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Home My WebLink About20161589.tiff RESOLUTION RE: APPROVE AGREEMENT FOR WIRE/CABLE LINE CROSSING LICENSE AND AUTHORIZE CHAIR TO SIGN -GREAT WESTERN RAILWAY OF COLORADO, LLC 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 an Agreement for Wire/Cable Line Crossing License 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 Information Technology, and Great Western Railway of Colorado, LLC, commencing upon the full execution of signatures and with further 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 Agreement for Wire/Cable Line Crossing License 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 Information Technology, and Great Western Railway of Colorado, LLC, 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 16th day of May, A.D., 2016. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: `__ �.t.C ° Mike Freeman, Chair Weld County Clerk to Board J`J Sean P. Conway, Pro-Te BY: Dep y Clerk o the Board a le A. Cozad AP" •V. I A e" M: 1ic 1861 ( �� Sara Kirkmeye /1414, •ounty Attorney teve Moreno Date of signature: 1(/lip /94-61-1:0- .ter l sCev: 7'Ceei 5 2016-1589 f/� J IT0005 Cook a D - 4-641..0 MEMORANDUM To: Esther Gesick,Clerk to the Board I Ij r rFrom: Ryan Rose,Chief Information Officer Date: May 9,2016 Subject: Wire/Cable Line Crossing Agreement Attached is an agreement with Great Western Railway of Colorado, L.L.C to allow us to install fiber cabling for data and voice communications to the Chase Building. The fiber cabling will cross the railroad track at 9`h Avenue between 2nd and 3rd Street in Greeley. We respectfully request the Weld County BOCC approve the agreement with Great Western Railway of Colorado, L.L.C. 2016-1589 c L-000 Agreement No.407672 WIRE/CABLE LINE CROSSING LICENSE THIS LICENSE ) is entered into this ,3 t�6 ("License" ) of tAALI 2016, by and between Great Western Railway of Colorado, L.L.C. ("Licensor") land Weld County Government ("Licensee"). Licensor and Licensee may sometimes be referred to as a "Party" or collectively as the "Parties." WITNESSETH: I. TERM: This License shall take effect as of the last date of execution set forth below (the "Effective Date"), and unless sooner terminated as provided below, shall remain in effect until either Party shall give the other Party not less than thirty (30) days written notice to terminate for any reason whatsoever in that Party's sole discretion and regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period and without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor has executed it. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor h'reby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fiber optic Wire/Cable Line, as more particularly described in Licensee's application, marked Exhibit "A", attached to this License and made a part of it by this reference, situated on, across, along or over Licensor's property at or near Greeley. County of Weld, and State of Colorado (the "Premises"). The term Wire/Cable Line shall be deemed to mean the actual line(s) and any and all towers, poles, wires, appurtenances and that portion of Licensor's property, in so far as they relate to said Wire/Cable Line. The location of the Wire/Cable Line is more particularly described on the drawing marked Exhibit "B", attached to this License and made a part of it by this reference, but generally described as follows: A .5" outside diameter fiber optic Wire/Cable Line crossing of Railroad right-of- way plus an additional 600' longitudinal occupational of Railroad right-of-way, located at Mile Post No. 98 plus 1, as more particularly shown on Exhibit "B." 3. LICENSE FEE: 3.1 Licensee shall pay to Licensor as a License Fee the sum of Five Hundred U.S. Dollars ($500.00) per annum, payable in advance on or prior to the Effective Date of this License and any anniversary of the Effective Date during the term of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable. which may occur as a result of the payment of the above license or other fees payable under this License. da/6— /‘.190) Agreement No.407672 3.2 Licensee shall pay to Licensor an additional sum of money equal to one and one half percent (1.5%) per month of the total unpaid License Fees stated above, any adjusted License Fees due pursuant to Section 3.5, and any additional fees provided for in this License in the event said License Fee, adjusted License Fee or additional fees are not received by Licensor within thirty (30) days from the date it(or they) is due and payable. The finance charge provided by this Section 3.2 shall continue to accrue daily until the date payment is received by Licensor, not the date payment is delivered or the date postmarked on the payment. 3.3 If Licensor, at its sole discretion, uses a collection agency or attorneys to collect delinquent License Fees, any additional fees provided for in this License or finance charges, and Licensor is successful in collecting such charges, Licensee shall reimburse Licensor for all reasonable collection costs, including reasonable collection agency fees and reasonable legal expenses. 