HomeMy WebLinkAbout20050919.tiff RESOLUTION
RE: APPROVE RIGHT OF ENTRY AGREEMENT AND AUTHORIZE CHAIR TO SIGN -
GREAT WESTERN RAILWAY OF COLORADO, L.L.C.
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 Right of Entry Agreement 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 Great Western Railway of Colorado,
L.L.C., with terms and conditions being as stated in said agreement, and
WHEREAS,after review,the Board deems it advisable to approve said agreement, 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 Right of Entry Agreement 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 Great Western Railway of Colorado, L.L.C., be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was,on motion duly made and seconded, adopted by
the following vote on the 14th day of March, A.D., 2005.
BOARD OF COUNTY COMMISSIONERS
I\,` I / %P` WELD
COUNTY,/
I COLORADO
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,��: — William H. Jerke, Chair
• 11 lerk to the Board
Nr � ,� / EXCUSED
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/(✓� M. eile, Pro-Tem
Deputy Clertoile Board J v E. 41,APP AS TO F K vl. 1\:\)D .
Robert D. Masden
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EXCUSED
Glenn Vaad
Date of signature: -84151/43-
2005-0919
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MEMORANDUM
CTO: Clerk to the Board DATE: March 7, 2005
•
COLORADO FROM: Frank B. Hempen, Jr., P.E.
Director of Public Works/County Enginee
SUBJECT: Agenda Item
Right of Entry Agreement with Great Western Railway of Colorado for realignment of WCR 23.
Enclosed are two duplicate,original agreements. Please send one original to Public Works as soon
as it is executed.
The appropriate documentation is attached.
Enclosures
pc: Leon Sievers, Right-of-Way Agent
M:\FrancieAAgend-Lcon.doc
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Fri
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2005-0919
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the day of February, 2005,
by and between Great Western Railway of Colorado, L.L.C., (hereinafter "Railroad") to be
addressed at 252 Clayton Street, 4`h Floor, Denver, Colorado 80206, and Weld County, a body
corporate and politic of the State of Colorado, by and through its Board of County
Commissioners, whose address is 915 10`h Street, Greeley, Colorado 80631, hereinafter referred
to as `County."
RECITALS:
The County has been appointed by the County of Weld, for the reconstruction,
widening, relocation and realignment of Weld County Road 23 (hereinafter "work") on and
across property of the Railroad east of Windsor, Colorado.
The County has requested the Railroad to permit it to perform the work and
Railroad is agreeable thereto, subject to the following terms and conditions.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between the Railroad and
County, as follows:
Article 1. DEFINITION OF COUNTY
For purposes of this agreement, all references in this agreement to the County
shall include the County's contractors, subcontractors, officers, agents and employees, and others
acting under its or their authority.
Article 2. RIGHT GRANTED; PURPOSE
The Railroad hereby grants to the County the right, during the term of this
agreement and subject to each and all of the terms, provisions and conditions herein contained, to
enter upon and have ingress to and egress from the portion of the Railroad's property at or near
WCR 23, as shown on the attached print dated , marked Exhibit A. The right herein granted to
County is limited to those portions of the Railroad's property specifically described herein, or
designated by the Railroad representative named in Article 4.
Article 3. TERMS AND CONDITIONS CONTAINED IN EXHIBITS A AND A-1
The terms and conditions contained in Exhibits A and A-1, hereto attached, are
hereby made a part of this agreement.
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Article 4. ALL EXPENSES TO BE BORNE BY COUNTY; RAILROAD
REPRESENTATIVE
The County shall bear any and all costs and expenses associated with any work
performed by the County, or any costs or expenses incurred by the Railroad relating to this
agreement. All work performed by County on Railroad's property shall be performed in a
manner satisfactory to the respective local General Manager of the Railroad or his authorized
representative (hereinafter the Railroad Representative).
Article 5. TERM; TERMINATION
A. The grant of right herein made to County shall commence on March 1,
2005, and continue until such time as County has completed its work on Railroad's property, or
unless terminated sooner as provided herein, whichever is earlier. County agrees to notify the
Railroad Representative in writing when it has completed its work on Railroad property.
Article 6. CERTIFICATE OF INSURANCE
A. Before commencing any work, the County will provide the Railroad with a
Certificate issued by its insurance carrier providing the insurance coverage required pursuant to
Exhibit A-1 of this agreement in a policy which contains the following type of endorsement:
Great Western Railway of Colorado, L.L.C. and OmniTRAX, Inc., are named as
additional insured with respect to all liabilities arising out of Insured's, as County,
performance of any work on the property of the Railroad.
