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8.4 Agr WWTP Drainage System CITY OF SALINA REQU ES T FOR COMM I S S I ON ACT 1 ON DA TE T I ME 7/16 9~ 4:00 p.M. AGENDA SECTION: Administration ORI GI NATING DEPARTMENT: APPROVED FOR NO. 8 AGENDA: Engineering BY: Don Hoff BY: In order to construct the proposed improvements at Wastewater Treatment Plant No. 1, it will be necessary to modify the drainage system adjacent to and on the Missouri Pacific Railroad Company right-of-way. Construction on railroad right-of-way requires the Missouri Pacific Railroad Company and the City of Salina execute a drainage and waterway agreement. This attached agreement addresses the scope of construction work; maintenance of the drainage facilities; notification process; insurance requirements; termination; fee; etc. The standard agreement fee of $500 shall be paid by the Water & Sewerage Department to cover the railroad's administration costs. We recommend the City Commission authorize the Mayor and City Clerk to sign this drainage and waterway agreement. CONB41SSION ACTION MOTION 8Y SECOND 8Y TO: DRAINAGE & WATEItWAY THIS AGREEMENT, executed in duplicate this day of , 1990, by and between MISSOURI PACIFIC RAILROAD CO~{PANY, a Delaware Corporation, hereinafter called "Railroad", and the CI~f OF SALINA, a municipal corporation of the State of Kansas, hereinafter called "Licensee" WITNESSETH: RECITALS: In order to improve drainage conditions in the vicinity of the City Municipal Wastewater Treatment Plant, Smoky Hill Creek and the Railroad right of way, Licensee desires to excavate, and construct a 8 foot wide flat-bottom drainage ditch located on and along the Railroad's right of way; (b) to install two 18 inch diameter corrugated metal pipes culverts with rip rap from the wastewater treatment plant to discharge into the Railroad's drainage ditch and drain into Smoky Hill River; and (c) to use and maintain the ditch, the culvert pipes, and all appurtenances thereto, all at Licensee's sole cost and expense located on and along Railroad right of way in the vicinity of Milepost 492.50 in Saline County, Kansas, at or near Salina. Railroad is agreeable, but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the Premises and of the Covenants and Agreements hereinafter contained, the Parties hereto agree: 1. RAILROAD, solely to the extent of its right, title and interest, without any warranty, either express or implied, hereby grants to Licensee, its successors and assigns, license and permission, for the purposes and subject to the terms, conditions and reservations hereinafter set forth: to (a) excavate, construct, reshape, improve, widen and maintain and use a 8-foot flat bottom existing drainage ditch channel with a slope of 0.36 percent slope with 3: 1 side slopes, located on the North side of Railroad's right of way; (b) excavate, construct two 18 inch diameter corrugated metal pipes as follows: construct one corrugated metal pipe as 18 inch by 38 feet long with end sections; and one 18 inch corrugated metal pipe by 22 feet long with end sections; and (c) excavate, construct and maintain 58 square yards of concrete channel lining ditch section at Smoky Hill Creek with slope walls to connect to subsection 1 (a). -1- The hereinabove-described two 18 inch diameter corrugated metal pipe culverts with end sections, rip rap, the 8 foot wide flat-bottom drainage ditch, the concrete line ditch section, together with any appurtenances thereto, are hereinafter collectively referred to as "Drainage Facilities". Drainage Facilities shall conform substantially to specifications, notes and cross sections as shown on RAILROAD'S CHIEF ENGINEER drawing dated 3une 11, 1990, as prepared in the Office of Chief Engineer, Omaha, Nebraska, marked EXHIBIT "A", attached hereto as part hereof, and shall be located on, under, along and across certain of Railroad's tracks and right of way, hereinafter collectively referred to as "Premises", at Mile Post 492.50 to Mile Post 493.00 in Saline County, Kansas, at or near Salina. Approximate location of Drainage Facilities and Premises is shown on Exhibit "A". 2. The permission herein granted to Licensee is expressly subject and subordinate to the present and future right in Railroad, its successors, assigns, lessees, grantees and licensees to maintain, use, operate and renew on, beneath or above surface of Premises any telephone, telegraph, power, communication or signal lines, poles, and/or appurtenances, fiber optic communications, tracks, roadways, pipe lines, structures, improvements, or facilities of similar or different character, as now located; and to construct, install, establish, thereafter maintain, use, operate and renew on, beneath, or above the surface of Premises, any or all said things, provided the same do not mat~rially interfere with Licensee's use of Premises as hereinabove provided; provided further, however, the foregoing conditions for future construction and installation shall not apply to railroad tracks, which Railroad, its successors and assigns, shall have the right to install, construct, maintain and operate on, over or under the Premises at any and all times. Upon the determination by Railroad that future tracks should be built on the Premises, the Drainage Facilities shall be encased to specifications of Railroad or removed from the Premises, and the cost for such encasement or removal shall be by Licensee according to the relative benefits accruing from the existence of the Drainage Facilities on the Railroad Premises. 