Cloud & Roberts 6 inch Water Pipeline Crossing Agreement
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PLE.DOC 890707
I
Form Approved. AVP-Law
Folder No. 38-85
PIPELINE AGREEMENT
LONGITUDINAL ENCROACHMENT
Mile Post 497.91 Trigo Industrial Branch
Location: Salina, Saline county, Kansas
THIS AGREEMENT is made and entered into as of the day of
I ,1993, by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware
corporation, (hereinafter the Licensor) and CITY OF SALINA, KANSAS, a municipal
corpor~tion of the State of Kansas, to be addressed at P. O. Box 736, Salina,
Kansas1 67402-0736 (hereinafter the Licensee).
I
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
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ARTICLE 1 - LICENSE FEE:
ulon the execution of this Agreement, the Licensee shall pay to the
Licens6r a license fee of six hundred dollars ($600.00).
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ARTICLE 2 - LICENSOR GRANTS RIGHT
Il consideration of the license fee to be paid by the Licensee and in
furthet consideration of the covenants and agreements herein contained to be by
the Libensee kept, observed and performed, the Licensor hereby grants to the
LicensJe the right to construct and thereafter, during the term hereof, to
maintann and operate an underground a-inch pipeline encroachment (hereinafter
called Ithe Pipeline) in the location shown and in conformity with the dimensions
and specifications indicated on the attached print dated January 22, 1993 and
marked IEXhibit A.
ARTICLE 3 - CONSTRUCTION. MAINTENANCE AND OPERATION
- TJe grant of right herein made to the Licensee is subject to each and all
of the terms, provisions, conditions, limitations and covenants set forth herein
and in Exhibit 8, hereto attached.
ARTICLE 4 - TERM
TJis Agreement shall take effect as of the date first herein written
shall dontinue in full force and effect until terminated as herein provided.
and
Articles of Agreement
Page 1 of 2
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ARTICLE 5 - IF WORK IS TO BE PERFORMED BY CONTRACTOR
If a contractor is to do any of the work performed on the Pipeline
(including initial construction and subsequent relocation or substantial
mainten1ance and repair work) I then the Licensee shall require its contractor to
executeJ the Licensor's form Contractor's Riqht of Entry Aqreement. Licensee
acknowledges receipt of a copy of Contractor's Riqht of Entry Aqreement and
underst~nding its term, provisions and requirements, and will inform its
I
contracfor of the need to execute the Agreement. Under no circumstances will
Licensee's contractor be allowed onto Licensor's premises without first
executihg the Contractor's Riqht of Entry Aqreement.
ARTICLE 6 - SPECIAL PROVISIONS
None
IN[ WITNESS WHEREOF, the parties hereto have caused
executed in duplicate as of the date first herein written.
this Agreement to be
MISSOURI PACIFIC RAILROAD COMPANY
By
DIRECTOR - CONTRACTS
Witness:
CITY 01" SALINA I KANSAS
x ~~ '"'-'-~ ~ L,wu.-
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\itle:~J ~J'72-
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Articles of Agreement
Page 2 of 2
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Pl X 890707
Form Approved, AVP-l.w
EXHIBIT B
Section I. lI"'TATlCW AND SueamlNATlCW ~ RIGHTS GSWITED.
I (a) The foreooino grant of right is subject and sul;lordinat. to t':le prior and
continuing right and obligation of the llc.nsor to use and melntain its en!lr. property
including the right and powr of the Lic.nsor to construct, nintain, repair, renew, use,
operat., charlOt, nodi fy or relocat. ra i I road tracks, signa I, ccrmun icat ion, fiber opt ics, or
other wlrelines, piptlar~s and other facilities upon, aJ~ or Kross any or all parts of its
Property, all or any of which may be fr..ly done at any tine or tiftltS by the lic.nsor without
I iabi Ii ty to the Lic.ns. or to any other party for cQ'T1)ensat ion or ~oes.
I (b) The foregoing grant is also subject to all outstanding superior rights
('inc luding those in favor of Hcensees and lessees of the lic.nsor'S property, and others) and
tihe right ,of t~ licensor to rene.. and ext.nd the ~, and is IlI!dt Without covenant of title
or for qUiet enjoyment.
Jection 2. CCWSTRUCTICW, MAINTENANCE AND OPERATICW.
