C.D. # 43132-1 Fourth & Republic Storm Sewer Pipeline Crossing Agreementq0r, DUPLICATE ORIGINAL
CofS Counterpart
C.D. No. 43132-f
THIS AGREEMENT, made and entered into this
/ f . 7� day of , 1957,
y and between UNION PACIFIC RATLROKD COMPANY, a corporation
of the State of Utah (hereinafter called "Railroad Company"),
party of the first part, and CITY OF SALINA, a municipal cor-
poration of the State of Kansas (hereinafter called "City"),
,party of the second part,WITNESSETH:
RECITALS:
The City desires to construct, maintain and
use a flood control dike with concrete sill (here-
inafter collectively called "Flood Control Facili-
tiestt) across the right of way and under the track
of the Railroad Company at Salina, Saline County,*
Kansas, in the location indicated in yellow on the
print hereto attached, dated September 19, 1957,
marked "Exhibit All and hereby made.a part hereof,
and in conformity with the plans of the Corps of
Engineers, U. S. Army, on file in the office of
the District Engineer, Kansas City District, Corps
of Engineers, U. S. Army, Kansas City, Missouri,
designated as File No. A-15-50, sheet 10, entitled
"Drainage Structure Details, Kansas River Basin,
Salina, Kansas, Smoky Hill River, Section I," which
said plans are hereinafter referred to as "Engi-
neers? Plans" and are hereby by this reference
made a part hereof.
AGREEMENT:
NOW THEREFORE, it is mutually agreed by and between
the parties hereto as follows:
Section 1. RAILROAD COMPANY GRANTS RIGHT.
In consideration of the covenants and agreements
herein contained to be by the City kept, observed and per-
formed, the Railroad Company hereby grants to the City, sub-
ject to the terms and conditions herein stated,the right to
construct and thereafter, during the term hereof, to maintain
and use the Flood Control Facilities across the right of way
1
A
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and under the track of the Railroad Company in the location
shown shaded in yellow on Exhibit A, and in conformity with
the construction details indicated on said Engineers' Plans.
The foregoing grant is subject and subordinate to
the prior and continuing right and obligation of the Railroad
Company to use and maintain its entire railroad right of way
in the performance of its public duty as a common carrier, and
is also subject to the right and power of the Railroad Company
to construct, maintain, repair, renew, use, operate, change,
modify or relocate railroad tracks, telegraph, telephone, sig-
nal or other pole and wire lines, .pipe lines and other facili-
ties upon,..along or across any or all parts of said right of
way, all or any of which may be freely.done at any time or
times by the Railroad Company, in,..so far as same shall not in-
terfere with the proper operation,of said Flood Control Facil-
ities, without liability: to the .City or to any other party for
compensation or damages.
The foregoing grant is made without warranty of any
kind whatsoever and subject to all outstanding superior rights
whatsoever and the right of the Railroad Company to renew and
extend the same, and, without limiting the generality of the
foregoing, is further made subject to that certain agreement,
dated November 23, 1925, identified in the -records of the
Railroad Company as C.D. No..37851-B,�and supplements thereto,
between Union Pacific Railroad.Company and County of Saline,
State of ,Kansas, the latter.having, by instrument dated May
18, 1931, assigned all of,its right, titlekand--interest in
said agreement, as supplemented, to THE STATE OF'KANSAS, act-
ing through The State Highway Commission, which said agreement
as supplemented and assigned, covers lease of certain portions
of the, right of way of Union Pacific Railroad Company for
highway purposes, and the City shall make its own arrangements
with said State Highway Commission with respect to the con-
struction, maintenance and operation -of the Flood Control Fa-
cilities within the limits of the premises leased as aforesaid
Section .2. CONSTRUCTION --MAINTENANCE.
Except as'otherwise in this Section 2 specifically
provided, the Flood Control. Facilities shall be constructed
and thereafter maintained by and at the expense of the City,
and all work performed by the City on said right of way shall
be performed in a manner satisfactory to the Chief Engineer o
the Railroad Company or his duly authorized representative an
in accordance with the plans and specifications of the .Engi-
neers' Plans which shall have been approved by the Railroad
Company's Chief. Engineer.