3.4 Although Licensee's right to possession of the Premises shall terminate when the term of this License has expired or is terminated prior to such expiration in accordance with a provision of this License, Licensee's obligations under this License, including but not limited to the obligation to pay License Fees, taxes and assessments, and utilities, shall continue until Licensee delivers possession of the Premises to Licensor in the condition required by this License. 3.5 The payment by Licensee of any sum(s) in advance shall not create an irrevocable License for the period for which the same is/are paid. Licensor reserves the right to periodically adjust the License Fee at any time, by giving notice at any time, independent of the term of the License, of such adjustment to Licensee at least thirty (30) days prior to the effective date of such adjustment. The use of the License created by this License by Licensee after such effective date shall be at such adjusted License Fee. 3.6 Failure of Licensee to receive any bill for periodic License Fees owing, or receipt of a bill in an incorrect or unadjusted License Fee, shall neither override the License terms in this License nor excuse or release Licensee from liability or responsibility for the correct License Fee. Limitation on collection for any erroneous billings or payments shall be three (3) years from the termination of this License. 3.7 In the event this License is terminated by notice of either Party (other than for breach or cause), Licensor shall refund to Licensee the portion of any prepaid License Fees plus any taxes paid in advance; PROVIDED, however, such refund shall not be made when the cumulative total of such repayment which would otherwise be due is less than One Hundred Dollars($100.00). 4. SPECIFICATIONS: 4.1 The Wire/Cable Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the Joint Engineering Committee of the Association of American Railroads and the Edison Electric Institute, and the specifications of the National Electrical Safety Code, Part 2, "Safety Rules for the 2 Agreement No.407672 Installation and Maintenance of Electric Supply and Communication Lines", or of any successor agency(ies), and, in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or created thereby (collectively, "Laws"). Provided however, that all materials and workmanship employed in the construction, installation, use, maintenance, repair, relocation, operation and replacement of the Wire/Cable Line shall be subject to the prior written approval of the Licensor. 4.2 An aerial Wire/Cable Line shall be constructed and maintained to a MINIMUM clearance of no less than twenty-seven (27') feet above the top of the rail of any and all tracks, and any poles, guy wire, anchor or other appurtenance shall be constructed to maintain a MINIMUM clearance of fifteen (15') feet from the centerline of any track(s). The side clearance of fifteen (15') feet shall be maintained for the full height of the vertical clearance as stated above. An aerial Wire/Cable Line shall be constructed, as nearly as possible to cross track(s) at a right angle to said track(s). 4.3 An underground Wire/Cable Line crossing under track(s) at a ninety (90°) degree angle, shall be encased in conduit for a MINIMUM of forty-eight (48') feet, twenty-four (24') feet on either side measured from the centerline of the track(s)or the full width of Licensor's property if less than forty-eight (48') feet. Crossings of a degree substantially greater or less than ninety (90°) degrees shall be encased in conduit for the full width of the track structure. The top of the conduit shall be a MINIMUM of five and one half(5%') feet beneath surface of ground at all points within Licensor's property. 4.4 Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Wire/Cable Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Wire/Cable Line, Licensee shall be required to execute Licensor's standard Right of Entry for any maintenance or repair work on the Wire/Cable Line that requires entry onto Licensor's property or right-of-way. 4.5 Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. 4.6 Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Wire/Cable Line and the construction or use of the Wire/Cable Line or other of Licensee's facilities on Licensor's property or the operation of any of them. 3 Agreement No.407672 4.7 Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee's sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor's property which may be affected by the relocation, installation, construction or any maintenance or repair of the Wire/Cable Line. Licensee's Wire/Cable Line will not unreasonably interfere with the use of Licensor's property, or create any undue hardship on the person or entity occupying said property. 