Wastewater Treatment Plant 18 inch Drainage Waterway
i____,
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of
Delaware
municipal corp
WITNESSETH:
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AGREEMENT, executed in duplicate this ~ t1.. day
1990, by and between MISSOURI PACIFIC RAILROAD COMPANY. a
tion, hereinafter called "Railroad". and the CITY OF SALINA, a
ation of the State of Kansas, hereinafter called "Licensee",
DRAINAGE & WATERWAY AGREEMENT
RJ;;~lI!1~
In order to improve drainage conditions in the vicinity
of the City Municipal Wastewater Treatment Plant, Smoky Hill
Creek and the Railroad right of way, Licensee desires to (a)
excavate, and construct a 8 foot wide flat-bottom drainage
ditch located on and along the Railroad's right of way; (b)
to install two 18 inch diameter corrugated metal pipes
culverts with rip rap from the wastewater treatment plant to
discharge into the Railroad's drainage ditch and drain into
Smoky Hill River; and (c) to use and maintain the ditch, the
cuI vert pipes " and all appurtenances thereto, all at
Licensee's sole cost and expense located on and along
Railroad right of way in the vicinity of Milepost 492.50 in
Saline County, Kansas, at or near Salina. Railroad is
agreeable, but solely upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the Premises and of the Covenants
and Agreements hereinafter contained, the Parties hereto agree:
1. RAILROAD, solely to the extent of its right, title and interest,
without any warranty, either express or implied, hereby grants to Licensee, its
successors and assigns, license and permission, for the purpOses and subject to
the terms, conditions and reservations hereinafter set forth: to
(a) excavate, construct, reshape, improve, widen and
maintain and use a 8-foot flat bottom existing drainage
ditch channel with a slope of 0.36 percent slope with 3: 1
side slopes, located on the North side of Railroad's right
of way;
(b) excavate, construct two 18
metal pipes as follows: construct
as 18 inch by 38 feet long with
inch corrugated metal pipe by
sections; and
inch diameter corrugated
one corrugated metal pipe
end sections; and one 18
22 feet long with end
(c) excavate, construct and maintain 58 square yards of
concrete channel lining ditch section at Smoky Hill Creek
with slope walls to connect to subsection 1 (a).
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The hereinabove-described two 18 inch diameter corrugated metal pipe
culverts with end sections, rip rap, the 8 foot wide flat-bottom drainage ditch,
the concrete line ditch section, together with any appurtenances thereto, are
hereinafter collectively referred to as "Drainage Facilities". Drainage
Facilities shall conform substantially to specifications, notes and cross
sections as shown on RAILROAD'S CHIEF ENGINEER drawing dated June 11, 1990, as
prepared in the Office of Chief Engineer, Omaha, Nebraska, marked EXHIBIT "A",
attached hereto as part hereof, and shall be located on, under, along and across
certain of Railroad's tracks and right of way, hereinafter collectively referred
to as "Premises", at Mile Post 492.50 to Mile Post 493.00 in Saline County,
Kansas, at or near Salina. Approximate location of Drainage Facilities and
Premises is shown on Exhibit "A".
2. The permission herein granted to Licensee is expressly subject and
subordinate to the present and future right in Railroad, its successors,
assigns, lessees, grantees and licensees to maintain, use, operate and renew on,
beneath or above surface of Premises any telephone, telegraph, power,
communication or signal lines, poles, and/or appurtenances, fiber optic
communications, tracks, roadways, pipe lines, structures, improvements, or
facilities of similar or different character, as now located; and to construct,
install, establish, thereafter maintain, use, operate and renew on, beneath, or
above the surface of Premises, any or all said things, provided the same do not
materially interfere with Licensee's use of Premises as hereinabove provided;
provided further, however, the foregoing conditions for future construction and
installation shall not apply to railroad tracks, which Railroad, its successors
and assigns, shall have the right to install, construct, maintain and operate
on, over or under the Premises at any and all times.
Upon the determination by Railroad that future tracks should be built
on the Premises, the Drainage Facilities shall be encased to specifications of
Railroad or removed from the Premises, and the cost for such encasement or
removal shall be by Licensee according to the relative benefits accruing from
the existence of the Drainage Facilities on the Railroad Premises.
