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C.D. # 43132-9 Dry Creek Drainage Ditch Flood Protection Project AgreementC.D. No. 43132-9 A GREEMEN_T between UNION PACIFIC RAILROAD COMPANY and CITY OF SALINA Dated �� S , 19 Covering the construction, maintenance and use of drainage ditch facilities of the City on and across the right of way of the Rail- road Company at Railroad Mile Post 4.10, McPherson Branch. 12-21-59 DUPLICATE ORIGINAL CofS Counterpart - ,43 �3 ti_ M THIS ACREkIKENT, made and entered into this Jrr� day of } 19 f% an + t+t�® tat FACIPI + , a 0rporAM3i the . $tat$ of Utah, (hereina ter called a41road Company" ),. ty of the first pert, and CITY OF SALINA, a municipal *or- ation. of the..3tato of Kansas (hereinafter called "City") � ty of the second. part o wi T EsszTh s ITA'a In cohn®sation with the so-called "Salina Flood Control Prbj'ectf" the City desires to aonstruot, maintain aad use drainage ditch facilities on and acrosd the right of way and underneath the main track of the Railroad CosaP Y' a McPherson Branch at Railroad Mile post 4,010 thereof, near Salina, Kansas, in the lodatio>ns aboun by groen. # orange and dashed yellow lines on the print hereto attached, sated De- cember 90 1959, ,markid "1zhibit A" and hereby made a part hereof, the import of the calor scheme shown on said Exhibit A boin$ as explained in the Legend thereon. To set out the understanding of the partios here- to with respect to the subjeoit matter- aforesaid this agreement is made. Tx NOW THEREFORE, it is mutually meed byand between parties hereto as follows; ection 1. RAILROAD CaMPUT QrMTS RYGRT. In consideration of the cow ants and agreements erein contalned to be by the City dept, observed and ger- ormod, the Railroad Company hereby grants to the City, sub - eat to the terms and conditions hereinafter staited, the fight to coAstncct and thereafter, during.tho term hereof$ o maintaisn 'fid use the drainage ditch facilities on and ¢roes the right of way and,under said track within the limits hown outlined by orange lines on, Exhibit A, such grs�nt of fight to- include the privilege of util ssing the pr ises shown utl.i.ned by pink lines on Exhibit A for false rk to ssuppo. rt he Railroad Company "s said track acrosssaid drainage ditch litt tido. The foregoing grant is subject and subordinate U prior and continuing right and obligation of the Railroad pally to use and maintain its entire railroad right of gray 1 the Performance of Us public duty as a common darrier' s A is also subject to the right and power of the Railroad apany to construct maintain repair, ron�ew$ usury operate, Aulgo# modify or relocate railroad tracks, telegraph, teloi Ones' signal or other polo and wire linos, pipe lines and her facilities upon along or across any or all. parts. of id right of way, al . or any of which may be fraely dbn'a at Y time or gimes by the Rai road Company without iiabilit the Cityor to any other partyfo.r compensation or images. he foregoinggrant► is also 'sub;jodt to all, outstsnd- g Superior rights . ,including those In favor of tol, dib and lophons companies, l:�essess of said right of izay, $a�athers d' the. right of the Railroad Company to renew and e t d. the �Sctioh 8. CONSTRUCTION AND MAINTENANCE OF DRAINAGE p TCN FACILITIES. The Railroad Company shall, at they sole cost of the City,.* Provide end otall such faleeack as inthe ap.xiian of hu Railroad Company may be nbcossary to support the .Raila�oad 4mpany+s said main track during construction by.the Clay or Its. contractor of the double 6+x31s221 reinforced concrete k oulvert to be coaot:ructod by the C:i.ty or its. contractor for the accommodation of that portion Of the draigage. ditch aai.l.i:ti.es beneath the Railroad Company's said main hack, and he City shall reimburse Maar Railroad Company promptly upon enditioan of bill therefor for all casts incurred by the Rail- road Company in the furnishing and inatollati.om of said fa►lse- rk and Its removal upon complet toll of said box.caulverto "Cost" as used in the next preceding paragraph of his Section 2 shall be all assignable costs. plus tarn (10) aper coat # eaoept on value 6f secondhand material and amounts epresemti.ng full tariff freight charges on material) , to comer elem�ts oil expenso not tapable of orAct a6cartainmen't. �Xaterial shall: be charged at its current: value when and where used. The City shall, at Its own sole +cost,, construct all other po rtione of the drainage ditch facilities elt4or by force account or by contract as shall snit its 604venieace. !V�pon' complotion of the coustructioa of tete drainage itch facilities, including said, booulvert, the City shah maintain all of said drainage ditch facilities at' its +doles ecti.ah 3. NOTICE OF COMENCOWT OF WORK. 'The .City shall, .noti. the Railroad Company at ,feast Itort-eight hours in advance or the commenc+mn►ent of any. rk� upon' said right of way in connection with the conatruott6n, aintonance, repair, renewal, or reconstruction of the drain - go ditch facilities. soation 4. xomnGATION OF DRAINAGZ DITCH FACILITIM Thi City shall, ; `Its sole u ptuse eke any and ail modifications or changes its the drainage Aitch faoil sties as aeay ba required by the Railroad Compaay at any .time ire con nestion with the cconstruction # maint+ftance repair, renewal, US$# operation, chaage,, modification. or Njotatton of rai3«roa tracks;, telegraphy # eiephonso signal or ether pole and 'wire mea.: pipe .tines, and other facilities of the Raiilroa& Com- pahy, upon said right; of way. All the terms, conditions and + ipulati.on's horoin expres$od with referange to the maintenance of -the draixt ge ditch facilities on said right of gray In the location herein- before montioned shall apply to the drainage ditch Ocilities as modified or *banged within the contemplation of this soow tion. 3ectien # N4 INT CE WITH RAILROAD OPERATION* The drainage ditch f4ailiti.as shall be constructed .and at all times maintained,. repaired,. renewed and operated in 'sueh manner as to cause ,no interference whatsoever with the, constaAt, oontinuou.s . and. uninterrupted use of the .tracks,. property and promises of the Ra.ilroa4d COany, and nothing shall be- dame or suffered to be done by �e City at any time that would in any manner impair the .safety thereof. Section 6- RESTORATION OF RA"UWAD OMPA 'S MkOPER" In the event the City or its. contractor shall take down ' any fence of the Railroad Company or in any maUft,er move or #sturb any other property of the Railroad Company incosi- nett ion with the construction:, maintonance,.. -repair., reaawal or reconstruction of the drainage ditch facilities, then, and in that event, the City shall, as soon as p©ssib o.and at its soler oxpeAset restore such fsnce or such other property to the OXtent requested by tM Railroad Company, and the. City. shall., indemnify and soLve harr less the Railroad Company from .and against any and all li.abi lit: f loss, damages, chime, demands' costs and oxpens ' a of �tsoever nature, including court costs and attorneys t Voss, which may result from. i.n jury to or 'death of per°sohs whomsoever or damage t4 or loss or do- struction of property whatsoevor, when such injury,' doath,. damage, loss or destructiongro�rs out of or arises from the taking down of any fence or -the moving or disturbance of any other property of the Railroad Company. Sectiou"7. LIABILITY. Inso far.° as it Lawfully mays, the City agrees to indemnify and hold harmless the Railroad Company from and against any =4 all liability far iajury to or death of Persons whomsoever or loss of or damage to property what- soev^er, wh, en eucch injury, doath, loss or damage arioos in. 3 y in connection with or incident too the, =construction.. iaaintenanee or operation of the drainage ditch fe+ ilitias# $eOtimn S, AMMOAA PR4TWTIVS LIABILITY AND PROBRTY. } AGR 1NMANCr 0 Before permitting any of the City ° s contracto re to begin. ►rk an the drainage ditch Fac,i:lities car any part . there- of. the City shall require such contractors to .furnish. and ma.lj#at. in force so long as such work shall coaatinue upon the la;lroad Company' a right 4f way inereee ah behalf a the Railroad Company in the fort and with coverage and, .pro- visions as contained Im the 01Al AD PROTRCTIBE'�1�RIL1 ' aR + a copy of which form is attached hereto t .marked'.,,. V-16thlbit R" and hereby made a pert hereof. The original of such policy of Insurance in favor of the Fta'i lroad Co shall be fr fished to the City Far transmittal to the �rod Company t s Chief Zagineer 4t Omahas Nebraska, before starting tete rk:t Section 9. LIRK3. The City shall pay $z,full all personas who perform work upon the right of way to be occupied by the'drainage ditch bicilities hereunder and shaU not .Paan t or. sef.ear any. diens of aAy kind or .natur.e to ba enforcad .ag4just such. pry- ices for any work done thereon at the .instance or request of the Cit..t and the City agrees to iwdomlfy and hold, i4izlees the Railroad Company from and against- any and claims, demands., hosts and expenses of whatsoever nature in any -way connected with h or grope ing out of such work done or labor performed. Sdoti d l@. T.M. 1ritAT OX ON AHANDOMMT aR DEFA T • Discontinuance of the, use .off the drainage d tob.' fa- oiliiiea at any timd for a period of one year for--drain-age purposes shall constitute, an abandeamewo thoreof y and - fn the event of such an abandonment thi--,-Railroad Compsny many- ai its option t orm nate this a #10ement. If the City shall Fail to keep and perform 41-3: or any of the covenants and agreements herein c®actatined. to be ' it kept anerformed and such dafatnit Shall continue for , a . period of t') rty after f'te r v r*ittan notice fft:m the R,si adl . 'ComD ny to the City ;specifying such de�'sult, the the Raluvac Company may, at .Its opfion , forthwith 6 erMiiate this.49reameol Sectioh. 