6. INSURANCE: Licensee shall purchase and maintain insurance as specified in Exhibit C and the conditions below covering the License, all the work and services to be performed and all obligations assumed under it, from the Effective Date until termination, unless duration is stated to be otherwise. The Licensee's self-insurance policy has been reviewed and is acceptable to the Licensor 6.1 If applicable, any and all General Liability policies procured by Licensee shall be amended to delete any and all railroad exclusions including exclusions for working on or within fifty feet(50') of any railroad property, railroad track, railroad bridge, trestle or tunnel. 6.2 All insurance required of Licensee shall include Licensor, its parents, owners, and affiliates, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, shareholders and employees as additional insured and include wording which states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. 6.3 All insurance shall provide a minimum of thirty (30) days advance written notice of insurer's intent to cancel or otherwise terminate policy coverage. 6.4 All policies shall be written on an occurrence basis. If Licensee cannot obtain an occurrence based policy for any required coverage, policies may be written on a claims made basis. If any policies providing the required coverage(s) are written on a claims-made basis, the following is applicable: i. The retroactive date shall be prior to the Effective Date of this License. ii. Licensee shall maintain such policies on a continuous basis. iii. If there is a change in insurance companies or the policies are canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. 4 Agreement No.407672 6.5 Licensee shall file with Licensor and its affiliates on or before the Effective Date of this License a valid Certificate of Insurance for all required insurance policies. Each certificate shall identify Licensor and its affiliates and other parties as noted above as additional insured as required and state that Licensor and its affiliates will receive a minimum of thirty (30) days advance written notice of insurer's intent to cancel or otherwise terminate policy coverage. Prior to expiration of such insurance, Licensee shall supply updated Certificates of Insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage, as was provided by the original Certificates. 6.6 Licensee hereby waives all rights of subrogation against Licensor, its affiliates and other required parties as noted above, for damages to the extent covered by insurance. All insurance policies of Licensee shall allow that any release from liability of or waiver of claim for recovery from any other party entered into in writing by Licensee prior to any loss or damage shall not affect the validity of said policy(ies) or the right of the insured or insureds to recover under them. 6.7 In the event that any work under this License is to be performed by a private contractor, said contractor shall execute Licensor's standard License for Right of Entry and Use of Premises agreement and provide evidence of insurance coverage specified in said License. 7. RISK, LIABILITY, INDEMNITY: 7.1 Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. 7.2 (a) TO THE MAXIMUM EXTENT ALLOWED BY LAW, LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE "INDEMNITEES") AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES,ATTORNEYS' FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR 5 Agreement No.407672 RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. (b) THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS' COMPENSATION ACT OR FEDERAL EMPLOYERS' LIABILITY ACT. (c) LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS,ACTIONS,AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD "LICENSOR" AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. (d) AS A PRECONDITION TO LICENSEE'S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY LICENSEE. 8. WAIVER: Licensee waives the right to question the validity of this License or any of the terms and provisions of it, or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Wire/Cable Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause 6 Agreement No.407672 whatsoever. Licensee further agrees to indemnify and save harmless, to the maximum extent permitted by law, Licensor and to assure all risk, responsibility and liability (including any expenses, attorneys' fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor's title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: 9.1 Licensee will at all times maintain the Wire/Cable Line in a safe and secure manner, and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Wire/Cable Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor's railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Wire/Cable Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Wire/Cable Line(including de- energizing a wire if required) as required or remove the Wire/Cable Line, or as much of the Wire/Cable Line as is located upon the portion of the property as required by Licensor. 