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HomeMy WebLinkAboutRes.2677.02-13-2012BILL NO. 12-19 RESOLUTION NO. 52677 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A SEWER LINE LICENSE AGREEMENT WITH SEMO PORT RAILROAD, INC. FOR A SANITARY SEWER LINE CROSSING SOUTH OF COOPER STREET, FOR THE WASTEWATER TREATMENT PLANT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute a Sewer Line License Agreement with Semo Port Railroad, Inc. for a sanitary sewer line crossing south of Cooper Street needed for the wastewater treatment plant. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS DAY OF , 2012. Harry E. Rediger, Mayor ATTEST: i O -I Gayle . Conrad .`��M\\� City Clerk v TILE SEWER LINE LICENSE AGREEMENT City of Cape Girardeau MO Sewer force main 4" ductile iron pipe in 10" steel casing pipe 81' 0" south of center line of Cooper Street 30' long centered on track and at least 6' 0" below bottom of rail Mile 128.25 Engineer's Chainage Station 292+28 Distance 29,228 feet from Capedeau Junction MO This Agreement is made and entered into as of the J� day of 2012, by and between Semo Port Railroad, Inc., a Missouri corporation (hereafter Railroad) engaged in interstate commerce as a common carrier switching railroad, authorized by the Interstate Commerce Commission (Finance Docket 32543 on August 15, 1994), and the City of Cape Girardeau, Missouri, a political subdivision of the State of Missouri (hereafter Licensee). WITNESSETH It is mutually agreed by and between the parties hereto as follows: 1. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Railroad a license fee of TEN DOLLARS ($10.00), receipt of which is hereby acknowledged. 2. LICENSOR GRANTS RIGHT. In consideration of the license fee to be paid by Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Railroad hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate an underground sewer line (hereafter called the Pipe Line) 81 feet south of the center line of Cooper Street on the License parcel described in Exhibit "A" attached hereto. Said Pipe Line to be constructed and maintained in conformity with the dimensions and specifications on Figures 1 and 2. "Pipe Line Work" includes but is not limited to construction, maintenance, repair, renewal, modification, revision, relocation, removal, and/or reconstruction of the Pipe Line. All Pipe Line Work performed on property of the Railroad shall be done under the supervision and to the reasonable satisfaction of the Railroad. 3 LIMITATION OF RIGHTS GRANTED. A. The foregoing grant of right shall be exercised so as to not interfere with the right and obligation of the Railroad to use and maintain its entire property, including the right and power of the Railroad to construct, maintain, repair, renew, use, operate, change, modify, or relocate railroad tracks, signal, communication, fiber optics, other wire lines, pipe lines, and other facilities upon, along, or across any or all parts of its property, all or any of which may be freely done at any time or times by the Railroad without liability to the Licensee or to any other party for compensation or damages. B. The foregoing grant of right shall be exercised so as not to interfere with rights granted to third parties (including those in favor of licensees and lessees of the Railroad's property, and others) and the right of the Railroad to renew and extend the same. 4. NO INTERFERENCE WITH RAILROAD'S OPERATION. Pipe Line Work inside and outside the limits of the Railroad property shall be conducted by Licensee in such manner as to cause no interference whatsoever with the constant, continuous, and uninterrupted use of the tracks, property and facilities of the Railroad, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. 5. LICENSEE'S EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with Pipe Line Work, including any and all expense which may be incurred by the Railroad in connection therewith for supervision, inspection, engineering, legal counsel, and other expense. 