3. This grant of license and permission are further subject to the following terms, provisions and conditions, which Licensee hereby expressly accepts, to wit: (a) Licensee shall not begin, nor permit its contractor to begin, any work of any nature whatsoever on or about Premises until Licensee or its contractor shall have given Railroad's Superintendent of Transportation Services, or his authorized railroad representative at least 72 hours' written notice in advance of starting same; (b) Licensee or its contractor shall perform its work hereunder at such time and in such manner as shall be agreed upon between Licensee and Railroad's said Superintendent of Transportation Services or his duly authorized representative. During the entire progress of Licensee's work on or about Premises, Licensee or its contractor shall maintain contact and liaison with Railroad's authorized representatives so as to ascertain the time of passage of trains at the site of Licensee's -2- work and so as to permit free and safe flow of railroad traffic. Ail work of Licensee shall be performed without interference with Railroad's tracks and operations and Railroad's and its lessees' or licensees' structures or facilities. Licensee or its contractor shall use utmost care in protecting Railroad's and others' property and in avoiding accidents. Licensee shall leave Premises in a condition satisfactory to Railroad's authorized representative; (c) Licensee shall, at its sole cost, operate and maintain the Drainage Facilities, or cause the Drainage Facilities to be operated and maintained, in good and safe condition and keep same free and clear of debris, sediment or obstructive matter which may or could interfere with or impede the proper functioning thereof; (d) Licensee shall, at Licensee's sole cost and responsibility, remove such of Railroad's right of way fence, as may be required in the performance of its work hereunder, and upon conclusion of said work, permanently reinstall said fence to the satisfaction of Railroad's Superintendent of Transportation Services and or his duly authorized representative; and (e) Licensee shall, at Licensee's sole cost, risk and responsibility, furnish or do or cause to be furnished or done any and all things required under this agreement, when, where and as from time to time required to be accomplish whatsoever Licensee attempts or is bound to do at any time hereunder. Said things, including the time and manner of doing any work, shall conform to the requirements of the Railroad as well as of any State, Federal, or Municipal authority. (f) Licensee hereby agrees that it or its contractor, during the performance of excavating, constructing and maintaining the Drainage Facilities, or any part thereof, will not excavate near the toe of trackfill of the trackbed and will protect trackbed in the design, construction and maintenance of said Drainage Facilities. In the event of any settlement of Railroad's embankment caused by excavation of ditch, as herein provided, Licensee, at its sole cost and expense, agrees to restore, or cause to be restored, Railroad's embankment to its proper grade and dimensions. 4. In addition to the requirements set forth elsewhere in this Agreement, Licensee shall submit the design of Drainage Facilities to Railroad's Chief Engineer of Design Services, or his duly authorized representative, for approval. No work shall be performed in connection with Drainage Facilities prior to receipt of Railroad's approval. No approval by Railroad of Licensee's or its contractor's plans shall relieve Licensee or its contractor of any responsibility or liability hereunder. Subsequent to installation of Drainage Facilities, Premises shall be restored to a condition satisfactory to Railroad's Superintendent Transportation Services or the duly authorized representative. -3- (a). Plans have been approved by Railroad Chief Engineer Offices as furnished by Licensee by its consultant Wilson & Company and dated March 1990, for the construction of the drainage ditch and pipes on the Railroad right of way and as Railroad Print Marked Exhibit "A", with one objection as in (b) be low. (b). Licensee shall install rip rap protection at 18 inch corrugated metal pipes at Railroad embankment and side slopes where water will be discharged in the vicinity of embankment to prevent erosion and slope protection. 