I (a) The Pipel ine shall be constructed, operated, meintained, repaired, renewed,
mOdified and/or reconstructed by the licensee in strict conformity with Union Pacific Railroad
Co. Ccmron Standard Specification 1029 adopted Noverrber 1949, and all ntnctrltnts thereof and
s'upplerrents thereto, which by this referenc. is hereby rreOe a part hereof, .xcept as IIISY be
rOOd. fied and awr:oved by the licensor's Assistant Vic. Presidtnt-fnginHrlno Services. In the
e~ent such Specification conflicts in any respect vith the requirements of any ftderal, stat.
or IllJnicipal law or regulation, such requir.-nents shall govern on all points of conflict, but
in all other respects the Specification shall apply.
I (b) All vork perfonred on property of the licensor in connection vitti the
construction, ll'eintenanc., repair, renewal, rrodification or reconstruction of the Pipelint
shall be done under the supervision and to the satisfaction of the licensor.
I (c) Prior to the camencement of any work in connection vitti the construction,
meintenance, repair, renewal, rmdification, re ocation, reconstruction or renoval of the
Pi pe line where I t passes underneath the roadbed and track or tracks of the li censor, the
licensee shall sutmit to the licensor plans setting out the nthod and II'I5nner of hand I ing the
wOrk, including the shoring and cribbing, if any, required to protect the licensor's
oPerations, and shall not proc&e<1 vith the work unti I such plans have been approved by the
Assistant Vice President-fnoineeri"O Services of the licensor and then only under the
supervision of the Assistant Vic. Pfesident-f~inHring Services or his authorized
representative. The licensor shall have the right, if It so .Iects, to provide such support as
it IMy deem necessary for the saf.ty of its track or tracks dur ing the t in of construct ion,
IMintenance, repair, re~I, rrodif.cation, relocation, reconstruction or renoval of the
Pipe line, and, . n the event the Licensor prov i des such support, the licensee sha II pay to the
licensor, within fifteen (15) days aft.r bills shall have been rendered therefor, all expense
i~urre<l by the Licensor in 'connection therevittl, whiCh expense shall include all assignable
costs.
I (d) The Licensee shall keep and meintain the soi lover the Pipel ine thoroUQtll,
c~cted and the grade even vi ttl the adjacent surfac. of thl ground.
S~t ion 5. J<<>T/CE ~ CCJIIEt<<:EJENT ~ .oK.
I If an trTItrgency should arise requiring irmediate attention, the licensee shall
p~oYide as /llJCh notice as practicabl. to Licensor before camencing any ..ark. In all other
situations, the Licensee shall notify the Licensor at least ten (10) days (or such other tin
as the licensor IrIS' allow) in advance of the ccmnencerrent of any vork upon property of the
Lijcensor in connection vitti the construction, lMintenanc., repair, renewal, rmdification,
reconstruction, relocation or rerroval of the Pipel ine. All such vork shall be prosecuted
dil'igently to cCJ1'4)letion.
Section 4. liCENSEE TO BEAR ENTIRE EXPENSE.
I The licensee shall bear the .ntire c~t and expense incurred in connection vith the
c~nstruction, meintenance, repair and renewal and any and all modification, revision,
relocation, rerT'Dval or reconstruction of the Pipeline, including any and all expense which /MY
~ inc~rred by the Licensor in connection therevith for supervision, inspection, flaQOing, or
otherwise.
I
Exhibi t B
Pag' e I of 4
04 5n
Pl X/A
Section 5. RElOCATICJI M RE~Al (y PIPELINE.
(a) The license her.in granted is subject to the Ilfoeds and reQuir~nts of the
Licensor in the operation of its rai I road and in, the i~ovenent and use of i!s property, and
the licensee shall, at the.sole expen~ of the llcens~, move all or any portion of the
Pipeline to such ~ location as!he licensor ney deSlgnate,.whenever, In the fu~therance of
its needs .and requlrllTlents, the licensor shall fll'ld such Ktlon nec.ssary or desirable.
(b) All the terms, conditions and stipulations herein .xpressed with reference to
the Pipeline on property of the licensor in the location her.inbefore described shall, so far
as the Pipeline remlins on the property, apply to the Pipeline as nodified, changed or
relocated within the cont~latlon of .this S<<tion.
Section 6. NO INTERFERENCE WITH liCENSOR'S OPERATION.
The Pi pe line and a II parts thereof iii i th in and outs ide of the I imi ts of the property
of the licensor shall be constructed and, at II I ti~, neintained, repaired, renewed and
operated in such IMnner as to cause no interference whatsoever with the constant, continuous
and uninterrupted use of the tracks, property and facilities of the licensor, and nothing
sha II be done or suffered to be done by the li censee at any t i~ that wou Id I n any /Mnner
ill'()air the safety thereof.