6. LICENSEE'S WORK A. Pipe Line Work Emergency. If case of an emergency requiring Pipe Line Work, Licensee shall give immediate notice to Railroad. If an emergency should arise and pose a danger to the the safety of Railroad's train operations, Licensee shall: (1) immediately protect the unsafe track with flagmen or red reflective "Stop" signs placed an adequate distance in each direction on each track so affected; and (2) notify Railroad using the emergency telephone numbers in the current edition of the Semo Port Railroad's Employee Timetable, B. Notice to Railroad. In non -emergency situations, Licensee shall notify the Railroad at least ten (10) days prior to any Pipe Line Work on property of the Railroad. All such work shall be prosecuted diligently to completion. C. Safety Regulations and Rules. While working on Railroad property, Licensee and its contractors shall comply with the applicable regulations of the USDOT Federal Railroad Administration (FRA). The FRA regulations for worker safety and on -track safety are given in the Code of Federal Regulations, Title 49, Part 214, Subparts A through D, as of the intial date of this Agreement. Additional regulations might apply to other parts of Pipe Line Work. Said work shall also be performed in compliance with all applicable State and Federal Statutes and Regulations. While working on Railroad property, Licensee and its contractors shall have at the site a copy of the most recent Semo Port Railroad (SE) Roadway Worker Protection Rules and SE Employee Timetable. 2 While working on Railroad property, Licensee and its contractors shall comply with the applicable rules of Railroad, including but not limited to the Semo Port Railroad's Roadway Worker Protection Rules. If requested by Licensee, Railroad will provide copies of the rules and provide the required annual training needed to certify the workers in compliance with FRA regulations. D. Insurance. For the performance of Pipe Line Work on Railroad property, any contractors of Licensee shall provide railroad protective liability coverage as required for work on railroad property in the amount of $2,000,000 each occurrence limit and $2,000,000 aggregate limit. Railroad shall be provided with a copy of each certificate of insurance. The Licensee shall provide liability insurance coverage to the extent and in the amount provided in Section 537.600 RSMo, as amended from time to tune. Railroad shall be provided with a copy of each certificate of insurance for coverage provided to Licensee. E. Train Operations. Railroad's train operations may be performed by its own crews, contractor crews, and crews of other railroad companies. Licensee will coordinate its Pipe Line Work with Railroad and, as directed by Railroad, with other entities conducting train operations over Railroad's trackage. F. Plans and Work. Prior to the commencement of any Pipe Line Work where Pipe Line passes underneath the roadbed and track or tracks of the Railroad, Licensee shall submit to the Railroad plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Railroad's operations, and shall not proceed with the work until such plans have been approved by the Executive Director of the Railroad, and then only under the supervision of the Executive Director or his authorized representative. The Railroad shall approve or respond to such plans with comments within 10 days following submittal by the Licensee. Approval shall not be unreasonably withheld. Railroad 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 Pipe Line Work, said support to be at Licensee's expense. Licensee shall keep and maintain the soil over the Pipe Line thoroughly compacted and the grade even with the adjacent surface of the ground, providing seed and mulch or crushed rock if required by Railroad. G. City Code. The Pipe Line Work shall be conducted in strict conformity with Chapter 25, Article XI of the Code of Ordinances for the City of Cape Girardeau. In the event such plans or specifications conflict 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 Specifications shall apply. 7. RAILROAD'S WORK A. Modification or Addition. In the event that Railroad elects, at its discretion, to modify its existing rail facilities or build new tracks across the parcel(s) subject to this License, then Licensee shall, at its sole cost and expense, add or extend casings or otherwise modify its Pipe Line so as not to interfere with such modified or added rail facilities. Railroad shall give Licensee 90 days' notice prior to the modification or addition of rail facilities. Licensee shall prepare plans for the Pipe Line work (including but not limited to the addition or extension of casings, or other modification of the Pipe Line), and submit the plans for Railroad approval. If Licensee does not prepare said plans, Railroad may prepare plans at Licensee's expense. If Railroad and Licensee do not agree on the plans, the Railroad's engineer and the Licensee's engineer shall select a third qualified engineer to determine the plans to be used. Licensee at its expense shall complete the Pipe Line work within 90 days after the plans are approved