5. (a) Licensee, without any cost or expense to Railroad, shall furnish or cause to be furnished the necessary labor, material, equipment and instrumentalities, and shall perform or cause to be performed all the work of constructing, excavating, installing and maintaining said Drainage Facilities. (b) The Licensee shall provide adequate barrier protection around the entire excavation area. 6. Licensee hereby agrees that, during the performance of excavating, constructing and maintaining said Drainage Facilities, or any part thereof, its men, materials, and machinery shall be kept at least twenty (20) feet from the centerline of Railroad's nearest track. 7. During any periods when work is being performed on or adjacent to Premises by Licensee or its contractor in connection with any of the work to be performed hereunder, Railroad is authorized to furnished flagmen or other protective services or devices and to take such other action as in Railroad's opinion may be necessary for Railroad's protection in the conduct of railroad operations; and Licensee, upon receipt of bill therefor, shall reimburse Railroad for any costs so incurred, such cost to be computed in accordance with Railroad's customary practices. The providing of this service shall not relieve Licensee or its contractor of any responsibility or liability. 8. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Railroad'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 revenue and profits. Licensee shall telephone the Railroad at 1-800-336-9193 (a 24-Hour number) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(les) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Licensor's premises. (b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorney's fees~ court costs and expenses) arising out of any act or omission of -4- the Licensee, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications systems on Railroad's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Licensee shall not have or seek recourse against Railroad 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 Railroad's property or a customer or user of services of the fiber optic cable or Railroad's property. 9. Licensee shall procure, or require any contractor engaged or employed to perform any work hereunder on behalf of Licensee on any part of Premises to procure, and keep in effect during the period of such work Workmen's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $2,000,000 for all damages arising out of bodily injuries to or death of one person and subject to that limit for each person, a total limit of $4,000,000 for all damages arising out of bodily injury to or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $2,000,000 for all damages arising out of injury to or destruction of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $4,000,000 for all damages arising out of injury to or destruction of property during the annual policy period. If any part of the work is sublet, similar insurance shall be provided by or on behalf of the Subcontractors to cover their operations. Any limitation in the foregoing insurance which excludes work performed within fifty (50) feet of the railroad track shall be exempted out of said policies. 10. In addition to the insurance provisions set forth in Section 11 hereof, Licensee shall further require any contractor engaged or employed to perform any of the work referred to herein on any part of Railroad's property covered by this agreement to procure and keep in effect during the period of such work Railroad Protective Liability Insurance, in form set forth in Federal Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 2, dated October 25, 1974, issued by Federal Highway Administration, as amended, on behalf of Railroad, in amount of $2,000,000 combined single limit per occurrence for bodily injury, death and property damaged, with an aggregate limit of $6,000,000 for the annual term of the policy; such insurance shall be in form and in a company satisfactory to Railroad; and Licensee or its contractor shall not attempt to perform any work on or about Premises until notified by Railroad that the Railroad Protective Liability policy required hereunder is in form satisfactory to Railroad. 11. Licensee further hereby agrees that Railroad shall not, at any time, be required to bear or assume any cost or expense in or incident to the construction, operation and maintenance of the Drainage Facilities; Licensee hereby expressly agrees to bear and assume all such cost and expense. 12. Licensee hereby agrees to bear and assume any and all costs of repairing or replacing any property of Railroad or others damaged or destroyed -5- in connection with the performance of any work hereunder by or on behalf of Licensee, or as a result of the exercise of the rights herein granted. 