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.
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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,
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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
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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
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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'
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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.
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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
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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
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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
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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
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(Seal):.
all
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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'
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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'
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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 -
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