by Railroad. If Licensee does not pursue or complete the Pipe Line work, Railroad may do so at Licensee's expense. B. Abandonment of Pipe Line. Licensee may abandon the Pipe Line by giving ninety (90) days' notice to Railroad. The notice shall include Licensee's plans for securing the abandoned pipeline in a manner that is structurally sound and in compliance with health considerations, said plans submitted for Railroad approval. If Licensee does not prepare the plans, Railroad may prepare plans at Licensee's expense. If Railroad and Licensee do not agree on the plans for securing the abandoned pipeline, the Railroad's engineer and the Licensee's engineer shall select a third qualified engineer to determine the plans to be used. Licensee at its expense shall complete the work and secure the abandoned pipeline within 90 days after the plans are approved by Railroad, except if emergency work is needed it shall be done as described otherwise in this Agreement. If Licensee does not pursue or complete the Pipe Line work, Railroad may do so at Licensee's expense. Licensee's failure to use the Pipe Line for more than 180 days shall constitute abandonment, in which case Railroad may give Licensee thirty (30) days' notice of abandonment, after which time Railroad may secure the abandoned pipeline, doing so at Licensee's expense. 8. RESTORATION OF RAILROAD'S PROPERTY. In the performance of Pipe Line Work, if Railroad authorizes Licensee to take down any fence or disturb any other property, Licensee shall restore the fence and other property to its previous condition, as soon as possible. Licensee's contractors shall indemnify and hold harmless the Railroad, its officers, agents and employees, against and from any and all liability, loss damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorney's fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or disturbance of any other property of the Railroad. Licensee shall, solely to the extent of any applicable insurance coverage provided by Licensee under Section 7.1) of this Agreement, indemnify and hold harmless the Railroad, its officers, agents and employees, against and from any and all liability, loss damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorney's fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or disturbance of any other property of the Railroad. 9. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Licensee to Contact Railroad. Fiber optic cable systems may be buried on the Railroad's property at some time in the future. Prior to Pipe Line construction, and prior to each subsequent excavation on Railroad property, Licensee shall contact Railroad to determine if fiber optic cable has been buried. Fiber optic cable systems shall be defined to include other types of communication cables in addition to fiber optic cable. B. Locating Cables. If fiber optic cable has been buried on the Railroad's premises as used by Licensee, Licensee will contact the telecommunication company or companies 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 Railroad's premises. C. Indemnity for Cables. In addition to the liability terms elsewhere in this Agreement, the Licensee, solely to the extent of any applicable insurance coverage provided by Licensee under Section 7.1) of this Agreement, and Licensee's contractors, to the full extent of any of any cost, liability or expense, shall indemnify and hold the Railroad harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the Licensee, its contractor, agents and/or employees, that causes or in any way or degree contributes to: Any damage to or destruction of any telecommunications system by the Licensee, and/or its contractor, agents and/or employees, on Railroad's property; 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; and/or Any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunication company or companies. 10. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Railroad 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 done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Railroad 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. B. 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 Railroad, 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 Railroad, then the Licensee shall pay to the Railroad an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Railroad as compared with the entire value of such property. 