11 RFSTQRATION OF RAILROAD PREMISS ON TMOM4=1 OF A00MUNT. Within ninety- days after the tormimation, of this agreement howto4varl the .City shall, at .its solo expense and to, tha: "tit as requested bg theatilraad Company, restore the right of wary of the Railroad Company occupied by said.' dratin&a ditch facilities to a condition sAtisfactory to the Railroad Company, and if the City fails asci to do* ;the Ra y:roaa Company may do such work of restorat ou at the venae of the In Ct.ty. - In the event of the performance of the arestorato Work in this section. mentioned, the Ballrosd.Compsay,q all no manner be liable to the City for asr damage sustained by the City on account thereof, and such portormanos shall . no llanAer prejudice or impair any right of action for daiage or otherwise that the Railroad Company may have aga st the City, .Section 12. WAIVE OF SRBACH. The waiver by the Wlro d Company of the breath of any ooudit on., covenant or agreement herein eontained " tQ be kept: observed and performed by the Oit�y shall in no, "'Way— $m, pair the night of the Railroad Company to avail itself,. tself of any s06equoat breach thsreof Soetiou . AGRE34UT NOT T4 BE AMIGNED. nt< ere Company— The City shalt not assign 'thi.s agreement, or,. may. st therei.3ay without, the written, consent of the Rai..ro ad SsetiOU • MECTIVE, DATE - TEM, This agreement shall take effects. as of the data first herein written and shall continue fn: Aal farce said of until terminated as herein provided.. Seatxcan . SUCCESSORS AND ASSIGNS. Sub j est to the prow .siona of Sec tidn 13 �h eof, Ithis agreement shall be binding upon abed inure to the .bensfit, of the parties be roto, their sue*tesora and: #e signs•►. IN WITNESS WHEREOF, the part +-s hereto have ,caused this agreement to be executed in du7 plitat+e as of tide d4to first.herein written* I 9 C RESOLUTION WSOMS +044 tho 'R vt O A#!PV*7 s at xilo Pott 4,11 .. 4 0 WHEREAS, tie Council of the City of has said roposed agreement before it and -has review and consideration; and,,,,. yen it 'car WHEREAS, it is considered that the best interests o ,said City of I:s Of 90640, will be subserved--by the -acceptance -or said agreement; THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF S=XA- $TAT- : ; That the terms of the agr ement ubmitted by the Union Pacific Railroad Comppare as a oresai be, and the same are hereby, accepted in behal of said City; That the. Ma r of said City } hereby author' zed N empowered and directwx to execute said agreement on half of said City and that the City Clerk of said City is hereby author'z d red directed to a test said agreement anj to attac to eaci dup icate original o said agreement a certified copy of this resolution. SAE OF ) ss COUNTY OF ) City Clerk of the City of "- ., : ! Irgam, , hereby certi- fy that t� aDove an or-egoing is a true 1'Z'I- and correct copy of a resolution adopted by the Council' of the -city of KIL, at"g. Of Aaa at a meeting held according to law at AillIM.6 In, on the � - day of , .19. as the same appears on Ple -and o ecoid: in. -this office. IN TESTIMONY WHEREOF; - Vave hereunto set my hand and affixed the corporate seal. of 'said City, this ��- day of'`'...... (S eal) ity ergo the City, o MMIBIT For Attachment to C. D. No.,,_,. STANDARD PROVISIONS FOR GENERAL LIABILITY POLICIES RAILROAD PROTECTIVE LIABILITY FORM (State or Federal Highway Projects) Including Instructions for Preparation of Policies by Companies ALR Stencil 2/3/% Draft ,4 - .% STANAARD PROVISIONS FOR GENERAL LIABILITY POLICIES Railroad Protective Liability Form (State or Federal Highway Projects) GENERAL INSTRUCTIONS U Standard Ianguage This form is expressed in standard language which may not be amended and no past of which may be emitted except (a) as indicated by these instructionsp or (b) as indicated in reference notes shown below referring to specific portions of the form.. or (c) by an endorsement which states an amendment or exclusion of some pro– vision of the form in accordance with the provisions of a manual rule., the form of which endorsement has been approved., if *required,, by the supervising authority of the state in which the policy is issued.. 2. Optional Sequence and Arrangement The several parts of the form., vise "Insuring Agreementp" "Emlusionsp" "Con– ditions" and "Declarations" may appear in the policy in such sequence as the com— pany may elect and the sequence and arrangement of the several provisions of those parts are also optional with the company. 3. Descriptive Headings.*.Identifying or Indexing Designations The descriptive headings of the parts of the form (as quoted above) and of the major insuring agreements ("Bodily Injury Liability.." "Property Damage Liability." etc.) are standard expressions which may not be amended or omittedt but a1_1 other identifying or indexing designations (such as "Coverage A.." "Defense# Settlement, Supplementary Payments#" "Cancela,tion.," etc.),, including literal or numerical des• ignations of paragraphs or phrases,, may be amended or -omitted at the companyle op– tion, When such identifying or indexing designations.. used for the purpose of reference in the text of the form or any endorsement form .applicable thereto$ are amended or omitted, descriptive designations shall be substituted therefor. 4, Additional Coverages or Companiess, Explanatory or Connective Language When policies are issued to provide insurance in this form together with in- surance covering other risks., the addition of necessary explanatory or connective language which does not amend the expression of this form is permissible and the introductory language of the "Insuring Agreements" which provides for the issuance of a policy by two companies may be used and, if necessary., paraphrased to permit such policies to be issued by more than two companies. 5, Declarations—Including Other Risks A common set of declarations may be used in those cases where policies in this form are issued with policies covering other risks, *6. Installment Premium Payment Policies written to provide for payment of premium in installments may provide for lapse or suspension of the policy upon default of payment when due„ AAR Stencil # Not applicable in Texas '/ ).02 Draft 7. Addition of Coverage by zndorsement When insuring agreements and other provisions relating to any particular class of insurance are added to this policy by endorsement, such additional insurance must be expressed in approved standard language relating to the particular class and must be subject to an standard provisions applicable to that class by the expressions of the endorsement or of the policy or of both taken together. S. Definition of "Standard" and "Approved" "Standard language" or "approved standard language" when used in these instruct - tions means the form and endorsements either prescribed or approved by the insw - ance supervising authority of the state in which policy forms and endorsements are approved or prescribed„ In thoso states where supervising authorities do not have the -authority to approve or prescribe policies, forms and endorsements, the terms mean the forms and endorsements adopted by the companies for use in such states. 9. Premium Statement The Statement with respect to payment of premium may be amended by an endorse. ment to make necessary provision with respect to payment of premium, payment of additional premium and return of premium Fand dividends]* under thepolicy. 10. Special Conditions for Mutuals, Reciprocals and Participating Stock Companies When the policy is issued by a mutual company, a reciprocal association or a participating stock company having special provisions applicable to its membership or policyholders, such provisions, when approved by the supervising authority of the state in which the policy is issued if such approval is required, may be in— serted in the policy. *See General Instruction 10,, AAR Stencil 11!.102--5 2 2/3/58 D:-zLt"t cJ REFERENCE NOTES 1--fttter in brackets may be included, omitted or amended at the option of the company. 2—The effective hour and date of the policy may be typed or printed in this space. 3 -E -+A statement may be added that a definite notation may be made in the premium column to show that a particular coverage is not afforded. 4 --Name of company may be shown, 5 --The capacity of the person countersigning may be stated. 6.. -Additional declarations of this type, calling for general information or in. formation regarding installment payment of premium, may be used at the option of the company, 7 --The name and location of the company are to be stated, The type of the company and the word"used throughout the policy suitably to designate the company are to be stated, 8—The-language of this paragraph is optional with the company, AAR Stencil 114102..6 3 2/3/58 Draft BIA TK IP� Y COMPANNYY BBDIK IMURANCE COMPANY Railroad Protective: Liability Policy No. - (State or. Federal, Highfty. Projects) DECLARATIONS item 1. Named Insured Address No. Street Town [or City4 l County Sta: te ' Item 2 Policy Period: From (See Reference Note 2) _ to 12:01 A.M,!`standard time at the designated job site as stated,.herein. Item 3. The insurance afforded is only with respect to such of the following. coverages as are indicated On Item 611 by specific premium charge or oharges. The limit of the company►s liability against such coverage or coverages shall be as stated herein. subject to all the terms of this policy having reference thereto. (See Reference Note 3 a Coyez-ag@s Limits of. LUbillty Blank ihdemnity 4 A Bodily Injury Liability each person # , .'each oacurrencar Oompany Blank " B Property Damage Liability Twuranee $100000 each cera-renco $ y r aggregate GompanY . C and Physical Damage to Property item Ilene and! Address of Contractor Ftem 5. Name and Address of Governmental Authority for whom the work by the contractor is being performed AAR Stencil �+ 230,58 ,58 Drs ft 40 Advance Premium Rates Prete.. emi Items 6, Desi tion of the Job Site and. Bases Coverage Ar Covera._ es_Br, & C CoverageA Cover�B&!C Description of Stork .