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Grade Crossing .. "CITY'S ORIGINAL" Agmt. No. 006053079 ",. AGREEMENT This Agreement made and entered into in triplicate as :l-? ~d U of the :;"- day of a'-f , 2ó¡JS, by and between the Kansas and O~lahoma Railroad Company, hereinafter called "Railroad", and the Secretary of Transportation of the State of Kansas, acting as agent for the City of Salina, Saline County, Kansas, hereinafter called "Secretary", and the City of Salina, Saline County, Kansas, hereinafter called "City". WHEREAS, the Secretary as agent for the City proposes to construct an improvement of a portion of Ohio Street under a project designated by Number 85 K-8307-01; Saline County, Kansas, and the improvement includes the construction of a new overpass structure and the removal of the at grade crossing on and across the right-of-way of the Railroad, located in Section 12, T14S, R3W and Section 7, T14S, R2W, Saline County, Kansas, as shown on Exhibit "A", attached hereto and made a part hereof, and WHEREAS, the term" improvement" refers to work involving property of accordance with plans approved by Railroad and the Secretary, and such a part of this Agreement by reference as used in this Agreement, the Railroad constructed in the Chief Engineer of the plans when approved are made thereto, and WHEREAS, the parties desire to set forth in this instrument their understanding and agreements relating to the construction, maintenance and allocation of costs of said proposed work and the changes made necessary in connection therewith: NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I In consideration of covenants and conditions to be fulfilled by the Secretary and the City as hereinafter set forth, RAILROAD AGREES: // 1. To give or grant and hereby do give or grant solely to the extent of their interest therein to the Secretary, the City and their agents and contractors, an easement across Railroad's right-of-way, as shown outlined in red on Exhibit "A", and the right to enter, locate, construct, use and maintain an overpass structure on and across Railroad's right-of-way, tracks and other facilities in accordance with plans and specifications as approved by the Railroad and the Secretary. The Railroad reserves, however, to the Railroad its successors, assigns, tenants or lessees, the right to construct, operate, rearrange and maintain along, above or across said right-of-way, such tracks, pipelines, communication lines, signal lines, electric lines and such other facili ties as the Railroad, its successors, assigns, tenants or lessees may from time to time find necessary or convenient, as - 1 - ~ will not unreasonable interfere with the use of the premises for said improvement. ..' 2. To furnish all labor, materials, tools and equipment and to perform all work required to make changes in alignment, location or elevation of tracks and appurtenances, telephone, telegraph, pipe and signal lines over and/or under its right-of-way, property and tracks and other facilities as may become necessary by reason of said improvement and to comply with the provisions of 23 C. F. R., Chapter I, Part 646, in relocation of non-railroad facilities occupying Railroad right-of-way. Said Title 23 Code of Federal Regulations (23 C. F. R.) is by reference made a part of this agreement. The description and estimated cost of such work, material, tools and equipment is particularly set forth in Exhibit "B" attached hereto and made a part hereof. It is understood and agreed that no work shall be done by the Railroad until such estimate has been approved by the Secretary. All work to be done hereunder by Railroad shall be done by Railroad's employees working under Railroad Labor Agreements and shall be done on a force account basis, or by contract, subject to the provisions of 23 C. F. R., Chapter I, Part 646, the cost thereof to be paid to Railroad by the Secretary in the manner hereinafter set forth. 3. Railroad shall, immediately after plans are approved, deliver to the Secretary a written schedule of its requirement for the number of watchmen and flagmen deemed necessary for the safety of Railroad property or the movement of its trains during the progress of the work while on Railroad right-of-way, or in connection with operations off Railroad right-of-way affecting Railroad safety, and of the method to be used in computing its costs therefore. The Secretary shall not be liable for such cost but his contracts will require his contractor to assume and pay all such costs directly to the Railroad. Prior to making final payment to his contractors, the Secretary shall require the contractors to furnish evidence to the Secretary that the contractors have paid all charges due from the contractors to the Railroad. 