3. This grant of license and permission are further subject to the
following terms, provisions and conditions, which Licensee hereby expressly
accepts, to wit:
(a) Licensee shall not begin, nor permit its contractor to begin, any work
of any nature whatsoever on or about Premises until Licensee or its
contractor shall have given Railroad's Superintendent of
Transportation Services, or his authorized railroad representative at
least 72 hours' written notice in advance of starting same;
(b) Licensee or its contractor shall perform its work hereunder at such
time and in such manner as shall be agreed upon between Licensee and
Railroad's said Superintendent of Transportation Services or his duly
authorized representative. During the entire progress of Licensee's
work on or about Premises, Licensee or its contractor shall maintain
contact and liaison with Railroad's authorized representatives so as
to ascertain the time of passage of trains at the site of Licensee's
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"
work and so as to permit free and safe flow of railroad traffic. All
work of Licensee shall be performed without interference with
Railroad's tracks and operations and Railroad's and its lessees' or
licensees' structures or facilities. Licensee or its contractor shall
use utmost care in protecting Railroad's and others' property and in
avoiding accidents. Licensee shall leave Premises in a condition
satisfactory to Railroad's authorized representative;
(c) Licensee shall, at its sole cost, operate and maintain the Drainage
Facilities, or cause the Drainage Facilities to be operated and
maintained, in good and safe condition and keep same free and clear of,
debris, sediment or obstructive matter which mayor could interfere
with or impede the proper functioning thereof;
(d) Licensee shall, at Licensee's sole cost and responsibility, remove
such of Railroad's right of way fence, as may be required in the
performance of its work hereunder, and upon conclusion of said work,
permanently reinstall said fence to the satisfaction of Railroad's
Superintendent of Transportation Services and or his duly authorized
representative; and
(e) Licensee shall, at Licensee's sole cost, risk and responsibility,
furnish or do or cause to be furnished or done any and all things'
required under this agreement, when, where and as from time to time
required to be accomplish whatsoever Licensee attempts or is bound to
do at any time hereunder. Said things, including the time and manner
of doing any work, shall conform to the requirements of the Railroad
as well as of any State, Federal, or Municipal authority.
(f) Licensee hereby agrees that it or its contractor, during the
performance of excavating, constructing and maintaining the Drainage
Facilities, or any part thereof, will not excavate near the toe of
trackfill of the trackbed and will protect trackbed in the design,
construction and maintenance of said Drainage Facilities. In the event
of any settlement of Railroad I s embankment caused by excavation of
ditch, as herein provided, Licensee, at its sole cost and expense,
agrees to restore, or cause to be restored, Railroad's embankment to
its proper grade and dimensions.
4. In addition to the requirements set forth elsewhere in this
Agreement, Licensee shall submit the design of Drainage Facilities to Railroad's
Chief Engineer of Design Services, or his duly authorized representative, for
approval. No work shall be performed in connection with Drainage Facilities
prior to receipt of Railroad's approval. No approval by Railroad of Licensee's
or its contractor's plans shall relieve Licensee or its contractor of any
responsibility or liability hereunder. Subsequent to installation of Drainage
Facilities, Premises shall be restored to a condition satisfactory to Railroad's
Superintendent Transportation Services or the duly authorized representative.
-3-
(a). Plans have been approved by Railroad Chief Engineer Offices as
furnished by Licensee by its consultant Wilson & Company and dated March 1990,
for the construction of the drainage ditch and pipes on the Railroad right of
way and as Railroad Print Marked Exhibit "A", with one objection as in (b)
below.
(b). Licensee shall install rip rap protection at 18 inch corrugated
metal pipes at Railroad embankment and side slopes where water will be
discharged in the vicinity of embankment to prevent erosion and slope
protection.
5. (a) Licensee, without any cost or expense to Railroad, shall
furnish or cause to be furnished the necessary labor, material, equipment and
instrumentalities, and shall perform or cause to be performed all the work of
constructing, excavating, installing and maintaining said Drainage Facilities.
(b) The Licensee shall provide adequate barrier protection around the
entire excavation area.
6. Licensee hereby agrees that, during the performance
excavating, constructing and maintaining said Drainage Facilities, or any
thereof, its men, materials, and machinery shall be kept at least twenty
feet from the centerline of Railroad's nearest track.
of
part
(20)
7. During any periods when work is being performed on or adjacent to
Premises by Licensee or its contractor in connection with any of the work to be
performed hereunder, Railroad is authorized to furnished flagmen or other
protective services or devices and to take such other action as in Railroad's
opinion may be necessary for Railroad's protection in the conduct of railroad
operations; and Licensee, upon receipt of bill therefor, shall reimburse
Railroad for any costs so incurred, such cost to be computed in accordance with
Railroad's customary practices. The providing of this service shall not relieve
Licensee or its contractor of any responsibility or liability.
8. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
(a) Fiber optic cable systems may be buried on the Railroad's
property. Protection of the fiber optic cable systems is of extreme importance
since any break could disrupt service to users resulting in business
interruption and loss of revenue and profits. Licensee shall telephone the
Railroad at 1-800-336-9193 (a 24-Hour number) to determine if fiber optic cable
is buried anywhere on the Railroad's premises to be used by the Licensee. If it
is, Licensee will telephone the telecommunications company(ies) involved,
arrange for a cable locator, and make arrangements for relocation or other
protection of the fiber optic cable prior to beginning any work on the
Licensor's premises.
(b) In addition to other indemnity provisions in this Agreement, the
Licensee shall indemnify and hold the Railroad harmless from and against all
costs, liability and expense whatsoever (including, without limitation,
attorney's fees, court costs and expenses) arising out of any act or omission of
-4-
the Licensee, its contractor, agents and/or employees, that causes or
contributes to (1) any damage to or destruction of any telecommunications
systems on Railroad's property, and (2) any injury to or death of any person
employed by or on behalf of any telecommunications company, and/or its
contractor, agents and/or employees, on Railroad1s property. Licensee shall not
have or seek recourse against Railroad for any claim or cause of action for
alleged loss of profits or revenue or loss of service or other consequential
damage to a telecommunication company using Railroad's property or a customer or
user of services of the fiber optic cable or Railroad1s property.
9. Licensee shall procure, or require any contractor engaged or
employed to perform any work hereunder on behalf of Licensee on any part of
Premises to procure, and keep in effect during the period of such work Workmen's
Compensation Insurance in statutory limits, and Contractor I s Public Liability
Insurance providing for a limit of not less than $2,000,000 for all damages
~rising out of bodily injuries to or death of one person and subject to that
limit for each person, a total limit of $4,000,000 for all damages arising out
of bodily injury to or death of two or more persons in anyone occurrence, and
Property Damage Liability Insurance providing for a limit of not less than
$2,000,000 for all damages arising out of injury to or destruction of property
in anyone occurrence and, subject to that limit per occurrence, a total (or
aggregate) limit of $4,000,000 for all damages arising out of injury to or
destruction of property during the annual policy period. If any part of the
work is sublet, similar insurance shall be provided by or on behalf of the
Subcontractors to cover their operations. Any limitation in the foregoing
insurance which excludes work performed within fifty (50) feet of the railroad
track shall be exempted out of said policies.
10. In addition to the insurance provisions set forth in Section 11
hereof, Licensee shall further require any contractor engaged or employed to
perform any of the work referred to herein on any part of Railroad's property
covered by this agreement to procure and keep in effect during the period of
such work Railroad Protective Liability Insurance, .in form set forth in Federal
Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 2, dated
October 25, 1974, issued by Federal Highway Administration, as amended, on
behalf of Railroad, in amount of $2,000,000 combined single limit per occurrence
for bodily injury, death and property damaged, with an aggregate limit of
$6,000,000 for the annual term of the policy; such insurance shall be in form
and in a company satisfactory to Railroad; and Licensee or its contractor shall
not attempt to perform any work on or about Premises until notified by Railroad
that the Railroad Protective Liability policy required hereunder is in form
satisfactory to Railroad.
11. Licensee further hereby agrees that Railroad shall not, at any
time, be required to bear or assume any cost or expense in or incident to the
construction, operation and maintenance of the Drainage Facilities; Licensee
hereby expressly agrees to bear and assume all such cost and expense.
12. Licensee hereby agrees to bear and assume any and all costs of
repairing or replacing any property of Railroad or others damaged or destroyed
-5 -
"
in connection with the performance of any work hereunder by or on behalf of
Licensee, or as a result of the exercise of the rights herein granted.