�.o Cantract Cost Per $100 of Cost Rental Cost For $lOO of Rental.Cost Tf Bblicy Period more than one year: Premium is. payables On effective date of Policy $ lot Anniversary $ 2nd Anniversary $ 1 [Date and Place of Issue '11 Oou tersignu 29at �1 See Reference Note 50 Renewal of policy number. C. Endorsement serial numberse 6 B. The. named insured is a Corporation. D. Rating plan or premium discount. AAR Stencil 134102-8 5 2/3/58 Draft % (For policy issued by one oompany) BTM .IDIDEMAiITY r"IP NY comparwy herein called the company) 7 Agrees with the insuredv named in the declarations made a part hereof,, in consider. ation of the payment of the premium and in reliance upon the statements in the declarations made by the named insured and subject to all of the terms of this policy; (For policy issued by two companies) HUM IDIDE1gMY COMPANY and BUNK INSURANCE COTTANY insurance company' herein called the company) 7 Severally agree with the insured., named in the declarations made a part hereof., in consideration of the payment of the premium and in reliance upon the statements in the declarations made by the named insured and subject to all of the terms of this policy.9 provided the Blank Indemnity Company shall be the insurer with respect to coverage and no other and the Blank Insurance Company shall be the insurer with respect to coverage and no othert MURINE AGREDPiENTS I. Coverage A - BodiyIn,jurv,�,Liabiility To pay on behalf of the insured all sums which the insured shall be— come legally obligated to pay as damaes because of bodily injury,, sickness or disease.. including death at any time resulting therefrom,, hereinafter called "bodily injury".. either (1) sustained by any person arising out of acts or omissions at the designated job site which are related to or are in connection with the work described in Item 6 of the declarations., or (2) sustained at the designated job site by the contractor or any employee of the contractor or by any designated employee of the insured whether or not arising out of such acts or omissions* Coveraee B — Propg_rtZ,Damaae Liability To pay on behalf of the insured all sums which the insured shall be— come legally obligated to pay as damages because of physical injury to or destruction of property including loss of use of any property due to such injury or destruction, Aereinefter called "property damage",, arising out of acts or omissions at the designated job site which are related to or are in connection with the work described in Item 6 of the declarations. Cov�erap C — P veica.l Damage to PropeeM To pay for direct and accidental loss of or damage to rolling stock and their contents mechanical construction equipment. or motivepower equipments, hereinafter led losso arising out of acts or omissions at thedesignated job site which are related to or are in connection with the work described in Item 6 of the declarations provided such property is owned by the named insured or is laased or entrusted to the named insured under a lease or trust agreement„ AAR Stencil 6 .. 2/3/58 Draft II, ne, f�tior�s (a) ksure.. The unqualified word 'Rinsurede includes the named insured and ilso cludes any executive officer.,'director or stockholder thereof while acting within the scope of"his duties as such. (b) Contractcr - The word "contractor" means the contractor designated in Item k of the declarations and includes all subcontractors of said con. tractor but shall not include the named insured. (c) Designated employee of the insured The words "designated employee of e insured° means (1) any supervisory employee of the insured at the job site 2 any employee of the insured while operating., attached to or engaged on work trains or other railroad equipment at the Job site which are assigned exclusively to the contractors or (3) any employee of the ' insured. not trithin (l y or (2) who is spe- cifically loaned or assigned to the work of the contractor for prevention of accidents or protection of property., the cost of whose services is borne specifically by the contractor or by governmental authority. (d) Con.--ttract « The word "contract" means any contract or agreement to carry a person or property for a consideration or any lease., trust or inter- change contract or agreement respecting motive power., rolling stock or mechanical construction equipment. . III. Defense, Settlement, S, With respect to such insurance as is afforded by this policy under cover- ages A and Bs the company shall: (a) defend any suit against the insured alleging such bodily injury or prop- erty damage and seeking damages which are payable under the terms of this policy.. even if any of the allegations of the suit are groundless., false or fraudulent; but the company may make such investigation and settle- ment of any claim or suit as it deems expedient; (b) pay., in addition to the applicable limits of liabilityi (1) all expenses, incurred by the company., all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the com-• panyts liability thereon; (2) premiums on appeal bonds required in any such suit., premiums on bonds to release attachments for an amount not in excess of the applicable limit of liability of this policy., but without obli-. gation to apply for or furnish any such bonds; (3) expensss incurred by the insured for such immediate medical and surgical relief to others as shall be imperative at'the time of the occurrence; ALR Stencil 7 2/ 5g Draft (!� all reasonable expenses, other than loss of earnings, incurred by the insured at the company's request. IV. Pblicy Period, Territory This policy applies onity'to occurrences and losses during the policy period and within the United States of America# its territories or posses. Bions, or Canada,. � This policy does not apply: (a) to liability assumed by the insured under any contract or agreement except a contract as defined herein; (b) to bodily injury or property damage caused intentionally by or at the direction of the insured; (c) to bodily injury, property damage or loss which occurs after notifica- tion to the named insured of the acceptance of the work by the govern-, mental authority, other than bodily injury, property damage or loss resulting from the existence or removal of tools, uninstalled equip- ment and abandoned or unused materials; (d) under coverages A (1), B and C, to bodily injury, property damage or loss, the sole proximate cause of which is an act or omission of any insured other than acts or omissions of any designated employee of any insured; (e) under coverage A, to any obligation for which the insured or any car- rier as his insurer may be held liable under any *►orinents compensa.. tion, unemployment compensation or disability benefits law, or under any similar laws; provided that the Federal bnployerstUability Act, U.S. Code (1946) Title 459 Sections 51-60, as amended, shall for the purposes of this insurance be deemed not to be any similar law; (f) under coverage B, to injury to or destruction of property (i) owned by the named insured or (ii) leased or entrusted to the named insured under a lease or trust agceement. AAR Stencil 114102-11 8 .. 2/3/58 Draft OMIT Dhe conditions, except conditions 3, 4, 5, 6p 7, 8, 9, lop 11 and 1.2, apply to all coverages. Conditions 3, 4, 5, 6, 71 8, 91 lop 71 and 12 apply only to the cover_ age noted thereunderjl L Premium The premium bases and rates for the hazards described in the deo- larations are stated therein, Premium bases and rates for hazards not so described are those applicable in accordance with the manuals in use by the company. The term "contract cost" means the total cost of all work described in Item 6 of the declarations,, The term "rental cost" means the total cost to the contractor for rental of work trains or other railroad equipment.. including the remuneration of ail employees of the insured while operating, attached to or engaged thereon. The advance premium stated in the declarations is an estimated premium only. Upon termination of this policy the earned premium shall be computed in accordance with the comparirts rules, rates2.rating plans., premiums and minimum premiums appli- cable to this insurance. If the earned premium thus computed exceeds the estimated advance premium paid, the company shall look to the contractor specified in the declarations for any such excess; if less, the company shall return to the said contractor the unearned portion paid.. In no event shall payment of premium be an obligation of the named insured. 2. InaiDection The named insured.shall make available to the company records-of relating to the subject matter of this insurance. The company shall bQ permitted to inspect all operations in connection with the work deseribedd in Item of the declarations. 3. Limits of Liability The limit of bodily injury liability stated in the decla- rations as applicable -to neach person" is the limit of the Coverage A oompanyte liability for all damages, including damages for care and loss of servicesp arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the decla. rations as applicable to "each oeci=rence" is, subject to the above provision re» specting each person, the total lizit of the companyts liability for all such damage arising out of bodily injury sustained by two or more persons as the result of any one occurrence, 4. Limits Of1.3—big The limit of liability der coverages B and C stapd in verages' - a7ud u the dec:v tion9 as applicable ts� e~ach <asotu�enae is the total 3.L-tlt of the ca-apanyts liability for all.damages and all loss under coverages B a:�d C r.innbined arisilig out of physical injury to de- struction or loss of all proT�;rty of one or more persons or organizations, including the loss of use of an, -,r Props rt,:)r Evti to such injury or destruction under corvatiLge B, as the result of any ane oc%a-rez c.,j. Subject to the abc.•e provision respecting "each occurrence", the limit of lia- bility under coverages B and C statWed in the declaration as raggregate" is -the total limit of the companyts 11ability for all damages and all loss under coverages B apd C combined. arising out of_physical in uv-�v to destruction or loss ofroperty, in- cluding the loss of use or aiV proper y due to such injury or destruction under Coverage B. "Under coverage C, the 7iri4.t of the company's liability for loss shall not exceed the actual cash value of the propertyp or if the loss is of a part thereof the ac- tual cash value of such pari. at time of l.osst nor what it would then cost to repair ov'replace the property or such part thereof with other of like kind and quality. AAR Stencil. 