HomeMy WebLinkAbout30503 / 79-32A D D E N D U M
I�oember 6, 1979 # 32 RESOLVrZpN
PLJf2POSE: AGR_._��PP S4rPfI I2AILRQIID
It1ITIATED BY: ��A�7P OF PUBLIC WORKS
BE IT �.�=�,i`.D by the Comron Coimcil of the Gity of Oshkosh t�hat the proper
Gity officials �-e hereby authorized and directed to enter into an agreement with
the Chicago, Milaaukee, St. Paul and Pacific RaiLroad Ccx[�any £or the ptupose
of allaaing the City of Oshkosh to install and msintain water and sewer lines
beneath a portion of railroad right of way.
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PIPE LINE AGREEbIENT
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THIS AGREERZENT, made and
and bet�veen �X�ffiYgX�4A'S
Jb'f��S3Gi6iS�:�F-�ti]�Et�d(3�%��(dcid(3C�iSYf�(X�1��S�Y�HEp( tne iHUS�tt ot tne property ot tne'
CHICAGO� MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, DEBTOR, hereinafter referred
to as the "Railroad", and
CITY OF OSHKQSN, WISCONStN
, hereinafter called the "Licensee," (if more than one
licensee,said term znd all language herein rsferring thereto shall be interpreted in the plural and refers
jointly and severally to such licensees).
NITNESSETH
That WHER��, the licensee desires the right to install, maintain and operate a certain pipe upon,
along and under tha P.ulmad's premises at or near Oshkosh
Winnebago County� Wisconsin
to be used for the p*�.-�osa hereinafter set forth.
NO�V, THER-'03E, the parties mutually agree as follo�vs:
1. The Railroa;:, `_or and in consideration of the payments and covenants hereinafter mentioned to be
made, kept and peror�ed by the Licensee, does hereby Iicense and permit said Licensee to construct, install,
and thereafter duri :o tbe term hereof to maintain and operate under, along and across the Railroad's
property in the manner 2nd subject to the terms and conditions herein provided, �(certain pipes to be used.
only for the purpose o: water 1 i nes and a san i tary sewer , in the ]ocation or ]oeations
shown by the yellow lines between points lettered "A-B", "C-D" and "E-F"
upon the map attached hereto, marked "Exhibit X", dated September 20, 1g79
and made a part hereo;. The boundaries of the railroad right of way are located as shown Uy the heavy dash
and two dot lines.
of not to exceed inches. At all points �vhere said pipe passes b ' oe or tracks the
same shall be installed and maintained 1t such op o said pipe, or ahy casing which may
contain it, sh111 be feet, measured vertically, belok• the base of the rails of any
Pipz "A-B" shall be a 21 inch concrete pipe encased in a 36 inch steel pipe at a depth
of 9.5 feet from base of rail to top of casing.
Pipe "C-D" shal} be a 16 inch ductile iron pipe encased in a 26 inch steel pipe at a
depth of 8.0 feet from base of rail to top of casing.
pipe "E-F" shalt be a 12 inch ductile iron pipe encased in a 22 inch steel pipe at a
depYh of 10.0 feet from base of rail to top of casing. '
The speci=ications for materials and construction procedures.shall be as outlined
on said "ExhiSi- ���, anA shall be in accordance with the standard specifications for
pipelines mar��^ "ExhibitA". furnished by the Railroad, which the Licensee acknorrledges
having receive-__ ' . �
3. The word -�" wherever used herein, not otherwise herein modified, shall be construed to mean all
of the pipes above ==�=�zd and the casings and othex coverings and all appurtenances thereof.