Section 7. PROTECTION (y FIBER OPTIC CABLE SYSTEMS.
(a) Fiber optic cable systems /MY be buried on the licensor's property. Protection
of the fiber optic cable systems is of extreme i~tance sinee any break could disrupt
service to users resulting in business interruption and losS of revenue and profits, licensee
shall telephone the licensor at 1-800-S}6-919} (I 2C-hour number) to detennine if fiber optic
cable is buried anywhere on the licensor'S premises to be used bJ the licensee, If it is,
licensee will telephone the telecommunications company(ies) invo ved, arrange for a cable
locator, and IMke arranQel1l!nts 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
indermify and hold the licensor harmless fran and a~inst all cosn, liability and expense
whatsoever (including, without limitation, attorney S fees, court costs and expenses) arising
lout of any act or emission of the Licensee, its contrKtor, .nts and/or el!C)loyees, that
Icauses or contributes to (I) any dam!ge to or destruction of any telecamlJnicatlons system on
'licensor's property. and (2) any injury to or death of any person employed by or on behalf of
any telecamlJnlcatlons c~ny, and/or its contrKtor, agents and/or ~IOyeesl on licensor's
'property. licensee shall not have or seek rlCourS4t aoainst licensor for any c aim or cause of
action for all'9ed loss of profits or revenue or loss of S4trvice or other consequential damage
~o a telecommunication ca:rtllny usinQ licensor's property or a custClMr or user of services of
~he fiber optic cabl. on LIcensor's property,
Section 8. CLAIMS ~O LIENS FM lAOOR ~O MATERIAl; TAXES.
I (a) The Licensee shall fully pay for all meterials joined or affixed to and labor
perfomed upon property of the licensor In connection with the cOMtruction, nintenance,
repa i r, renewe I, ntld if lCat ion or reconstruct i on of the Pipe I i tit. and sha II not penni t or
suffer any mechanic's or nterialnn's lien of any kind or nature to be enforced against the
Property for any work done or nterials furnished thereon at the instanc. or request or on
behalf of the licensee. The licensee shall indemnify and hold hanmless the licensor against
and fran any and al I I iens, claims, ~nds, costs and expenses of whatsoever nature in any
Way connected with or orOWlnQ out of such work done, labor perfonllld, or nterials furnished.
I (b) The licensee shall prCJTOtly pey or discharge all tax~, charges and asseS5tnBnts
levied upon, in respect to, or on accC?unt of the Pipel ine, to prevent the S4!J1W frem beceminQ a
charge or I Itn upon property of the licensor. and so that tM taxes, charges and assesSll'ents
levied upon or in respect to such property shall not be increased because of the location,
construction or nintenanee of the Pipeline or any improvement, appliance or fixture connected
therewith placed upon such property, or on account of the licensee's interest therein. Where
~uch tax, charge or assessment IMY not be separate I y nede or assessed to the licensee but
shall be included in the assesSTBnt of the property of the licensor, then the licensee shall
Pay to the licensor an equitable proportion of such tax~ detennined by the value of the
~icensee's property upon property of the Licensor as compared with the entire value of such
property,
I
Section 9. RESTOAATI()l ~ liCENSOR'S PROPfRTY.
I In the event the licensor authorizes the licensee to take down any fene. of the
licensor or in any /Mnntr move or disturb. any of the other property of the licensor in
[Ixhibit 8
~oe 2 of C
0658n
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PlI x 890707
form Awroved, AVP-l.w
I . . ~ t' , t ' I of. . .
connection with t,... construc lon, IMln enance, repair, r.newa , ftl)dl 'cation, reconstruction,
relocation or rtnDvll of the Pi~line, then in that event the licensee shall, as soon as
poSsibl. and It licensee's sol. ex~nSl, restor. such fenc. and other property to the ~
coridition as the saTe.wer. in before such f.nc. lIlaS taken down or such other property lIlaS
lI'D~ed or disturbed, and the Lic.nsee shall indermify and hold harmless the Licensor, its
offlic.r" aQlnts and errployees, OQIinst and fran a~y and.11I I iabi I ity, loss, ~QeS, claims,
den'Bnds, costs and .xpenses of whatsoever natur., .ncludll'19 court costs and attorneys' fees,
whilch..,y result fran injury to or death of persons whcmsoever, or cSanege to or loss or
destruction of property whatsoev.r, when such injury, death; dM'ege. loss or ~truction orows
out; of or arises fran the taking down of any f.nc. or the II'Dving or disturbance of Iny other
property of the L . censor .
