HomeMy WebLinkAbout20102829.tiff RESOLUTION
RE: APPROVE MEMORANDUM OF UNDERSTANDING REGARDING CROSSING CHANGES
IN THE INTERESTS OF PUBLIC SAFETY AT WELD COUNTY ROADS BY
REALIGNMENT OF COUNTY ROAD 54 AND UNION PACIFIC TRACKS, CLOSING OF
AN EXISTING CROSSING, AND SIGNAL INSTALLATION AT CROSSING ON COUNTY
ROAD 80,AND AUTHORIZE CHAIR TO SIGN—UNION PACIFIC RAILROAD COMPANY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Memorandum of Understanding
Regarding Crossing Changes in the Interests of Public Safety at Weld County Roads by
Realignment of County Road 54 and the Union Pacific Tracks, Closing of an Existing Crossing, and
Signal Installation at the Crossing on County Road 80 between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the
Department of Public Works, and Union Pacific Railroad Company, commencing upon full
execution,with further terms and conditions being as stated in said Memorandum of Understanding,
and
WHEREAS, after review, the Board deems it advisable to approve said Memorandum of
Understanding, a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Memorandum of Understanding Regarding Crossing Changes in the
Interests of Public Safety at Weld County Roads by Realignment of County Road 54 and the Union
Pacific Tracks, Closing of an Existing Crossing, and Signal Installation at the Crossing on County
Road 80 between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Public Works, and Union Pacific
Railroad Company be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said Memorandum of Understanding.
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0 it -aq-/D 2010-2829
'1 II EG0062
MEMORANDUM OF UNDERSTANDING REGARDING CROSSING CHANGES IN THE
INTERESTS OF PUBLIC SAFETY AT WELD COUNTY ROADS BY REALIGNMENT OF COUNTY
ROAD 54 AND UNION PACIFIC TRACKS, CLOSING OF AN EXISTING CROSSING,AND SIGNAL
INSTALLATION AT CROSSING ON COUNTY ROAD 80—UNION PACIFIC RAILROAD COMPANY
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 24th day of November, A.D., 2010.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST'',"" oncs
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Weld County Clerk tot (Igp tt/,'7\,.?„\"`y
JL
rbara Kirkmeyer, ro-Tem
BY: "A a '
Deputy Clerk to the Boa -Cif EXCUSED
Sean P. C7,2
API3ROC/iD AS F RM:
William G cia
oath}Attorney c)•,` 4
/ David E. Long \'
Date of signature: /ma'o
2010-2829
EG0062
MEMORANDUM
COLORADO
TO: Clerk to the Board DATE: November 22, 2010
FROM: Wayne Howard, Public Works
SUBJECT: Agenda Item
Memorandum of Understanding with Union Pacific Railroad regarding crossing changes in the
interest of public safety by realignment of WCR 54 and Union Pacific Tracks,closing of an existing
crossing, and signal installation at crossing on WCR 80.
Enclosed are two original Memorandum of Understanding documents. Please have Chair sign both
original documents and return both to Wayne Howard to acquire the appropriate signature from
Union Pacific Railroad.
M:\Francie\Ageode Item-I.doc
1
2010-2829
Alice Marie de Stigler
UNION General Attorney,Law Department
, PACIFIC
111111
:1 r —1 P 3: Li
February 3, 2011
ECEOV t
FEB - 4 2011
Via Overnight Couriers
970.352.0242
Bruce T. Barker, Esq.
Stephanie L. Arries, Esq.
Weld County Attorney's Office
915 — 10th Street
Greeley CO 80631
Re: WCR 54 Memorandum of Understanding
Dear Mr. Barker and Ms. Arries:
I have enclosed one original executed MOU regarding the WCR 54.
If you have any questions or concerns, please feel free to contact me. Thank you.
