Loading...
C.D. # 42989-5 Water & Sewer Line Encroachments and Crossing Agreementk t 1 iCArl= ORiuit AL Licensee's Counterpart Sewer Pipe Line Crossing, near Salina, Kansas. C. D. No. 42989-5 THIS AGREEMENT, made and entered into as of the 977�day of , 19 by and between UNION PACIFIC RAILROAD COINIPANY, a corporation of the State of Utah (hereinafter the Licensor) , and CITY OF SALINA,.a municipal corporation of the State of Kansas (here inafter the Licensee), WITNESSETH: RECITALS: The Licensee desires to construct; maintain and operate an underground sanitary sewer pipe line (hereinafter the Pipe Line) across the property and under the track of the Licensor in the location shown by yellow line on the print dated November 18, 1975, marked Exhibit A, hereto attached. AGREEMENT: NOW THEREFORE, it is mutually agreed. by and between the parties hereto as follows: Section 1. LICENSOR GRANTS RIGHT. In consideration of the sum of one hundred fifty dollars ($150.00) to be paid by the Licensee to the Licensor upon the execution and delivery of this Agreement and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee, subject to the terms and conditions herein stated, the right to construct and thereafter, during the term hereof, to maintain and operate the Pipe Zine in the location shown, and in conformity with the dimensions and specifications indicated, on Exhibit A. G; 1 The foregoing grant is subject and subordinate to the prior and continuing right and obligation of the Licensor tc> use and maintain its entire property in the performance oJ_ its public duty as a conuaon.carrier, and is also subject to the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate rail- road tracks, signal; communication or other wire lines, pipe lines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. The foregoing grant is also subject to all outstand- ing superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Without limiting the generality of the foregoing, the grant of right aforesaid is specifically made subject to" - that certain agreement between the Licensor and the Licensee, dated August 22, 1966, as heretofore amended and extended, identified in the records of the Licensor as Audit No. 108855, covering the construction, maintenance and operation of a water pipe line and a sanitary sewer pipe line, near Salina, Kansas. Section 2. CONSTRUCTION, 14AINTENANCE AND OPERATION. The Pipe Line shall be constructed, operated, main tainedl repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, as subsequently amended, except as may be modified and ap- proved'by the Licensor's Chief.Engireer. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. All work performed on property of the Licensor in connection with the construction,.maintenance, repair, re- newal, modification or reconstruction of the Pipe Line shall be done under the supervision and to the satisfaction of the Licensor. Prior to the commencement of any work in connection with --the construction, maintenance, repair, renewal, modifica- tion, relocation, reconstruction or removal of the Pipe Line where it passes underneath the roadbed and track.or tracks of the Licensor, the Licensee shall submit to the Licensor plaa_s setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to pro- tect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Chief Engineer of the Licensor and then only under the supervision of the Chief Engineer or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipe Line, and, in the event the Licensor_ provides such support, 2 D the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all e} pense incurred by the Licensor in connection therewith, which expense shall include all assignable costs plus ten percent (100) to cover elements of expense not capable of exact ascertainment. The Licensee shall keep and maintain the soil over the Pipe Line thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COM1NIENCEMENT OF WORK. The Licensee shall notify the Licensor at least forty-eight (48) hours in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, re- construction, relocation or removal of the Pipe Line. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred,in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipe Line, in- cluding any and all expense which may be incurred by the Li- censor in connection therewith for supervision or inspection, or otherwise. Section 5. RELOCATION OR REMOVAL OF PIPE LINE. The license herein granted is subject to the needs and requirements of the Licensor in the operation of its rail- road and in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, move all or any portion of the Pipe Line to such new location or (unless the Pipe Line extends entirely across the property of the Li- censor) remove the Pipe Line from such property, as the Licen- sor may designate, whenever, in the furtherance of its'needs and requirements., the Licensor shall find such action neces- sary or desirable. _ All the terms, conditions and stipulations herein expressed with reference to the Pipe Line on property of the Licensor in the location hereinbefore described shall, so far as the Pipe Line remains on the property, applyto the Pipe Line as modified, changed or relocated within the contemp la - tion of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipe Line and all parts thereof within and out- side of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed PL X&E CM&o 3 9/74 a�; G and onerated in such manner as to cause no interference t.°hat-.oever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section i 7. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, re- newal, modification or reconstruction of the Pipe Line, and shall not permit or suffer any mechanic's or materi.alman's lien of any kind or nature to be enforced against the property for any work done or materials furnished.thereon at the instance ThLicensee shall PL X &E CM&O 9/74 or request or on behalf of the Lzcensee. e indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatso- ever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. - The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipe Line, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipe Line or any improvement, appliance or fixture connected therewith' placed upon such property, or on account of the Licensee's interest therein. where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable pro- portion of such taxes determined by the value of the Licen- see's property upon property of the Licensor as compared with the entire value of such property. Section S. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensee shall take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construc- tion, maintenance, repair, renewal, modification, reconstruc- tion, relocation or removal of the Pipe Line, then and in that event the Licensee shall, as soon as possible -and at Licensee's sole expense, restore such pence and other property to the same condition as -the same were in before such fence was taken down or such other property was moved or disturbed, and the Licen- see shall indemnify and hold harmless the Licensor, its . officers, agents and emoloyes, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' rM Y i v fees, which may result from injury to or death of persons whom- soever, or damage to or loss or destruction of property wnatso ever, when such injury, death, damage, loss or destruction_ grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. PL X CM&O M&O 9/74 Section 9. LIABILITY. The Licensee shall indemnify and hold harmless the Licensor and other companies which use the property of the Licensor, their officers, agents and employes, against and from any and all liability, loss, damage, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons who_*asoever, or against and from damage to or loss or'destruction of property whatsoever (including damage to the roadbed, tracks, equipment or other property of the Licensor and such other companies or property in their care or custody), when such injury, death,. loss, de- struction. or damage is due to or arises from the bursting of or leaks in the Pipe Line, or in any other way whatsoever is due to, or arises because of, the existence of the Pipe Line or the construction, operation, maintenance, repair, renewal, modification,_ reconstruction, relocation or removal of the Pipe Line or any part thereof, or to the contents therein or therefrom (except when caused directly and solely by the negligence of the Licensor and such other companies, their officers, agents or employes), The Licersee does hereby re- lease the Licensor and such other companies, their officers, ag`n-ts .and employes, from all liability for darmages on account of injury to the Pipe Line from any cause whatsoever. Section 10. TERMINATION ON NONUSER OR DEFAULT. If the Licensee does not use the right herein granted or the Pipe Line for one .(l) year, or if the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such de fault, the Licensor may, at its.option, forthwith terminate this Agreement. Notice of default and notice of termination may be served upon the Licensee by mailing to the last known address of the Licensee. Section 11. REMOVAL OF PIPE LINE UPON TE RMSINATION OF AGREEMENT. Within ninety 90) days after the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipe Line from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good condition as they were in at the time of the construction of the Pipe Line. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon Such termination, at the entire cost and expense of the 5 M Licensee, remove the portions of the Pipe Line located under- neath its roadbed and track or tracks and restore such road- bed to as good condition as it was in at the. time of the con- struction of the Pipe Line, or it may permit the Licensee to do such' work of removal and restoration under the supervision of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or im- pair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. VAIVER'OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any subsequent breach thereof. Section 13. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, with- out such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 14.. EFFECTIVE DATE; TERN. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Section 15. SUCCESSORS ASD ASSIGNS, Subject to the provisions of Section 13 hereof, this Agreement shall be binding upon and inure to the bene- fit of the parties hereto, their heirs, executors,.adminis- trators, successors and assigns. IN WITNESS WHEREOF, the parties hereto have PL CM&O Mo 6 9/74 7 t caused this Agreement to be executed in duplicate as of the date first herein written. Witness: UNION PACIFI RAILROAD COMPANY, By General Manager Apt t: ,, CI OF SALINA, I. (Seal) By City Clerk Mayor 7 C UNION PACIFIC RAILROAD COMPANY TRANSPORTATION DIVISION DEPARTMENT OF OPERATION 201 SOUTH STH ST. R. t. ORRtCK 5KANSAS CITY. KANSAS 66110 SUPERINTENDENT March 31 , 1976 (913) 621-3030 Mr. Don Hoff Extension 305 Design Engineer City of Salina File:.Salina 594-235 300 West Ash Street ` Salina, Kansas 67401 Dear Sir: Attached hereto please find proposed agreement CD 42989-5 covering -6 -inch cast iron sanitary sewer line crossing and placing of manhole on existing 8 -inch. sanitary sewer line at Salina, and Rider CD 42989 -1 -renewing agreement with the City of Salina covering water and sewar line encroachment and crossings near Salina, If this document meets with your approval, please secure execution on behalf of your Company and then return all copies to me for similar handling on'behalf of the Railroad Company. When execution on behalf of the Railroad Company has been completed, a copy will be returned to you for your records. Very truly yours, R. E. Orrick !