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C.D. # 43132-7 Dry Creek Drain Ditch Flood Levee Encroachment AgreementJ L • A DUPLICATE ORIGINAL City's Copy Oo 0. * 43132-7 T- A11-1110"! made and entered into this day of i99 O FWeen oorporaticn the bate of Utah hereinafter ll d eailroad 0ompwnw"-) ty of the first, part,� ` a nisi 1 coir ation o#` the State of ;:nsae there na 'tea oaiied 41ty"), ty of th+ seoand 'the. 91 y desires . to ,3''. maintain and a P�sod �ntr�110 levee on the right of way .on both sides :Of the traok. of the Railroad Oompanyti Plainville anoh. near Salina# Saline oouaty,, �,XMa46. in the looat on shown outlined .by yellow, lines :on the Irint hereto attached, by may 1959" mark d "' hlbit A," and hereby made, a past hereof ana Vit' t0,xftlntalp, and n e an ex sting drat oage, diteh on the right -.-of w' off' the VAIlroad tompanyto Plainville aranah near Salinax Saline 06unty,, near, f6r. flood oontrol ourposes.. in the 1poat,ion shown outlined by yellow lineis on the Vint hereto attached dated 901959# marked %xhibit B,20 and heraby made,4 P;;t hereof., ' ' . + 04 it is =tually at3re*4 by and between .hO parties. he to as Voliows# ieotion i.. RIAUR00 d - . " Ste* In oonsl4.er�a' 1)n o.of.. the eoveh ants and agreements terein oontatnad to L be 'by ,tho t kept ohs+ rued and per" 'ormed, the ►ilio omp ay hereby grants to ..tie Vitys sub" leot to the tem fir . oohditions hezk6ln . st ated, the right a to oonstruot and 'thereafter during., the term hereof, to maintain and use the flood eoetroi levee on the. right p' oxo bdth..e:des + tle track o" the gailraad 4 psny in the locatton shown outlined by yellow lines on ChibIt A3 and tb to maintain and use an existing drai a dith on the right O y' of the ailroad Company 1n the jooaft'n shown outl and by yellow linea can fthbit B The aforesaid flood control. levee and drairfte ditch sghall. herolneftor be referred to apXleot .v'ol as .+gad ont l "IlitLos e P0".S* n$ grab is suo�eat :and bo innate to to .pry. and oontsnult rlgbt and obi igat oh '+� the ailroad imp" .. o use and maintain its ent1 ra iroald r1 uay to .. Qri'a u►ae e a ' ito publio- at a� ao za c r e and ls© sub japt to the ' right and power eat' , the Railroad Company oonat vt-,"mat, btaih..:,repair.0 , ' Vit , u8eU660'opdrato,:.t� 0, kaw off► rolooate ra!lrbad #a�aa ,. tol@graph, tolephone, s�,R« A or Oth it pal+ ' and it a linea, pipe linea and other Paoli req Upon,, ;long or altrose ►° or all parts of- said right of �y" . all car ;any 9f which may be , froOly One a any timo_ o A04`bytbo ' ll"" O'coiPa `s in art as Sam, SkAll not ins iralere with the proper operation of said $11ood Control V.011 -o ► .es, without liability to the �► tai. a other pa�t�r for �mpone�tion or des. are o arrant is made *It ut e'larran`ty of any .nd whatsoever 4nd subject to all totanding ' sWerf. rights, is i�,tsQapor acid brie f :ref tho: ai3: d ompany to renew and, ctd the tion 2. 1 Thi llic ontrol ]'a+o�.l ti ' shall - be.coxistruatid therear tsar . maint4ined by..:and. at the expense of the Olty, all ` work performed by the dity oh said clot "gay ah :l performed in a .- ►herr satisf ala of to the Ohiet , f ineer of i.lraad o ny Or hie d ly. authorizod rrepre ntative an accoidanvo w.ith thep ,ani ►nd o t . ' .ctati®na apYi ved by Railroad Ooyrs Chief sneer* Ign 3. dMMU, Olt a tit+ .event tke pity .s ... take. d 1wa gaxaoe or Railroad Company or in any' .manner mage: Qr dlit b any r Property" of the Railroad dompany in caonneat�.ot� with the Itraotton and maintomade off` said �,®cam control $Pac lI.tis.s, k and in that event the' Oi shall.,: as 00 on, as °possi,bjO and :tyo $olid expelOse, restore s%Ich fenoe and//or such other. erty .to the extent praotidable and, in .any event, ' in a Aer 40,6 +ptOl,e .tai the . taiI-road..: 3o r, and the ty hal,l mity ind save harmle091 - the sa lv ad )Compa from, +�► alta and'411 11 IUVIllty, .ass, dames,. ole ms, domande, �a. A 64=6` `e of wbat000vor nage, lhrtludl court costsstterne�ti-t gtea, which may result tram ink to or death F S I 4 , whomsoever, or dq . to or loss **, dnstr Otion of - s a+�d° or. when, h Injury,death! -O� Asn or Odws out "Of or a�s68 f he + nnn of.any 6, ldv or 4i��a � a .�n�r ��h�r �?�npsr�� or, s to Indemnlfr and cave harnaaaa the .4:n* aty 'd tht Aftcoes ofnd 4,itila11 other oarriers *hi � x� a ` Railtoad an 1.6srs, agoilto and 0*44a0 Qin "#�� .1- 1,6h at or snrrlers � froma 11not Ali: #i tC ®'1i orVol +fit of 1WO6,440ai or loss. or Abgt bion of or. mat tion, 1way in oonnection with or 1s nn vr operation of aha: . ., Thar agrees #tn ra IrOr a' Costa ' 1 :oh .' may Inour ani`!r .. Q xh+ h Mytin einsu .0 of the work horoU *oftt*W14ted,, t or t & per. who perform tock, upon the r*ht of tand, �� a t � � � flood :on�rl ld ' not tr t`fer41W 114"s►`Say d'"d 6r . to, ba +. onmist O&W .proWloet for any rork dom •thoreon; a# Ob netnn�to air r +"nt or on behalfof 01ty-J, . and ''ib* 'ib* Idl y' a rOei to 10401441tt end holds harmless ;h,o OilU106d OOMPH` frm, and 401ast any on. al, �t r aaims n e �rhs®e► has in. My IMY,'O . bnVe i : *h or grnwini out Of sash, work done or Labor perftrs d..• 1*01nn * 1 i 1 PRO,ISO AXD PAA' '�.. contractors to -0 the; eonstiaott'on lor, main#enoneo Ot 04ad. vi*04. 'n�r�►1 0-1 lies the C.i rr� trnn#� d rs r . t� car$, d :�n1sh and m Amain in forot as 1* 40 ' sunh cork s *,*Pt1 td -upt' n ht �Aat road OVVW,# + right or my Owurarwotin beh+ Vaton` def sd�44 in lhs form and with. *over 6 and , pro s ons .ebntain in the her ' . ', a oft 'is nbar by a or part, OrOof 0 � ` % fte, op j t inal'' of suoh, 1�0111,br of -,tnmuvn favbr ":J! �txl b1folttlo4lor"it) �%,*"Oc S C. a a a ,Y iD ;. �• x Of A row On�b*V- of.b 'ms s 0 aA. ? Sieg WHEREAS,. the Council of the City of S 4,611, has said proposed agreement before it and has given __ c review and consideration; and WIMR AS, - it, is, considered., that ;the. best interests of said City of '� will be . subserved by a accep nc ' of TETIal a THEAVQF.a,HE IT RESOLVED BY THE COUNCIL OF THE CITY QF> � . .. That the. ;tern s',of_..t'he, 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 - Cit js 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 dirticted,to attest said.agree=nt.and to attach to each duplicate original of said agreement a certified copy of this resolution. STATE OF _,.. ............�,. r . , ss C.OV N 1 l , OL' s l�rrr re +rwrrr�rr. City Clerk of the Cit of , hereby certi fy hat '��` aDove ana ' oregoing is. a true rul and correct copy of a- :resolution adopted by, the Council of the. City of SAU334 MAt 8sit, of a meeting held according; to law at. , . on the . �. _...,:VA-, day of .,., 19 asthe same appears on file and .of record in this office: f' IN TESTIMONY WHEREOF, I have hereunto set my hand. and 'affixed ,the corporate seal of said .City.,. this day of �} City Clerk of the City of -Saiina 0 ftatae. of Zansaa. J STA14DARD PROVISIONS FOR GEz= LIABILITY POLICIES Railroad Protective Liability Form (State or Federal highway Projects) GENERAL INSTRUCTIONS 1. Standard language This form is expressed in standard language which may not be amended and no part of which may be omitted except (a) as indicated by these instructions, 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., vis. "Insuring Agreement#" *Exclusions.." "Con. ditions" and 'T)eclarations" may appear in the policy in such sequence as the oom— 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 omitted# but all other identifying or indexing designations (such as "Coverage A." "Defensep Settlement., Supplementary Payments#" "Cancelation.," etc.)# including literal or numerical des— ignations of paragraphs or phrases.' may be amended or -omitted at the companyls op— tion. When such identifying or indexing designations# used for the purpose of reference in the text of the form or any endorsement farm :applicable thereto., are amended or omittedv descriptive designations shall be substituted therefor. !,. Additional Coverages or Companies, 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 neceesaryp 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 waft 1 2 6 7, Addition of Coverage by Endorsement 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 all standard prm-Isions applicable to that class by the expressions of the endorsement or of the policy or of both taken together. 8. Definition of "Standard" and "Approved" "Standard language" or "approved standard language" when used in these instrue— tions means the form and endorsements either prescribed or approved by the insm•— anee supervising authatity 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 app.