; "l..oss" includes Joas, damage, clatmt, demands,
actions, causes of action. penalties, costs, and expen.Ns of whatsoever natw ,, including court coats and attorneys' fees, which may
result from : (a) In jury to or death of persons whomsoever (Including the Railroa J's officers, agents, ond employees, the Contract<lr'a
ofBcera, agents, and employees, as well aa any other person); and/or (bl da!T'.oge to or Joas or destruction of property whatSOfMtr
(including Contractor's property, damage to the roadbed, tracks, equipment. er other property of the Railroad, or property in its c:are
or custody).
b. Ma major inducement and in consideration of the lkente and permission hereln grantsd. the Contractor ai;rees
to indemnify and hold harmless the Railroad from any loss which is due to or arises from any cause and Is associated In wholu or in
p:z:rt with the work perfonned under this agreement, a breach of the OJreement or the failure to observe the health and safety
provisions herein, or any actMty, omission or negligence arising 01 ·.t of pedorm:mce or nonperformance of this agreement
regard.less of whether contributed to In part by the negligence or fault r,f Railroad . However, the Contractor ahall not indemnify the
Railroad when the Loss is caused by the sole negligence of the Aailroaa .
c. Any liability of either party hereunder to one of its e·.nployees under any Workers' Compensation Act or the Federal
Employers' Uah!lity Act shall not be questioned or in any wrrt chdlenged C!'/ the other party, nor shall any jury or court . , '•z:f'JS
resulting from cmy employee's suit against either party pursuant IJ any such Act(s) be relied upon or used by either party in or,;•
attempt to assert common law liability against the other.
Sectlon 9. RES'JPRATION OF PRO!'ERTY.
In the event the Railroad authorizes the Contractor to \eke down any fence of the Railroad or In any manner fTI0\'8 or diaturl>
any of the other property of the Railroad in connection with th,J work to be perfonned C!'/ Contractor, then in that event Iha Contractor
shall. as soon as possible and at Contractor's sole expense, restore such fence and other property to the aame condition as the eame
were fn before suc h fence was taken do'.'m or such other property was moved or disturbed. The Contractor shall remove all of
•
Contractor's tools , equipment and materials from Railroad's property promptly upon completion of the work. restoring Railroad'■
property to the same state and condition as when Contmc ror entered tl-,1l(6()'l.
Section 10. WANER Of BREACH.
Walver by the Railroad of the breach of any condition. covenant or ugreernenl herein contained to be kepi, observed and
performed by the Contractor shall In no way lmpcrlr the right of the Railroad lo avail ltsell of any remedy for any subsequent breach
thereof.
Section II . ASSIGNMENT · SUBCONJRACTJNG.
The Contractor shall not assign, sublet .>r subcontract !his agreement. or any interest therein. without the written consent of
the Railroad and arr/ attempt lo so assign, sublet or subcontract without the written consent of the Railroad shall be void. If the
Railroad gives the Contrac1or permission to snbcontrac1 all or any p::>rtion oI the work herein described, the Contractor is and shall
remain responsible for all work of suJxontrac:~rs and all ..... -ark of subcontractors shall be governed by the lenns of this agreement.
G:\ahareleshlbltb\blkepec'.core.e,b Exhibit B
BIXE&PIDTRAJLXCROE\l/(B-1 0I0lll
Form Apptuved, A VP-Law
EXHIBIT A-I
To Contracto~a Right of Entry Agreement
UNION PACIFlC RAILROAD
CONTRACT !NSURANCE REQUIREMENTS
Third Party Contractors Right Of Entry Agreement
Contractor shall. at Its 501', cost and expense, procure end maintain during the life of this Agreement the following insurance
coverage:
al General Uabllity huuranc. > )>l10Vldlng bodily Injury Including death. personal lnju,y and property damage coverage with a
combined single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,CXX>.OCNl. This lnsurance
shall contain broad form contractual Lt1bility with a separate general aggregate for the project {ISO Form CG 25 03 or equh,ulent).