B. County warrants that this agreement has been thoroughly reviewed by its
insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure
insurance coverage and an endorsement as required herein.
C. All insurance correspondence shall be directed to: Great Western Railway
of Colorado, c/o Risk Management, 252 Clayton Street, 4" Floor, Denver, Colorado 80206.
Article 7. PROTECTION OF EXISITNG UTILITIES
Existing utility systems may be buried on Railroad's property. Protection of the
utility systems is of extreme importance since any break could disrupt service to users resulting
in business interruption and loss of revenue and profits. Prior to beginning any work, the County
shall contact the company(ies) involved, arrange for utility locators and make arrangements for location
and protection of the utilities prior to beginning any work on Railroad's premises. In addition and if
applicable, the County shall also comply with and be subject to the provisions contained in
Section 6 of Exhibit A.
Article 8. ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM
This agreement shall be governed, construed, and enforced in accordance with the
laws of the State of Colorado. Litigation arising out of or connected with this agreement may be
instituted and maintained in the courts of Colorado, and the parties consent to jurisdiction over
their person and over the subject matter of any such litigation, in those courts, and consent to
service of process issued by such courts.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in
duplicate as the date first herein written.
Great Western Railway of Colorado, L.L.C.
77
By:
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/ utho ed gent
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1861 cy..- s County, State of Colorado
iClerk to the Board
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By: /A,/
Deputy lerk to the Board William H. Jerke, Chairman
MAR 14 2005
-- 69/9
EXHIBIT A
Section I. NOTICE OF COMMENCEMENT OF WORK.
The County agrees to notify the Railroad Representative at least forth-eight (48) hours in
advance of County commencing its work and at least twenty-four (24) hours in advance of proposed
performance of any work by the County in which any person or equipment will be on the property.
Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right and
obligation of the Railroad to use and maintain its entire property including the right and power of the
Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks,
roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon,
along or across any or all parts of its property, all or any of which may be freely done at any time or
times by the Railroad without liability to the County or to any other party for compensation or damages.
(b) The foregoing grant is also, subject to all outstanding superior rights (including those in
favor of contractors and lessees of the Railroad's property, and others) and the right of the Railroad to
renew and extend the same, and is made without covenant of title or for quiet enjoyment.
Section 3. NO INTERFERENCE WITH RAILROAD'S OPERATION.
No work performed by County shall cause any interference with the constant, continuous and
uninterrupted use of the tracks, property and facilities of the Railroad its lessees, Contractors or others,
unless specifically permitted under this agreement, or specifically authorized in advance by the Railroad
Representative. Nothing shall be done or suffered to be done by the County at any time that would in any
manner impair the safety thereof.
Section 4. PERMITS.
Prior to beginning any work, the County, at its sole expense, shall obtain all necessary permits to
perform any work contemplated by this agreement.
Section 5. MECHANIC'S LIENS.
The County shall pay in full all persons who perform labor or provide materials for the work to
be performed by County. The County shall not permit or suffer any mechanic's or materialmen's liens of
any kind or nature to be enforced against any property of the Railroad for any such work performed. The
County shall indemnify and hold harmless the Railroad from any and all liens, claims, demands, costs or
expenses of whatsoever nature in any way connected with or growing out of such work done, labor
performed, or materials furnished.
Section 6. EXISTING UTILITY SYSTEMS.
If existing utility lines are buried anywhere on the Railroad premises to be used by County, the
County will telephone the company(ies) involved, arrange for a locator and make arrangements for
relocation or other protection of the utilities prior to beginning any work on Railroad's premises. In
addition to the liability terms elsewhere in this Agreement, the County shall indemnify and hold the
Railroad harmless against and from all cost, liability and expense whatsoever (including, without
limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by
any act or omission of the County, its subcontractor, agents and/or employees, that causes or in any way
or degree contributes to (I) any damage to or destruction of any utility line or system by the County
and/or its subcontractor, agents and/or employees, on Railroad's property, (2) any injury to or death of
any person employed by or on behalf of any utility company and/or its Contractor, agents and/or
employees, on Railroad's property and/or (3) any claim or cause of action for alleged loss of profits or
revenue by, or loss of service by a customer or user of, such utility company(ies).
Section 7. COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this agreement, the County shall comply with all
applicable federal, state and local laws, regulations and enactments affecting the work. The County shall
use only such methods as are consistent with safety, both as concerns the County, the County's agents
and employees, the officers, agents, employees and property of the Railroad and the public in general.