-ove 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 ne•:essaxT provlsion with respect to payment of premium, payment of additional premium and return of.premium Fond dividends* under the policy. 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 Prov-.Isionss when approved by the supervising authority of the state in which the policy is issued if such approval is recuiredq may be in— serted in the policy. 'See General. AAR Stencil Instruction 10. 114102-5 2 2/3/58 IMERENCE NOTES 1r --Matter in brackets may be included, omitted or amended at the option of the company. 2r --The effective hour and date of the policy may be typed or printed in this space. 3--A statement may be added that a definite notation may be made in the premium column to shah that a particular coverage is not afforded, 4 --Name of company my be shown.. 5 --The capacity of the person countersigning may be stated. 6•. -Additional declarations of this type, calling for general information or 1.nw 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 Railroad Protective Liability Policy No. (S'ta.te or Federal Higl.Way Projects) DECLARATIONS Item 14 Named Insured xr Address z, No. Street Town or Citj4 County State Item 2. Policy Period: From (See Reference Note 2) to -12:01 A.M.i standard time at the designated; job site as stated herein. Item 3, The insurance afforded`As only. with: respect to such of the following coverages as are Indicated n: Item 611by specific premium, char or charges,., The, limit of the company's liability against such coverage or coverages shall be as atated.herein,,subject to all the terms of _this policy. having reference thereto'. (See Reference Note 3.) - vi Lic.4 Viii V Blank Indemnity /+ A: Bodily,Injury Liabilit Y$,V*ach perste each occurrence Blank B Property Damage Liability InsuranceCOM 4 oh nog C and Physical Damage to Property Item 4a Name andiAddress of.Contraotor rtem 5. Name and"" Address of. Governmental Authority for whom the work by the.contractor is being performed AAR Stencil 4 1]x,02- 7 58 Draft Premium items 6. Desi tion 2f the Job Site and ages Description of Wor Caatract Cost Rental Cost Advance Rates Premium iums Coverage A Coverages B & C Coverage A "Co erajzes B&C Per $100 of Cost Per $100 of Rental Cost If Pblicy Period more than one year: Premium is payables On effective date of Policy $ lot Anniversary $ 2nd Anniversary $ 1 CDate and Place of Is" -11 Oourrtersio 9at J1 by Renewal of policy number. B. The named insured is a Corporation. See Reference Note 5. C. Endorsement serial numbers. ' 6 D. Rating plan or premium discount. AAR Stencil 314102-8 5 2/3/58 Draft % (For policy issued by one oompaxv) BLANK .INDEM UTY GMIPANY (A companyj herein called the camipa W)' 7 Agrees with the insured., 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) SIAM I10EN1rTITY COMITY and BUM MURANCE CG11,TANY insurance company.., herein called the company) 7' Severally agree with the insured., named in the declarations made a part hereof.9 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., 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 other= JWURING AGREMIENTS I. Coverase A - Bodily Iniury Liability To pay on behalf of the insured all sums which the insured shall be- come legally obligated to pay as damages because of bodily injury.* sickness or disease.. including death at any time resulting therefromp 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. 2.0v—era"—B - Pro ert_y Damage 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 dest=aetion of property including loss of use of any property due to such injury or destruction.. hereinafter called "property damage", arising out of acts or omissions at the designated job site which are related to or are in vonnection with the work described in Item 6 of the declarationse, Coveraa►e C - Physical Damage to Property To pay for direct and accidental loss of or damage to rolling stock and their contents meehar4cai construction equipment# or motive power equipment., hereinafter led loss$ 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 provided such property Is owned by the named insured or is 3msed or entrusted to the named insured under a lease or trust agreement. AAR Stencil 6 2/3/58 Draft * % no De,=tiM9 (a)orad - The unqualified word "insured" includes the named insured and Includes any executive officer, director or stockholder thereof while acting within thescope of his duties as such. (b) Cont�tcr - The word "contractor" means the contractor designated in Item /+ of the declarations and includes all subcontractors of said con- tractor but shall not include the named insured. (e) Designated employee of the insured The words "designated employee of he insured" mean: �!J 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 assi,;ned exclusively to the contractor, or (3) any employee of the insured. not i rithin (1)` 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) Contract - 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. SuWemeRk= ayments With respect to such insurance as is afforded by this policy under cover- ages A and B, 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 teams 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 liability: (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) expenses 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 .. 2/3/58 Draft • a � 4 4 u 4 (4) all reasonable expenses, other than loss of earnings.. incurred by..the insured.at the companyis request. M. Folicy Period, Territory This+ policy applies only to occurrences and losses during the policy period and within the United States of America., its territories or posses. sions, or Canada. EXC.LUS IOW 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 dama;e 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 Torkmen's compensa- tion, unemployment compensation or disability benefits law, or under any similar laws; provided that the Federal Employers, Liability Act, U.S. Code (10,46) 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 (R) leased or entrusted to the named insured under a lease or trust agreement. AAR Stencil 111-102-11 8 2/3/58 Draft i '�► O1�IDITI I� , [The conditions, except conditions 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, apply to all coverages. Conditions 3, 42 5, 61 71 8, 9, 10, 11 and 12 apply only to the coverw• age noted thereunderjl 1. 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 tonal cost to the contractor for rental of work trains or other railroad equipment, including the remuneration of all 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 company's rules, rates, 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. Z, InqR2ction The named insured shall make available to the company records of lb-ormation relating to the subject matter of this insurance. The company shall be permitted to inspect all operations in connection with the work described in Item 6 of the declarations. 3• Limits of Liability The limit of bodily injury liability stated in the deals.- rations as applicable each, person" is the limit of the Coverage A companyls liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the decls.- rations as applicable to "each occurrence" is, subject to the above provision re- specting each person, the total 1:L-Git of the companyts liability for all suchdamage arising out of bodily injury sustained by two or more persons as the result of any- one occurrent, 4. Limits of 1isbtl.itv The limit of liabilityder coverages B and C stated in ,� overages' in— V- the deolarations as .am. ble to '1eaoh ciacurrencell is the total 1L-t1t of the coa �panyls liabi.'lity for all damages and all loss under coverages B and C curibined arising out of physical injury to de- struction or loss of all property of one or more persons or organ;nations,including the loss of use of a%- propo-,: 4;,;r Ei e to such injury or destruction under coverage B, as the result of any one oc:.ul:Terl! a. Subject to the abo:•e provision. respecting "each occurrence", the limit of BA_ bility under coverages B and C scat"ed in the declaration as "aggregate" is -the total limit of the companyls l.iabl-lity for ail damages and all loss under coverages B and C combined. arising out of n -,tical In try to destruction or loss of property, in- Clud3.ng Be loss of use or any proper4y due to such injury or destruction under Ve:qagetUnder coverage C. the limit of the companyts liability for loss shall not exceed the actual cash value cf the property, or if the loss is of a part thereof the ae- tual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality. AAR Stencil 124102-%U 9 2/3/58 Draft • 0 f *5.everabilify of Interests overagee. A and B of the companyts liability. The term "the insured„ is used severally and not oollectively, but the'inclusion