Very truly 1(.114. yours,
- it( •
4-11
Alice M. de Stigter
AMD/rg
Encs.
cc: Ms. Kelly Abaray
UNION PACIFIC RAILROAD 1331 17th Street Suite 406 Denver,CO 80202 (303) 405-5406 lax (303) 405-5413
MEMORANDUM OF UNDERSTANDING REGARDING CROSSING CHANGES IN THE
INTERESTS OF PUBLIC SAFETY AT WELD COUNTY ROADS BY: REALIGNMENT
OF COUNTY ROAD 54 AND UNION PACIFIC TRACKS,
CLOSING OF AN EXISTING CROSSING, AND
SIGNAL INSTALLATION AT CROSSING ON COUNTY ROAD 80 yt
THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made this.2e ay of
7-4A.10/11 / , 2010, by and between the COUNTY OF WELD, State of Colorado by the Board
of County Commissioners of Weld County (hereinafter "Weld County"), and UNION PACIFIC
RAILROAD COMPANY, a Delaware Corporation (hereinafter "Railroad").
WITNESSETH:
WHEREAS, Weld County and Railroad are responsible for operating and maintaining their
respective roads and tracks within their respective boundaries, without detriment to the public
health and safety; and
WHEREAS, Railroad maintains certain of its railroad tracks within Weld County, which, at
several locations intersect with Weld County roads at crossings; and
WHEREAS, the road configuration, an offset alignment at Weld County Road (WCR) 54,
at or near where it intersects the Railroad's tracks, has caused traffic accidents on Weld County
Road 59, such that Weld County has sought Railroad cooperation in a reconfiguration of its
crossing; and
WHEREAS, the reconfiguration of WCR 54 to solve Weld County's traffic problem will
result in a relocated and skewed crossing that is of no benefit to the Railroad; and
WHEREAS, the Railroad has agreed to assist Weld County with its reconfiguration project
at WCR 54 and the construction of the realigned at grade railroad crossing thereon, provided that
Weld County participates in two additional projects which have been identified as priorities for both
of the parties to this MOU:
1. The installation of flashing lights, gates and a cabinet at the crossing on Weld
County Road 80, (hereinafter "WCR 80");
2. The closing of one crossing on the Greeley Subdivision as agreed upon by both
parties; and
WHEREAS, the parties recognize that the projects described in this MOU are extensive and
require significant allocations of resources on the part of both parties; and
WHEREAS, the decision to select these particular projects has been the result of
negotiations in which the priorities of each party have been addressed, so that the selection of these
projects by both parties is to be considered together and the projects are to be considered contingent
upon one another.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, Weld County and Railroad agree as follows:
1. New At-grade Crossing, on WCR 54
a. Railroad agrees to support Weld County's application to the Colorado Public
Utilities Commission (hereinafter "CPUC") to reconfigure WCR 54 and
create a new at-grade crossing by filing an Intervention by Right only,
provided that: 1) Weld County has taken measurable steps to pursue funding
and CPUC approval under Section 2 of this MOU and 2) Weld County has
granted closure approval of WCR 31 or an alternative crossing pursuant to
Section 3.
b. The newly realigned at-grade roadway crossing will consist of a new concrete
crossing pad and cross bucks with yield signs. It is not anticipated that the
CPUC will require this project to include flashing light signals with gates at
this time. If Railroad reestablishes daily service on this line eighty percent
(80%) of the time, or if the Parties agree that other unforeseen safety
concerns have arisen at the crossing, Weld County will budget for the
improvements within the following fiscal year, and will file an application
with the CPUC to construct the above improvements within that period. As a
part of the application process, Weld County will enter into a Construction
and Maintenance Agreement with Railroad and will agree to pay all costs
associated with the design and installation of flashing gates and lights (or
whatever advance warning signals are recommended and approved by the
CPUC). However, Weld County may apply for and utilize funds for this
project which may be made available to it through the federal government
and/or the State of Colorado. Railroad agrees that it shall provide notice of
the establishment of daily service on this line eighty percent (80%) of the
time, within thirty (30) days of said action, so that Weld County may begin to
budget for and/or apply for the funds necessary to construct the required
upgrades.