7.31;102-12 9 2/3/58 Draft 5. everabili!Z of Interests overages A and B of the companyls liability, The term "the insured" is used severally and;not collectively., but the inclusion herein of more than one insured shall not operate to increase the limits 6, Nome Ih the event of an occurrence or loss., written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof., and the names and addresses of the injured and of available witnesses,, shall be given by or for the insured to the company or any of its authorised agen•W as soon as practicable, If claim is made or suit is brought against the insured,, he shall Immediately forward to the company every demand,, notice,9 summons or other process received by him or his representative, 7, Assistance and CopMration of the Insured The insured shall cooperate with the Coverages A and B company and,, upon the companyls re— ' quest,, attend hearings and trials and assist in making settlements, securing and giving evidence,, obtaining the attendance of witnesses and in the conduct of -suits, The insured shall notp except at his own cost., voluntarily make any payment.. assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident. S. Action Against Come Nb action shall lie against the company unlesep as a Coverages A and B condition precedent thereto.. the insured shall have fully complied tTith all the terms of this policy# nor until the amount of the insuredts obligation to pay shall have been finally deter- mined either by judgment against the insured after actual trial or by written agreement of the insured..,the claimant and the company, . . - Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to'recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under t'_is policy to join the company as a party to any action against the insured to determine the insured's Liability. Bankruptcy .or insolvency of the insured or of the insured's estate shall not relieve the eom- pany.of any of its obligations hereunder. Coverage C No action shall lie against the company unless,, as a condition precedent thereto,, there shall have been mill compliance with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy. 9, ured's Duties in Event of Los, s In the event of loss the insured shall: Coverage C (a) protect the property,, whether or not the loss is covered by this policy.. and any further loss due to the insuredle failure to protect shall not be recoverable under this policy; reasonable expenses incurred in afford— ing Isuch protection shall be deemed incurred at the company's reguwt; (b) file with the company.. as soon as practicable after loss,, his sworn proof of loss in such Form and in such information as the compma any y reasonably require and shall,, upon the company's request.. exhibit the damaged property, AAR Stenoil 114102-13 10 _ 2/3/58 Draft 10. a sa If the insured and the company fail to agree as to the amount of Coverage C loses, either may.. within 60 days after proof of loss is filed# demand an appraisal of the loss. In such event the insured and the company shall each select a competent appraiser.* and the appraisers shall select a competent and disinterested umpire. The appraisers shall state separately -the a* - teal cash value and the amount of loss and failing to agree shall submit their dif- ferences to the umpire, An award in writing of any two shall determine the amount of loss. The insured and the company shall each pay his chow appraiser and shall bear equally the other expenses of the appraisal and umpire. The company shall not be held to have waived any. of its rights by any act.re- lating to appraisal. 11. Payment of Loss The company may pay for the loss.in money but there shall be Coverage C no abandonment of the damaged property to the company.. } ' 12. No Benefit to Bailee The insurance afforded -by this policy shall not enure Coverage C directly or indirectly to the benefit of any carrier or bailee., other than the named insured,, liable for loss to the property. 13. Subroaation In the event of any payment under this policy., the company shall be subrogated to all the insuredts rights of recovery therefor against any person or organization and the insured shall execute and deliver instru- ments and papers and do whatever else is necessary to secure such rights. The in- sured shall do nothing after loss to prejudice such rights. 11.. Application of Insurance The insurance afforded by this policy is primary insurance, 15. Three Year Policy A policy period of three years is comprised of three"con- seeutive annual periods. Computation and adjustment of earned premium shall be made at the end of each annualMod. Aggregate limits of liability as stated in Uls policy shall apply separate y to each.annual.period. 16. CbMLGB Notice .to any agent or knowledge possessed try, any agent or by any other person shall not effect a waiver or a change in any part of this policy or esto the company from asserting any right under the terms of this policyy; nor shall he terms of this policy"be waived or changed,, except by endorse. went issued to forma part of t1 -ds y ia is polis signed (here insert titles of authorized companyo)4ficials or representatives), pro e � however„ changes may be made in the written portion of the declarations by (here insert titles of authorized company representatives w n ifiltia-le-6such (here insert titles'of authorized company repre- sentatives) or bye o e ssued to form a part of this policy si„med by such here insert titles of authorized company representatives)11, 17. ASSIMment Assignment of interest under this policy shall not bind the com.- pany until its consent is endorsed hereon. 18. Cancelation This policy may be canceled by the named insured by mailing to y written notice st the wampanating when thereafter the eartcela- tion shall -be effective. .This policy may be canceled by the company by mailing to the named insured contractor and governmental authority at the respective addresses sh_g�a in this policcyy written notice stating when not less than thirty days there - alter such cancelation shall be effective.. The mailing of notice as aforesaid shall be sufficient proof of notice, The effective date and hour of cancelation stated,in the notice shall become the end of the policy period. Deliv'ary of such written no- tice either by the named insured or by the company shall be equivalent to mailing. AAR Stencil IU102-34 11 2/3/58 Draft 1b If the named insured cancels,, earned premium'shall be computed in accordance with the customary short rate table and proceeure. If the company cancelst earned premium shall be computed pro rata, Premium adjustment maybe made either at the time cancelation is effected or as soon as practicable after cancelation becomes effectivep but payment or tender of unearned premien is not a condition of cancelation, 19. Declarations By acceptance of this policy the named insured agrees that such* statements in the declarations as are made by him are his agree— ments and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and.the company or any of its agents relating to this insurance. (For policy issued by one company) In witness whereof.9 the Blank Indemnity Company has caused this policy to be signed lrr its president and a secretary at . and counter— signed on the declarations page by a duly authorized agent of the ecmpany. 10 (FACS IPI OF SIGNATURE) (FACSIMILE OF SIGNATURE). Secretary President (Por policy issued by two companies) In witness whereof., the Blank Indemnity Company has caused this'policy., with aspect to coverages and such other parts of the policy as re applicable thereto} to be signed by its president and a -secretary at 10 j, and countersigned on the declarations page by a duly author— zed agent of the company. (FACS IDIILE OF SIGNATURE) (FACSIMILE OF SIGNATURE) Secretary President In witness whereof the Blank Insurance Company parry has caused this policy with respect to coverages and such other parts of the policy as re applicable thereto., to be signed by its president and a secretary at -10 p and countersigned on the declarations page by a duly author. ized agent of.the company. (FACS DME OF SIGNATURE) (FACS DME OF SIGNATURE ) Secretary President AAR Stencil 114102-15 22 2/3/58 Draft i Contract No. DA-23-028-CIVENG-59-454 Dated: 12 May 1959 CONTRE,CT .FOR ALTERATION OF FACILITIES (Cost Reimbursible) OWNER & ADDRESS: Union Pacific Railroad Company 1416 Dodge Street Omaha 2, Nebraska CONTRACT FOR: Alteration of Railroad Facilities (Bridge 8.40, Dry Creek Diversion Channel) LOCATION: Flood Protection Project Salina, Kansas ESTIMATED AMOUNT: '04,0oo.00 PAYMENT: To Be Made by the Disbursing Officer U. S. Army Engineer District, Kansas City Corps of Engineers Kansas City, Missouri The supplies and services to be obtained by this instrument are authorized by, are for the purposes set forth in, and are chargeable to the following appropriation, the available balance of which is sufficient to cover the cost thereof, subject to the provisions of Article 2. 