Sewer Line Crossing Agreement with Union Pacific Railroad UndergroundSTEVEN A. GOODSELL
GENERAL SOLICITOR
UNION PACIFIC RAILROAD COMPANY
LAW DEPARTMENT
~7anuary 3, 1983
The City of Meridian
728 Mer.i.dian Street
Meridian, Idaho 83642
GentlemE~n
Re: Agreement LD No. 25613
CITY OF MERIDIAN
Underground Sewer Line Crossing
Meridian, Idaho (MP 456.55)
406 West Ftrst South
P,O. Box 2459
SALT LAKE CITY, UTAH 84110
(801) 363-1454
Your fully executed counterpart original of the
above agreement is sent you herewith for your records.
Before commencing the above work, the person to
whom notice is to be given in accordance with the
agreement is: Mr. G. r^. Hite, UPRR Division Engineer,
P. 0. Box 790, Pocatello, Idaho 83201, Phone: {208)
236-5314 or (208) 236-5369.
Very truly yours,
Steven A. Goodsell K
Sewer Line Crossing L.D. No. 25613
Near Meridian, Idaho (M.P. 456.55) Audit No.
1
THIS AGRE M NT, made and entered into as of the
~Z~ day of [~ , 1982, by and between OREGON
SHORT LINE RAILROAD COMPANY and its lessee, UNION PACIFIC
RAILROAD COMPANY, corporations of the State of Utah (herein-
aft:er collectively the Licensor), and CITY OF MERIDIAN, a
municipal corporation of the State of Idaho (hereinafter the
Lic:ensee), WITNESSETH:
NOW THEREFORE, it is mutually agreed by and between
the parties hereto as follows:
1. In consideration of the covenants and agreements
herein contained to be by the Licensee kept, observed and
performed, the Licensor hereby grants to the Licensee, subject
to the terms and conditions herein stated, the right to
construct and thereafter, during the term hereof, to maintain
and operate the underground sewer pipe line (hereinafter the
Pipe Line) across the property and under the track of the
Licensor in the location identified by yellow line, and in
conformity with the dimensions and specifications indicated,
on the print dated August 9, 1982, marked Exhibit A, hereto
attached and by this reference incorporated herein.
2. The grant herein made is subject to each and
all of the terms, provisions, conditions, limitations and
covenants set forth herein and in Exhibit B hereto attached
and by this reference incorporated here9.n.
3. This Agreement shall take effect as of the date
first herein written and shall continue in full force and
effect until terminated as herein provided.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed in duplicate as of the
date first herein written.
OREGON SHORT LINE RAILROAD COMPANY
Witness: UNIO PACIF C RAILROAD COMPANY
~~ 'fin ~`~ ~~ rf ~: h .,_~ By ,.., ~
Genera Manager
The foregoing Agreement is accepted
stated and executed by the Mayor of the City o
and attested by the Clerk, on this 25~ day
pursuant to authority vested in said Mayor by
duly passed and adopted by the City Council of
on the 18th day of October , 198
Attest: CITY
~ ~ By
Clerk
upon the terms
f Meridian, Idaho,
o f Octp~ 19 8 2 ,
a resolution
Meridian, IDAHO,
DI1jN,, IDAHO
Mayor
~~PL,C~,~E ~F'.,~„"`v:"~,f - ~.4C.~a''~S~r~S COSY
A 1
The foregoing grant is subject and subordinate to the prior and continuing right
and obligation of the Licensor to use and maintain its entire property in the performance
of its public duty as a common carrier, and is also subject to the right and power of the
Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate rail-
road tracks, signal, communication or other wire lines, pipe lines and other facilities upon,
along or acros:~ any or all parts of its property, all or any of which may be freely done at
any time or times by the Licensor without liability to the Licensee or to any other party
for compensation or damages.
The foregoing grant is also subject to all outstanding superior rights (including
those in favor of licensees and lessees of the Licensor's property, and others) and the right
of the Licensor- to renew and extend the same, and is made without covenant of title or for
quiet enjoyment:.
Section 2: CONSTRUCTION, MAINTENANCE AND OPERATION.
The Pipe Line shall be constructed, operated, maintained, repaired, renewed, modified
and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co.
Common Standard Specification 1029 adopted November 1949, as subsequently amended, except
as may be modified and approved by the Licensor's Chief Engineer. In the event such Speci-
fication conflicts in any respect with the requirements of any federal, state or municipal
law or regulation, such requirements shall govern on all points of conflict, but in all other
respects the Specification shall apply.