4. To present insofar as possible final detailed and itemized statement for work performed by Railroad at expense of the Secretary within one hundred twenty (120) days after completion thereof, such statement to be on the basis of detailed and itemized cost for items set forth in the estimate therefore, and in accordance with and subject to the terms and provisions of 23 C. F. R., Chapter I, Subchapter B, Part 140, Subpart I. The Railroad may present periodic itemized progress bills to the Secretary for work as completed. Final payment will be made in the amount of the difference between the sum of the monthly payments made and the itemized audited statement for the total amount of the work performed by the Railroad upon completion of the work. In the event of overpayment, Railroad shall refund to the Secretary such excess. Items of material removed and not re-used on the project shall be credited to the cost of the project in accordance with 23 C. F. R., Chapter I, Subchapter B, Part 140, Subpart I. - 2 - '" 5. To act in full compliance with the "Special Attachment" (consisting of three pages) related to Title VI of the Civil Rights Act of 1964, said" Special Attachment" affixed hereto and made a part of this Agreement. ARTICLE II In consideration of the covenants and conditions to be fulfilled by Railroad and the City as herein set forth, SECRETARY AGREES: 1. To prepare all specifications, including special provisions, and review all detail plans for the improvement involving the property of the Railroad, which plans and specifications shall be submitted to the Railroad for its approval. Such plans and specifications shall be approved by both the Chief Engineer of the Railroad and by the Secretary before any contracts are awarded by the Secretary and before any work is done by the Railroad. All construction and work done by the parties shall be in accordance with the approved plans and specifications. 2. To furnish or cause to be furnished all labor, materials, tools and equipment and to construct the improvement, except such work as is to be performed by Railroad, in accordance with the approved plans and specifications. 3. To require the Secretary's contractor, in respect to his work performed upon, over or under Railroad right-of-way, to provide Railroad Protective Liability Insurance as set forth in 23 C. F. R., Chapter I, Part 646, with Policy Limits for Bodily Inj ury, Death, and Property Damage limited to a combined single limit of $2,000,000 per occurrence with an aggregate limit of $6,000,000 applying separately to each annual period. A. No work shall be started on Railroad property until: 1. Certificate of contractor's public liability and property damage insurance has been furnished to Railroad. 2. Original copy of Railroad 's protective policy is furnished to Railroad. insurance 3. Railroad has advised the Secretary, in writing, that limits, form and substance of insurance policies are satisfactory to Railroad. B. The aforementioned public liability and property damage policy shall be kept in full force and effect by the Secretary's contractor during the performance of said work upon and adjacent to Railroad's property and thereafter until contractor removes all tools and equipment from Railroad's property and cleans up the . premises to satisfaction of Railroad. (10) 4. The Secretary, his contractor and agents, will give ten days written notice to the Railroad, before commencing work - 3 - ." in connection with the improvement upon or adj acent to Railroad property. ... 5. To require all work on said project to be performed in a manner that will not endanger the safety of the Railroad or unduly interfere with the operation thereof. If, in the reasonable opinion of the Railroad, the operation of the Secretary's contractor is endangering the safety of the Railroad's operation, Railroad may immediately, through the Secretary, order the termination of further work on Railroad's premises without liability on the Railroad's part until the dangerous condition has been corrected. 6. To reimburse the Railroad promptly upon receipt of properly computed and compiled statements for cost incurred for work done by the Railroad in accordance with the provisions of this Agreement. Provided, however, the cost of the work as set forth in the estimate required by Article I, Section 2, is an estimate only and it is understood that the Secretary will reimburse the Railroad on the basis of actual cost. Provided, however, that the Secretary shall not have any liability for or obligation to pay for any work done by Railroad unless statement therefore is presented to and received by the Secretary before the expiration of one year after the day of completion of all work done by the Railroad in accordance with the provisions of this Agreement. Railroad shall not be responsible for Secretary's billing errors should said errors fail to notify Railroad of the completion of the work. In the event the Secretary shall for any reason cancel or terminate his contract and abandon the construction of said roadway or in the event the Secretary's contractor shall stop work thereon for a period of sixty (60) calendar days, other than seasonal suspensions authorized by the Secretary, for reason over which the Secretary or contractor has control, and the Secretary has not prepared to relet or resume work under the contract; the Railroad within a period of one hundred and eighty (180) calendar days of work stoppage, the Railroad shall have the right to restore its property to the condition existing prior to commencement of work on said roadway. The Secretary agrees to reimburse Railroad for all expenses incurred by Railroad for such restoration by Railroad. ARTICLE III In consideration of the covenants and conditions to be fulfilled by Railroad and the Secretary as hereinafter set forth, CITY AGREES: 1. To prepare all detail plans, which plans shall be submi tted for review and approval by both the duly designated representative of the Railroad and the Secretary. - 4 - . 2. To maintain and repair completed improvement without cost or expense to the Railroad and in a manner satisfactory to the Federal Highway Administration, United State Department of Transportation, or their authorized representatives. 3. To secure or cause to be secured all highway right-of-way required for or incident to the proposed improvement, including any right-of-way required for borrow right, except that provided for in Section I of Article I hereof. 