herein of more than one insured shall not operate to increase the limit$ 6. Notice In the.event of an occurrence or loss, written notice.containing particulars. sufficient to identify the insured and also reasonably obtainable informat�.on 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 authorimd agents 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# summons or other process received by him or his representative, 7. Assistance and Cooperation of the Insured The insured shall cooperate with the Coverages A and B company and, upon the companyts 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 not# 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 CgMMU No action shall lie against the company unless# as a Coverages A and B condition precedent thereto# the insured shall have fully complied frith all the terms of this policy# nor until the amount of the insuredfs 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 b,; this policy. No person or organization shall have any right under this policwj to join the company as a party to any action against the insured to determine the insuredIs liability. Bankruptcy or insolvency of the insured or of the insuredts estate shall not relieve the com- 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 full 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. InsuredIs Duties in Event of Loss 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 insuredts failure to protect shall not be recoverable under this policy; reasonable expenses incurred in afford— ing such protection shall be deemed incurred at the companyt.s requeet; (b) file with the company# as soon as practicable after loss, his sworn proof of loss in such Form and including such information as the company may reasonably require and shall, upon the companyts request, exhibit the damaged property,. ALR Stenon IU102-13 10 .. 2/3/58 Draft v� z 10. AMMU.l Tf.tha,insured and the comparV fail to agree as to the amount of Coverage C Imes, either may,, within 60 days after proof of loss is filed,, demand an appraisal of the loose 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 ac- tual 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 chbM appraiser and shall bear equally the other expenses of the appraisal and umpire. The company obA. , not be held to have waived any of its rights by any act re- lating to appraisal, Ile Payment off 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. 33. Subrogation 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. 14. Ann, tion of Insurance The insurcnce afforded by this policy is primary insurance. 15• _Three Year Policy A policy period of three years is aMprised of three con- secutive annual periods, Computation and adjustment of earned premium shall be made at the end of each annualriod. Aggregate limits of liability as stated in this policy shall apply separately to each annual periode 16. 2bMLOB. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or.estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy*be waived or changed., except by endorse- ment issued to form a part of this policy 4 signed here insert titles of authorized compan o ficiiaals or represen ver ; pro e ,, however,.changes may be made in the written portion of the deec?arations by (here insert titles of authorized company representatives w n inItia e such- ere insert titles of authorized company repre- sentatives) or by e o Issued to form a part of this policy signed by such ....._._.�_, here insert titles of authorized company representatives )11. 17. Assignment Assignment of interest under this policy shall not bind the com- pany until its consent is endorsed hereon, 18, Cancelation This.apmollicy may be canceled by the named insured by mailing to tion shall be effective. c This written notice stating when thereafter the canoela- • policy may be canceled by the company by mailing to the named insured contractor and governmental authority at the respective addresses show in this po.Uccyy written notice stating when not less than thirty days there- after such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancela.tion stated.in the notice shall become the end of the policy period, Deliveay of such written no- tice either by the named insured or by the company shall be equivalent to mailing. AAR Stencil 114102-14 31 2/3/58 Draft If the named insured cancels, earned premium'shall be computed in accordance with the customary short rate table and.proceCure. If the company cancels' earned premi,= shall be computed pro rata. Premium adjustment may be made either at the time cancelation is effected or as soon as practicable after cancelation becomes effectivei but payment or tender of unearned premium 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.. the Blank Indemnity Company has caused this policy to be signed bar its president and a secretary at .9 and counter— signed on the declarations page by a duly authorized agent of the company. 10 (FACS II,aU OF SIGNATURE) (FACSIMILE OF SIGNATURE) Secretary President (For policy issued by two companies) In witness whereof, the Blank Indemnity Company has caused this policy., with respect to coverages and such other parts of the policy as are applicable thereto., to be signed by its president and a secretary at 10 and countersigned on the declarations page by a duly a thu�or•. ized agent of the comparw, (FACS 11M OF SIGNATURE) (FACS MILE OF SIGNATURE) Secretary President in witness whereof., the Blank Insurance Company has caused this policy.. with ect to coverages and such other parts of the policy as applicable thereto, to be signed by its president and a secretary at 10 � and countersigned on the declarations page by a duly author. agent of.the company. (FACSD= OF SIGNATURE) (FACS IKILE OF SIGNATURE) Secretary President AAR Stencil 11!.102-15 32 .. 2/3/58 Draft %f S p°:15.1 Df', ^:as L. 55' -fes{>' � t.; • � . tf�F- T L. r; dr C / 3 T_ 0 4,0 " g , - ,✓ ' tv r �` ta.�x fir fr e ,f• .+"' r" �- •r" { «:r''.r, a%' %`'/<gJ.r SIR r�,a, ...r�."' ,!.,, gt r / N rr xxhibit -°MON IC RAM To 000 p r &int wi t o~lmg license t�om"MA* for oomtruc*Am of flood OMOO of Division x8gimar 'I` t ow fty t 19 LISS - °Levee area � ••ate• ......,...... Contract No. DA-23-028-CIVENG-59-492 Dated: 18 May 1959 CONTRACT FOR ALTERATION OF FACILITIES (Cost Reimbursable) OWNER & ADDRESS: Union Pacific Railroad Company 1416 Dodge Street Omaha 2, Nebraska CO d`":iACT FOR: Alteration of Railroad Facilities (Bridge 187.36 Main Line, Dry Creek Ditch) LOCATION: Flood Protection Project Salina, Kansas ESTIMATED AMOUNT: $17,000.00 PAMI NT: 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 foilewirg allotment, the available balance of which is suffi- cient to cover the cost thereof, subject to the provisions of Article 2. 96x3122 Construction, General, CE, Civil (SLK) Contract No. DA-23-028-CIVENG-59-492 CONTRACT FOR ALTERATION OF FACILITIES .(Cost Reimbursable) THIS CONTRACT, entered into this 18th -day of May 1959, between UNITED STATES OF AMERICA (hereinafter called the "Government"), represented by the Contracting Officer executing this contract, and 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: WHEMS,.the Government has, under authority of Publia`Law 780, 83rd Congress, 2nd session,_ approved 3 September 1954;undertaken the. development of a flood protection project -known as thi'Salina, Kansas Flood Protection Project, (hereinafter"aalled the "Project"); and.. `XI[EREAS, the Owner is the holder -of certain fee title and/or ease= went rights appurtenant thereto on which the Owner has constructed and is operating.and maintaining certain facilities of its Kansas City, Missouri', to Denver.,'Colorado main line.,,consisting of a railroad bridge. across.Dry Creek Ditch (bridge 187.36) adjacent to Salina' Kansas, which interferes with the development and use of"the Project�tj 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 Ownei'be modified and that said facilities of the,Owner,be`altered;'and WHEREAS, pursuant -,.to -Public Law 786 assurances have been given by . the City of Salina, Kausas;'to'provide,''without cost to the Government, all easements, rights-of-way, or other interests in real property necessary for the construction and .operation of the Project; and WHEREAS, 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/flr 'righ'ts-of-way shall . be subordinate to the easements and'rights herein'- provided to .be 'granted to the City of Salina, Kanses'�Uu only to the�exten-- -necessary to the en o said easemen s and rights, in consideration of the fulfill- ment by the City of Salina, Kansas, of the assurances 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 is agreeable to altering said 01 Contract