The Railroad Company shall, at its sole expense,
raise the grade line of its said track so that the elevation
of the subgrade thereof shall not be lower than the elevation
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of top of dike at the point of its intersection with said
track.
The City hereby agrees to cause any contractor em-
ployed by itself or said Corps of Engineers for the construc-
tion of said Flood Control Facilities to comply with all sug-
gestions of the Railroad Company's authorized representative
relating to procedure whenever and wherever possible delay to
railroad operations is involved, it being the intent that the
Railroad Company's representative shall be the final author-
ity on all matters affecting rail traffic.
Section 3. RESTORATION OF RAILROAD COMPANY'S PROPERTY.
In the event the City shall take down any fence of
the Railroad Company or in any manner move or disturb any
other property of the Railroad Company in connection with the
construction and maintenance of said Flood Control Facilities,,
then and in that event th-e City shall, as soon as possible an
at its sole expense, restore such fence and/or such other
property to the extent practicable and, in any event, in a
manner acceptable to the Railroad Company, and the City shall
indemnify and save harmless the Railroad Company from and
against any and all liability, loss, damages, claims, demands,
costs and expenses of whatsoever nature, including court costs
and attorneys' fees, which may result from injury to or death
of persons whomsoever, or damage to or loss or destruction of
property whatsoever, when such injury, death, damage, toss 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 Railroad Company.
Section 4. LIABILITY.
The City agrees to indemnify and save harmless the
Railroad Company and any and all other carriers which may use
the tracks and property of the Railroad Company and the succes.
sors and assigns, officers, agents and employes of the Rail-
road Company and such other carriers, from and against all
loss, damage, claims, demands, actions, causes of action,
costs and expenses of whatsoever nature growing out of injury
to or death of persons whomsoever or loss or destruction of or
iamage to property whatsoever, when such injury, death, loss,
iestruction or damage arises in any way in connection with or
incident to the construction, maintenance or operation of the
Flood Control Facilities. The City further agrees to reimburse
the Railroad Company for any costs which it may incur in fur-
bishing necessary flagmen and for any cost which may result
from the improper performance of the work herein contemplated.
Section 5. LIENS.
The City shall pay in full all persons who perform
Bork upon the right of, way to be occupied. by the Flood Control j
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Fic1lties, and shall not permit or suffer any liens of any
kin or nature to be enforced against said premises for any
work done thereon at the instance or request or on behalf of
the City; and the City agrees to indemnify and hold harmless
the Railroad Company from and against any and all liens,
claims, demands, costs and expenses of whatsoever nature in
any way connected with or growing out of such work done or
labor performed.
Section 6. RAILROAD PROTECTIVE LIABILITY AND PROPERTY
DAMAGE INSURANCE.
Before permitting any contractors to perform work
for the City or the Corps of Engineers in connection with the
construction or maintenance of said Flood Control Facilities,
the City shall require such contractors or cause such contrac
tors to furnish and maintain in force as long as such work
shall continue upon the Railroad Company's said right of way
insurance on behalf of Union Pacific Railroad Company, The
Atchison, Topeka and Santa Fe Railway Company and Chicago,
Rock Island and Pacific Railroad Company, respectively, and b
separate original policies with the coverage and provisions
contained in the so-called "RAILROAD PROTECTIVE INSURANCE EN-
DORSEMENT, PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE,"
a copy of which endorsement is attached hereto, marked "Ex-
hibit B," and hereby made a part hereof.
The limits of the Insurance Company's liability to
each of the Railroad Companies aforesaid and as insured under
such endorsement shall be as indicated in Exhibit B.
The original of each such policy in favor of said
Railroad Companies, respectively, shall be furnished to the
City for transmittal to the Railroad Company's Chief Engineer
at Omaha, Nebraska, before starting the work.
Section 7. REMOVAL OF FLOOD CONTROL FACILITIES.