Sec11tion 10. INOOIIITY.
AS used in this Section, -Licensor- includes other rai Ir* cClll)lni.s using the
licensor's property at or near the location of the licensee', installation and their offic.rs,
aoents, and ~Ioyees: -loss- inc ludts loss, danBoe, claims, derMnds. actions. causes of
act'ion, penaltl.s, costs, and expenses of whatsoever natur.. including court costs and
attorneys' f~, which ~y result from: (a) injury to or death of persons whomsoev.r
(inCludIng the licensor's offic.rs, agents, and employees, the licensee's officers, agents,
andlM'C)loyees, as well as any other personJ; and (b) damage to or loss or destruction of
property whatsoever (including Licensee's property, ~oe to the roadbed. tracks, equipntnt,
or other property of the Licensor, or property in I ts care or custody>.
I As a IMjor inducement and in consideration of the I icenw and permission herein
gral)ted, the Li~ensee agrees to indermify and hold harml.ss the Licensor fran any Loss which
IS due to or ariSes from:
I. The prosecution of any lilOrk contemplated by this Aoreement including the
installation. construction, maintenanc., repair, rtnIWIl. modification.
reconstruction, r.location. or rtlll)val of the Pipeline or any pert thereof: or
2. The presence. operation. or use of the Pipel ine or contents .scaping therefrcn.
except to the ext.nt that the loss is caused by the sol. and direct negligenc. of the Licensor.
Sect ion II. REI()YAl ~ PIPE LINE UPai TERMINATICIi ~ AGREEMENT.
Prior to the termination of this Aortellltnt howsoev.r, the licensee shall, at
Liceflsee's sole expense, rSlDve the Pipel if\! fran those portions of the property.not ~cupied
by the roadbed and track or tracks of the licensor and shall r.stort. to the satisfaction of
the licensor, such portions of such property to IS 900d a conclition IS they ..er. in at the
till'elof the construction of the Pipel ine. If the license. fai Is to do the for.i"9, the
Licensor may do such work of rermval and restorat ion at the cost and expense of the licensee.
The licensor n"ISY. at its QPtionl upon such termination, at the entire cost and expense of the
Licensee, rtm>ve the portions or the Pipeline located underneath its roadbed and track or
tracks and restore such roadbed to as good I condition as it was in at the tin of the
construction of the Pipel ine, or it n"ISy permit the license. to do such lilOrk of r8TOval and
restoration und.r the superVision of the lic.nsor. In the event of the rermval by the
Licensor of the property of the license. and of the restorat ion of the roadbed and property as
herein provided, the Licensor shall in no n"ISnner be liable to the Licfllsee for any dcMBge
sustained by the Licensee for or on account thereof, and such rtn'Dvll and restoration shall in
no ~nner pr~judict or. ilT'plir any right of ICtion for ~~. or otherwise. that the Licensor
lI\1y have aQ~1I nst the licensee.
I
Section 12. WAIVER ~ BR€ACH.
I The wa i vtr by the Li censor of the breach of any cond it ion, cov.nant or agrten8nt
herei:n contained to be kept, observed and perforlllld by the Licensee shall in no way ilT'plir the
right of the Licensor to avail itself of any subsequent breach thereof.
Section I'. TERMINATION.
(a) If the Licensee does not use the riVht herein granted or the Pipel ine for one
(I) year, or if the licensee continues in default In the perfonrence of any covenant or
agreement herein contained for a period of thirty (}O) days aft.r written notice from the
L.cen'sor to the licensee sptCifyino such default. the licensor mey, at its option, forthwith
immediately tenminate this Agreement by written notice,
Exhibit 8
PaOt ~ of ~
O~5n
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Pl X 890707
fonn ApprOYed, AVP-law
(b) In Iddition to the provisions of subparagraph (a) abov., this Aoreerrent rre, be
te~jnated b, written notic. given b, .it~r party her.to to the other on an, elat. in SUCh
notlC' ,,,ted, not I~s, howev.r, than thirty nO} days subsequent to the cat. upon whiCh such
notic. shall be givtfl. . .