c. Weld County must acquire right-of-way from various landowners, including
the Railroad, in order to reconfigure WCR 54 and construct the newly aligned
WCR 54 crossing, Railroad acknowledges that the process may take several
months, or longer, and that Weld County may be unable to complete the
process for a period of up to three years, or longer, depending upon the
availability of funds. Weld County acknowledges that it is not the Railroad's
responsibility to resolve such access and acquisition issues and that the
Railroad's cooperation in this regard has significant value to Weld County
who agrees to take due and diligent measurable steps toward resolving such
issues, and will keep Railroad advised of its progress on the first day of each
year, commencing January 31, 2011.
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d. Weld County agrees that it shall be solely responsible for the payment of all
costs and expenses associated with the reconfiguration of WCR 54 and
construction of the WCR 54 crossing realignment. Weld County shall pay all
of Railroad's costs and expenses incurred in connection with this project.
e. Railroad agrees to use commercially reasonable efforts to perform its
engineering and construction responsibilities for the WCR 54 crossing in a
timely manner and in conjunction with Weld County's construction efforts.
Both parties acknowledge that neither shall bear liability for delays, which
either may experience, that are caused by operational and/or weather-related
emergencies, and each shall exert best efforts to resume construction as soon
as it is safely possible under the circumstances.
2. Installation of New Flashing Lights, Gates, and Cabinet At WCR 80 Crossing.
a. The parties have been informed that the CPUC currently has funds available
from the "Highway-Rail Signalization Fund" for road improvements needed
for safety purposes. Railroad agrees to cooperate with Weld County's
submission of an application to the CPUC for said funds.
b. If the CPUC awards funds for the WCR 80 project, the Railroad agrees to pay
twenty percent (20%) of the total cost of the signals at the crossing as
required by C.R.S. 40-4-106 (2)(b). Weld County agrees that its application
for this project shall make the CPUC aware of the consideration and
contingencies related to this three-part agreement, and shall respectfully
request that the CPUC allocate the statutory minimum cost to Railroad
accordingly. The parties further agree that if the CPUC allocates more than
twenty percent (20%) of the project costs to the Railroad, Weld County shall
pay the additional amount resulting from the excess percentage allocated to
the Railroad by the CPUC. Additionally, if the combined amounts of the
CPUC award from the Highway-Rail Signalization Fund, the twenty percent
(20%) required of Railroad, and the amount required of Weld County, are
insufficient to pay all expenses associated with the WCR 80 upgrade, Weld
County alone shall pay all additional expenses.
c. The parties to this MOU understand and agree that the total cost of the
project is expected to be approximately Four Hundred Twenty-Two
Thousand One Hundred Seven and no/100 Dollars ($422,107), that the
CPCU is expected to award approximately One Hundred and Sixty-Five
Thousand and no/100 Dollars, ($165,000), that Weld County's contribution is
expected to be approximately One Hundred Seventy-two Thousand Six
Hundred Eighty-six and no/100 Dollars, ($172,686), and that Railroad's
contribution is expected to be approximately Eighty-four Thousand Four
Hundred Twenty-one and 40/100 Dollars ($ 84,421.40). Pursuant to Colorado
Revised Statutes § 40-4-106(b), the Railroad is required to contribute twenty
percent (20%) of the total cost of signals at this crossing and, therefore, the
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final dollar amounts to be contributed by the County and Railroad will be
determined at the time of actual construction.
d. Weld County expects to submit its application for funding to the CPUC by
November 30, 2010, if Railroad submits the PE Agreement and its cost
estimate to County in time for County to incorporate those items into an
Application. If the Application is not submitted on or before November 30,
2010, because Weld County has not received these items from the Railroad in
time, the Application will be submitted as soon thereafter as the County can
assimilate them into the Application and file it with the CPUC.
e. In the event that the CPUC fails to award any funds for the upgrade of the
WCR 80 crossing, Weld County shall pay all of its own expenses and all
expenses incurred by Railroad which are associated with said upgrade.