No. DA-23-028-CIVENG-59.492 facilities at such locations and in such manner as to eliminate inter- ference with the construction, development, use and enjoyment of said Project by the Government and by the City of Salina, Kansas, and the Owner agrees that said consideration constitutes full, just and com- plete 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; , NOVA, THEREFORE, in, consideration of 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. a. The Owner shall: furnish all services,.labor, tools, equipment and materials necessary to perform certain features of the altera- tion as indicated c:i drawing, File No.,A-15-102, designated as Exhibit "A", attached hereto and made a part hereof. The facilities to be modified and work to be performed are located in Saline County, Kansas, and are further described generally as follows: (1) The existing bridge.No. 1$7.36 across -Dry Creek Ditch, consisting.of six timber spans on wood pile bents, which interferes with the Project, is'to be'altered by shifting the bridge approximately 3 feet southwest and reconstructing the superstructure.on new pile bents and bridge ab: meets. (2) The existing,bridge substructure is to be removed so as not to form an obstruction.in the Project channel waterway.opening, or interfere with .the construction of the Project works, and the premises left in a condition satisfactory to the Contracting Officer._. The exist- ing piles shall be pulled or, at the option of the Owner, may be cut off at least one foot below flow line elevation 1210.5 mean sea level, of the channel and one foot below the riprap of the channel backslope.. (3) Relocate or alter pole lines, signals, signs, fences and other appurtenances as required for construction of the Project. b. The.rail.road line is to -remain operational during the construction period and the Owner is to complete all arrangements and details for operation of 'trains during the construction.of the herein - described alteration. 2 c. Pea -form all engineering work in connection with the work to :be performed by the Owner hereunder as may required.. The.Owner shall make such -necessary surveys and prepare such drav2 nes, 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 ._dans and specifications, and no changes shall be made in .said approved plans and specifications without the 'written abproval 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.. Procure all necessary permits and licenses; obey and ab::de by all applicable laws, regulations, ordinances and other rules.of the United States of America, of the State,,Territory, or political subdivi- sions thereof wh.erein'.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.id alteration of its facilities anc' the performance of this contract. h. The Owner.agrees to convey to the City of Salina._ Kansas, with - 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, iilcluding,.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 tra 3 Owner) as should, in the. opinion of the Contracting Officer, +be included in the cost of the work. The total cost of such work is estimated at $179000.00. 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 accounts for.all charges and expenditures for which reim- bursement will be claimed from the Government shall be available at all reasonable times, to allow the Government to check and audit the in- voices submitted by the Owner. So far as practicable, separate records 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.altFred in the prosecution of the work. Payments to the Owner shall.include, but not be limited to: (1) Work performed for the Owner under contract approved by the Contracting Officer. (2) Materials furnished by the Owner directly from the supplier to the site of the iaork,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, -Mus, in either case, ten percent to cover the Owner's cost of procurement and handling, commonly called "Store Zxpense.11 (3) 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, equi:ment and sup.;lies to the Owner's material yard as pro- vided in Article 4 hereof, shall be at the rate of 1 cents (30.01' per ton -mile. 0) 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. C5) The cost of (i) salaries and expenses of the supervisory staff, provided for in paragraph e of .Article l hereof,, to represent the Owner on the construction provided for in this contract during the actual construction period., at the prevailing rates for a railway engineer and assistants, (ii) labor - wages and salaries, _lus ten percent 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 �I cover =wacatiorr' allowances, employee health and welfare` plans,' �ayt tazes,i on wages and-salariet of?', the sameg6h6rallhatUro -as' the -taxes :provi`ded: for In Railroad Retirement-' Tax -Act,. R'Ailrdad.,* ',Unemployment, insurance: Act 'and., Feder-al-'I-n-8ui'.ailce'Cozitributi bns - (Soeikl. Security) Act 9--:and-."-)6t.her-,t-lements'.'6f ekpens&'�nov readily susceptible of exact* ascertainment, plus (iv) incrowaret-_ in. wages and salaiie s', together-;` with the charges and percentage additions enumerated in (ii) and (iii), .provided" bills therefor are frehd'ered' 'within 'one - year "after acceptance of-, tfie work` as., provided ifi'Article e$•. hereof,:, -plus-. -(,v)-,;6h amount' riot in excess- of Wi*07 •per'milfe --for'•travel.performed Iri" p:tiv'atb-ly=owfted or Owner- Virn-i-bhed highway motor -: viehicles I such ttbLV6l: not, to exceed' 2,000 mil -4s for: any -one '7 daleftdar- monthd".. (6): Compensation and Employer's ,Liability,....,--,Ublic -Liability - and ire and -flood ilisuranc 'e�`tLpon materials wh'ile'st6red--'IbLt. the sitvib-t the -work. (7)-'Al� n sitvetiance salkibl" use` ,ori -luxury a.x'.,, acpj p1JIic&bleNt6 materials and.!'6i!p',6Ae'b. Engineering- e:kp6h-6e, - ihdlu6.ihg expense bf-.general ';su r, - vbyt,ne'stit&t es't plans`; specifications,' 'and ped,fCa:tons ''and - 6hedkIngrTiI6fis-. and spebi fi- Catio"8i n (9)-Inspect-i6h and: en-9-ifteeribg contr-61s9ih6-ltding f iel(t.1'.and �: - labbiatory,"ttesto j 'during I pr6gie'se-7, of�lhe work. (19) regular- Expense of keeping records not customarily kept by the .."Owner iri the cbiirse-:,6f Ita-biisib:i6s"s which "shall be required by the.' CoAtracting'Of fiber• or any. 'Other Gbvernmental''Agendy-" in'• connection -with= disbur'semeht. to' ' the Owner ''UM-ei ,'this agreement.' - b. At'the re(;,uest of t&' -Owner, .-partial, paphehts Will" be= -wade as -;UtC work progresses" on mohthly','est imatt e s,:'appro, Ved "by: 'the `Ooint rac tilig This pr(ovition thalltnot be'construed as relic th6 Owner frOff-the 'responsibility': for';All -materials' and:' work.,!whd the r or not such paymenftvhaive been made or.• fbr*:tfie restoration Of biy dar6aged' 'work or as . -awaiver- of: the right, i 0 f theGovernment 'to require 6641�,.ft fulfillment of 'all' terms of the contract. -C., 'Sushi -work as:,indy-,be'ddk.e-'*u.nclL-r"thiig',boht•r&.6',t Vi'ek6esI3*.Of, for, -WIlich-f fiends are !afailabid'fbr"payment' as herein' set- forth, will'- be , tontillue&Vithl-, fUnds het4aftbt' -appropriated 'and- d1lote& for:, this work. d* From, funds. heretofore: appropriated by...t_Oe Act :qf.,2 September 195�� (72 -Itat.* i5M.the sum of,., As Ava#ab 15,00'.. le for payments to thehis cont,ract . f p'erfrmed to 5 1 e. If. at any time it becomes, apparent to. the' Contracting Officer that the balance of this allocation is in excess of the amount requires to meet all ,payments due and to become due the -Owner because of,'work performed and to -.be performed pursuant to his approved progress schedule, the right is reserved after due notice.to 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 fiscal 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- Itional 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 canbemade availabXe. Accordingly, no progr"s 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 under this contract.. The Contracting Officer will notify the Owner 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 work unless additional 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 dates specified -'in the above-mentioned notices. h. So long as funds are available, payments will be made monthly in accordance with this article. 0 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 himor liability to 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 appropriations. 