Within thirty days after the termination of this
agreement howsoever, the City, if requested so to do by the
Railroad Company, shall, at its sole expense, remove said
Flood Control Facilities from said right of way and restore
said right of way to a condition comparable to that existing
at the time of the construction of the Flood Control Facilitie
Section 8. EFFECTIVE DATE - TERM - TERMINATION.
This agreement shall take effect as of the date
first herein written, and shall continue in full force and ef.
fect for a period of five years; PROVIDED, however, that the
Railroad Company may terminate this agreement on thirty days'
notice in the event of the default by the City of any of the
covenants or agreements of the City herein contained, and PRO
VIDED FURTHER that in the event of abandonment, by appropriate
public authority having jurisdiction, of the flood control
project, of which the Flood Control Facilities form a part,
this agreement shall terminate forthwith.
4
Section 9. 'ASSIGNMENT,
The City shall not assign this agreement or any
interest therein without the written consent of the Railroad
Company.
Section 10. SUCCESSORS AND -ASSIGNS. '
Subject to the provisions of Section 9 hereof, this
agreement shall be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused
this agreement to be executed in duplicate as of the date
first herein written.
Witness:
FIC R LROAD COMPANY,
vice President
CITY OF SALINA,
By
Mayor
Attest:*
-
City Cler (Seal)
r
y
RESOLUTION 0S
WHEREAS, the Council of the City of
has` eaid "proposed agreement before it and has 'given:careful
review and consideration; and1 11I
WHEREAS, it -is considered that the best , inte rests of
said City of..&NISM will be
subserved by TbO acceptance o sala agreement; 77
THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
CITY OF O
That he terms of the agreement submitted byy. the
Union Pacific Railroad Company, as aforesaid be, and tine same
are hereby, accepted in behalf of said City;
That the Mayor of said City is hereby authorized,
empowered and directed to execute said agreement on behalf of
said City, and that the City Clerk of said City is'hereby
authorized and directed to attest said agreement and to.attach
to each duplicate original of said agreement a certified copy
of this 'resolution.
STATE OF
ss
COUNTY OF
City Clerk of the
Cit of 1 , hereby certi-
fy, hat fne aoove..ana -going s a true- i""u:'II and ' correct
copy of a resolution adopted by the Council of the, City of
at a meeting held
according -to law at -186 , on the
19th_.day of November , 19-11,
as the same appears on file anal of record in this office.
IN TESTIM?INY WH'CRFOF, I have hereunto setmyhand
and affixed the corporate seal -of -'said City, this
12th day of ftWjober
17
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(Seal) City,Clerk of the City of
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U.d .R.R• Co.
SALINA, KANSAS
To accompany agreement with
City of Salina covering
license for Mood control
dike across Railroad right of way
Scale; 1" M 100,
Office of Chief :engineer
Omaha,, Ne br . , Sept. 19, 1957
* L E G E N D
License area for dike shown......... Yellow
Existing highway lease to State
of Kansas outlined..................Green
R.R. right of walk/ outlined ............. Red
N. E Y4 S. E.'/4
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CID
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- Prop. 10'Top Dike j
3: 1 Side Slopes
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A.
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U.d .R.R• Co.
SALINA, KANSAS
To accompany agreement with
City of Salina covering
license for Mood control
dike across Railroad right of way
Scale; 1" M 100,
Office of Chief :engineer
Omaha,, Ne br . , Sept. 19, 1957
* L E G E N D
License area for dike shown......... Yellow
Existing highway lease to State
of Kansas outlined..................Green
R.R. right of walk/ outlined ............. Red
N. E Y4 S. E.'/4
c;
CID
fIZI
- Prop. 10'Top Dike j
3: 1 Side Slopes
.
66 Leased to State
of Ko
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E. Cont No. 56067 G.E. Deed No. 13739
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'TO DENVER
-
— Prop. 33" x t XS' Gonc.5i11 TD KANSAS CITY
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55'—
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Exhibit "A"
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U.d .R.R• Co.