13. To the extent that it may lawfully to do so, Licensee (for the
purposes of this paragraph Licensee shall be deemed to include Licensee and
Licensee's agents, contractors and sub-contractors) hereby assumes and
discharges Railroad from, and shall defend, indemnify and save harmless Railroad
from and against, any and all claims, suits, damages, costs (including
attorneys' fees) losses, outlays, and expenses of any nature whatsoever (1st) in
any manner resulting from, arising out of or incident to the installation,
construction, maintenance, repair, reconstruction, removal, use or existence of
Drainage Facilities and appurtenances thereto, or any part thereof, including
the breaking of any part thereof and any leakage therefrom, (2nd) grounded upon
the effect at any time of any water which, because of or incident to the
construction, excavation, operation, maintenance or existence of Drainage
Facilities, or any part thereof, shall flow upon the lands, crops or
improvements of any person or party, or (3 rd) resulting from or growing out of
any failure of Licensee to comply with or perform any of the obligations, terms
or provision on Licensee's part to be complied with or performed hereunder.
Licensee further agrees to assume all risk of loss or damage to Drainage
Facilities regardless of how caused; provided, however, the foregoing
indemnification provisions shall not apply to any claims, suits damages, costs,
losses, outlays and expenses for which Railroad shall have been fully
compensated through insurance required of Licensee's contractors as per Sections
9 and 10 hereof.
14. (a) This agreement shall begin with the date first hereinabove
written and continue thereafter for so long as Premises shall be used for the
purposes set forth herein; provided, however, if Licensee shall abandon the use
of the Premises, or any part thereof, for such purposes, this license and
permission and the rights and privileges granted hereby as to the portion or
portions so abandoned shall expire and terminate at the time each such portions
shall be abandoned; whereupon Railroad shall have the same complete title to
Premises so abandoned as though these presents had never been executed and the
right to enter thereon and exclude. therefrom Licensee, its successors and
assigns.
(b) This agreement may be terminated upon a six-month written
notice from Railroad to Licensee provided that the Premises are required for
Railroad purposes. In the event of such notice of termination, the parties
shall arrange for removal of the Drainage Facilities from the Premises or for
their proper encasement, or relocation to the Railroad standards at Licensee on
cost and expense thereof as provided in Section 2 hereof.
15. The rights herein granted by Railroad are limited to such right,
title or interest as Railroad may have in Premises and are made without any
warranty, express or implied. It is understood by the parties hereto that such
rights are granted subject to the existing rights therein of any third party, if
any. It shall be. Licensee's sole obligation to obtain such additional
permission, license and grants as may be necessary on account of any such
existing rights. No damages shall be recoverable from Railroad because of
-6-
" I ,",
. .
dispossession of Licensee or because of failure of, defect in or extinction of
Railroad's title.
16. This agreement and all of the covenants and conditions hereof
shall inure to and bind each party's successors and assigns; provided: no right
of Licensee shall be transferred or assigned, either voluntarily or
involuntarily, except by express agreement acceptable to Railroad. Either party
hereto may waive any default at any time of the other without affecting, or
impairing any right arising from, any subsequent or other default.
17. All insurance correspondence shall be directed to: Union Pacific
Railroad Company, General Director of Contracts and Real Estate, Room 1200 1416
Dodge Street, Omaha, Nebraska 68179.
18. Licensee, when returning this agreement to Railroad (signed),
shall pay Railroad $500.00 for the License and permission herein granted and to
cover administration costs, and shall cause same to be accompanied by such
order, resolution, or ordinance of the governing body of Licensee, passed and
approved as by law prescribed, and duly certified, evidencing the authority of
the person executing this agreement on behalf of Licensee with the power to do
and which shall certify that funds are available and have been appropriated for
the payment of any sums agreed to be paid by Licensee hereunder.
IN WITNESS WllliREOF, the parties hereto have duly executed this
agreement as of the day and year first hereinabove written.
MISSOURI PACIFIC RAILROAD COMPANY
By, ~De~ract:-'- Z
By:
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Kuhn-Co~ Pri"t'og _ Salina. Kansas
II
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I A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE
I CITY CLERK TO ATTEST A DRAINAGE AND WATERWAY AGREEMENT WITH
MISSOURI PACIFIC RAILROAD COMPANY, A DELAWARE CORPORATION.
I
d
[I WHEREAS, in order to improve drainage conditions in the vicinity of
II the City Municipal Wastewater Treatment Plant, Smoky Hill River and the
Railroad right of way, the City desires to (a) excavate and construct an 8 foot
wide flat-bottom drainage ditch located on and along the railroad's right of way;
(b) to install two 18 inch diameter corrugated metal pipes culverts with rip rap
.j from the wastewater treatment plant to discharge into the Railroad's drainage
I ditch and drain into the Smoky Hill River; and (c) to use and maintain the
I ditch, the culvert pipes and all appurtenances thereto, all at the City's sole cost
II and expense located on and along Railroad right of way in the vicinity of
I Milepost 492.50 in Saline County, Kansas, at or near Salina, SO NOW,
I THEREFORE
I!