96X3122 Construction, General, CE, Civil (SLK) ,<�oera lk Contract No. DA-23-028-CIVENG-59-454 CONTRACT FOR ALTERATION OF FACILITIES (Cost Reimbursible) THIS CONTRACT, entered into this 12th day of May 19599 between the UNITED STATES OF AMaICA (hereinafter called the "Government"), represented by the Contracting Officer executing this contract, and the Union Pacific Railroad Company, ;a corporation organized and existing under the laws of the State of Utah, with its principal office and place of business in the City of Omaha, State of Nebraska (hereinafter called the "Owner"); WITNESSETH, THAT: WHEREAS,. the Government has, under authority of Public Law 780, 83rd Congress, 2nd session, approved 3 September 1954, undertaken the develo;Dment of a flood protection project known as the Salina, Kansas, Flood Protection Project (hereinafter called the "roject"); and 1H REAS, the Owner is the holder of certain fee title and/or ease- ment rights appurtenant thereto on which the Owner has constructed and is operating and maintaining certain facilities of its Salina to McPherson Branch, consisting of railroad trackage and appurtenant items on earth embankment, adjacent. Salina, Kansas, and in the vicinity of Mentor, Kansas, which interfere with the development and use of,the Project by the Government; and WHEREAS, it is necessary in the construction, completion and enjoy- ment by the Government and the City of Salina of.said Project that the aforementioned title, rights and privileges of the Owner be modified and that said facilities of the Owner be altered; and JIMIREAS, pursuant to Public Law 780 assurances have been given by the City of Salina, Kansas, to provide, without cost to the Government, all easemen s, rights-of-way, or other interests in .real property necessary for the construction and operation of the ?roject; and JHEREAS, the Owner is willing to alter its railroad facilities interfering with the development of said Project and that all of its right, title and interest in and to said lands and/or rights-of-way shall be subordinate to the easements and rights herein provided to be granted to the City of Salina, Kansas, but only to the extent necessary to the enjoyment of said easements and rights., in consideration of the fulfill- ment by the City of Salina, Kansas, of the as:�urances made to the Govern- ment and payment by the Government to the Owner of all reasonable and legitimate costs of the alteration to be performed by the Owner, as hereinafter set forth in Article 1 and of the performance by the Govern- ment of certain features of the alteration as hereinafter set forth in Article 2, and is agreeable to altering said facilities at such locations and in such manner as to eliminate interference with the construction, develo-pment, use and enjoyment of said Project by the Government and by Contract DA-23-028-�IV.:NG-59-454 the City of Salina, Kansas, and the _Owner agrees that said consideration constitutes full, just and complete -compensation for the acquisition by the City of Salina, Kansas, of certain rights in the property of the Owner as hereinafter set forth in Article 1; NOW, THEREFOR, in consideration o.f the faithful performance of each party of'the mutual covenants and agreements hereinafter set forth, it is mutually agreed as follows: " ARTICLE 1. Obligations of the Owner. The Owner shall: a. Furnish all services, labor, tools, equipment and materials, except for materials to be furnished by the Government as provided in Article 2 hereof, as necessary to perform certain features of the alteration as indicated on Drawings File Nos. A-15-109 and A-15-110, designated as Exhibit "A", attached hereto and made a part hereof. The. facilities to be modified andwork'to be'performed are located in Saline County, Kansas, and are further described generally as follows: (1) Handle, load; transport on Owner's equipment, and unload. sufficient -ties, tie plates,:rail, and angle bars from Government stock .located in -the vicinity of Mile -Post 184.0 of the Owner's Manhattan Branch, Kansas, to construct the shoofly hereinafter provided for. (2) On subgrade constructed by the Government (i) construct a shoofly approximately 2,100 feet long, and (ii) remove from main line, trackage between the longitudinal extremities of the. shoofly. (3) Construct main line'track on subgrade'constructed by the Government to the alignment and grade indicated on Exhibit I"A"'. (4) On new bridge constructed by the Government construct main line track and guard rail on bridge ties'' installed by' the..Govern- ment. (5) Relocate communication line poles to allow for construc- tion of the Dry Creek Diversion channel at the site of the new bridge construction. '(6) Remove trackage material and culvert extension from the temporary shoofly after railroad operations have been resumed on the altered main line. The track materials furnished by the Government and used on the shoofly will be removed from the site by the Owner, and stockpiled.by the Owner at such location and as directed by the Contracting Officer. b. .The railroad line is to remain operational during the construc- tion period and the Owner is to complete all arrangements and details for operation of trains during -the construction of the herein described alteration. 2 Contract DA-23-028-CIVaTG-59-454 C. Perform all engineering work in connection with the work to be performed.by the Owner hereunder as may be required. The Owner shall make such necessary surveys and prepare such.drawings, schedules, and specifications in connection with the work to be.performed by. the Owner hereunder as may be required by the Contracting Officer, all of.which shall be subject to approval of -the Contracting Officer, and any and all,work performed by the Owner shall ,be in accordance. with the approved ;Mans and specifications, and no changes .shall be made in;said approved plans and,specifications without the written approval of the Contracting Officer. ' d. If,desired by the Owner, any of the work described above may be performed by lump sum or unit price contract, publicly advertised for'bids'and awarded to the lowest responsible bidder,.or by negotiated lump sum contract for engineering services. Such awards.shall be subject to the approval of the Contracting Officer. The Owner shall not award any contracts nor execute any changes thereto for work provided therein without the written approval of -the Contracting Officer.. e. Provide adequate supervisory staff, headed by a Chief Engineer or his authorized representative, at the site of the work at all times during the progress thereof. Said Chief Engineer or his authorized representative shall have authority to act for the Owner with respect to construction.work and procedure within.the.scope of.the approved plans and specifications and.approved.modifications thereof. f. Procuire all necessary permits and licenses.;. obey and. abide by all applicable laws, regulations, ordinances and other rules of the 'United States of America,'of the State, Territory, or political subdivi- sions thereof wherein the work is done, or of any other duly constituted public authority'. g. "Obtain from the City of Salina, Kansas, pursuant to provisions of Public Law 780, without cost to the Government or the Owner, all easements, rights-of-way, or other interests in,real property necessary for the s..tid alteration of its facilities anO the performance of this contract. h. The Owner agrees to convey to the City of Salina, Kansas, with- out consideration from the Government, the necessary -right-of-way license giving said City of Salina, Kansas, the right to operate and maintain the said Project. ARTICLE 2. Obligations of the Government. a. ,Subject to, the avail- ability of funds, the Government shall reimburse the Owner for all costs expended in connection with the relocation provided in Article 1 hereof, such cost'to include all items of expense property chargeable thereto, including, but not limited to.labor, materials, transportation, insurance, overhead charges properly allocable .to the work, supervision, surveys, permits, rental of tools, equipment and machinery employed in the work, together with such other items of expense (exclusive of profit to the 3 Contract No. DA-23-028-cm:W-59-454 Owner) as should, in`'the opinion, of the' Contracting 'Officer, be included in the,eost of the work. The total cost 6f` such work is `estimated at $349000.00. The�Government shall reimburse the Owner for such costs _ upon receipt of properly certified invoices, in duplicate; supported by such.evidence of payment made by'the Owner as may be required'by the Contracting;Officer. 'All original time cards or payrolls, material ,..'records, and account's for all charges and'expenditures for which reim- bursement will be claimed from the Government shall be available"a't all reasonable times, -to allow the Government to check and audit'the'in, voices submitted by the Owner. So far as practicable, separate:re'cords shall be maintained by the Owner on all items and,accounts.which shall --,constitute the basis of information from which the invoices will be prepared,. and all items of materials shall be'designated as new;.used, or salvaged materials whether said items -are retained, discarded,.or altered :.in the prosecution'of"the work. 'Payments to the Owner".shall include_, but not be limited to:..,. (1)- The cdst-of handling, loading','transporting,' and unloading materials furnished by the Government for use in constructing the shoofly. (Z) Work performed Jor the Owner under'contract approved by the Contracting<Officer. (3)• Materials " furnished -by the Owner directly from, the supplier to the site of the work or from the Owner's'stock'at the procure- ment cost to the Owner or at the price carried in the Owner's stock account, respectively,��lus; in either case, ten �p'ercerit 'to cover. the Owner's cost of procurement and handling, commonly'called "Store._Expense. " (4) The-cost•of transportation by the Owner,.over.its`rails, of all equipment, materials, and supplies furnished by'the Owner, .as provided for in Article 1 hereof, and of transportation:of salvaged .materials, equiy,ment and sup�:,lies--to the Owner's material yard as pro- vided in Article 5 -hereof., shall be at the rate of 1 cents ($0.01) per .ton -mile.. . (5) The cost of furnishing appropriate equipment, as provided for in Article 1 hereof, shall be computed at the Owner's standard -.,.rates and charges -and/or rental amounts, exclusive of profit, charged.. to other railway companies 'for 'similar services. (b) The cost of (i) salaries and expenses of the supervisory staff, provided for in paragraph.e of 3,rticle.1 hereof, to represent the .:,Owner on the construction provided for in th'is:cont-ract.during'the actual construction period, at the prevailing rates for a railway engineer and 'assistants, (ii) :labor wages and 'salaries,.' -plus ten .perderit to cover the Owner's cost of accounting and -use -of small tools;,'plus reasonable traveling:expenses and living expenses at the . work 'of the, Owner's employees where allowable under the Owner's current practice, plus', -(iii) -the.