SALINA, KANSAS
To accompany agreement with
City of Salina covering
license for Mood control
dike across Railroad right of way
Scale; 1" M 100,
Office of Chief :engineer
Omaha,, Ne br . , Sept. 19, 1957
* L E G E N D
License area for dike shown......... Yellow
Existing highway lease to State
of Kansas outlined..................Green
R.R. right of walk/ outlined ............. Red
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EXHIBIT 15
Railroad Protective Insurance Endorsement
Public Liability and Property Damage
In consideration of the premium charged for the policy of in-
surance to which this endorsement'is attached, it is further under-
stood and agreed as follows:
1. That 1=ert name of Railroad Compri inswed
is hereinafter referred to as the 'Insured."
2. That the Insurance Company hereby agrees to pay to and on
behalf of the Insured and indemnify the Insured against:
(A) All loss from the liability imposed upon the Insured
by law for damages for bodily injuries (including death at any time
resulting therefrom, and including care and loss of service) suf-
fered or alleged to have been suffered by any,person or persons
(including, but not limited to, passengers and employees of the
Insured), caused by, resulting from or in any manner connected
with the prosecution of the work hereinafter described; and
(B) All loss from and liability for damage to or loss or
destruction of property and loss of use thereof (including, but not
limited to property owned, leased, occupied or used by, or in the
care, custody and control of the Insured or any employees of the
Insured), caused by, resulting from or in any manner connected with
the prosecution of the work hereinafter described. .
3. The Insurance Company hereby agrees:
(A) To defend in the name of and on behalf of the Insured
any suit or action brought against the Insured seeking damages on
account of any such bodily injury or death, or property damage,
loss or destruction, even if such suit or action is groundless,
false or fraudulent; provided, however, that the defense of any
suit or action (or the prosecution of any subrogation rights) with-
in the scope of the coverage of this policy, shall be handled in
cooperation with the Insured if the latter so chooses.
(B) To pay, irrespective of the limits of liability
stated in this endorsement, all costs, all premiums on attachment
and appeal bonds taxed against the Insured or required in any such
proceedings, all expenses incurred by the Insured, and all interest
accruing after entry of judgment against such part thereof as shall
not be in excess of the limits of the Insurance Company's liability
until the Insurance Company has paid, tendered or deposited in
1 �'
court the amount of such judgment or such part thereof as does not
exceed the limits of the Insurance Company's liability as expressed
in this endorsement.
4. Description of the work: The Insurance Company hereby
agrees that the work herein referred .to shall mean all work and
operations of the contractor hereinafter named and its subcontrac-
tors, agents and employees, under or in connection with Contract
No.
dated between the
of , acting by and through
and
Name ofContractor)
and any amendments thereof and supplements thereto, for the per-
formance of the following work:
Description of Work)
, County of
5. The Insurance Company hereby agrees that all exclusions in
the,policy of insurance to which this endorsement is attached are
hereby deleted, but it is understood and agreed that this endorse-
ment does not cover any liability or loss as a result of bodily in-
jury or death, or property damage or destruction;
(A) Caused solely by'the negligence of the Insured, its
agents or employees.
(B) Suffered by any person or persons, or occasioned to
any property, on account of whose injury or death or the damage or
destruction of which the Insured shall have by agreement or other-
wise voluntarily assumed or retained liability which, without such
agreement, would not attach; provided, however, this endorsement
shall cover any liability of the Insured arising from or as a part
of any contract for the carriage of persons or property as a com-
mon carrier, and any liability as a bailee or otherwise of proper-
ty, including rolling stock and equipment.
6. It is further understood and agreed that when employees of
the Insured are loaned or assigned to the contractor or his subcon-
tractor, to perform work in connection with his operations covered
by this endorsement which is not in any way the work, business or
4
2
operation of the trains of the'Insured, or is not done -under direct
control of the Insured, and'if such employees of the Insured are
subject to the direction and control of -the contractor, his,agents,
employees or subcontractors, in all matters pertaining to their
work, then for the purpose of this insurance.such employees shall
be regarded as employees of the contractor.