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'necessary labor, services, equipment; materials and supplies to design and construct (i) concrete sandbag sill to.serve as a seepage cutoff through the railroad embankment -(top elevation of the coritrete sandbag sill to be 2 inches below the*existin base of rail); (ii) levee embankment to connect to the sandbag sill; and fiii).the new channel under the bridge as altered by the Owner, 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 by the'Government shall be approved in writing by the Owner before any work thereunder is commenced, ,and all work performed by the Government -shall be in strict accordance with the approved plans.and speci- fications 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 dis- cretion, 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 furnished by the Owner under the terms of this contract. 7 ARTICLE 3. Insurance.' In addition to any other forms of insurance . or bonds required under the terms of the Government's contract with its Contractor and before permitting such Contractor to begin operations on Railroad premises, the Government shall require such Contractor to pro cure 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 thereof. The limits.of the Insurance Company's liability to the Owner under such policy'shall be 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, befora starting work on said premises. The Owner agrees to notify the Government within twenty (20) days fcilowing delivery of said policy of insurance to the Owner, whether sack 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 4. Salvage. The Owner shall use such materials, equipment and supplies from the facilities.existing as of tae date of this ccntract as can be placed in. -the facilities to be rearSa_7aged or altered hereunder; any materials,, equipment, and supplies which it is m7utually agreed -by -:the.; N, Each Each Person Occurrence Aggregate Bodily injuries and Not death coverage $100,000 $500,000 Applicable Property damage Not coverage Applicable $200,000 $500,000 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, befora starting work on said premises. The Owner agrees to notify the Government within twenty (20) days fcilowing delivery of said policy of insurance to the Owner, whether sack 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 4. Salvage. The Owner shall use such materials, equipment and supplies from the facilities.existing as of tae date of this ccntract as can be placed in. -the facilities to be rearSa_7aged or altered hereunder; any materials,, equipment, and supplies which it is m7utually agreed -by -:the.; N, parties 'hereto' cannot be•:so, used:; shall be -'removed from ,their: -original location and shall remain the`•property•of the'Owner. "The agreed salvage value of such removed materiale., ,equipment and. supplies. shall be • credited to thilGovernment. ill 'the''forpk"of.'a�"deduction. to- be- mmde from the cost.,,.—. ; properly' chargeable to. t i§ _wor ,to' lie, performed• under Article 1 hereof,.:., All item's of material's` shall be designated by the: Owner. $s. new, used; or salvaged materials, whether said"items are retained, discarded or altered in the .prosecutions f,.,the_.work. In the event mutual agreement is not.,reached in the vgiueof,.salvgged` materials,;. such' materials shall become the' property of'athe' Goverr"�uuent' .and the Owner shall•. stockpile the ,. materials 'at the location;adjacent'to the site.as,directed by the Con- ... traeting'Officer. ARTICLE 5. Betterments, The Owner agrees..that•the!-xearrangement and/or a•lteratiori,'to be: accomplished•under this contract will provide;rthe Owner with' facilities equal in :-service ,and ' utility tq, those now in existence andthat any4mprovement"in design,`, construction:or. capacity over and above,. •gra€'iO::required'to provide facilities "of equal service and utility shall constitute *abetterment .dndwi]l be'ftirnished by the ,Owner .at -its. own :•cost. and-. expense: ' � Provided,' however, t'bat the term. "betterments". will: not be. deemed to include more costly�'construction'6:r design necessitated solely as a result of the relocation. ARTICLE `6." `Owter6hip and` ,Conduct .of the Work., .. a.. The facilities construoted.-hereu6der s 1 e the. property o •the Owner,.excepting that,. :. any facilities of others as altered, raised, .or...adjustea pursuant. to, - Article T hereof, shall be the property of the owners thereof... The ,Owner, shall ,be- responsible for all materials furnished. and work _performed by;. it. The Project works consisting of levees,,riprap :and appurtenances con- structed* by the Government on the"OwnerIs.right-of-way steal]: remain the, property- of: the •dbirernment' and/pr the City of Salina,,. Kansas., �....... ., . b: The Government may award .other..contracts ,for additional or other work *in''connection� with the sane`. Project_ or in; the = same vicinity. 'Me Owner sha11 conduct_ operations 'so as 'to _ cooperate iu' 1, y with any such work. Z61ng performed- by' -'the G.overriaient ' and/pr_.,Government ;on and' Shall bkxefully' fit=his own work to 'that provided. under• other •.contracts as -directed by the Contracting Officer.' The Owner shall not -commit. or.: permit anj► adt` Which may interfere' with the,..performance of ai ny , such •work by the Government and/or any Government contractor. ARTIC ' =7-R , 'Interference': The ._Owaer agrees that. so . long as the Project�is"operated or maintairned for'the.purpose as described herein that the facilities'as•rearran'ed,'or altered,,pursuant:to.-this contract S"all. not tie so' further •altered or modified nor'eother facilities con- structed by the Owner, so as to interfere with the operation of the Project. ART2ChE . 8: Inspectia"n and ,Acceptance.` Tne. Government shall have t1lae right to inspect•the wor :to be perform ereunder at,any time during-_ its progress and'to make final`inspection upoh-'gomF.letion ,thereof.... Failure 9 of the Government to object within 20 days after final. inspection,shall indicate satisfactory performance of the contract. by'`the" Owner. ARTICLE 9. 'Release. Thee 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 alte ed -hereunder arising out of the performatce 'of this agreement``'' ARTICLE 10, Completion: The'Owner"xr111'egnmence the work here- under within, ten (10)" days after the date of 'receipt ;:of .approved contract- and complete the work within I OU calendar 'd'ays after' + eipt„of approved con-... tract, -subject to the -'availability of funds equal to not less than 7%,.99 ;the total estimated cost. ARTICLE 11 •Condemnation:. Should'itbe determined for any. reason that.the right,'title`and interest of 'the Owner',in 'and to -the lands:':referred to "in Article 1 -above `sYia11 'be. acquired;`by condemnation, or other judicial proceedings, the Owner sha11'cooperate ,in`.the`prosecution.of the proceedings and this agreement "shall, without mores ;constitute . a stipulation .which .may be - filed 'in the proceedings and be final and�9'onclusive:evidence of the ad- justments-to be made'to the facilities herein ientioned..'. ARTICLE 12. Disputes. a. Except adfotherwise' pr1ovided in this contract, any dispute concerning a question,of fact arising,under this co.itiact which. is not disposed :of by agreement shall -be decided,. by the,. .., Contracting- Officer,• who shall reduce. hs',decision,.to writing and -;mail,,£ or otherwise furnish a` copy 'thereof to the Owner: The decision of the ,• Contracting Officeirshall be final and` conclusive un`Iess, 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'determina'tion of such appeals shall be final and conclusive unless determined by ,a court ,of competent . jurisdiction to -have been fraudulent, or-'caprcious, or arbitrary, or so grossly erroneous as necessarily_to implybad faith, �or`not supported by substantial evidence. In connectionrwith any-appewl proceeding under'this clause the Owner.,shall be afforded an opportunity't& be heard and to'offer evidence insupport of its appeal. Pending final decision of a dispute hereunder, the Owner shall pro- ceed diligently with the performance of the'contract and in -.accordance with. the Contracting,Offi'cer'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 con treo,t phall be,construed�as making final, the decision of any `administrative, official,;,; representative;. or board on a question of law. ARTICLE 13. Covenant Against Contingent Fees. The Owner warrants that no person or selling agency has been.empZoyed or retained to solicit or secure this contract upon en agreement or; understanding for a commission, percentage, brokerage, or -'contingent fee, excepting.bona,.fids employees or,bona fide estab�lishedcommercial or selling agencies maintained by this 10 Owr.ar 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 consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. ARTICIZ 14. Officials Not to Benefit. No member of or delegate to Congress, or resident commissioners, shall be admitted to any share or part of this contract, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit. ARTICLE 15. 