4. To make any and all arrangements with Railroad and others that may be necessary for the location and relocation of wire lines, pipelines, and other facilities not owned by the Railroad; provided, however, that the Railroad shall cooperate with the Secretary to (a) make such changes and rearrangements in its fences, communication lines, signal lines, signals and other facilities as may be necessary, and (b) the Secretary shall arrange for any changes and rearrangements in the wire lines, pipelines, or other facilities of the Railroad's tenants or lessees as may be necessary on account of the construction of the improvement to be made, and shall pay any compensation required because of such changes and rearrangements. PROVIDED, however, that no such changes and rearrangements shall be made on Railroad's right-of-way until after the arrangements and plans have been approved by the Railroad's Chief Engineer. ARTICLE IV SECRETARY, CITY AND RAILROAD MUTUALLY AGREE 1. That all work contemplated in this Agreement shall be mutually scheduled and coordinated, commenced promptly and completed without undue delay. All work shall be performed in a good workmanlike manner. 2. The parties hereto agree that benefits will accrue to the Railroad pursuant to the provisions of 23 C. F. R., Chapter I, Part 646, due to the construction or use of said overpass, because: the project covered by this Agreement is the construction of a new overpass that eliminates an at grade crossing at which signals were installed, in view of which there will be a Railroad contribution. The Railroad's contribution for this project is set forth in a separate agreement between the City and Railroad. 3. The books, papers, and accounts of the parties hereto, so far as they relate to items of expense, labor and materials, or are in any way connected with the work herein contemplated, shall at all reasonable times during regular office hours be open to inspection and audit by agents and authorized representatives of the parties hereto and of the Federal Highway Administration for a period of three (3) years from the date final payment has been received by the Railroad. 4. This Agreement shall be binding upon and inure to the benefit of the Railroad, its successors and assigns, and upon and to the successors and assigns of the Secretary and upon and to the successors and assigns of the City. - 5 - ." .. . 5. That all disbursements required by this Agreement shall be from funds allocated by the City and the Secretary. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in triplicate the day and year first above written. DEBRA L. MILLER SECRETARY OF TRANSPORTATION ~~/ BY: "'t:-:-i5AVro 'CO' STOCK; -. E . DIRECTOR OF ENGINEERING AND DESIGN KANSAS AND OKLAHOMA RAILROAD COMPANY BY: TITLE: ATTEST: ~ßur?;~f CITY ~LER BY: J:kF ~ ~~ TITLE: - 6 - I I I RESOLUTION NUMBER 05-6190 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A THREE- PARTY AGREEMENT BETWEEN THE KANSAS DEPARTMENT OF TRANSPORTATION, KANSAS AND OKLAHOMA RAILROAD COMPANY, AND THE CITY OF SALINA IN RELATION TO THE NORTH OIDO STREET OVERPASS PROJECT. BE IT RESOLVED by the Governing Body of the City of Salina, Kansas: Section 1. That the Mayor is hereby authorized to execute a three-party agreement between the Kansas Department of Transportation, Kansas and Oklahoma Railroad Company, and the City of Salina in relation to the North Ohio Street Overpass Project, subject to the terms and conditions of the agreement. Section 2. That the City Clerk is hereby directed to file the original agreement and retain according to the City of Salina Records Management Policy. Section 3. That this resolution shall be in full force and effect from and after its adoption. Adopted by the Board of Commissioners and signed by the Mayor this 16th day of May, 2005. fJkd ~ (SEAL) Deborah Divine, Mayor ATTEST: ~tht Lieu Ann Elsey, CMC, City Clerk "II Special Attachment No.1 Sheet 1 of 3 .. . KANSAS DEPARTMENT OF TRANSPORT A TION Special Attachment To Contracts or Agreements Entered Into By the Secretary of Transportation of the State of Kansas NOTE: Whenever this Special Attachment conflicts with provisions of the Document to which it is attached, this Special Attachment shall govern, THE CIVIL RIGHTS ACT OF 1964, and any amendments thereto, REHABILITATION ACT OF 1973, and any amendments thereto, AMERICANS WITH DISABILITIES ACT OF 1990, and any amendments thereto, AGE DISCRIMINATION ACT OF 1975, and any amendments thereto, EXECUTIVE ORDER 12898, FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND LOW INCOME POPULATIONS (1994), and any amendments thereto, 49 c.F.R. Part 26.1 (DBE Program), and any amendments thereto NOTIFICATION The Secretary of Transportation for the State of Kansas, in accordance with the provisions of Title VI and Title VII of the Civil Rights Act of 1964 (78 Stat. 252), §504 of the Rehabilitation Act of 1973 (87 Stat. 3555) and the Americans with Disabilities Act of 1990 (42 USC 12101), the Age Discrimination Act of 1975 (42 USC 6101), the Regulations of the U.S. Department of Transportation (49 C.F.R., Part 21,23, and 27), issued pursuant to such ACT, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations (1994), and the DBE Program (49 c.F.R., Part 26.1), hereby notifies all contracting parties that, the contracting parties will affirmatively insure that this contract will be implemented without discrimination on the grounds ofrace, religion, color, gender, age, disability, national origin, or minority populations and