-charges and percentage additions specified in the then current Rules of the General Managers Association of Chicago (or any successor agency) covering preparation of joint facility and other bills by carriers to 4 Contract No. DA-23-028-CIvENG-59-454 cover vacation allowances, employee.health and welfare plans, holiday pay, taxes on wages and salaries of the same general nature as the taxes provided for in Railroad Retirement Tax Act, Railroad Unemployment Insurance Act and Federal Insurance Contributions (Social Security) Act, and 'other elements of expense not readily susceptible of exact ascertainment, plus (iv) increases in wages and salaries, together with the charges and percentage additions enumerated in (ii) and (iii), provided bills therefor are rendered within one year after acceptance of the work as provided in Article 8 hereof, plus (v) an amount not in excess of $0.07 per mile for travel performed in privately -owned or Owner -furnished highway motor vehicles, such travel not to exceed 2,000 miles for any one calendar month. (?). Workmen's Compensation and Employer's Liability, Public Liability and Owner's Protective'Liability Insurance, and fire and flood loss insurance upon materials while stored at the site of the work. (8) Any severance, sales, use or luxury tax applicable to materials and supplies. (9) Engineering expense, including expense of general sur- veys, estimates, plans, specifications, and checking plans and specifi- cations. (10) Inspection and engineering controls, including field and laboratory tests, during progress of the work. (11) Expense of keeping records not customarily kept by the Owner in the regular course.of its business which shall be required by the Contracting Officer or any other Governmental Agency in connection with disbursement to the Owner under this agreement. b. At the request of the Owner, partial payments will be made as the work progresses on monthly estimates approved by the Contracting Officer. This provision shall not be construed as relieving the Owner from the responsibility for all materials and work whether or not such payments have been made or for the restoration of any damaged work or as a waiver of the right of the Government to require complete fulfillment of all terms of the contract. C. Such work as may be done under this contract in excess of the amount for which funds are available for payment as herein set forth, will be continued with funds hereafter appropriated and alloted for this work. d. From funds heretofore appropriated by the Act of 2 September 1958 (72 Stat. 1572) the sum of 324,000.00 is available for payments to the Owner for work performed under this contract. 5 DA-23-028-CiViliG-59-454 e. If at any time it becomes apparent to the Contracting Officer that the balance of this allocation is in eXcess of the amount required to meet all payments due1and to become due.the Owner because.of work performed and to be performed pursuantto his approved progress schedule, the right is reserved after'due'notice io the Owner to' reduce said allocation by the amount of such excess. f. If the•rate of progress of the�work is such that it becomes apparent to'the Contracting Officer that the`balance of this allocation and any allocation for this -and any subsequent Ifiscal years during.the period of this contract is less than that required to meet all payments due and to become due the'Owner because of work performed or to be performed under this contract, the'Contracting Officer may provide addi- tional funds for such payments if there be funds available for such purpose.' The Owner will be'notified in writing,of any additional funds ,so -made available.' However, it is distinctly understood. and,agreed that the amount of funds'stated in d above is the maximum amount the Govern- ment insures will be available during the current fiscal year and the Government is in no case liable -for payments to.the Owner beyond this amount prior to having notified the Owner in writing of any additional funds that can be made available. Accordingly, no progress schedule will be approved which contemplates progress requiring funds in excess of the amount stated to be available'in d above for the current :.fiscal year and no progress schedule will be approved for any ensuing fiscal year which contemplates progress requiring funds in excess of the amount allocated by the Contracting Officer from funds subsequently made avail- able. (See g below) g. It is'expected that, during subsequent fiscal years over.the period of -this contract, Congress will make additional appropriations for expenditure on work uzider this contract. The Contracting Officer will notify the>Nner of°any additional allocation'of funds to this contract when such funds become available. It is understood and agreed °that the Government is in no case liable for damages in connection with this contract -on account of delay'in payments to the Owner due to lack -of available`�funds. Should it become apparent,to the Contracting Officer that the available funds will be exhausted'before-'additional funds can be made available, the Contracting Officer will give at least 30 days written notice to the Owner that the work may be suspended. If the Owner so elects, after receipt of such'notice, he may continue work under the conditions and restrictions under the specifications, so long as there are funds for inspection and superintendence,'with the under- standing, however, that no payment will be made for such workunless additianal funds shall become available in sufficient amount: When funds again become available, the Owner will be notified accordingly. Should work be thus suspended, additional time for. completion will .be allowed equal to the period during which work is,necessarily so suspended, as determined by the..dat.e:s specified in the above-mentioned notices. h. So long as funds are available, payments will be made monthly in accordance with this article. R Contract No. DA-23-028-civa4G-59-454 i. The procedure above described will be repeated as often as .may be necessary on account of the 'exhaustion of available funds and the necessity of awaiting the appropriation of additional funds by Congress. j. :Should Congress fail to provide additional funds the contract may be terminated and considered to be completed, at the option of the Owner, without prejudice to him'or.liability io.the Government, at any time subsequent to 30 days after payments are discontinued, or at any time subsequent to 30 days after the passage of the Act which would have but did not carry an appropriation for continuing the work or after the adjournment of the Congress which failed'to make the necessary appropri- ations. k. The Government shall, without cost. to ;the Owner: (1) Make available to the Owner such survey and sub-surface investigation data as may have-been obtained by the Government and as are pertinent to. the work'provided for under this contract. (2) .Furnish, for the' Owner's use, sufficient ties, tie plates, rail (90 pound), and angle bars to construct the shoofly.. (3) Furnish necessary labor, services, equipment; materials, and supplies to design and construct (i) altered embankment"subgrades to meet.elevations of raised main line trackage as raised,by the Owner pursuant to Article 1 herein; (ii) embankment subgrade for the temporary shoofly; (iii) new-single-track open deck thru plate girder bridge de- signed for, Cooper's E-60 loading; and (iv) the new channel under the bridge and place riprap along the slopes thereof. All work to be in conformance with Exhibit "A" attached hereto. 1. ::All plans and specifications for work to be performed under this contract and prepared by the Government shall be approved in writing by the Owner before any work thereunder is commenced, and all work per- formed by the Government shall be in strict accordance with the approved plans and specifications herein provided for. No changes will be made by the Government in said approved plans and specifications without the written approval'of the Owner. m. The Government shall, if it so elects and at .its own discretion, procure by-contract made by and in the name of the Government in accordance with the then current regulations, all services, labor, materials, tools and equipment necessary for the accomplishment of the work described herein, excepting such services, labor, materials, tools, and equipment to be furnishedby the-Owner under.the terms of this contract. n., The Government shall furnish the'Owner one:set'"of reproducible prints of the construction drawings, revised "As Built.'l .o, The Government shall make lavailable to the Owrier cost data related to the construction of the altered facilities to be constructed 7 Contract No. DA-23-028-CIVLNG-59-454 by the Government under this contract, as may be re.quired..by..the•.Owner to complete it"s'records and accounts and -to enable.it,to compile the: necessary reports to the Interstate Commerce Commission and the Corp- oration Commission.of the State.of.Kansas,,as required bylaw. ARTICLE; 3' Government -Furnished Property; (a) The Government shall furnish to the -Owner, for.use in con= nection,with and under the terms,of this contract,. -.the property described iii Article 29 together-withsuch•.related,data.and information as -the Owner may request and as may reasonably be required for the intended use of such property (hereinafter referred to as "Government -furnished Property'). In the event that Government-furnished:Property.is received by the Owner in a condition not suitable for the intended use, the Owner shall, upon receipt thereof notify the Contracting Officer„of such fact and, as directed by the Contracting Officer,. either,(i Y return such property.,at:the Government's expense or'otherwise.dispose of the property or (ii) effect -repairs or - mod- ifications. Upon completion of (i) or (ii) above, the Contracting Officer upon written request o,f the Owner shall equitably ,adjust the estimated cost, or delivery or performance., dates,,. or,.all of. them,,, and.,any, other contractual provision affected'by the return or disposition, or the repair or modification, The foregoing provisions for adjustment:.are exclusive and the -Government shall not be liable`to suit for breach.of contract by reason of-any.delay in delivery,of Government furnished Property or. delivery ,ofsuch property zi in a conditionot suitable for.its intended:use. (b) ,Title to all property furnished .by the Government shall remai-i in the. Government. (c) Title to the Government -furnished Property shall not be affected by the incorporation or,attachment thezw of to:any-property not owned by the Government,' nor shall.,such Government-furni.shed.Property,.or any part thereof, be or become a:fixture or:lose its identity as.personal:ty by reason of;affixation to,"any realty. The Owner ;shall comply;with:the provi- sions of the "Manual for Control of Government