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 employment because of race, religion, color, or national origin. The aforesaid provision shall include, but 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 compensation; and selection for training, including apprenticeship. The Owner agrees to post here- after in conspicuous places, available for employees and applicants for employment, notices 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 16. Gratuities. 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, or otherwise) were offered or given by the Owner, 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 as hereof, the Government shall be entitled (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 not less than 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 shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. �11 Contract No. DA-23-028-CIVi.;NG-59-492 0" ARTICLE 17. 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 18. 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: /s/T. F. Proudfit Omaha, Nebr Address /s/Paul E. Fischer Council Bluffs, Iowa Address THE UNITED STATS OF AMERICA B /s/J. P. Barnes Y -- - - J. P. BARNES Major, Corps of Engineers Contracting Officer UNIO PACIFIC RAILROAD COMPANY Is/E. H. Bailey By_-_ - - - vice rresxaent Title CERTIFICATE I, F. D. Cope , certify that I am the Assistna-t secretary of the corporation named as Owner herein; that Vice President 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 15th day of June 1959. (Corporate Seal) /s/F. D. Cope 72 iSecrecary) Assistant C r PIIS, ,th0 YtiNION, 00I4PANY lerod;to the,CITY`'OF,,SArMIAy`.Stato':of."Kansas,'<an a&oe:net:t" ging tti�`donstruction,.maintenan0i<.and in of a rlood, . ,rol slotred ° on,tho right;. of way.: on both sides of l io, traox, ` tho..:aaintenanoe and use of an existing drainage diteh..on. right: or, way, of the Railroad" Corr,.Any's Plainvillo. Dranch Salina,.Salino.County, Kansas; said a*roexment boing tified as Railroad Company+a C. D. No, 413132-7; and WHEREAS, the Council of the City df n + has said proposed sgrc:� Tent before it and has g^Van it ar . review and cunsid"i'otion; and i W}M REAS,•it is considered that -the best interests of said City of 5a.1-i.ate cf Kansas will be subserved by 'the V:ccep ence 0f =1 i THEP.EM2, BE IT RESOLVED BY THE COUNCIL OF THE CITY OFSALINA, STATE Or XAI SAS: That the terms of 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 th.t the City Clerk of said City is hereby j authorized and diracted to attest said agreement and to attach to each duplicate original of said -agreement a certified copy ,of this resolution. STATE OF 83 COUNTY OF City Clerk of the 6CitSS� of°�llr, e+ -tea, f that 2 a aoove go " e- hereby correct Y ai:ay o: a oir��- s a true. u and correct Ecopy of a resolution adopted by the Council of the City of at a meeting held according to lav: at - r•.• ; -.�• �.a on the _ ✓. .v'� day of r'.Y :7 --ate. 19^��y has the same appears on file and of record in this office.. Iil TESTIiOP:'i' :•lHEREOR 7 have hereunto set rry hand !and affixed the corporate seal of said City, this day or �(SeaYj City Clerk of the City of I Salina. State of Kansas. ;+i3 k; • r�a• r DUPLiCik" 2 � Licensee's Counterpart Form 2214 5-74-5M RENEWAL RIDER C.D.No. 43132-7-D To be attached to agreement Audit No._94775 C.D. No. 43132-7___ ----- -- --- ---- - --------•-------- No --- _.....:._..:._....._........ Between UNION PACIFIC RAMFOM CWANY (Railroad CoaVany) and CITY OF SAM (City) Present Assignee (if any) - - - Covering drainage ditch and flood control levee on right of way at M. P. 1.13 Location near Salina, Kansas Dated .__._ L_20f__1959_—________Effective Date _�__20l__1959_____Expiration (Original) _x_•...19 _1964 Expiration (by latest extension) October 19, 1979 IT IS HEREBY MUTUALLY .AGREED by and between thepresent parties to the above-named agreement that said agreement, which by this reference is made a part hereof, is= adopted by said parties as their agree- ment for a term beginning ___QGtC)her_2Q___________________________-_____, 19-7-9---, and extending to and including 19---a9--; and that all the terms and conditions of said agreement, as heretofore or herein supplemented and/or amended, shall have the same force and effect and be as binding upon the parties hereto during said term as if the same were repeated herein; said agreement with the supplements and/or amendments (if any) to be subject to termination prior to the expiration of the term herein named in the same manner as is provided therein for termination prior to the expiration of the term thereof. Special Provisions: Dated_ --- iv-Yentex..2.7..___-.-_, 197.9 -. Made in duplicate. Witness: UNIC1 PACIFIC RAI X4= COMPANY ._-.._-..__ . _..__.. By..__ . ---_ . _.___._.._.___..............._..._ General Manager Attest: CITY OF SALIVA - -�— •---------- (Seal) - City Clerk Mayor RESOLUTION 3466 WHEREAS:, UNION PACIFIC RAILROAD COMPANY has tendered to CITY OF SALINA, State of Kansas, an agreement renewing for a period of ten years commencing October 20, 1979, contract dated October 20, 1959, covering,a drainage ditch and flood control levee on the right of way of the Railroad Company's Plainville Branch near. Salina, Kansas; said. agreement being identified as Railroad Company' -s C.D. No. 43132-7-D; and WHEREAS, the Council of the City of Salina has said proposed agreement before it and has given it careful. review and consideration; and WHEREAS, it is considered that the best interests of said City of Salina, State of Kansas will be subserved by.the acceptance.or saj.2r agreement: THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINA, STATE OF KANSAS: That the terms of the agreement submitted.by Union Pacific Railroad Company as aforesaid be, and the same are hereby, accepted in behalf of said City; That the Mayor of said City is hereby authorized, em- powered and directed to execute said agreement 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 dup- licate original... of said agreement a certified copy of this resolution. STATE.OF KANSAS ) ss COUNTY OF SALINE ) City Clerk of the City of Salina, State of Kansas hereby certify that the above and foregoing is a true, full and correct copy of a resolution adopted by the,Council of the City of Salina , at a meeting held according to law at Salina, Kansas , on the day of , 19 , as the same appears�on file and of record.in this office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the corporate seal of said City, this day of 19 , DUPLICATE 4?vIGINAL Form 2213 CofS Counteupart, 9-0-25M Y EXTENSION RIDER 6.Dt No. 431324 ToNe attached to agreement Audit No._____ 94775 D • D. Nd.' 43132— NO. _____ _ _ _ No.— Between UNION PACIFIC RAILROAD COMPANY and CITY OF SALINA Assignments --Dates and Names of Assignees Covering drainage ditch and a flood control of 1eve+� ". E�Yt_ x� �hfi��►� �a� 0f the. -Railroad Gempanyt s Plainville B'aneha . Location near , Salifta Yansaa.. Dated^ Q 59 -__Effective Date- _11-9�q___Expiration (Original) O' i. 'i.4 Expiration (by latest extension) Supplements, including extension riders—Dates IT IS HFAIMY MUTUALLY AGREM by and between the present parties to the above named agreement that the term thereof shall be and hereby is extended to and including_— Ogtober 1:9 18 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 October , i6 1964— Made in duplicate. Witness: Att®st..t (seal) "VW. §141 -AW, 1�mw RESQLUTIONy��o �. VM AS, the 10104. PAOXF10 RAUMAD 6ONPUTUO toadOrad to the ol` r or SUMP P Staa to of Kanisaa 6 41 MO.,' 1(fieranattor oalled "agreement") extending to ootobar 1% ! ta► 'o a e tda ted '00to V ► 9a. aMerraa g lot4. o + get and a flood aouto l love* on theta e'lel.e . ►, aear �. I a paa , 07'aid , e es being. ldeaatj:4,fted ado1roa4 Ga m,, { WHEREAS, v the Council of- the City of e- has said proposed agreement before it and has given it careful review and consideration; and WHEREAS, it is considered that the best interests of said City 'of Salt St to Of 4AGa0l will be subserved by the acceptance of said agreement; THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE . TTY OF 3 A*_ $' RATE Of'UNSASt That the terms of the agreement submitted by the nion Pacific Railroad Company as aforesaid be, and the same re hereby, accepted in behalf of said City; That the Mayor of said City is hereby authorized, empowered and directed to execute said agreement on behalf of said City and that the City Clerk of said City is hereby uthorizeA and directed to attest said agreement and to -attach o each duplicate original of said agreement a certified copy 4 f this resolution. j TATE OF KMSAS II ss OUNTY OFSAtnA) I , City Clerk_ of he City of a, *Kgte _eaae- , hereby certi- y that the a oove and' foregoing is a true1 fu -and correct opy of a resolution adopted by the Council of the City of ,,at a meeting held ccordin � o law at Salh�ci , on the da of s e same appears on file and of record s off ic e1 IN TESTIMONY zovHEREOF, I have hereunto set my hand and affficed thecorporate al of said C'ty, this Ip day of 19. C!