7. The limits of the lnsurance Company's liability under
this endorsement to th'elInsured are as follows:
Each' Lach
Person Occurrence Aggregate
Not
Bodily injuries and death coverage:$ j0,*$500 00 Applicable
Not
Property damage coverage: Applicable $g00&0004,S SSS.MA0040Q
8. Anything in the policy to which this endorsement is At-
tached to the contrary notwithstanding, coverage provided under this
policy is exclusive of.any carried by the Insuied,'and coverages
provided under this policy shall be exhausted first, notwithstanding
the fact that the Insured may have other valid and collectible in-
surance covering the'same risk.
9. Anything in the policy to which.this endorsement is attached
to the contrary notwithstanding, the policy shall not be canceled,
altered, amended or coverage reduced,without the giving of not less
than thirty (30) days written notice by the Insurance Company to the
Insured and the
thru
of
Acting by and
10. Liability for payment of premiums under the policy to
which this endorsement is attached, is solely upon the contractor
named in paragraph 4. hereof.
11. Any of the provisions of the policy to which this endorse-
ment is attached, inconsistent with this endorsement are hereby
amended to conform with this endorsement; but, except as hereby
modified and supplemented, the provisions of this policy shall be
and remain in full force and effect.
This endorsement is to be attached to and forms a part of
Policy No. issued to
and shall become effective on the day of
19 , at the hour designated in said policy.
t,
9
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IN WITNESS WHEREOF, the
Insurance Company has caused . t is Endorsement to be signed by its
President; but the same shall not be binding upon the Company unless
countersigned by its authorized.agent.
Countersigned at
By:
Authorized Agent
President
f,
Form 2213 DUPLICATE ORIGINAL•
~Yw
EXTENSION SER UP Copy
C.D. No. 13132-1-A
To be attached to agreement Audit No. -------9-0,5 59 C.D. No.____43132-1__.___._._.
No._W.___ _ No.—
]Between
o. Between UNION PACIFIC RAILROAD COMPANY and CITY OF SALINA
Assignments—Dates and Names of Assignees: - -
Covering construction, maintenance and operation of flood control
facilities across right of.way,
Location Salina, Kansas.
DatedNo__v_#-_ 11#--1957__-Effective Date Nov_!__ 14.,__ 193-Z Expiration (Original) Nog. 1� _ 1962
Expiration (by latest extension)
Supplements, including extension riders—Dates - -
IT IS HEREBY M=ALLY AGREED by and between the present parties to the above named agreement that the term thereof
shall be and hereby is extended to and including NOVeMber J$ , 18-67—, and that all the terms and conditions
thereof, as heretofore (if supplements to the original agreement are indicated above) or herein (if any special provisions are written
below) amended, shall remain in full force and effect during the extended term, said agreement with the amendments and supplements
(if any) to be subJect to termination prior to the expiration of the extended term in the same manner as is provided therein for termi-
nation prior to the expiration of the term hereby extended.
Special Provisions
Dated _..., 19-6-2-L. Made in duplicate.
Witness: UN101-LPACIFIC RAILROAD COMPAQ_
Witness:
By _
Vice President
r'
RESOLUTION
k
WHEREAS, UNION PACIFIC RAILROAD COMPANY has tendered
to the CITY OF SALINA, State of Kansas, an agreement extending ,.
to and including November 1$ 1967 the term of contract dated
i ovember, 19, 1957, covering the construction maintenance and
fuse of a flood control dike with concrete siil across the
right of way and under the track of the Railroad Company at
Salina, Kansas; said agreement being identified.as Railroad
ompanyt s C.D. No. 13132-1.; and
I&E, REAS, the Council of the City of Salina
ti has said proposed agreement before it and has given IT, ca e u
review and consideration; and
1uHEREAS, it is considered that the best interests of 1
said City of Salina State of Kansas will be
subserved by fne acceptance.61 said agreement;
THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE.