"
:1
II Kansas:
II
, ~
RESOLUTION NUMBER 90-4208
BE IT RESOLVED by the Governing Body of the City of Salina,
!i
Ii
II City Clerk to attest a drainage and waterway agreement with the Missouri Pacific
!!
Ii Railroad Company, a Delaware Corporation, relating to improvements to improve
I!
Ii drainage conditions in the vicinity of the City Municipal Wastewater Treatment
II
Ii Plant, Smoky Hill River and the railroad right of way.
11
I,
II
II and after its adoption.
i'
Section 1.
That the Mayor is hereby authorized to execute and the
Section 2.
That this resolution shall be in full force and effect from
II
II 16th day of July, 1990.
i!
!i
II
jl
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!i [SEAL]
II
1
II ATTEST:
I'
ii J~~L. ~l,~u.;
il Jacqueline Shiever, City Clerk
Ii '
II
Ii
II
Ii
I
I STATE OF KANSAS
I
I COUNTY OF SALINE
I I, Jacqueline Shiever, City Clerk of the City of Salina, Kansas, do
II hereby certify that Resolution Number 90-4208 was adopted by the Board of
II Commissioners at its regular meeting on July 16, 1990, and that the above and
II foregOing, is a true and correct copy of the original on file in my office.
.Ir . WITNESS my hand and official seal this 17th day of JuJy,..1990.
_< II Ii , "
- tSEAU"
:\111
.....,"'J
'I
I
I
I
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Adopted by the Board of Commissioners and signed by the Mayor this
Robert E. Frank, Mayor
)
) SS
)
,',
j llI.A.~IM.,~ S~ W v--
Jacqueline Shiever, City Clerk
. ~ ..
o ,
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\
UNION PACIFIC RAILROAD COMPANY
CONTRACTS & REAL ESTATE DEPARTMENT
B. W ZANDBERGEN
GENERAL DIRECTOR
It
J. A. ANTHONY
DIRECTOR-CONTRACTS
D. D. BROWN
DIRECTOR-REAL ESTATE SALES
D. H. L1GHTWINE
DIRECTOR-FIELD OPERATIONS
R. F. NIEHAUS
DIRECTOR-SPECIAL PROJECTS
W F. SOMERVELL
DIRECTOR-JOINT FACILITIES
ROOM 1100. 1416 DODGE STREET
OMAHA, NEBRASKA 68179
(402) 271-3753
FAX (402) 271-5493
JULY 25) 1990
City of SALINA, KANSAS
Drainage ~.L Waterway
MILE POST 429.50
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MR. DON HOFF
CITY OF SALINA
P.O. BOX 1307
SALINA, KANSAS 67402-1307
Dear Mr. Hoff:'
Attached is your original copy of the agreement, fully executed OIl
behalf of the Railroad Gcrnpany, for work on the Railroad Right of way fer
cleaning out the ditch and installing culverts for the City I S wast(,~ water
Lceatment plant.
Before any work can start on the Railroad right of way, please provide
a Certificate of Insurance covering the Railroad Protectiv.e Insurance IJ.ndt!le
(;eneral Public Liability Insurance as provided in Section 9 and Section 10 of
the agreeme,nt.
1'h.; RaiJroad Company has authorized the installation of fiber optic
cable facilit:ies on its property in ce:ttain areas. Prior to using the RailroG!.d
Company's property covered herein, you should thoroughly review thG te.rms and
conditions of this doc.ument and contact the Railroad Company at 1-800-336-9193
to de.1:ermine if a fiber optic cable is buri.e,d on the subject p.r.operty.
All future insurance notices should be forwarded to:
Mr. Jim Anthony, D:Ll~ector. of ContrSJct
Room 1100 "
Union Pacific Railibad Company
.tl:.J.6 Dodge Street' '"
Omaha, Nebraska 68179
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In accordance with the terms of this agreement, 72 hours in advance of
entering the right of way you should arrange to notify our Superintendent:
Ron Clarkson
2645 New York Avenue
Wichita, Kansas 67219
phone: 316-268-9456
If you have any further question please call me at 402-271-4309.
~nCerelY ~~uJP'
6?ddld ~
Contract Representative
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