( Seal). 71ty C er of -the ity o t Swat State: of ��_ DUPLICATE ORIGINAL Form 2213 L Licene6elg CO]r7-30M EXTENSION RIDER To be attached to agreement Audit No. ---_g No. No. No.- 4WAIJ TT_ V :!i 1 111 � ii: 111ii 1111C l�� Assignmext&----Dates and Names of Assignees:► Covering Vadinlagis dit0h Wad, & flood control 10V46; On rUht Of WSY of tht VA11rCAd 0040any'S fta$-UV1ll* Sklancht Location no" Aalift, zan"s Dated_ - 0_4 t— 4,1952- —Effective ]Date Oct - 90,* 1959 --Expiration (Original) Expiration (by latest extension) Gat"Ar 19 1096 ---------------- Supplements, ------------- Supplements, including extension riders—Dates 00tw. 161,1964. IT IS HFJUffBY MUTUALLY AGR by and between the present parties to the above named agreement that the term thereof shall be and hereby is extended to and including tuber 19 __ 19-1_4and 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 "tended term, said agreement with the amendments and supplements (if any) to be subJeet,to termination prior to the expiration of the extended term in the same meaner as Is provided therein for terms - nation prior to the expiration of the term hereby extended. Special Provisions: - ]D 19-69— Made in duplicate. Witness: By 'Ooneral Manager-, Witness: W 000. '00 C RESOLUTION 3034 4 Vim ' = CO tondo .and 01141 19s 197'4, t of aout�t di' +8t 000.19' 4 00v aja 4 dimi? o d1tah a a 111 1 oono t"I 3.0"o. 4 i h' of WOWOf thO ti '0' #].Ainf► V111 ►*tom 11a eat l�+i $46ntlt"�. dtw7 . WHEREAS, the Council of the City of Salina has said' proposed agreement before it and, has given it caref review and consideration; and WHEREAS, it is considered that the best interests o said City of ia a& thit"(14S,_ will b subserved by the acceptance of said agreement; :THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SAL That the" terms `of � 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 authorized and directed to attest said agreement and to attac to each duplicate original of said agreement a certified copy of this resolution. STATE OF SUM ) ss COUNTY OF _ ) City Clerk of the City of Awilrifto..ftaft at wk"AAM, hereby certi fy that the above and foregoing is a true, full' and correct copy of'a resolution adopted by the Council of the City of ,, AWA ki lan"a, at a meeting held according to law at , on the. d f 19 ay o ' as the same appears on file and of record in this office. IN TESTIMONY WHEREOF, I have hereunto set my hand and 'affixed the .corporate seal of said City, this day of (Seal) city,,,.ler of --the ty o. lifts MAU of ZOOM. do A. O. MEYER DISTRICT REAL ESTATE DIRECTOR City Clerk City of Salina 300 West Ash Salina, Kansas Gentlemen: UNION PACIFIC RAILROAD COMPANY REAL ESTATE DEPARTMENT 67401 October 16, 1979 1416 DODGE STREET OMAHA, NEBRASKA 88179 CD 43132-7 Reference is made to Union Pacific Railroad Company Agreement C.D. No. 43132-7 in favor of City of Salina covering. a drainage ditch and flood control levy encroachment opposite M.P. 1.13 near Salina, Kansas which will expire.by its own terms October 19, 1979. Please advise your intention regarding extension of said agreement on the attached carbon copy of this letter and return to me in order that I may submit your request to the various concerned departments within the Railroad Company. If you desire to extend this agreement, there will be no charge for the ten-year extended term. It should be understood that the Railroad Company's request for the above information should not be construed as a commitment or consent on behalf of the.Railroad Company to extend the above license. Very truly yours, A. O. MEYER DISTRICT REAL ESTATE DIRECTOR UNION PACIFIC RAILROAD COMPANY REAL ESTATE DEPARTMENT 1418 DODGE STREET OMAHA, NEBRASKA 68179 October 16, 1979 City Clerk City of Salina 300 Nest Ash Salina, Kansas 67401 Gentlemen: CD 43132-7 Reference is made to Union Pacific Railroad Company Agreement C.D. No..43132-7 in favor of City of Salina covering a drainage ditch and flood control levy encroachment opposite M.P. 1.13 near Salina, Kansas which will expire by its own terms October 19, 1979. Please advise your intention regarding extension of said agreement on the attached carbon copy of this letter and return to me in order that I may submit your request to the various concerned departments within the Railroad Company. If you desire to extend this agreement, there will be no charge for the ten-year extended term. It should be understood that the Railroad Company's request for the above information should not be construed as a commitment or consent on behalf of the Railroad Company to extend the above license. Very truly yours, X -S, Yes, I desire renewal of said license. No, I do not desire said license renewed. CITY OF SALINA By DUPLICATE ORIGINAL Form 2213 City's Counterpart 3.74.20M EXTENSION RIDER C.D.No. 43132-7-C To be attached to agreement Audit No ------------ _----- 9-47.7-5 --____________-__ C . D . N4 313 2- 7______-__-__ ----------------------------------------------------- No----------------------------------------------------------------------- No ------------------------------------- Between UNION PACIFIC RAILROAD COMPANY and CITY. OF SALINA Present Assignee (if any) — — drainage ditch and a flood control levee on right of way of Covering the Railroad Company's Plainville Branch, Location near Salina, Kansas. Dated ........ . 2 0 l9 5 9______________Effective Date Oct . 2 0_,19 5 9 _Expiration (Original) Oct . 19 ,19 6 4 Expiration (by latest extension) October 19 , 1974 IT IS HEREBY MUTUALLY' AGI:EED by and between the. presc t .ar es to T above-nai 1� asreement that the term thereof shall be and hereby is extended to and including _____a�tober__��____ _._, 19_ j__, and that all the terms and conditions thereof, as heretofore or herein supplemented and/or amended, shall remain in full force and effect during the extended term, said agreement with the supplements and/or amendments (if any) to be subject to termination prior to the expiration of the extended term in the same manner as is provided therein for termination prior to the expiration of the term hereby extended. Special Provisions: 19.7.4__. Made in duplicate. Witness: UNION PACIFIC RAILROAD COMPANY, ---------- ------------- ---------- ------.-------- --------------- By —------- —------- ------------------ -------------------------------------------- General Manag Witness: CITY OFALINA, -, Q Attest Mayor (Seal) City Clerk Res - City y RESOLUTION 3201 WHEREAS, UNION PACIFIC RAILROAD COMPANY has tendered to CITY OF SALINA, State of Kansas, an agreement extending to and including October 19, 1979, the term of contract dated October 20, 1959, covering a drainage ditch and a flood control levee on right of way of the Railroad Company's Plainville Branch, near Salina, Kansas; said agreement being identified as Railroad Company's C.D.-No. 43132-7-C; and WHEREAS, the Council of the City of Salina has said proposed agreement before it and has given it careful review and consideration; and WHEREAS, it is considered that the best interests of said City of Salina, State of Kansas, will be subserved by the acceptance of said agreement: THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINA,.STATE OF KANSAS: That the terms of the agreement submitted by Union Pacific Railroad Company as aforesaid be, and the same are hereby, accepted in behalf of said City; That the Mayor of said City is hereby authorized, em- powered and directed to execute said agreement 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 dup- licate original of said agreement a certified copy of this resolution. STATE OF KANSAS ) ss COUNTY OF SALINA ) . . I , D. L. Harrison , City Clerk of the City of Salina, State of Kansas , hereby certify that the above and foregoing is a true,.full and correct copy of a resolution adopted by the Council of the City of Salina, State of Kansas at a meeting held according .to law at Salina, Kansas on the 9th day of . September , 19 74 , as the same appears on file and of record in this office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the corporate seal of said City, this 9th day of September , 19 74 . (Seal) City Clerk of the City of Salina, State of Kansas. RESOLUTION NUMBER 90-4234 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A RENEWAL LETTER AGREEMENT BETWEEN THE UNION PACIFIC RAILROAD COMPANY AND THE CITY OF SALINA, KANSAS COVERING THE INDEFINITE RENEWAL OF AN EXISTING AGREEMENT COVERING A DRAINAGE DITCH AND FLOOD LEVEE ENCROACHMENT AT SALINA, KANSAS, IDENTIFIED IN THE RAILROAD COMPANY'S RECORDS AS AGREEMENT CD No. 43132-7, AUDIT No. 94775. WHEREAS, UNION PACIFIC RAILROAD COMPANY (hereinafter called Railroad Company) has tendered to the City of Salina, State of Kansas (hereinafter called City) a Renewal Letter Agreement covering the indefinite renewal of an existing agreement covering a drainage ditch and flood levee encroachment at Salina, Kansas identified in the Railroad Company's records as Agreement CD No. 43132-7, Audit No. 94775; and WHEREAS, the Governing Body of the City of Salina has said proposed agreement before it and has given it careful review and consideration; and WHEREAS, it is considered that the best interests of said City will be subserved by the acceptance of said agreement; SO NOW, THEREFORE BE IT RESOLVED by the Governing Body of the City of Salina, Kansas: Section 1.. That the terms of the agreement submitted by the Railroad Company as aforesaid be, and the same are hereby, accepted in behalf of said City. Section 2. 