(c) Notic. of default .nd notic. of t.nnination ..y be served personally upon the
licensee or b, lI'IIi I ing to the last kno.m Iddr~s of the l ic.n,". T.rmination of this
Agr..-nt for an, r..,son s/\a II not affect .ny of the r iOh" or obi igat ions of the part itS
her.to which lI'8y havt accrued, or liabilities, .ccrued Of' othervise, ~ich 11'8, MV' arisen
pl'ior thertto.
Stet ion I.. AGREEfIIENT lOT TO BE ASS ICll1EO.
Tilt licenwe shall not .ssign this Agreenant, in wholt Of' in part, Of' any rights
ller.in gr.nted, ..ithout the writt.n consent of thl licensor, .nd it is .grted t/\at anJ
transftr or assignment Of' ,ttempted transftr Of' .ssignment of this Agrtemlnt or any 0 tilt
rights hlrein oranted, whither voluntary. b, oper,tion of lav. Of' othlrvise, ..ithout sueh
consent in writing. shall beabsolut.l, void and. It the option of thl Lictnsor, sMII
t.m; nat. th i s Agrttrntftt.
Section IS. SOCCES~ AND ASSICNS.
Subject to the provisions of S<<tion I. hereof, this Agreement shill be binding upon
and inure to the ~ntfit of the parties Iltrtto. their heirs. txecutors. eaninistrators.
successors and .ss I O~.
Exhibit 8
Page . of .
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NOTE: BEFORE YOU BEGIN ANY WORK. SEE
AGREEMENT FOR FIBER OPTIC PROVISIONS.
EXHIBIT 'A'
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1MI0ee@l\D~O IP> t\COIFOC ~"OLI1aC"1D> C(QlIiiiI~ "MY
Salina. Saline County. Kansas
MP 497,91- Trigo Industrial Lead
To accompany agreement with
the City of Salina. Kansas
.
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Scale: As Noted
OFFICE OF CONTRACTS & REAL EST A TE
OMAHA. NEBRASKA Date:~22-93
REA FILE: 038-85
.1l.[E~lElM(o).
8' PIPELINE AND MANHOLE SHOWN.... - -5- - -S....
MPRRf':O. R IW OUTLINED.................. _ _ _ _
. ......Cn. P"""''''l - <;.,,,..,,_ ".)nu.
II
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RESOLUTION NUMBER 93-4555
I
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE
CI:TY CLERK TO ATTEST AN AGREEMENT BETWEEN THE CITY OF SALINA,
KANSAS AND MISSOURI PACIFIC RAILROAD COMPANY FOR A PIPELINE
LONGITUDINAL ENCROACHMENT LOCATED SOUTH OF CWUD STREET AND
i wEST OF ROBERTS A VENUE.
II I WHEREAS, MISSOURI PACIFIC RAILROAD COMPANY has tendered to
I the CITY OF SALINA, KANSAS Pipeline Agreement No. 38-85, covering a
lortgitudinal encroachment on its property at M. P. 497.91 at Salina, Kansas; and
I I WHEREAS, the Board of Commissioners of Salina, Kansas has said
I! proposed agreement before it and has given it careful review and consideration;
II an~
ill
ii
!,p, wI'11 WHEREAS, it is considered that the best interest of Salina, Kansas
II be sub served by the acceptance of said agreement; SO NOW, THEREFORE
1!
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ii Kansas:
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BE IT RESOLVED by the Governing Body of the City of Salina,
Section
1.
'That
the
Terms
of
the
Agreement
submitted
by
MISSOURI PACIFIC RAILROAD COMPANY as aforesaid be, and the same
he~ebY accepted on behalf of the City of Salina, Kansas.
are
Section 2.
That the license fee of six hundred dollars ($600) IS
hereby approved.
Section 3.
That the Mayor of said City is hereby authorized,
empowered and directed to execute said agreement on behalf of said City and
thl City Clerk of said City is hereby authorized and directed to attest said
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agreement and to attach to each duplicate original of said agreement a
celtified copy of this Resolution.
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[18tH day of February, 1993.
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II ATTEST:
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II, Ju-~~~l.U)u-
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II C(i)UNTY OF SALINE ) .
ii I I, Jacqueline Shiever, City Clerk of the City of Salina, Kansas, do
hereby certify that Resolution Number 93-4555 was adopted by the Board of
ii C6mmissioners at its regular meeting on February 8, 1993, and that the above
i1artd foregoing is a true and correct copy of the original on file in my office.
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:: . : WITNESS my hand and official seal this 10th day of February, 1993.
\: (SEAL) __\
Adopted by the Board of Commissioners and signed by the Mayor this
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Jacqueline Shiever, CMC
City Clerk