All work performed on property of the Licensor in connection with the construction,
maintenance, repair, renewal, modification or reconstruction of the Pipe Line shall be done
under the supervision and to the satisfaction of the Licensor.
Prior to the commencement of any work in connection with the construction, main-
tenance, repair,, renewal, modification, relocation, reconstruction or removal of the Pipe
Line where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee
shall submit to the Licensor plans setting out the method and manner of handling the work,
including the shoring and cribbing, if any, required to protect the Licensor's operations,
and shall not proceed with the work until such plans have been approved by the Chief Engineer
of the Licensor and then only under the supervision of the Chief Engineer or his authorized
representative. The Licensor shall have the right, if it so elects, to provide such support
as it may deem necessary for the safety of its track or tracks during the time of construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipe
Line, and, in this event the Licensor provides such support, the Licensee shall pay to the
Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense
incurred by the Licensor in connection therewith, which expense shall include all assignable
costs plus ten percent (10$) to cover elements of expense not capable of exact ascertainment.
The Licensee shall keep and maintain the soil over the Pipe Line thoroughly compacted
and the grade even with the adjacent surface of the ground.
Section 3. NOTICE OF COMMENCEMENT OF WORK.
The Licensee shall notify the Licensor at least forty-eight (48) hours in advance
of the commencement of any work upon property of the Licensor in connection with the construc-
tion, maintenance, repair, renewal, modification, reconstruction, relocation or removal of
the Pipe Line. ,All such work shall be prosecuted diligently to completion.
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Li ensee shall bear the entire cost and expense incurred in connection with
the construction, maintenance, repair and renewal and any and all modification, revision,
relocation, removal or reconstruction of the Pipe Line, including any and all expense which
may be incurred by the Licensor in connection therewith for supervision or inspection, or
otherwise.
Section 5. RELOCATION OR REMOVAL OF PIPE LINE.
The license herein granted is s sect to the needs and requirements of the Licensor
in the operation of its railroad and in the improvement and use of its property, and the
Licensee shall, at the sole expense of the Licensee, move all or any portion of the Pipe Line
to such new location or (unless the Pipe Line extends entirely across the property of the
Licensor) remove the Pipe Line from such property, as the Licensor may designate, whenever,
in the furtherancee of its needs and requirements, the Licensor shall find such action neces-
sary or desirable.
All the terms, conditions and stipulations herein expressed with reference to the
Pipe Line on property of the Licensor in the location hereinbefore described shall, so far
as the Pipe Line remains on the property, apply to the Pipe Line as modified, changed or
relocated within the contemplation of this section.
:SE
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Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION,
The Pipe Line and all parts thereof within and outside of the limits of the property
of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and
operated in such manner as to cause no interference whatsoever with the constant, continuous
and uninterrupted use of the tracks, property and facilities of the Licensor, and nothing
shall be done o:r suffered to be done by the Licensee at any time that would in any manner
impair the safety thereof.
Section 7. C CMS AND LIENS FOR LABOR AND MATERIAL] TAXES.
Ttie Licensee al fully pay or all mateua joined or affixed to and labor per-
formed upon property of the Licensor in connection with the construction, maintenance, repair,
renewal, modification or reconstruction of the Pipe Line, and shall not permit or suffer any
mechanic's or materialman's lien of any kind or nature to be enforced against the property
for any work dor.~e or materials furnished thereon at the instance or request or on behalf of
the Licensee. 4'he Licensee shall indemnify and hold harmless the Licensor against and from
any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected
with or growing out of such work done, labor performed, or materials furnished.
The Licensee shall promptly pay or discharge all taxes, charges and assessments
levied upon, in respect to, or on account of the Pipe Line, to prevent the same from becoming
a charge or lien. upon property of the Licensor, and so that the taxes, charges and assessments
levied upon or in respect to such property shall not be increased because of the location,
construction or maintenance of the Pipe Line or any improvement, appliance or fixture connected
therewith placed upon such property, or on account of the Licensee's interest therein. Where
such tax, charge or assessment may not be separately made or assessed to the Licensee but
shall be included in the assessment of the property of the Licensor, then the Licensee shall
pay~to the Licensgr an equitable proportion of such taxes determined by the value of the Licen-
see s property upon property of the Licensor as compared with the entire value of such property.
Section 8, RESTORATION OF LICENSOR'S PROPERTY.