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. Adopted by the Board of Commissioners and signed by the Mayor this 24th day of September, 1990. Robert E. Frank, Mayor [SEAL] ATTEST: Jacqu line Shiever, City Clerk STATE OF KANSAS ) ) SS COUNTY OF SALINE ) I, Jacqueline Shiever, City Clerk of the City of Salina, Kansas, do hereby certify that Resolution Number 90-4234 was adopted by the Board of Commissioners at its regular meeting on September 24, 1990, and that the above and foregoing is a true and correct copy of the original on file in my office. [SEAL] WITNESS my hand and official seal this 28th day of September, 1990. Jacqueline Shiever, City Clerk CITY OF SALINA REQUEST FOR COMMISSION ACTION p�T9 9/24fw— 4: T ME AGENDA SECTION: Administration ORIGINATING DEPARTMENT: APPROVED FOR N0. g AGENDA: Engineering ITEM N0. 5 By: Don Hoff • BY: Item _Renewal of Agreement with Union Pacific Railroad Company Background On October -20, 1959 the City of Salina and the Union Pacific Railroad Company entered into an agreement which.allowed the City to construct a flood control levee and drainage ditch on railroad right-of-way. The location referredito in this agreement is in northwest Salina at the intersection of Mulberry Creek and -the Union Pacific Railroad. This agreement has been extended twice previously for 10 -year periods. The Engineering Department has reviewed the agreement and finds that extension of the agreement is in the best interests of the City. The Union Pacific Railroad concurs with this finding. Recommendation It is' recommended that the City Commission approve the extension of Agreement No.. 43132-7 with Union Pacific Railroad Company. COMMISSION ACTION MOTION BY SECOND BY TO: 6 , UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT B. W. ZANDBERGEN J. A. ANTHONY GENERAL DIRECTOR DIRECTOR -CONTRACTS D. D. BROWN DIRECTOR -REAL ESTATE SALES ROOM 1100, 1416 DODGE STREET D. LIGHTWINE OMAHA, NEBRASKA 68179 DIRECTOR -FIELD ECTOR-FIELD OPERATIONS (402)271-3753 FAX (402) 271-5493 R. F. NIEHAUS DIRECTOR -SPECIAL PROJECTS W. F. SOMERVELL RENEWAL LETTER AGREEMENT DIRECTOR -JOINT FACILITIES City Clerk City of Salina 300 West Ash Street Salina, Kansas 67401 Dear Sir: August 24, 1990 061-11 Under date of October 20, 1959, the Union Pacific Railroad Company ("Licensor"), or their predecessors in interest and the City of Salina, Kansas ("Licensee"), or their predecessors in interest (if any), entered into an agreement identified in the records of the Licensor as its CD No. 43132-7, Audit Number 94775 (hereinafter "Basic Agreement"), covering a drainage ditch and flood levee encroachment at/near Salina, Kansas. Basic Agreement has expired or will soon expire. The parties now mutually agree that the term of the Basic Agreement is hereby renewed and/or extended for an indefinite term and that all the terms and conditions of the Basic Agreement, as heretofore or herein supplemented and/or amended (if applicable), shall remain in full force and effect during the extended term. Special Provisions entitled "Protection of Fiber Optic Cable Systems" is attached hereto and hereby made a part hereof. This Letter Agreement, which is effective as of October 20, 1989, is supplemental. to the Original. Agreement, and nothing herein contained shall be construed as amending or modifying the same, except as herein specifically provided. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 13-6400825 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a caXporation. EXTNLTR.DIC Page 1 of 3 Please return a fully executed copy. This Letter Agreement will not be considered effective by the Licensor until we receive the fully executed dupli- cate original of this Letter Agreement., UNION PACIFIC RAILROAD COMPANY B r - DIRECTOR - CONTRACTS The foregoing Letter Agreement is accepted, approved and executed on this NO' day of S 19 q o Witness: o S Page 2 of 3 TY VA OF SALIVA, RANSAS X46� C` Title: PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenues and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a, 24-hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable, and will commence no work on the right-of-way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. (b) Licensee agrees to indemnify and hold harmless the Licensor from and against all costs, liability, and expense whatsoever (including, without limitation, attorney's fees, and court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (1) any damage to or destruction of any telecommunications system on Licensor's property, or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents or employees, on Licensor's property, except to the extent that such costs, liability or expenses are caused by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss. of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Page 3 of 3 t . c CITYRESO.DOC 890707 Form Approved, AVP -Law RESOLUTION WHEREAS, UNION PACIFIC RAILROAD COMPANY (hereinafter called Railroad Company) HAS TENDERED TO THE CITY OF SALINA, STATE OF KANSAS (hereinafter called City) a Renewal Letter Agreement covering the indefinite renewal of an existing agreement covering a drainage ditch and flood levee encroachment at Salina, Kansas identified in the Railroad Company` -s records as Agreement CD No. 43132-7, Audit No. 94775 and WHEREAS, the Council of said City has said proposed agreement before it and has given it careful review and consideration; and WHEREAS. it is considered that the best interests of said City will be subserved by the acceptance of said agreement; THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SALINA, KANSAS: That the terms of the agreement submitted by the 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 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 KANSAS ) )ss COUNTY OF SALINA ) I , City Clerk of said City hereby certify that the above and foregoing is true, full and correct copy of a resolution adopted by the Council of said City at a meeting held according to law at said City on the day of 19as the same appears on file and of record in this office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the corporate seal of said City, this day of , 19_ City Clerk to the City of Salina State of Kansas UNION PACIFIC RAILROAD COMPANY 1416 DODGE STREET OMAHA, NEB. 68179 VALERIE W. SCOTT Associate General Counsel I City Clerk City of Salina. 300 West Ash Salina, Kansas 67401 Dear Sir: November 21, 1979' C 43132-7-D Re: Rider renewing term of agreement covering drainage ditch and flood control levee on right of way at M.P. 1.13, near Salina, Kansas. Pursuant to your recent request, I have had pre- pared and attach hereto for execution.the counterpart originals of the above proposed instrument. When executed, the counterpart originals should be returned to me in the enclosed self-addressed envelope to arrange for execution on behalf of the Railroad Company,. after which your fully executed counterparts will be returned to you. .Any questions concerning this instrument should be directed to R. E. Andreasen, who may be reached by phone on (402) 271-4377, and any question with regard to rental in connection therewith should be directed to the office of Director -Real Estate, phone No. (402) 271-3753. In the event it becomes necessary to replace lost or misplaced documents, a fee of $10.00 will be charged for each such document replaced. Yours very truly, Valerie W, S0.10tt /j,