13. To the extent that it may lawfully to do so, Licensee (for the purposes of this paragraph Licensee shall be deemed to include Licensee and Licensee's agents, contractors and sub-contractors) hereby assumes and discharges Railroad from, and shall defend, indemnify and save harmless Railroad from and against, any and all claims, suits, damages, costs (including attorneys' fees) losses, outlays, and expenses of any nature whatsoever (lst) in any manner resulting from, arising out of or incident to the installation, construction, maintenance, repair, reconstruction, removal, use or existence of Drainage Facilities and appurtenances thereto, or any part thereof, including the breaking of any part thereof and any leakage therefrom, (2nd) grounded upon the effect at any time of any water which, because of or incident to the construction, excavation, operation, maintenance or existence of Drainage Facilities, or any part thereof, shall flow upon the lands, crops or improvements of any person or party, or (3 rd) resulting from or growing out of any failure of Licensee to comply with or perform any of the obligations, terms or provision on Licensee's part to be complied with or performed hereunder. Licensee further agrees to assume all risk of loss or damage to Drainage Facilities regardless of how caused; provided, however, the foregoing indemnification provisions shall not apply to any claims, suits damages, costs, losses, outlays and expenses for which Railroad shall have been fully compensated through insurance required of Licensee's contractors as per Sections 9 and 10 hereof. 14. (a) This agreement shall begin with the date first hereinabove written and continue thereafter for so long as Premises shall be used for the purposes set forth herein; provided, however, if Licensee shall abandon the use of the Premises, or any part thereof, for such purposes, this license and permission and the rights and privileges granted hereby as to the portion or portions so abandoned shall expire and terminate at the time each such portions shall be abandoned; whereupon Railroad shall have the same complete title to Premises so abandoned as though these presents had never been executed and the right to enter thereon and exclude therefrom Licensee, its successors and assigns. (b) This agreement may be terminated upon a six-month written notice from Railroad to Licensee provided that the Premises are required for Railroad purposes. In the event of such notice of termination, the parties shall arrange for removal of the Drainage Facilities from the Premises or for their proper encasement, or relocation to the Railroad standards at Licensee on cost and expense thereof as provided in Section 2 hereof. 15. The rights herein granted by Railroad are limited to such right, title or interest as Railroad may have in Premises and are made without any warranty, express or implied. It is understood by the parties hereto that such rights are granted subject to the existing rights therein of any third party, if any. It shall be Licensee's sole obligation to obtain such additional permission, license and grants as may be necessary on account of any such existing rights. No damages shall be recoverable from Railroad because of -6- dispossession of Licensee or because of failure of, defect in or extinction of Railroad' s title. 16. This agreement and all of the covenants and conditions hereof shall inure to and bind each party's successors and assigns; provided: no right of Licensee shall be transferred or assigned, either voluntarily or involuntarily, except by express agreement acceptable to Railroad. Either party hereto may waive any default at any time of the other without affecting, or impairing any right arising from, any subsequent or other default. 17. All insurance correspondence shall be directed to: Union Pacific Railroad Company, General Director of Contracts and Real Estate, Room 1200 1416 Dodge Street, Omaha, Nebraska 68179. 18. Licensee, when returning this agreement to Railroad (signed), shall pay Railroad $500.00 for the License and permission herein granted and to cover administration costs, and shall cause same to be accompanied by such order, resolution, or ordinance of the governing body of Licensee, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of Licensee with the power to do and which shall certify that funds are available and have been appropriated for the payment of any sums agreed to be paid by Licensee hereunder. IN WITNESS W~EREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. MISSOURI PACIFIC RAILROAD COMP~NY By: Director of Contracts ATTEST: CITY OF SALINA, KANSAS By: Title: Title: (seal) -7- , , ~. ~ , ~ '/'-,'.'?:'~' /.'~ ) .... .~..~,, .~.,,"...~ ..... .. .... ;,~..~ , . ',? : ..?. ;. .'.:. ,, ,./?,/../" /~; .... 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' ~. 4~ ~ : CITY OF SALINA '-:- .... ~ · . - ~ ot.o~ COVERING A DRAINAGE LICENSE ~**:~=: . ... *. ...~. -~ ~ .:~ ~.. f, .............. c.~=*: Y':**:.T :. ~ SCALE = NONE OFFICE OF CHIEF ENGINEER ~IONI R INIII~.4 ENO ~TTOMmTCfl~O.iI~ % ~AHA~ NEBRASKA JUNE I I, 1990 ~ P~ RA~OAD ~ S~DE~K DRAINAGE O~TCH SHOWN ....... ~ lIT~ ~NT RAILROAD TRACKAGE SHOWN RR R/W SHOWN .................