low income populations as more specifically set out in the following seven "Nondiscrimination Clauses". . CLARIFICATION Where the term "consultant" appears in the following seven "Nondiscrimination Clauses", the term "consultant" is understood to include all parties to contracts or agreements with the Secretary of Transportation of the State of Kansas. Nondiscrimination Clauses During the performance of this contract, the consultant, or the consultant's assignees and successors in interest (hereinafter referred to as the "Consultant"), agrees as follows: (1) Compliance with Regulations: The consultant will comply with the Regulations of the U. S. Department of Transportation relative to nondiscrimination in federally-assisted programs of the U.S. Department of Transportation (Title 49, Code of Federal Regulations, Parts 21, 23 and 27, (Revised 07-29-1999) '" (2) (3) (4) (5) (6) (7) Special Attachment No.1 Sheet 2 of 3 hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. Nondiscrimination: The consultant, with regard to the work performed by the consultant after award and prior to the completion of the contract work, will not discriminate on the grounds of race, religion, color, gender, age, disability, national origin or minority populations and low income populations in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The consultant will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations, Solicitations for Subcontractors, Including Procurements of Material and Equipment: In all solicitations, either competitive bidding or negotiation made by the consultant for work to be performed under a subcontract including procurements of materials and equipment, each potential subcontractor or supplier shall be notified by the consultant of the consultant's obligation under this contract and the Regulations relative to nondiscrimination on the grounds of race, religion, color, gender, age, disability, national origin or minority populations and low income populations. Information and Reports: The consultant will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and the Secretary of the Transportation of the State of Kansas will be permitted access to the consultant's books, records, accounts, other sources of information, and facilities as may be determined by the Secretary of Transportation of the State of Kansas to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a consultant is in the exclusive possession of another who fails or refuses to furnish this information, the consultant shall so certify to the Secretary of Transportation of the State of Kansas and shall set forth what efforts it has made to obtain the information. Employment: The consultant will not discriminate against any employee or applicant for employment because of race, religion, color, gender, age, disability, or national origin. Sanctions for Noncompliance: In the event of the consultant's noncompliance with the nondiscrimination provisions of this contract, the Secretary of Transportation of the State of Kansas shall impose such contract sanctions as the Secretary of Transportation of the State of Kansas may determine to be appropriate, including, but not limited to, (a) withholding of payments to the consultant under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. Disadvantaged Business Obligation (Revised 07 - 29-1999) '" ..' (a) (b) (c) (8) Special Attachment No.1 Sheet 3 of 3 Disadvantaged Businesses as defined in the Regulations, shall have a level playing field to compete fairly for contracts financed in whole or in part with Federal funds under this contract. All necessary and reasonable steps shall be taken in accordance with the Regulations to ensure that Disadvantaged Businesses have equal opportunity to compete for and perform contracts, No person(s) shall be discriminated against on the basis of race, color, gender, or national origin in the award and performance of federally-assisted contracts. The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of Federally-assisted contracts, Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate. Executive Order 12898 (a) (9) To the extent permitted by existing law, and whenever practical and appropriate, all necessary and reasonable steps shall be taken in accordance with Executive Order 12898 to collect, maintain, and analyze information on the race, color, national origin and income level of persons affected by programs, policies and activities of the Secretary of Transportation of the state of Kansas and use such information in complying with this Order. Incorporation of Provisions: The consultant will include the provisions of paragraphs (1) through (8) in every subcontract, including procurements of materials and equipment, unless exempt by the Regulations, order, or instructions issued pursuant thereto. The consultant will take such action with respect to any subcontract or procurement as the Secretary of Transportation of the State of Kansas may direct as a means of enforcing such provisions including sanctions for noncompliance: PROVIDED, however, that, in the event a consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the consultant may request the State to enter into such litigation to protect the interests of the State. (Revised 07-29-1999) ~ I I ~ --, ~':A ~- 5to. /0+604.080 Construct /8.7 - 3 fi 28.0 - 38.7 - /8.7 m PBMC /5.850 m Roadway 2/" 40' Skew Lt. EXHIBIT" A" To An Agreement Between the Kansas Secretary of Transportation and the Kansas and Oklahoma Railroad Company and the City of Salina for Project No. 85 K-8307-01, Saline County Scale 1 : 1000