11. INDEMNITY. As a major inducement and consideration for the license and permission herein, the Licensee the Licensee, solely to the extent of any applicable insurance coverage provided by Licensee under Section 7.1) of this Agreement, and Licensee's contractors, to the full extent of any of any cost, liability or expense, shall indemnify and hold harmless the Railroad, other railroads, and owners of fiber optic cable authorized by Railroad to use Railroad's property or tracks (Other Companies), their officers, agents and employees, against and from any and all liability, loss, damage, claims, demands, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorney's fees, which may result from injury to or death of persons whomsoever (including officers, agents and employees of the Railroad and of the Licensee, as well as other persons), or against and from damage to or loss or destruction of property whatsoever (including damage to the roadbed, tracks, equipment or other property of the Railroad and Other Companies or property in their care or custody), when such injury, death, loss, destruction or damage is due to or arises because of: 1. The existence of the Pipe Line or the construction, operation, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipe Line or any part thereof, or 2. The contents in or from the Pipe Line including bursting of or leaks in the Pipe line, except when caused by the sole and direct negligence of the Railroad, Other Companies, their officers, agents, or employees. The Licensee does hereby release the Railroad and Other Companies, their officers, agents, and employees, from all liability for damages on account of damage to or loss or destruction of the Pipe Line from any cause whatsoever, including the sole and direct negligence of the Railroad and Other Companies, their officers, agents, and employees. 12. ESTIMATE OF COSTS. Notwithstanding anything contained in this Agreement to the contrary, if Railroad is required or permitted to incur expenses to be paid by Licensee for any services, supervision, inspection, engineering, legal counsel, and other expense, Railroad shall provide Licensee with notice and an estimate of the costs to be paid by Licensee in advance of said expenses being incurred, except where such expenses are incurred by Railroad to address a safety violation or emergency. 13. WAIVER OF BREACH. The waiver by the Railroad 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 Railroad to avail itself of any subsequent breach thereof. 14. CANCELLATION. In the event that Licensee does not construct the Pipe Line contemplated by this Agreement within three (3) years from the date of this License, this License shall terminate upon 30 days' written notice to Licensee from Railroad. 15. SUCCESSORS AND ASSIGNS. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Railroad, 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 Railroad, shall terminate this Agreement. Subject to the provisions herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. 6 16. GENERAL,. A. Non -Discrimination. Licensee agrees that, in performing under this Agreement, neither it nor anyone under its control shall permit discrimination against any employee, worker, or applicant for employment because of race, creed, color, religion, national origin, ancestry, sex, age, handicap, or veteran status. B. Execution As Dn.,plicate Originals. This Agreement may be executed as several duplicate originals any of which shall serve as an original for all purposes. C. Headings. All headings, including the title page and contents page, set forth in this Agreement are intended for convenience only and shall not control or affect the meaning, priority, construction, or effect of this Agreement or any of the provisions herein. D. Separability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not necessarily invalidate or render unenforceable any other provisions contained herein. E. Governing Law. This Agreement shall be governed exclusively by the applicable laws of the United States of America and the State of Missouri. F. Modification. This Agreement may be modified at any time only by the written agreement signed by both parties hereto. G. Inclusiveness. This Agreement in its entirety covers all the covenants and agreements between the Railroad and Licensee and can only be changed, renewed, or extended in writing by both the Railroad and Licensee. H. Notice. Notice shall be such written communications as are required by this Agreement for the purpose of giving notice in accordance with any paragraph herein. Written notice when required shall be deemed sufficient and delivered when deposited in the U.S. Mail as certified mail, return receipt requested, and