9.2 If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Wire/Cable Line or to make any necessary repairs, or to relocate the Wire/Cable Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Wire/Cable Line to be removed from Licensor's property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen (15%) percent of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10)days advance written notice of its intention to do so. 9.3 In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Wire/Cable Line, this License shall continue in force and be applicable to the portion or portions of the Wire/Cable Line remaining from time to time until the entire Wire/Cable Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATION: If Licensee fails to keep or perform any of Licensee's covenants contained in this License, or in the sole judgment of Licensor the use of this property or tracks make it impractical to maintain the existence of said Wire/Cable Line as authorized in this License, Licensor has the right to terminate this License upon fifteen (15)days written notice to Licensee. 11. RESTORATION: Upon termination of this License, whether in accordance with the provisions of Section 1, 9 or 10 of this License, or otherwise, Licensee shall promptly remove the Wire/Cable Line from Agreement No.407672 Licensor's property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Wire/Cable Line within thirty (30) days after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.2 of this License. 12. MISCELLANEOUS: 12.1 This License is executed by all Parties under current interpretation of any and all applicable Federal, State, Municipal, or other local statute, ordinance, or law. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement)contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. 12.2 In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. 12.3 Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: Licensor: Great Western Railway of Colorado, L.L.C. Attn: Director—Real Estate 252 Clayton Street Denver, Colorado 80206 Licensee: Weld County Government 1401 N 17th Avenue Greeley, CO 80631 Attn: Ryan Rose 12.4 No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. 12.5 This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, 8 Agreement No.407672 pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Wire/Cable Line by Licensee. 12.6 This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee's successor in interest to this License. 12.7 Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee's facilities. 12.8 Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. 12.9 The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. 12.10 Licensee further indemnities Licensor, to the maximum extent permitted by law, against any and all liens that may be placed against Licensor's property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. 12.11 In the event that Licensor shall incur any costs or expenses, including attorneys' fees and costs, in enforcing Licensee's covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. 12.12 This License shall be governed under the laws of the State of Colorado, and venue shall be proper in the federal or state courts of the State of Colorado for any action arising under the terms of this License or performance of it. The section headings of this License have been inserted 9 Agreement No.407672 for convenience of reference only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. 12.13 Licensor's remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. 12.14 All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. 12.15 Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. 12.16 Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. 12.17 All exhibits attached to this License are incorporated by reference as if fully set forth in this License. 12.18 Fund Availability. Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. Execution of this Agreement by County does not create an obligation on the part of County to expend funds not otherwise appropriated in each succeeding year. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: ,,,, 1 Licensor: Great Western Ra'lway f Licensee: Weld County Government Colorad , .L By: By: in Printed name: Mike Freeman �Hn�i1� Printed name: Chair, Board of Weld Title: r Title: County Commissioners Date: (1 flAt 311/1-0)(11 Date: MAY 16 2016 ATTEST: d.fdrhAi V• 'tik. BOARD OF COUNTY COMMISSIONERS Weld Co my Clerk to the Board WELD COUNTY,COLORADO BY: i //.I .,;`Pan*. •- Deputy Cl k to the : s!, - 1- �N. Mike Freeman,Chair MAY 16 2016 A 1; 0 lk TfQ .r -" l Ej ed ial or De rtment Head Alik% le o?oi6-- 451� APPLICATION FOR WERE OR CABLE LINECROSSING OR PARALLEL ENCROACHMENT OF PROPERTIES AND TRACK If you have not reviewed Railroad's Utility Accommodation Policy, please contact Omnitrax at info;.a;landrail.com or 303.398,0400 to receive a copy prior to submittal of this application. Plans for proposed installation shall be submitted to and meet the approval of the property owner,and a written wire/cable line crossing agreement must be fully executed before construction can begin. Material and installation are to be in strict accordance with specifications of National Electrical Safety Code,current edition,and requirements of the Property Owner. One original of this form shall be submitted,accompanied by letter size prints of a drawing showing plan,elevation section of crossing from field survey, location in respect to milepost,width of property owner's right of way and location of adjacent structures affecting crossing. PLEASE BE THOROUGH: Incomplete applications may result in processing delays. 