� Superintendent + RESOLUTION 3271 WHEREAS, UNION PACIFIC RAILROAD CO.IPAN1Y has tendered to CITY OF SALINA, State of Kansas, an agreement covering the con- struction, maintenance and operation of an underground sanitary sewer.pipe line across the property and under the track of the Railroad Company near Salina, Saline County, Kansas; such agreement being identified in the records of the Railroad Company as its C.D. No. 42989-5; and WHEREAS, the Council of the City of Salina has said proposed agreement before it and has given it careful review and consideration; and WHEREAS, it is considered that the best interests of said City of Salina, State of Kansas, will be subserved by the acceptance ot said agreement: THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINA, STATE OF KANSAS: That the terms of the agreement submitted by Union Pacific Railroad Company as aforesaid be, and the same are hereby, accepted in behalf of said City; That the Mayor of said City is hereby authorized, em- powered and directed to execute said agreement onbehalfof said City, and that the City Clerk of said City is hereby authorized and directed to attest said agreement and to attach to each dup- licate original of said agreement a certified copy of this resolution. STATE OF KANSAS ) SALINE ) ss COUNTY OF ) I, D. L. Harrison , City Clerk of the City of Salina, Kansas ,hereby certify that the above and foregoing is a true, full and correct copy of a.resolution adopted by the Council of the City of Salina, Kansas at a meeting held according to law at Salina, Kansas , on the 19th day of April 19 •76 , as the same appears on file and of record in this office hP3 TESTIMONY KHEREOF, I have hereunto set my hand and affixq'd the corporate seal of said City, this 911 day of April 1976 s 1 (Seal):. all 2GJ L'Lv City Clerk of the City of Salina, State of Kansas. Exhibit RA,11-_ UNION PACIFIC RAILROAD COMPANYY MP 4.78 NEAR SALINA,SALINE COUNTY, KANSAS To accompany agreement with CITY OF SALINA, KANSAS covering 6 -inch C.I.P. sanitary sewer line crossing Scale: 1" = 100` Office of Division Engineer Kansas City, Kansas November, 18, 1975 * L E G E N D* Proposed 6 -inch sanitary sewer line crossing shown ---------------YELLOW Existing sanitary sewer covered by agreement CD 42989-1 shown -------GREEN. RR R/W outlined------------------r---RED' i • t; F Ya i 1 • y . .:. Z uli y Q O 4 n V S f. r 1G' Na'Cf Main -6 kf �-Q.'Z j s ' 3 t Exhibit RA,11-_ UNION PACIFIC RAILROAD COMPANYY MP 4.78 NEAR SALINA,SALINE COUNTY, KANSAS To accompany agreement with CITY OF SALINA, KANSAS covering 6 -inch C.I.P. sanitary sewer line crossing Scale: 1" = 100` Office of Division Engineer Kansas City, Kansas November, 18, 1975 * L E G E N D* Proposed 6 -inch sanitary sewer line crossing shown ---------------YELLOW Existing sanitary sewer covered by agreement CD 42989-1 shown -------GREEN. RR R/W outlined------------------r---RED' i UNION PACIFIC RAILROAD COMPANY TRANSPORTATION DIVISION DEPARTMENT OF OPERATION 201 SOUTH 5TH ST. R. E. OR RICK SUPERINTENDENT May 24, 1976 KANSAS CITY, KANSAS 66110 Ph. 621-3030 ext. 305 File: Salina 594-235 Mr. D. L. Harrison City Clerk City of Salina City -County Building 300 West Ash P. 0. Box 746 Salina, Kansas 67401 Dear Sir: Herewith is your fully executed Rider extending term of agreement with City of Salina, covering water and sewer line encroachments and crossings, near Salina, Kansas; and CD No. 42989-5- Agreement with City of Salina covering construction, maintenance and operation of an underground sanitary sewer pipe line across the property and under the track of the Rail- road Company near Salina, Kansas. Please acknowledge receipt. use. Attch. Attached is form for your Very truly yours, -E—.1-1 Orr Superintendent Kansas City, Ks. 5%24/76 . File: Salina 594-235 Mr. R. E', Orrick: This will acknowledge receipt of one fully executed Copy of Contract CD hro..42989-5 ? with. the Union Pacific Railroad Company, covering constructions maintenance and operation of an underground sanitary sewer pipe linea across the property and under the track of the Railroad Company near Salina, Kansas; Rider extending term of agreement with City of Salina, covering water and.sewer line encroachments.and cross- ings, near Salina, Kansas. it City.0 erk;- Salina, Kansas B ' Date 0 Kansas City, Ks. 5/24/76 • File: Salina, 594-235 Mr. •R. E, Orrick: This will acknowledge receipt of one fully executed Copy of Contract CD hTo..42989-5 , with. the Union Pacific Railroad Company, covering construc.tion, maintenance` and operation of an underground sanitary sewer pipe line across the e property and under the track of the Railroad Company near Salina, Kansas; Rider extending term of agreement with City of Salina, covering water and -sewer line encroachments. and cross- ings, near Salina, Kansas. City Clerk.- Salina, Kansas By Date - 9