4. This agree �,hall be a`Fective from and after the date hereo# and shall continue in full force and
efFect until termir.a� � �ome one of the ways hereinafter provided. ' �
5. X4(Bld(XXd'e�Y�.�fYil�(��lf�Qt2(iC3(A�FiCiE�4�I�14x�Y��S�(X�YXt3Hf����l4X�El4x�X�'fX,�Al�(-X�t�l4K
�������"%�`���''i����' �����bkXThe Licensee shall pay all assessments or taxes which
may be assessed or ;e^e3 a�ains; or on �ccount of said pipe, or the use thereof and sh111 indemnify and save
harmless the Railro�a: :u�d the.Railroad's roperty from and against any und all licns or claims on account
oP any such assessmezT.s or tases. ,
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G. The Licensee shall Uear the entire cost and expense incurred in connection with the consttvction, '�
maintenance, renewal and removal of said pipe, including all cost and ezpense incurred by the 7:uilroad in
connection therewith for all worlc performed tmd materials used, and for supervision and inspection. All work
of install.�tion, 1lteration, maintenance nnil removal of said pipe within the limitg of the right of way of the
liailro�id sha(1 be done by the Licensee under the supervision, and to the satisfaction of, the superintendent
of the P.ailroad, and no work shall be dotte by the Lieensee upnn the premises of the ftailroad without first
notifying said superintender.t of Licensee's desire so to do, provided thatihe Raitmad may perform any work
by it deemed necessary to sirpport any of its tracks while such work is being done and any work necessary to
restore the track and roadbed to their former condition, or any other work by it deemer] necessary to be done
upon its right of way by rcason of the installation, alteration, maintenance or removal of said pipe, and the
Licensee agrees to repay to the Railrond promptly upon the rendition of bi]s therefor the cost of all such
work so done by it. "Cost° as used in this agreement shall mean a11 assigr_able costs, plus XO% on all labor
items to cover elements of expense not capable of exact ascertainment, and shall include charges for trans- �
portation of inen and material at tnriff r�tes. and store expense on materiat.
. � - � : • � x . � .
7. The said pipe, and all p�rts thereof, whether within or �vithout the limits of the premises of the
Railroad, shall be constructed and at all times maintained, repaired, rene«ed and operated in such manner
as to cause no interference whatsoever with the constant, continuous, and uninterrapted use of the tracks,
fncilities, property and premises of the Railroad, both as regards operation, maintenance, repairs and renew-
als, or new construction by the Railroad. Iv�othing shall be done, or suffereci to be done, b,y the Licensee at any
time thlt will in any manne: interfere with or impair the usefulness of any tracks, improvements, or other
facilities, now or herea=ter maintained upon said railinad premises, or in any way interfere with, ohstxuct or
endanger, railroad o�:ation thereon; and if at any time the Rai)road shall be of the opinion that the pres-
ence, condition or u� ef said pipe in any way interferes with the operation of the railroad, or any use which
the Aailroad desires :o �ake of its property, it may forthwith require the Licensee to remove, alter or repair
said pipe, or may re^o: a, alter or repair the same at the cost of the Licer,see.
8. '-'
ings from �vhich th� ;:�ag and
the depth in feet fr^— -',� ha�o
are eri o less than 1.25 times
� om of the trench, plus 6.5 feet, from the center line
9. The Railroa� _all have the right at any and all times to raise or lower its grade, to mal:e such
changes in its existin� �ck or tracks, roadbeds, structures and facilities os in the present standards thereof
and to construct, main*,�=n at:d operate such additional roadbeds, tracks, �tructures and fncilities on said
right of way and over and across said pipe as from time to time it may elect and ma}• do �vhltever is neces-
sary to enable it to use said railroad premises for all la�vful purposes; and ihe Licensee agrees, at Licensee's
sole cost, and within ten days after written notice from the Railroad so to do, to remo��e said pipe or make
such changes in, additions to or chan�es in the location thereof, as may in the judgment of the Railroad be
necessary to conforrti to tne chinges, alterations or new construcLion by the Railroad. If the Licensee shall
fail so to do the Railrold may, if it so elects, in addition to any other remedy which it may have, i•emove
said pipe or make such changes in, additions to or changes in the location thereof as are necessary for said
purposes and the Licensee agrees to �ay promptly upon rendition of bill ihe cest thereof. Provided, that the
Railroad may in any ecent at its election do any of such work required to be none upon it, right of �-ap with-
out notice and for all such work the Licensee likewise agrees to pay promptl5 upon rendition of bill the cost
thereof. All the tierms, conc:itions ancl stipulations herein expressed with reaerence to the construction, main-
tenance, repaic, renewsil or removal of said pipe in the location above describecl shall apply to the same as
relocated, changed or modified within the contemplation of this section.
10. ' . �. . - � -
all other outstandin� ar.d sugerior rights, if anp, abd the Licensee shaIl noL bv ° icense hereby
granted lccjuire or"assert any title or claim of title to anv v a verse to the title of the Rail-
road or its successors, and upon anv a e use hereby authorzed or upon anp termination of
the license hereb ,. i e shall xemain in the Railx�oad, its successors and assigns; free and clear
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ll. As a material consideration to the Failroad for enterino into this agreement, and without which
the Railroad would not enter into same, the Licen9ee agrees to, and herebp does, release, indemnify and save
hai•mless the Railroa'� Sts officers, aaents and emnloyes, from and against any and all ]iability, ]OSS� cost,
damage, expense, ac��r� and claims for personll injuries, including death, reoardless of cause, sufiered by
anp person whomsoe•�er while upon the P.ailrond's premises in eonnection tivith the construction, operltion,
maintenance, repair, -E_ewal or removal of s�id pipe, or £or personal injuries, including death, suffered by
any person whomse�: _ er for or a3•ising out of damage to or destruction �f property of any part,v whomso-
ever, including the �^_es hereto, in any manner arising out of or caused or co-�!rihuted to by the existence. -
presence, constructa� �aintenance, condition, operation, repair, renewal, use or removal o� said pipe.