Railroad further agrees that it and Weld County shall execute a Construction
& Maintenance Agreement within twelve (12) months, following the
County's receipt of the Signal Estimates for WCR 80 from UPRR. Weld
County shall be allowed up to three (3) years from the date of the
Construction & Maintenance Agreement to provide a Notice to Proceed to
the UPRR on the WCR 80 Signalized Crossing Project.
f. Upon receipt of Weld County's Notice to Proceed, Railroad agrees to
perform its engineering and construction responsibilities for the WCR 80
crossing in a timely manner.
3. Closure of Weld County Road At-grade Crossing 31 on the Greeley
Subdivision.
a. Weld County is aware that Railroad requires closure of at least one Weld
County crossing on the Greeley Subdivision as a condition of its support for
the reconfiguration of the WCR 54 crossing and its twenty percent (20%)
contribution to the WCR 80 project. Weld County agrees to act on the matter
of the closure of the WCR 31 crossing on or before December 31, 2010.
Upon making a favorable determination that the a closing should be made,
Weld County further agrees to promptly enter into a Public Crossing Closure
Agreement with the Railroad and submit its Closure Application to the CPUC
as soon as possible thereafter.
b. Railroad agrees to support Weld County's Closure Application by entering
into a Public Crossing Closure Agreement for WCR 31, if Weld County is
able to approve said closure. If, however, Weld County is unable to approve
closure of WCR 31, Weld County agrees to promptly apply for closure of one
of the alternative crossings listed in order of priority, as set forth in Section
3(c) below, and Railroad agrees to support that application. Railroad will
draft all Stipulated Closure Agreements for presentation to Weld County and
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upon notice of its unconditional formal approval, shall provide a first draft
the Closure Application for Weld County to submit to the CPUC.
c. Railroad acknowledges that prior to formal approval of the closing of the
WCR 31 crossing, Weld County may determine that said closure may not be
in the best interests of the citizens of Weld County. In the event that Weld
County makes the determination that the crossing at WCR 31 should not be
closed, or if the CPUC determines that said crossing should not be closed,
Weld County agrees to promptly pursue the closure of one of the following
public at-grade crossings: WCR 29, WCR 38, or WCR 78, by the process set
forth in Section 3(b).
d. In all instances, Weld County agrees to perform its signage, engineering and
construction responsibilities for the closing of any crossing finally approved
in a timely manner, in conjunction with Railroad's construction efforts, all of
which shall be in accordance with the MUTCD, and all related CPUC
decisions
4. Termination of Participation in MOU.
a. Either party may, for any reason, terminate its participation in this MOU
upon providing sixty (60) days' written notice to the other party,
b. If Weld County terminates any portion of this MOU, it shall pay Railroad for
all Preliminary Engineering and other out-of-pocket costs and expenses
incurred by Railroad in connection with any of the three (3) projects
described above.
c. If Weld County elects to terminate the project described in Section 3 herein,
the provisions of Sections 1 and 2 shall automatically terminate for failure of
a condition precedent.
5. Adoption of Future Agreements to Implement This MOU. The parties
acknowledge and agree that prior to the commencement of each project
contemplated by this MOU, both parties shall execute all necessary formal
Agreements, which define each party's rights and responsibilities with regard to said
project.
6. Modification.
a. This MOU contains the entire MOU and understanding between the parties
and supersedes any other MOUs concerning the subject matter of this MOU,
whether written or oral.
b. No modification, amendment, novation, renewal or other alteration of this
MOU shall be deemed valid or of any force or effect whatsoever, unless
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mutually agreed upon in writing by all parties. However, the MOU may be
modified to comply with any CPUC decision rendered relating to Sections 1,
2 or 3.
