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ORD 37640 - Easement agmts with Westway Termina Company re Gibson Rd viaduct project V 6 `, ' Pis F Public Works Department �`�r?f's�►, 6, Omaha/Douglas Civic Center 2 �IjII('J ..rad y^, C• �" 1819 Farnam Street,Suite 601 T®l rt( =q, January 23, 2007 12�� �^��'W �^� "� ,`� Omaha,Nebraska 68183-0601 Aok 4y (402)444-5220 �TFD FEBRJr i Fax(402)444-5248 it r City of Omaha °i Vi :',:" _ ` , Robert G.Stubbe,P.E. Mike Fahey,Mayor Public Works Director Honorable President and Members of the City Council, Transmitted herewith is an Ordinance requested by the Public Works Department approving two Easement Agreements associated with the Gibson Road Viaduct Project a/k/a Special Project 90-03. We acquired right-of-way through property owned by Westway Terminal Company (Westway) for the elevated Gibson Road Viaduct. The first Easement Agreement provides Westway the ability to use the right-of-way under the viaduct for access to that portion of the Westway property which would otherwise be cut off. The second Easement Agreement clarifies an existing roadway easement that exists for the benefit of the City of Omaha and provides secondary access to the City of Omaha's Missouri River Wastewater Treatment Facility. The location of the roadway is being shifted due to this project and this document specifies its location. This Ordinance authorizes the Mayor to execute the attached Easement Agreements. Your favorable consideration of this ordinance is respectfully requested. Respectfully submitted, Referred to City Council for Consideration: j -z -a7 2cY/ if i—S----4.7 obert . Stubbe, P.E. Date Mayor's Office Date ublic Works Director P:\PW 1\16946maf.doc ast; that the printed notice hereto attached was published in THE City Clerk .7.1A-m DAILY RECORD,of Omaha,on • • February 14 , 2007 Th a \aper during that time was regularly published and in the County of Douglas, d State of Nebraska. R.-.• NE.RP.( ' e. :. Nos PRE ON••+ -;( Subscribed in my p en and sworn to before `'� c2 4 50 me this 14th day of Pul�lisl� �s $ XI. dditiona1 Copies -• , sjATE t ��� t u c in an for Douglas County, • State of Nebraska .Legislative Chambers, Omaha/Douglas Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska 1 ' ORDINANCE NO. cOl i/D AN ORDINANCE providing for the Mayor to sign and the City Clerk to attest the execution of Two Easement Agreements with Westway Terminal Company (Westway) which are associated with the Gibson Road Viaduct Project a/k/a Special Project 90-03; and to provide an effective date thereof. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA: Section 1. That the Mayor of the City of Omaha, notwithstanding the procedure outlined in Section 27-51 to 27-75 of the Omaha Municipal Code, is authorized to execute and the City Clerk to attest the attached Easement Agreement which provides Westway Terminal Company the ability to cross property it deeded to the City of Omaha as described herein, as long as it does not interfere with the City's use of the property. Section 2. That the Mayor of the City of Omaha is authorized to execute and the City Clerk to attest the attached Easement Agreement which provides the City a secondary access to the Missouri River Wastewater Treatment Facility in exchange for certain consideration. Section 3. That this ordinance shall be in full force and take effect on the date of its passage. INTRODUCED BY COUNCILMEMBER APPROVED BY: __Aticia_____ MAYOR OF THE TY OF OMAHA DAT PASSED FEB - 6 2007 6 -O ATTEST: \ ! ; CI"1 Y ERK OF TH CITY OF OMAHA ATE APP _ « 410-7 CITY ATTORNEY DATE P:\PW 1\16948maf.doc favorable consideration of this ordinance is respectfully requested. Respectfully submitted, Referred to City Council for Consideration: j -z -a7 2cY/ if i—S----4.7 obert . Stubbe, P.E. Date Mayor's Office Date ublic Works Director P:\PW 1\16946maf.doc ast; that the printed notice hereto attached was published in THE City Clerk .7.1A-m DAILY RECORD,of Omaha,on • • February 14 , 2007 Th a \aper during that time was regularly published and in the County of Douglas, d State of Nebraska. R.-.• NE.RP.( ' e. :. Nos PRE ON••+ -;( Subscribed in my p en and sworn to before `'� c2 4 50 me this 14th day of Pul�lisl� �s $ XI. dditiona1 Copies -• , sjATE t ��� t u c in an for Douglas County, • State of Nebraska .Legislative Chambers, Omaha/Douglas Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska MEMORANDUM DATE: December 22, 2006 TO: President and Members of the City Council FROM: Tim Phelan, Right of Way Agent RE: Gibson Road Viaduct Easements The City of Omaha is proceeding with the construction of the "Gibson Road Viaduct" which is located near 11th and "M" Streets and will intersect with 13th Street between "M" Street and Archer Avenue. In order to construct the viaduct, the City of Omaha needed to acquire portions of abutting properties. One of the property owners affected by the project is Westway Terminal Company located at 1111 M Street. The alignment of the new elevated viaduct creates a situation where Westway's property is severed into two parcels with the viaduct between them. The smaller parcel (located at the northwesterly corner of there site) would not have access to connect with the larger