1. Complete Legal Name of Applicant: Weld County Government 2. Agreement to be in the name of(if different from above): 3. Type of Applicant(please mark one): Corporation LLC Individual Municipality— Partnership—(General Limited_X_)Other County Government If applicable,state/province of incorporation or organization: Federal Tax Identification number(if applicable): 84-6000813 4. Mailing Address: 1401 N 17"'Ave.Greeley,CO 80631 Billing Address(if different): Overnight Delivery Service Address: 5. Contact Person: Ryan Rose Title: Chief Information Officer 6. Phone No.: (970) 304-6570 Fax No.:(970) 304-6572 Email: rrose@weldgov.com weldgov.com 7. Railroad: Burlington Route Location: 9`h Ave&2"d St feet (N/S/E/W) from nearest MP No. 8.Nearest City: Greeley County: Weld State: Colorado Section 5 Township 05N 407672 Exhibit "AN Range 65W I s ecifications meet or exceed Railroad's Utility Accommodation Policy INITIAL HERE: OR Variance requested—PLEASE DESCRIBE EN DETAIL(attach separate sheet if necessary): 10. Angle between centerline of right-of-way and wireline will be 90 degrees. 11.Number of RR Co.'s tracks to be crossed 1 Number of pole lines crossed 0 12.Crossing will be(Check one): transmission distribution service X communication fiber 13.Altering current NA voltage NA No. of Phases NA Hertz NA 14. Direct Current NA voltage NA amperes NA 15.Conductors:(a)Number NA (b)AWG gauge NA (c)material NA 16. Maximum voltage NA Maximum current NA 17. Max. fault to ground current NA Ht.of wire supports above ground level 18. Material(encasement)Fiber optic cabling 19.Outside diameter .5 inch 20. Wall thickness 1/8 inch 21.Total length within Railroad right-of-way 22.Height of wires above top of rail at 60°F 65 ft Sag in Spans at 60°F less than I ft 4O7s72 23. Height of wires above Railroad communication and signal wires at 60°F 65 Feet 24. Bury: Base of rail to top of casing NA Not beneath tracks NA Roadway ditches NA 25.Type of wire supports Metal Hooks Size 6 inch False dead ends NA 26.Number of poles to be located on Railroad Company's right-of-way 0 27. Distance from butt of pole to nearest rail of main track 25 feet 28. Distance from butt of pole to nearest rail of sidetrack NA 29.If additional wireline attachments or revisions are to be made to existing crossing,please advise number and/or date of agreement: 30.Will line exclusively serve Lessee of Railroad? yes Name Weld County Government 30.Will line run parallel or approx.parallel to Railroad Co.'s tracks?Yes Distance of parallelism: 2 blocks Please give approximate horizontal separation from our signal and telephone wires 31.Will line be located in public road right-of-way? DOT/AAR Crossing No.64 64 (If"yes",show name,road number and right-of-way on print). Name of Public Road 9'!'Ave g_ 2°"street 32.Geographical Coordinates(in decimal degrees) REQUIRED Latitude 40.4321311 Longitude -104.6925452 If application is approved,applicant agrees to reimburse property owner for any cost incurred by property owner incident to installation,maintenance,and/or supervision necessitated by this installation and further agrees to assume all liability for accidents or injuries which arise as a result of this installation as provided in the agreement to be executed. Non-refundable fees in the amount of S3,150.00 payable in U.S. Dollars are due at the time of application submission. ****Canadian residents/businesses,this fee is a taxable supply,please include applicable GST**** REQUESTS FOR RUSHED SERVICE(full execution within fourteen(14)days)ARE AN ADDITIONAL$1,000.00. Applications submitted without the required fees will not be processed. in addition,annual fees will be assessed pursuant to a written crossing agreement. Please note, if the submitted application and prints require review by any independent environmental(HAZMAT)or other outside consultants,this review will be at applicant's sole cost and in addition to the aforementioned fees. Please return application, payment,map and prints to:Omnitrax Inc.,C/O Real Estate Department 252 Clayton Street,Denver,CO 80206. Telephone Number: (303)398-0400, Fax Number(866)351-9503. Once an executable wireline license agreement is submitted to you,the license must be fully negotiated and executed within one hundred twenty(120)days. Thereafter,the application and materials will be archived and resubmission(including fees)will be requirc LEASE INITIAL HERE INDICATING YOUR UNDERSTANDING OF THIS POLICY: \� Date: June 16,2015 Signature: \ Name Printed: t� ` I Title: C 0 40767 2 _ _ Cst .