7. Assignment. This MOU shall not be assigned, enlarged, amended, extended,
modified or altered by either of the parties hereto, except in writing, signed by both
parties as an amendment hereto.
8. Force Majeure. Notwithstanding anything contained herein to the contrary, it is
agreed that in the event and to the extent that fire, flood, earthquake, natural
catastrophe, explosion, accident, war, illegality, act of God, or any other cause
beyond the control of either of the parties hereto, or strikes and labor troubles
(whether or not within the power of the party affected to settle the same) prevents or
delays performance by either party to this MOU, such party shall be relieved of the
consequences thereof without liability, so long as and to the extent that performance
is prevented by such cause; provided, however, that such party shall exercise due
diligence in its efforts to resume performance within a reasonable period of time.
9. Waiver. No waiver by either of the parties hereto of any of the terms and conditions
of this MOU shall be deemed to be or be construed as a waiver of any other term or
condition of this MOU, nor shall a waiver of any breach of this MOU be deemed to
constitute a waiver of any subsequent breach of the same provision of this MOU.
10. Contingencies.
a. Issues concerning funds limitation. Weld County is a Colorado public entity
and all financial obligations extending beyond the current fiscal year are
subject to funds being budgeted and appropriated therefore. Furthermore,
Colorado law forbids Weld County from entering into agreements which
encumber government funds beyond the current fiscal year. Therefore, in the
event sufficient funds are not appropriated, budgeted or made available to
Weld County to meet its obligation under Sections 1 and 2 of this MOU,
Weld County must unilaterally terminate those two provisions by giving
written notice to Railroad by last day of the eleventh (11th) month of the
fiscal year.
b. This MOU and the obligations of the parties are expressly contingent upon
the ability of Weld County to budget and appropriate the funds needed to
fulfill its obligations hereunder. The parties understand and agree that the
nonavailability of government funds could cause the projects referenced in
Sections 1 and 2 to be delayed; however, Weld County agrees to diligently
work to complete the crossing closure according to the perimeters set forth in
Section 3 and the remaining two projects in as timely a manner as is feasibly
possible.
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c. To the extent that financial obligations in this MOU extend beyond the
current fiscal year, they are subject to funds being budgeted and appropriated
to fulfill Weld County's obligations regardless of whether its fiscal year(s)
coincide(s) with the annual term of this MOU.
11. Headings. Paragraph headings in this MOU are for convenience and reference only
and shall in no way define, limit or prescribe the scope or intent of any provision of
this MOU.
12. No Third Party Beneficiaries. This MOU is made for the sole and exclusive
benefit of the parties hereto and shall not be construed to be an MOU for the benefit
of any third party or parties and no third party shall have a right of action hereunder
for any cause whatsoever.
13. Construction of MOU. This MOU shall be construed according to its fair meaning,
as if it was prepared by both of the parties hereto and shall be deemed to be and
contain the entire MOU between the parties hereto. There shall be deemed to be no
other terms, conditions, promises, understandings, statements or representations,
expressed or implied, concerning this MOU, unless set forth in writing and signed by
both of the parties hereto.
14. Relationship of Parties. The parties hereto enter into this MOU as separate and
independent entities and each shall maintain such status throughout the term of this
MOU.
Weld County and Railroad have signed this MOU thisoN ay of #,91 doILhEr" , 2010.
UNION PACIFIC RAILROAD COMPANY
(Federal Tax ID #94-6001323)
By
APP12OYAYP ENGINEERING
Union Pacific Railroad Company Law Department
By: D y i Date: OP
Alice M. de Stigter
WELD COUNTY:
ATTEST: 73,,o... Z7 , 5 r--_ BOARD OF COUNTY COMMISSIONERS
Weld County Clerk to the W D COUNTY COLORADO
By. y.,
Depu Ierk to e 1 Dou as/ 9jiJ
echer, Chairman
,it€1 NOV 2 4 2010
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