In tie event t e Licensee s a 1 t e down any fence of the Licensor or in any manner
move or disturb any of the other property of the Licensor in connection with the construc-
tion, maintenances, repair, renewal, modification, reconstruction, relocation or removal of
the Pipe Line, then and in that event the Licensee shall, as soon as possible and at Licensee's
sole expense, restore such fence and other property bo the same condition as the same were
in before such fence was taken down or ouch other property was moved or disturbed, and the
Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employes,
against and from any and all liability, loss, damages, claims, demands, costs and expenses
of whatsoever nature, including court costs and attorneys' fees, which may result from injury
to or death of persons whomsoever, or damage to or loss or destruction of property whatso-
ever, when such injury, death, damage, .loss or destruction grows out of or arises from the
taking down of ar.~y fence or the moving or disturbance of any other property of the Licensor.
Section 9. LIABILITY.
Th L rensee shall indemnify and hold harmless the Licensor and other companies
which use the property of t=he Licensor, their officers, agents and employes, against and
from any and all liability, loss, damage, claims, demands, costs and expenses of whatsoever
nature, including court costs and attorneys' fees, which may result from injury to or death
of persons whomsoever, or against and from damage to or loss or destruction of property what-
soever (including damage to the roadbed, tracks, equipment or other property of the Licensor
and such other companies or property in their care or custody), when such i~}jury, death, loss,
destruction or damage is due to or arises from the bursting of or leaks in the Pipe Line,
or in any other way whatsoever is due to, or arises because of, the existence of the Pipe
Line or the construction, operation, maintenance, repair, renewal, modification, reconstruc-
tion, relocation nor removal of the Pipe Line or any part thereof, or to the contents therein
or therefrom (except when caused directly and solely by the negligence of the Licensor and
such other companies, their officers, agents or employes). The Licensee does hereby release
the Licensor and such other companies, their officers, agents and employes, from all liabili-
ty for damages on account of injury to the Pipe Line from any cause whatsoever.
Section 10. TERM:[NATION ON NONUSER OR DEFAULT.
If the Licensee does not use the right herein granted or the Pipe Line for one (1)
year, or if the Licensee continues in default in the performance of any covenant or agreement
herein contained for a period of thirty (30) days after written notice from the Licensor to
the Licensee specifying such default, the Licensor may, at its option, forthwith terminate
this Agreement. Notice of default and notice of t~ rmination may be served upon the Licensee
by mailing to the last known address of the Licensee.
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Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT.
WitF%n ninety ays a ter the termination o this Agreement howsoever, the
Licensee shall, at Licensee's sole expense, remove the Pipe Line from those portions of the
property not occupied by the roadbed and track or tracks of the Licensor and shall restore,
to the satisfaction of the Licensor, such portions of such property to as good condition
as they were in at the time of the construction of the Pipe Line. If the Licensee fails to
do the foregoing, the Licensor may do such work of removal and restoration at the cost and
expense of the licensee. The Licensor may, at its option, upon such termination, at the entire
cost and expense; of the Licensee, remove the portions of the Pipe Line located underneath
its roadbed and track or tracks and restore such roadbed to as good condition as it was in
at the time of t:he construction of the Pipe Line, or it may permit the Licensee to do such
work of removal and restoration under the supervision of the Licensor. In the event of the
removal by the Licensor of the property of the Licensee and of the restoration of the roadbed
and property as herein provided, the Licensor-shall in no manner be liable to the Licensee
for any damage sustained by the Licensee for or on account thereof, and such removal and
restoration shall in no manner prejudice or impair any right of action for damages, or other-
wise, twat the Licensor may have against the Licensee.
Section 12. WAIVER OF BREACH.
- The waiver y the Licensor of the breach of any condition, covenant or agreement
herein contained to be kept, observed and performed by the Licensee shall in no way impair
the right of the Licensor to avail itself of any subsequent breach thereof.
Section 13. AGREEMENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement, in whole or in part, or any rights
herein granted, without the written consent of the Licensor, and it is agreed that any transfer
or assignment or attempted transfer or assignment of this ,Agreement or any of the rights herein
granted, whether voluntary, by operation of law, or otherwise, without such consent in writing,
shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement.
Section 14. SUC(:ESSORS AND ASSIC~TS.
Sub~eci: to the provisions
upon and inure to the benefit of the
successors and a:>signs.
of Section 13 hereof, this Agreement shall be binding
parties hereto, their heirs, executors, administrators,
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U.G. Sewer Line X-ing shown YELLGi
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Drawing No. A-44b9 D