- 4 t`l Park Pa ti THIS IS A CROSSING _ ' 1 . - libial Ca i \ 0 i r, • low; '•� ( -II r se Red Mu N o Plot Nom. al I 1 -4 latineette to tri 0 ri - 4•- i, 0 - • . 0t ! III Is THIS IS AN ENCROACHMENT r s ; - et 2nd SI • 41. 5 9tIeAve & 3rd St, Cr * ley, Cato z 3r d St 3rd v i 4, d i el he • M pi 5 it O is 4thSt Ft. 4th Sr Ate it 5th St 07672 Exhibit1r 1 a r i.4, Certificate of Participation Colorado Counties Casualty and Property Pool (CAPP) For the Coverage Period January 1, 2016 through December 31, 2016 WELD COUNTY Colorado Counties Casualty and Property Pool(CAPP)hereby certifies that Weld County Is a participating Member of CAPP for the period beginning January 1,2016 through December 31,2016.The coverages, conditions of membership,and other provisions applicable to members of CAPP are as described in CAPP's Bylaws and Intergovernmental Agreement and in the applicable excess policies, policy statements and endorsements thereto,copies of which have been or will be provided to Weld County. The types and monetary limits of the coverages provided to Weld County through membership in CAPP, In consideration of the payment of its contributions,are limited,as of the date of this certificate,to those which are shown below.The scope,terms,conditions and limitations of coverages are governed by the aforementioned agreement and policies. I) The types of coverages,subject to the limit on CAPP's liability in Section II below,are as follows: A) Property(Including EDP,mobile equipment,and auto physical damage) B) Liability 1) Bodily Injury,Property Damage(General Liability,Auto Liability) 2) Wrongful Acts committed in the conduct of duties(Public Entity Management Liability) 3) Bodily Injury,Property Damage,Personal Injury(Law Enforcement Liability) 4) Errors or omissions in the administration of an insured's employee benefits(Employee Benefits Liability) 5) Injury resulting from healthcare professional services rendered by any insured who is not a medical doctor,psychologist,psychotherapist or nurse practitioner.(Healthcare Professional Liability). C) Crime 1) Monies and Securities(inside) 2) Monies and Securities(outside) 3) Employee Fidelity D) Boiler and Machinery E) Network Security Liability II) CAPP Retention,Aggregate Limits,and Member Deductibles For the coverages described in Section I,CAPP shall be liable only for payment of the self-insured retention and only to a total annual aggregate amount for members of CAPP as a whole of the amount of the CAPP loss fund for the coverage period.CAPP's per claim/occurrence retentions are limited to the following for the foregoing coverages: A) $150,000 per claim/occurrence property—County deductible$500 B) $250,000 per claim/occurrence liability(per coverage line)—County deductible$0 except in certain claims-See CAPP Policy Statements. C) $150,000 per claim/occurrence crime—County deductible$500 D) $5,000 per loss boiler and machinery—County deductible$500 E) $10,000 or$25,000 per claim/occurrence network security liability—County deductible$0 4 0 7 6 7 2lli81T e r CAPP 2016 Certificate of Participation There is a maintenance deductible of$500,which applies to each of the County's first party claims/occurrences/losses(property claims).Payment of the deductible reduces the amount otherwise payable under the applicable CAPP retention. Pertaining to all liability losses,CAPP has purchased aggregate retention protection with a pool self-insured retention of$6 million in any one policy year. Coverages in excess of the foregoing pool retentions are provided only by the excess insurers in applicable excess policies,and are payable only by those excess insurers.The limits of coverage provided by the excess insurers are as follows: A. Liability From$250,000 per claim/occurrence to$10 million per claim/occurrence except for auto,which is non- aggregated,subject to the following: All liability coverages are provided on a claims-made coverage form.In no event shall the maximum per claim/occurrence payment exceed the following for general liability,auto liability,public entity management liability,law enforcement liability,employee benefits liability or healthcare professional liability claims subject to the Governmental Immunity Act: $350,000 per person and$990,000 per occurrence.Additional limits,sublimits and aggregates apply as provided in the applicable excess policies. B. Crime From$150,000 to$1 million each occurrence.Additional limits,sublimits and aggregates apply as provided in the applicable excess policies. C. Boiler and Machinery From$5,000 to the cost of repair/replacement for each actual loss sustained up to$100 million. Additional limits,sublimits and aggregates apply as provided in the applicable excess policies. D. Property From$150,000 to$100 million each occurrence."All Risk"basis with sublimits of$10 million newly