Exclusions for explosion. collapse and underground hazard shall be removed. Coverage purchased on a c)qµM mgdg form shall
provide for at least a two (2) year extended reporting or discovery period if (a) the coverage changes from a cla1ms made form to an
occumtnce fonn. (bl there Is a lapse/cancellation of coverage, or (c) the succeeding claims made policy retroactive date ls dUferent
lor the expiring policy.
b, AwPmobile LJabi)jty insurance providing bodily injury and property damage coverage with a combined single limit of at
least $2,000,000 each occurrence or claim . This Insurance shall cover a11 motor vehlcles including hired and non-OWnecl, and mobile
equipment If excluded from coverage under the gen.lral public liability insurance.
c) Workera' Compensation insurance covertr,g Contractor's statutory liability under the workers' compensation laws of the
slato(s) affected l,f this Agn,omem, and Employers' UabUily. If such lnswance will not cover the IJabUily of Controctor In slates that
require p:nticipatlon in slate workers ' compensatton fund, Contractor shall comply with the laws of such states. lf Contractor is sell-
lnaured. evidence of state approval must be provided.
d) Rgilrogd Ptotec;tjye UabWtv Insurance nOJning the Railroad as the Insured with a combined single limit of $2,00J,<XX) per
occwTence with a $6,000,000 aggregate. The policy shall be broad fonn cowrage for 9Physical Damage !o Property" (ISO Form CG
00 35 1.:>r eqWvole nl) and include pollution arising out of fuels and lubricants brought lo the job site (ISO Form CG 28 2 I or equivalent),
ilimier of lnsumnce for Rqilrogd Ptotecttve Liability mmt be submitted to l1e Railrood and tbP. ortqinql policy or a certified
d.u,p',icate original policy must bo forwmded to the Railroqd when gygjlable
• Contractor and Us insurers shall endorse the required insurance policy(ies) to wgjye their rioht of 5µbrpggtioo against
Rr.dlroad . Contractor and Its lnsurers also wgiye their right of suhrooattoo against Railroad for loss of its owned or leased property or
J.'roperty under Its care. c ustody and control. Contractor's insurance shall be primary with respect lo any insurance carried by
Railroad. The policy(les) zequlrod under la) and (b) above shall provide """'rabUily cf lntorosls and shall name Railroad as an
addillcnol insured.
Prior to commencing the Work. Contractor shall fumlsb to Rgilrogd certiJicate(s) of insurance evidencing the required
coverage and endorsements and upon request , a certified. duplicate original of any required policy. The certiflcale(s) shall contain a
provision that obligates the inswance company(les) lssuinq such pollcy(les) 10 notify Railroad In ''" 'to .19 of any material alteration
including any change In the retroactive date In any "claims-r..'lllde" policies or substantial reductioc.. ul aggregate limits, if such limits
apply, or any cancellation at ieast thirty (30) days prior there!<,,
The insurance p,licy(les) shall be written by a reputable insurance comp:my(les) acceplah'..:.i to Railroad or v.ilh a current
Best's Insurance Guide Rating of B and Oass VII or better. and authorized to do business in the state where the work will be
performed.
Cuntractor WARRANTS that this Agreement has been thorc.,ughly reviewed by Contractor's insurance agent{s)Jbroker{s),
who have been ins tructed. by Contractor to procure the insurance coverage required. by tius Agreement.
If Contractor fails to procure and maintain insurance as required, Railroad may elect lo do so at the cost of Contractor.
The fact that insuranC'.t .s obtained by Contractor shall not be deemed to release or diminish the liability of Contractor,
inclu&ng, without limitation. 1.abi'ity under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be
limitec. by the amount of th e required insurance coverage.
G:\ahare\e1hibttb\blkepedxcoreexb-l .exb Exhibit B-1