CITY OF SALINA, STAVE OF KANSAS:
That the terms: cf the agreement submitted by the
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,
empowered and directed to execute said agreement on behalf of �.
said City and that the City Clerk of said City is hereby
authorize$ and directed to.attest said agreement and to attach
to ,each duplicate original of said agreement a certified copy
of this resolution.
STATE OF KANSAS )
) ss
COUNTY OF SALINE
I, .. T e- so i� , City Clerk ..of
the City of Salina State of Kansas , hereby certi—
fy
erti fy that the above and foregoing is a true, Full and correct f
copy of a resolution adopted by the Council of the City of,
Salina, State of Kansas _, at a meeting held
according to law at Sali na, Kansas , on the
day of �C�� �: 19LL
as t e same appears on file and of record in this office.
IN TESTIMONY %HEREOF, I have hereunto set my hand
and affixed the corpgrate seal of said City, this
day of�� 1962.
(Seal)
C City Clerk of the Pity of
Salina, State of Kansas.
DUPLICATE ORIGINAL
City 8 Copy Form 2213 5-66-30M
EXTENSION RIDER.
'\ Cel4fte 43139«1-8
ToNe attached to agreement Audit No._ ----- _Q959 C.D.
No -4111-9-1
No.-
Between _o .1" x'14 PAVAUD 000AW and OM Of $WNA
Assignments -Dates and Names of Assignees: •» w
Covering 0:0.1na, d ;iE' n,,r 11a'inton4nos and oporatift of, flood omgtrol
Q i e t6ras right of way,
Location Salina, .ntaoe.
Dated -NO. __Effective Date NOV. 12=_ -Expiration (Original)
Expiration (by latest extension) -_ November IA.. I+ 167 -._---------____--
Supplements;; including extension riders -Dates 000 23.19rag,
IT IS IMREIBBY MUTUALLY A(3REL+a by and between the present parties to the above named agreement that the term thereof
shall be and hereby 18 extended to and including _ 19 _, and that all the terms and conditions
thereof, as heretofore (if supplements to the original agreement ere. indicated above) or herein (if any special provisions are written
below) amended, shall remain in full force and effect during the extended term, said agreement with the amendments and supplements
(if any) to be subject to termination prior to the expiration of the extended term in the same manner as Is provided therein for termi-
nation prior to the expiration of the term hereby extended.
Special Provisions:
19-61- Made in duplicate.
Witness:
Witness:
Attesti
,r
« .
ob
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R-W-AAFr- sW"WIN
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of
' . to �tCAi���t iih+c con�f
96h*03. * th . Concrete sill
Ar � under tjte '. t k wit tho i
43
%n"sj said n b" id `13
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WHEREAS, the Council of the City of
has ' said proposed agreement before Wand and has,. g ven care u
i3O*s, w":Wan consideration; and
s' `WHEREAS' it is considered that the . best :interests o
i , -
said City:'of Will b
su.bsert6d by the acceptance' of. sa "agreement;
T RESOLVED DY THE COUNCIL OF THE
THEREFORE, BE I
CITY OF' ;
That the terms of the. agreement submitted by the
Union Pacific Railroad Company as aforesaid be, and the same
are `-he'reby,, accepted in behalf of said City;
That the'Mayor of said City is hereby authorized,
empowered and directed to execute said a reement on behalf of
said_ City and that the City Clerk of sad' City is hereby .
authorized and directed to attest said agreement.'and to attar
to; each duplicate.original of said agreement a certified copy
o.. -this. resolution.
STATE OF;. .
sa
COUNTY OF�
"I City Clerk_of
the City.. ofagi, hereby cert
fy, ghat the a o g n rues u and correct
copy of a -resolution adopted by the Council of.the City of
at a meeting held
according to law at. , on th
day of 19-
as -The,, sameappears on file affid or record n t s offices.
IN TESTIMONY WHEREOF, I have hereunto set my hand
end aff xdd;;-the. corporate g al of said City, this
of
, 19.
t• o• a
*City Clerk of the City -.of
• 'O ° s. 1* out* off' *
J • .. r • • _, �. a ,.
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