acquired property,$5 million new construction each occurrence and$1 million unscheduled locations. Sublimits of$5 million for property in Flood Zone A and$50 million for property in ail other flood zones. Newly acquired property must be reported within 90 days.Additional limits,sublimits and aggregates apply as provided in the applicable excess policies. E. Network Security Liability Privacy Liability:$1,000,000 each claim/$1,000,000 Aggregate,$5,000,000 Maximum Policy Aggregate Limit;Network Security Liability$1,000,000 Each Claim/$1,000,000 Aggregate:$1,000,000;Internet Media Liability Each Claim/$1,000,000 Aggregate.All member limits are subject to the Pool Aggregate Limits. Data Breach Fund$500,000(notification/credit monitoring,computer forensics,public relations,legal, fraud consultation,and identity restoration services),$500,000 for Business Interruption;$500,000 for PCl/Regulatory Fines/Penalties.Additional limits,sublimits and aggregates apply as provided in the applicable excess policies. The excess insurers for the coverage period are One Beacon,Lexington Insurance Co.,Hiscox and ACE. Information concerning the CAPP loss fund for the coverage period may be obtained by contacting CAPP through its Administrator,County Technical Services,Inc,(CTSI). Colorado Counties Casualty and Property Pool 441t5 —. Allen .Chapman,CTSI Executive December 3,2015 4 0 7 6 7 2 O HI.B. i` � CAPP 2016 Certificate of Participation ACORD CERTIFICATE OF LIABILITY INSURANCE 4/DATE( 16 D THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER CONTACT NAN'f; _..Anita Bruner Arthur J.Gallagher Risk Management Services,Inc. PHONE -Flu 6399 S.Fiddlers Green Cir .IArc,HL R,«-303-889-2574 we_Rm.303-889-2575 Suite 200 ASS;anita_bruner@ajg.com Greenwood Village CO 80111 INSURER(S)AFFORDING COVERAGE NAIC II INSURER A:Colorado Counties Casualty&Proper INSURED INSURER a:Atlantic Specialty Insurance Compan 27154 Weld County INSURER c:Lexington Insurance Company 19437 P.O.Box 758 Greeley,CO 80632 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:65493120 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS LLTTRR I TYPE Of INSURANCE I MD W VD I POLICY NUMBER ,IMM POUC1DDIYYYYTY I IMFWDY�I UNITS A x COMMERCIAL GENERAL LIABILITY PER PARTICIPATION CERT 1/1/2016 1/1/2017 EACH OCCURRENCE $250 000 DAMAGE TO RENTED X I CLAIMS-MADE OCCUR PREMISES_IEs occurrence) S MED EXP(Any one person) S PERSONAL 6 ADV INJURY 5250,000 G£N'L AGGREGATE LIMIT APPUES PER GENERAL AGGREGATE $ PRO- , POLICY JECT , LOC PRODUCTS-COMP/OP AGG 5250,000 OTHER I A AUTOMOBILE LIABILITY PER PARTICIPATION CERT 1/12016 1/1/2017 (EOMB ac SINGLE LIMIT 5250,000 X ANY AUTO Epp BODILY INJURY(Pr person) S AU FINED —AUTOS LED BODILY INJURY(Pr rodent) S X HiR£PAUTOS X NONO'AHED "PROPERTPDAMAt,I — AUTOS (Pr accident) S X Claims Made $ B UMBRELLAUAB _ OCCUR 7910003550005 1/1/2016 1/1/2017 EACH OCCURRENCE $10,000,000 — EXCESS UAB X CLAIMS-MADE AGGREGATE 510,000,000 DED IX I RETENTION 5250.000 S WORKERS COMPENSATION I SPER 1 TATUTE I 1H AND EMPLOYERS'LIABILITY Y 1 N ER ANY PROPRIETOR/PARTNER/EXECUTIVE N!A E.L.EACH ACCIDENT S OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E L.DISEASE-EA EMPLOYEE S eyes.describe tinder DESCRIPTION OF OPERATIONS below . E L.DISEASE•POLICY LIMIT S C Excess Property 020412751 1/1/2016 1/1/2017 BLANKET BLDG&PP 100,000,000 Prop,Mob Eq,Auto PD,XS PER PARTICIPATION CERT 1/1/2016 1/1/2017 Member Ded=5500 150,000 DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES(ACORD 101,AddItional Remarks Schedule,may be attached if more space le required) See Attached... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Great Western Railway of Colorado,LLC THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 252 Clayton Street ACCORDANCE WITH THE POLICY PROVISIONS. Denver CO 80206 AUTHORIZED REPRESEENTATIVE TI ®1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014101) The ACORD name and logo are registered marks of ACORD 407 672 EyRiBIr"C I, AGENCY CUSTOMER ID: LOC#: ARD® ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Arthur J.Gallagher Risk Management Services,Inc. Weld County P.O. Box 758 PouCYNUMBER Greeley, CO 80632 CARRIER NAIL CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE Excess Property:Carrier. Lexington Insurance Company Policy#020412751 Policy Term 01/01/2016 to 01/01/2017$100,000 Loss Limit- Excess Property/Real& Personal Property(All Risk)including Equipment Breakdown$5,000,000 Each Occurrence/Annual Aggregate- Flood,Zone A$50,000,000 Each Occurrence/Annual Aggregate-Flood,all other Zones$50,000,000 In the Aggregate as respects all flood loss combined$25,000,000 Each Occurrence/Annual Aggregate-Earthquake$100,000 Business Income(Includes Rental Income) $150,000 Deductible All Perils/$5,000 Deductible Equipment Breakdown except$10,000 applies to Snake River Waste Water Treatment Facility in Dillon,CO RE:Evidence of coverage;agreement for wire/cable line installation. ACORD 101(2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Hello