Property,in Possession of Contractors",(Appendix $, Armed Services 'Procurement :.Regulation),-as;.,in effect on the date'of the contract, which Manual,is hereby incorporated by reference and made a part of this contract. (d) The Governmeat.rroperty.provide-d.or ,furnished :pursuant to the terms.of this contract shall,.unless otherwise..provided.herein be used only'for.'the performance.,of.this contract. (e)..The Owner..shall maintain and administer in,accordance with. sound industrial practice, a program, for the maintenance, repair, pro- tection and preservation of Government.Property:.so,,as.to.;assure.its full availability` and usefulness for.. the performance of, -this contract. . The . Owner shall take all reasonable steps to comply with all appropriate directions or instructions which the Contracting Officer -may prescribe as reasonably necessary for the prot.ection,of.Government Property. Contract DA-23-028-CIvzNG-59-454 MW The Owner shall not be liable for any loss of or damage to the Government Property, or for expenses incidental to such loss or. damage, except that the Owner shall be responsible for any such loss or damage (including expenses incidental thereto) (A) which results from willful misconduct or lack of good faith on the part of any of -the Owner's directors or officers, or on the part of any of its managers, superin- tendents, or other equivalent representatives, who has supervision or direction of (I) all or substantiallyall of the.Owner's business, or (11)'all or substantially all of the Owner's operations at any one plant or separate location in whiei. this contract is being performed, or {III) a separate and complete major industrial operation in connection with the performance,of this contract; or(B) which results from a failure of the part of the Owner,,, due to the willful misconduct or :lack of good faith on the part of any of its directors, officers, or other repre- sentatives mentioned in subparagraph (A) above, (I) to maintain and administer, in accordance with sound industrial ;practice, the program for maintenance, repair,.protection and preservation of Government Property as required by paragraph (e) hereof, or (II) to take all reasonable steps to comply with any appropriate written directions .of the Contracting Officer under paragraph (e) hereof; or (C) for which the. Owner is otherwise, responsible under the express terms of this contract; or (D) which results from a risk which is in fact covered by insurance or for which the Owner is otherwise reimbursed, but only to the extent of such insuranceor re- imbursement; provided that, if more than one of the above exceptions shall be applicable in any case, the Owner's liability under any one exception shall not be limited by any other exception. This clause shall not be construed as relieving a subcontractor from liability for loss or destruction or of damage to Government Property in its possession or control,:except to the.extent that the subcontract, with the prior approval of the Con- tracting Officer, may provide for the relief of the subcontractor from such liability. In the absence of such approval, the subcontract shall. contain appropriate provisions requiring the return of,all Government Property in as good condition as when received, except for reasonable and tear or for the utilization of the property in accordance with the provisions of this contract. (ii) The Owner shall not be reimbursed for, and shall not include as an item of overhead, the cost of insurance, or any provision for a reserve, covering the risk of loss or or damage to the Government Property, except to the. extent that the Government may have required theOwner to carry such insurance. under any other provision of this, contract. (iii) Upon the happening of loss or destruction of or damage to the Government Property, the Owner shall no the Contracting Officer thereof,.and shall communicate with the.Loss and Salvage Organization, if any, now or hereafter designated by the Contracting Officer,.and with the assistance of the Loss and Salvage.Organization so designated (unless the Contracting Officer has designated that no such organization be employed), shall take all reasonable steps to protect the Govexnment..property from further damage,' separate the damaged and undamaged Government property, put all the Government property in the VJ Contract No. DA-23-028-CIV.�;NG-59-454 best possible order, and furnish to the Contracting Officer a statement of (A) the lost, destroyed and damaged Government Property, (B) the time and origin of the loss,'destruction or damage ,'(C)'all known interests in commingled property of which the Government Property is a part,'.and (D).the insurance, -if any, covering any part of or interest in,such commingled_ property. . -The Owner shall make repairs and renovations of the,damaged. Government Property or take such other action as the Contracting Officer directs. .(iv) In the event the Owner is,indemnified, reimbursed, or otherwise compensated for any loss. or 'destruction of or damage to the Government Property, it shall use the proceeds to repair, renovate or replace the Government Property involved, or shall credit such proceeds against' the cost of the work 6ov-6red by the contract, or shall otherwise reimburse.the.Government, as directed by the Contracting Officer. The Owner shall do-nothing to prejudice, -the Government's right to recover against third parties for any such loss,.destruction,or damage and, upon the request of the Contracting Officer, shall,•at the Government's expense, furnish to the Government all reasonable assistance and cooperation (including the prosecution of suit and -the execution of instruments of assignment in. favor of the Government) in obtaining recovery. In addition, where.the' subcontractor has not been relieved from liability for'any loss or destructionlof or damage to Government Property, the.Owner shall. enforce the liability of the subcontractor for such loss of destruction of•or. damage-to'the-Government Property.for the benefit.of the Governments .(g) -The Government shall at all reasonable times'have access to the premises where any of the Government Property is located.. (h)- The Government Property shall remain in the possession of Owner for such period of time as is required for the performance of,this contract unless the Contracting Officer determines that the.inter.ests:of the Government require reuio'val of `such property. Insuch• case the Owner shall promptly take such action as the Contracting Officer may. direct. ,with respect to.•the-redoval and shipping of Government Property. In any such instance, .the contract may be amended to accomplish an equitable adjustment in the terms and provisions thereof. (i) Upon the completion of this contract, or at such .earlier dates as may be -fixed -by the Contracting Officer, the Ownershall submit to the Contracting Officer in a form acceptable to him, inventory sched- ules covering allitems of the'Government Property not con:,umed in the performance of this'contract, or•not theretofore delivered to the Govern- ment, and shall deliver or make such other disposal of such Government Property as may be directed or authorized by the Contracting Officer... The net, proceeds of'any such disposal shall be credited to the cost of the work covered by the contract or shall be paid in such manner as the Contracting Officer may direct.••The foregoing provisions shall apply to scrap from Government Property rop vidd, however, that the Contracting Officer may authorize or direct the Owner to omit.from such inventory:'. schedules any serap.consisting of c'utting•and processing waste, such as 10 Contract No. DA-23-028-CIV�ING-59-454 chips, cuttings, borings, short ends, clippings, and remnants, and to dispose of such scrap in accordance with the Owner's normal practice and account therefor as a part of general overhead or other reimbursable cost in accordance with the Owner's established accounting procedures. (j) Directions of the Contracting Officer and communications of the Owner issued pursuant to this clause shall be in writing. .(k) Property accounting records listing the property furnished by the Government and returned to the Government stock upon completion of work, shall be compiled by the Government. ARTICLE 4. Insurance. In addition to any forms of 'insurance or bonds required under the terms of the Government'scontract with its contractor and before permitting such contractor to beIgin.operations on Railroad premises, the Government shall require such contractor tip procure and maintain in force so long as work shall continue upon such premises and at its sole expense, insurance on behalf of the Owner in form and with coverage and provisions contained in the "Railroad Protective Liability Form," a copy of which form is attached hereto, marked ''Exhibit B" and hereby made a part hereof. The limits of the Insurance Company's liability to the Owner under such policy shall be: Each Each Person Occurence Aggregate Bodily injuries and death coverage: 3100,000 '.600,000 Not Applicable Property damage coverage Not Applicable '0;200,000 X500,000 The Government's contractor shall cause a duplicate original of the policy of insurance specified above to be delivered to the Government for transmittal to the Owner's Chief Engineer at Omaha, Nebraska, before starting work on said premises. The Owner agrees to notify the Government within twenty (20).days . following delivery of said policy of insurance to the Owner, whether such insurance has been accepted or rejected, and failing so to do, the Owner shall be deemed to have accepted such insurance. The Owner further agrees to notify the Government promptly upon receipt of advice that any of the insurance specified as aforesaid has been or may be cancelled during the progress of the work hereunder. ARTICLE 5. Salvage. The Owner shall use such materials, equipment and supplies from the facilities existing as of the date of this contract as can,be placed in the facilities to be rearranged or altered hereunder; any materials, equipment, and supplies which it is mutually agreed by the. 11 Contract No. DA-23-028-CIVZG-59-454 parties hereto gannot be so used shall be removed from their or location and shall remain