12. This licensa —=c liA terminated b}� the Raitroad forthwith for any- breach of any of the covenants
or agreements here = T�zined to be performed bp the Licensee, and this right is in addition to any other
rights at law or in F__-= zi•isir.g by reason of such breach. Failure to termflnata for any such breach shall
not constitute n wa;.-_ .,' anv future breach. The rights of the Licensee shail also terminate in case Licensee
shall abindon the u� -: said pipe ar fail to use the same for a period of one year. The Railroad may a]so
without cause revoke �c �err*iinate this license by giving thirty da��s'notice in �vriting, mailed to the Licensee
at the address noted =—:�� tne si�-natare of the License.e hereto. Should said pipe be permitted to be in bad
order or condition in �e judgment of the Railroad, for any continuoos period of t�venty-four hours, the
P.:iilroad may )ikewi�r >:o'.ce this license without notice. �Vithin ten da�•s after any termination of this -
agreement the Licen_� shall remove all property of the Licensee from that portion of the right of way of
the Hailroad not occc.'ed by the roadbed or trac;cs, and shall restore to the satisfaction of the Railroad's
superintendent the said _^'ght of way to as good condition as it was in at th� time of construction of said pipe, :
and if the Licensee fa:3 w to do the Failrold may do such �vork of removal and restoration at the cost and '-
expense of the Licensee_ The Railrold may at its option vpon any termimation, at the cost and expense of =:
the Licensee, remove the portion of s1ic1 pipe loeated under said roadbed, trsck or tracks, and restore said :_W ,:' ,�-
roadbed to as good condition as it �c.�s in at the time of the construction o# sxid pipe, or it may permit the -
Licensee to do such wor;: of removal and restoraCion under the supervivon of the Railroad s supenntendent k y
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In case of termination in any manner herein provided the Licensee shall have no claim or redress of any
character against the Railroad by reason of such termination, removal of said pipe or restoration of the
premises, nor shall such termination release the Licensee from any obligation or liability of the Licensee
hereunder �vith respect to any matter or thing occurring prior to such termination.
13. The terms and conditions of thi, agreement shall be binding u��on and the benefits thereof shall
accrue to the heirs, esecutors, administrators, successors and assigns of the respective parties hereto, but
the Licensee ::hall not assign tha same or any rights thereunder without the written consent of the Railroad
having Ueen ;:�t obtained. In the event the RaIlroad shall permit any other railroad company or companies
to use its said right of way facilities or premises, vuch other user or users stiall have the benefit of the
provisions of indemnity and i•elease from liability inuring to the Railroad hereunder, with the same effect as
if such other user or users were parties hereto.
14. The license hereby granted is subject to the superior title of the Railroad to
its said property and to all other outstanding and superior rights and martgage liens,
and the Licensee shall not by reason of the license hereby granted acquire or assert
any title or claim of title to any of said property adverse to the title of the
Railroad or its successors or such superior rights and mortgage liens; and upon any
abandonment of the use hereby authorized or upon any termination of the license hereMy
granted, such titte shall remain in the Railroad, its successors and assigns, free a�d
clear of all rights or claims of the Licensee.
�5• This agre>�ent is binding on the 7rustee, not as an individual, but solely in
his capacity as Trustee.
16. A11 rePe->^ces Ferein to indemrtification include but are not limited to
attorneys' fees z-c court costs.
IN �VITNESS �VHEREOF, the parties hereto have executed this agreement the day and year first above
written. THE TRUSTEE OF TtiE PROPERTY OF
CHICAGO, biIL�YAUKEE, ST. PAUL AND PACIFIC
RAILROAD CObIPAIr'Y,
Attest:
Attest:
-�r..'.�� - ' '
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�--������-��--�-� Vice President-Chief Engineer
Secretar9 _ �
CI'iY OF OSHKOSH, WISCONSIN
Licenxe
B9......----`---
Title;
Secretarp
Address:
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