The County (without limiting the generality of the foregoing) shall comply with all applicable state and
federal occupational safety and health acts and regulations. If any failure by the County to comply with
any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being
assessed, imposed or charged against the Railroad, the County shall reimburse and indemnify the
Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court
costs and expenses. The County 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.
Section 8. SAFETY INSTRUCTIONS.
Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work pursuant to this agreement. As reinforcement and in furtherance of overall
safety measures to be observed by the County(and not by way of limitation), the following special safety
rules shall be followed:
(a) The County shall keep the job site free from safety and health hazards and ensure that its
employees are competent and adequately trained in all safety and health aspects of the job. The County
shall have proper first aid supplies available on the job site so that prompt first aid services can be
provided to any person that may be injured on the job site. The County shall promptly notify the
Railroad of any U.S. Occupational Safety and Health Administration, or other applicable federal
agency(ies), reportable injuries occurring to any person that may arise during the work performed on the
job site. The County shall have a nondelegable duty to control its employees, while they are on the job
site or any other property of the Railroad, to be certain they do not use, be under the influence of, or have
in their possession any alcoholic beverage or illegally obtained drug, narcotic or other substance.
Section 9. INDEMNITY.
(a) As used in this Section, "Railroad" includes other railroad companies using the Railroad's
property at or near the location of the County's installation and their officers, agents, and employees;
"Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses
of whatsoever nature, including court costs and attorney's fees, which may result from: (a) injury to or
death of persons whomsoever (including the Railroad's officers, agents, and employees, as well as any
other person); and (b) damage to or loss or destruction of property whatsoever (including County's
property, damage to the roadbed, tracks, equipment, or other property of the Railroad, or property in its
care or custody).
(b) As a major inducement and in consideration of the license and permission herein granted, the
County agrees to indemnify and hold harmless the Railroad from any Loss which is due to or arises from
any cause and is associated in whole or in part with the work performed under this agreement or omission
arising out of performance or nonperformance of this agreement; unless caused by the negligence or fault
of the Railroad.
Section 10. RESTORATION OF PROPERTY.
In the event the Railroad authorizes the County to take down any fence of the Railroad or in any
manner move or disturb any of the other property of the Railroad in connection with the work to be
performed by County, then in that event the County shall, as soon as possible and at County's sole
expense, restore such fence and other property to the same condition as the same were in before such
fence was taken down or such other property was moved or disturbed, and the County shall indemnify
and hold harmless the Railroad, its officers, agents and employees, against and from any and all liability,
loss, damage, claims, demands, costs and expenses of whatsoever nature, arising from the taking down of
any fence or the moving or disturbance of any other property of the Railroad.
Section 11. WAIVER OF BREACH.
The waiver by the Railroad of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by the County shall in no way impair the right of the
Railroad to avail itself of any subsequent breach thereof.
Section 12. ASSIGNMENT- SUBCONTRACTING.
The County shall not assign, sublet or subcontract this agreement, or any interest therein, without
the written consent of the Railroad and any attempt to so assign, sublet or subcontract without the written
consent of the Railroad shall be void. If the Railroad gives the County permission to subcontract all or
any portion of the work herein described, the County is and shall remain responsible for all work of
subcontractors and all work of subcontractors shall be governed by the terms of this agreement.
EXHIBIT A-I
RIGHT OF ENTRY AGREEMENT - INSURANCE REQUIREMENTS
County shall, at its own sole cost and expense, procure the following kinds of insurance and
promptly pay when due all premiums for that insurance. The following insurance shall be kept in force
during the life of this Agreement:
Commercial General Liability Insurance, including Contractual Liability coverage providing
bodily injury, including death, personal injury and property damage coverage with a combined
single limit of no less than $1,000,000 per occurrence with an annual aggregate and on a per
project/per location basis, limit of at least$2,000,000.
Automobile Liability Insurance providing bodily injury and property damage with a combined
single limit of at least$1,000,000 each occurrence or claim.
Statutory Workers' Compensation Insurance as required by law in the state in which work is to
be performed and Employer's Liability Insurance with limits of$1,000,000 for bodily injury by
accident and for bodily injury by disease.
The County hereby waives its right to subrogation, as respects the above insurance policy(ies),
against Railroad for payments made to or on behalf of employees of County or its agents and for loss of
its owned or leased property or property under its care, custody and control while on or near Railroad's
right-of-way or other real property. County's insurance shall be primary with respect to any insurance
carried by Railroad, which shall be in excess of and non-contributory to County's insurance.
County shall furnish to Railroad proof of insurance evidencing the required coverage and
endorsement(s). The insurance company(ies) issuing such policy(ies) shall notify 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.
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