the property of the Owner. The agreed salvage value of such removed materials, equipment and supplies shall be credited to the Government in the form of a deduction to be made from the cost properly chargeable to the work to be performed under Article 1 hereof. All items of materials shall be designated by.the Owner as -new, used or salvaged material's, whether said items are retained, discarded or altered in the prosecution of the work. In.the event mutual agreement is not reached in the value of salvaged materials, such materials shall become the property of the Government and the Owner shall stockpile th e materials at the location adjacent to the site as directed by the Con- tracting Officer. ARTICLE 6.Betterments. The Owner agrees that the rearrangement and/or alteration to be accomplished under this contract will provide the Owner with facilities equal in service and utility to those now in existence and that any improvement in design, construction or capacity over and above what is required to,provide facilities of equal service and utility shall constitute a betterment and will be furnished by the Owner.at its own cost and expense: Provided, however, that the term "betterments" will not be deemed to include more costly construction or*,design necessitated solely as a result of the relocation. ARTICLE %. Ownership and Conduct of the Work. a. The facilities constructed.hereunder shall be the property of the Owner, excepting that any facilities of others as altered, raised, or adjusted pursuant to Article 1 hereof, shall be the property of the oi,mers thereof. The Owner shall be responsible. -for all materials furnished and work performed by it. The Project works consisting of levees, ripran, and appurtenances con- structed by the Government on the Owner's rigr.t-of-way shall retain the property of the Government and/or the City of Salina, Kansas: b. Thk.-Government may award other contracts for additional or other work ii.connection with the same Project or in the same'vicinity. The Owner shall conduct operations so as to cooperate fully with any such work being performed by,the Government and/or Government contractors and shall carefully fit his own work to that provided under other contracts as directed by the Contracting Officer. The Owner shall not commit or permit.any act which may interfere with the performance of any such work by the Government and/or any Government contractor. ARTICLE 8. Interference. The Owner agrees that so long as the Project is operated or maintained for the purpose as described herein that the facilities as rearranged, or altered pursuant to this contract shall not. be so further altered or modified nor other facilities con= structed by,the Owner; so as to interfere with the operation of the Project. ARTICLE 9. Inspection and Acceptance. The 'Government shall have the right to •inspe.ct the work to be performed hereunder at any time during its progress and to make,:final inspection upon completioh thereof, Failure 12 Contract No. DA-23-028-CIVLNG-59-454 of the Government to object within 20 days after final inspection shall indicate satisfactory performance�of the contract by the Owner: ARTICLE 10. Release. The Owner agrees to accept the payment provided in Article 2 above as full and just compensation for'any damage to the lands of the Owner and the facilities altered hereunder arising out.of the performance.of this agreement.' ARTICLE..11. `Completion. The Owner will commence' the work h UL 1 O 1959 under within ten (10) days from the date of approved copy of contract i i�7J complete the work within 45 calendar days. after completion of the new bridge by the Government. ARTICLE.12. Condemnation. Should it be determined for any reason that the right, title and interest of the Owner in and to the lands referred to in Article I above shall be acquired by condemnation, or other judicial proceedings, the Owner shall cooperate in the prosecution of the proceedings and this agreement shall, without more, constitute a stipulation which may be filed in the proceedings and be final and conclusive evidence of the ad- justments -to be made the facilities herein mentioneda ARTICLE 13. Disputes. a.' Except as otherwise provided in thi's contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy tl_ereof to the Owner. The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy,;the Owner mails or otherwise furnishes to'the Contracting Officer a written appeal addressed.to the Secretary. The decision of the Secretary or his duly.authorized repre- sentative for the determination of such appeals shall be final and conclusive' unless determined by a court of competent jurisdiction to -have -been fraudulent, or capricious, or arbitrary, or so grossly erroneous -as necessarily to.imply bad faith, or not supported by -substantial evidence. In connection with any.appeal proceeding under this clause the Owner shall be af'_'orded an'opportunity to be heard and to offer.evidence in support of its appeal. Pending final decision of a dispute hereunder, the Owner shall pro- ceed diligently mith the performance of the contract and in accordance with the Contracting Officer's decision. b. This "Disputes" clause does not preclude consideration.of law questions in'connection with decisions provided for in paragraph a above: PROVIDED, that -nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question.of law. 'ARTICLE 14. Covenant Against Contingent Fees, The Owner warrants that no person or'selling agency has been employed or -retained to solicit or secure'this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the 13 Contract No. DA-23-028-CIVNG-59-454 Owner for the purpose of securing business. For:breach.or violation of this warranty the .Government,:shall.have.the. right to annul this contract without liability or in its discretion, to deduct from the contract -price or eonsideration,.or otherwise recover, the full,amount of such commission, percentage, brokerage, or. contingent -,fee. ARTIC; S.Officials Not to,Benefit. No member of or .delegate to Ccngress,'or resident commissioners, shall be admitted to any share or part, Ithis contract, or to any benefit that . may.,ari se 'therefrom; but ',this$" �vision.shail not be construed to extend to this contract if made with a corporation for its general benefit. ARTICLE 16. Nondiscrimination in Employment. a. In connection with the,performance of,work under this contract, the Owner agrees not to discriminate against any employee or applicant for emp].Qyment because of race,religion,._color,.or national origin The.aforesaid-provision shall include.,. b.ut not be limited -to,. the following:. Employment,. upgrading, demotion, or. transfer; recruitment or recruitment advertising; layoff or termination; rates,of pay or other forms of compensatiori;.and selection for training, including apprenticeship. The Owner agrees to post here- after in conspicuous places, available for employees and applicants for employment, no to be provided by the Contracting Officer setting forth the provisions of the non-discrimination clause. . b. The Owner further agrees to insert the foregoing provision.in all subcontracts hereunder, except subcontracts for standard commercial supplies or raw materials. ARTICLE 11. Grates uities, a.'.' The Government may, by written notice to the Owner; terminate the right of the Owner to proceed under this contract,, if it is found, after notice and hearing by'the Secretary or his duly authorized representative; that gratuities (in the form of entertainment, gifts, of otherwise) were offered or given by the Oimer, or any agent or representative of the,Owner, to any officer or Employee of the Government with a view toward securing a'contraCt or securing favorable treatment with respect to the awarding or amending, or the making of'any determinations with -respect -to -'the performing of such contract; PROVIDED, that the existence of. the facts upon which the Secretary or his duly authorized representative makes such findings shall be In issue and may be reviewed in any competent court. b... In:the event this contract' is terminated'as provided in para- graph a. hereof; the Government shall be'entitl'ed (i) to pursue the same remedies against the Owner as it could pursue.in.the event of a breach of the contract'by the Owner, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to.exemplary damages in an amount (as determined by the Secretary or his duly authorized repre- sentative) which shall be no.t.less thane -three nor more,.than ten times the costs incurred by the Owner'in;providing-any such gratuities to any such officer or employee. c. The'rights and'remedies.of the Government provided in this- clause hisclause shall not be exclusive and are in addition'to any other rights and remedies provided by law or under this contract. 14 Contract No. DA-23-028-CIVENG-59-454 ARTICLE 184 Definitions. a. The term "Secretary" means the Secretary of the Army; the terms "Secretary of the Army" or "Head of the Department" as used herein shall have one and the same meaning; and the term "his duly authorized representative" means the Chief of Engineers, Department of the Army, or an individual or board designated by him. b. The term "Contracting Officer" as used herein shall include his duly appointed successor or his authorized representative.. ARTICLE 19. Approval. This contract shall be subject to the written approval of the Division Engineer, U. S. Army Engineer Division, Missouri River, or his authorized representative, and shall not be binding until so approved. IN WITNESS WHEREOF, the parties hereto have executed this contract as of the day and year first above written. Two Witnesses: Address (Address) THE UNITED STATS OF AMERICA By J. P. BARNES Major, Corps of Engineers Contracting Officer UNION PACIFIC RAILROAD COMPANY By. Title CERTIFICATE certify that I am the secretary of the corporation named as Owner herein; that who signed this contract on behalf of the Owner was then of said corporation; that said contract was duly signed for and on behalf of said corporation by authority of its governing body and is within the scope of its corporate powers. IN WITNESS WHEREOF, I have hereunto affixed my hand and the seal of said corporation this day of 1958. 15 (Secretary)