sent to party's last known address. Address may be changed by written notice as herein provided: Railroad's Address: Sema Port Railroad, Inc. c% Southeast Missouri Regional Port Authority 10 Bill Bess Drive Scott City, MO 63780 Licensee's Address: City of Cape Girardeau, Missouri P.O. Box 617 Cape Girardeau, MO 63702 17. SIGNATURES. (see next page) 17. SIGNATURES. IN WITNESS WHEREOF, upon the day and year first hereinabove written, the respective parties hereto have executed this Agreement, personally or by officers of agents thereunto duly authorized. Railroad: Semo Port Railroad, Inc. By Print Name: Title: V te- C6 "� Date: a)) 7i (append acknowledgements) 8 Licensee: City of Cape Girardeau, Missouri Title: 6"' /• _ Date: /i STATE OF MISSOURI ) COUNTY OF _ ON,d 0-�1I SS. On this 13�ay of 2012, before me appeared ,,JG 11 V to me personally known, who being by in duly sworn, did say that he is the \)1. � h,Cr iCMC o of the Semo Port Railroad, Inc., a Missouri corporation, and that said instrument was signed on behalf of said corporation, by the authority of its Board of Directors and acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. I My commission e STATE OF MISSOURI ) SS. COUNTY OF CAPE GIRARDEAU ) On this day of Fe v 2012, before me appeared J t-- o t� A - VIN -e 'e to me personally known, who, being I by me duly sworn, did say that he is the r of the City of Cape Girardeau, Missouri, a Municipal Corporation of the State of Missouri, d that the seal affixed to be foregoing instrument is the seal of said City and that the said instrument was signed and sealed in behalf of said City by authority of its City Council and acknowledged said instrument to be the free act and deed of said City. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first written above. OMMORTRIMIN Oky P �'� = o "' l/��' MARTHA J. BROWN My commission expires: • kfy Commission Expires * December 6, 2013 SEALI Cape Girardeau County Commission #09400060 cb 1p y — j�/ Z 0- 0 22-1 zoo a5k� Z 0 W LL W IL FS � I 0oz `i m�r9 N r I�IL N J&Z 0 0 wp I: LU LU ib �N I I° - - - JUL -1 - - I. a I. I I I r r I I I it erronrrmmiw orwsaolwramim�x�a�wu amwvr eraor,somm� awatoti Locust meet i CP KASTEN CONCRETE I $ DBOOK S37 hoc ® gig IDEED BOOK 278, PAGE 435 I OEEED BOOK 407, PAGE 338 II I ILII I L — — I KAM CITE PRODUCTS. HTC. SU -22'18'E DEED BOOK 405, PAGE 628 100.05' v POINT OF 8EGINNINC v C14U I N84 22'18"W 100.10' I ' EAU WASTEWATER TREATMENT PLANT DEED BOOK 315 PAGE 841 FIGURE 3. LEGEND CITY OF CAPE GIRARD I POINT OF 0011YENCENENT HiTERSECIION OF THE SOUTH RIGHT OF WAY tprE OF COOPER STREET AND THE EAST LME OF t SE6W PORT RAILROAD, W. RIGHT OF WAY LIKE COoper `�eet I CITY OF CAPE i;IRIWOEAU GEED BOOK 764 PAGE 448 GEED BOAC 548 PAGE 880An TABLE The City of Cape Gin Wastwater Treatment ENGINEERING EASEMEt�IT' E.XHB3TT 194 aaacat LMEc� cut�Au, wo e37m (s>� =- 3026 = a PERMANENT EASEMENT 3,002 SQ. FT. N GRAPHIC SCAL100 w 100 E W E ( Ix >�r) S 1 inch = 100 tk KE_ KOEHLER ENGINEERING & LAND SURVEYING, INC. 194 COKER LANE CAPE GIRARDEAU, MO 63701 PH: (573) 335-3026 FX: (573) 335-3049 City of Cape Girardeau Wastewater Treatment Facility Descriptions for Easement from Semo Port Railroad, Inc. Permanent Easement: THAT PART OF OUTLOT 65 IN UNITED STATES PRIVATE SURVEY 2199, TOWNSHIP 30 NORTH, RANGE 14 EAST, CITY AND COUNTY OF CAPE GIRARDEAU, DESCRIBED AS FOLLOWS: Commence at the intersection of the South Right of Way line of Cooper Street and the East line of Semo Port Railroad, Inc. Right of way; thence with said East line of Semo Port Railroad, Inc. Right of Way along the arc of a curve to the Southwest being concave to the Northwest along having a radius of 2325.03 feet and a distance of 28.59 feet, (the chord of said arc bears South 07002'45" West, 28.59 feet), to the point of beginning; thence continuing with said Right of Way along the arc of a curve to the Southwest being concave to the Northwest and having a radius of 2325.03 feet and a distance of 30.02 feet, (the chord of said arc bears South 07046'04" West, 30.02 feet); thence leaving said Right of Way line North 84022'18" West, 100.10 feet, to the West line of said Semo Port Railroad, Inc. Right of Way; thence with said Right of Way line along the arc of a curve to the Northeast being concave to the Northwest and having a radius of 2225.03 feet and a distance of 30.02 feet, (the chord of said arc bears North 07'51'51" East, 30.02 feet); thence leaving said Right of Way South 84°22'18" East, 100.05 feet, to the point of beginning and containing 3,002 square feet, more or less.