parcel and could have resulted in the City paying greater damages. Through negotiation, the City agreed to allow for access between the two parcels, provided this access would not interfere with the City's use of the property for a viaduct, abutments, or utility use. Additionally, as a part of the Gibson Road Viaduct Project the City wishes to improve the existing roadway which crosses the land of Westway and is used by both parties. This roadway serves as a secondary access to the City of Omaha's Missouri River Wastewater Treatment Facility, and will be slightly realigned to conform with the new viaduct. The City of Omaha currently has an easement for the existing roadway which provides a nonexclusive right of ingress and egress across Westway's property. Both parties desire to clarify the terms, conditions, and areas affected by the existing easement. Consequently, both the City of Omaha and Westway Terminal Company have agreed that it would be in the best interest of each to enter into a new easement agreement, which will serve as a supplement to the original easement agreement. The Public Works Department has submitted the following ordinance which approves the two Easement Agreements discussed. The Public Works Department respectfully requests approval of this ordinance and I would be more than happy to answer any questions that you may have. cc: Robert G. Stubbe, Public Works Director P:\Pwl\16947maf.doc 14th day of Pul�lisl� �s $ XI. dditiona1 Copies -• , sjATE t ��� t u c in an for Douglas County, • State of Nebraska .Legislative Chambers, Omaha/Douglas Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska . EASEMENT AGREEMENT This Easement Agreement is made and entered into this 64 day of free e , 2006, by and between Westway Terminal Company, Inc., a Delaware Corporation, hereinafterr referred to as ("Westway"), and the City of Omaha, Nebraska, a Municipal Corporation, hereinafter referred to as ("City"); WHEREAS, Westway and City entered into an Easement Agreement dated October 5, 1956, recorded in Book 341 Page 553 of the Miscellaneous Records of Douglas County, Nebraska, which provides a nonexclusive right of ingress and egress over and across portions of Westway's property by the City; and, WHEREAS, the City of Omaha is in the process of constructing the Gibson Road Viaduct and appurtenances thereto; and, WHEREAS, as part of the Gibson Road Viaduct project the City desires to improve the existing roadway which crosses the land of Westway and is used by both parties; and, WHEREAS, the City of Omaha needs to retain the ability to use the road to provide secondary access to the City of Omaha's Missouri Wastewater Treatment Facility; and, WHEREAS, the location of the improved roadway will be different than that which has been in existence in the past; and, WHEREAS, the two parties desire to clarify certain terms and conditions and more specifically define areas in the existing easement agreement; and, WHEREAS, the parties have agreed to the terms and conditions described herein. NOW, THEREFORE, in consideration of the above-referenced matters the parties agree as follows: 1. Westway does hereby grant unto the City of Omaha and its heirs, assigns, agents and contractors, the perpetual right for the purpose of use as a roadway for ingress and egress over and across a parcel of land described as follows, to-wit: A 30 foot wide easement for roadway purposes,being 15 feet on each side of the following center line description of the roadway: Commencing at the Southwest corner of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter of Section 3, Township 14 North, Range 13 East of the 6th P.M. in Douglas County, Nebraska; thence N86°53'40"E along the South line of said Tax Lot 27 for a distance of 261.89 feet to the point of beginning; thence N15°24'03"E for a distance of 16.50 feet; thence on a non-tangential curve to the left with a chord bearing of S08°20'29"E, chord length = 18.98 feet, radius = 49.80 feet, for a distance of 19.09 feet; thence NO2°37'11"W for a distance of 315.52 feet; thence on a non-tangential curve to as Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska the right with a chord bearing of S12°22'45"E, chord length = 103.52 feet, radius = 200.00 feet, for a distance of 104.71 feet; thence N27°22'41"E for a distance of 101.63 feet to a point on the north property line of subject property, said point also being the point of terminus for the centerline description. The location of the perpetual roadway easement, legally described above, is shown on the attached Exhibit A. 2. In consideration of the grant of the above-referenced perpetual roadway easement, the City agrees to improve the roadway with a nine (9) inch concrete surface which shall be twenty-four(24) feet wide. 3. The City will provide three driveway approaches to Westway property from said roadway. These driveway approaches will be generally located where the existing driveways are with an additional driveway approach near the northerly property line of the Westway property. The northerly two driveway approaches will be slightly relocated at a new angle relative to the existing entrance as shown on the attached Exhibit B. 4. Westway agrees that after the initial construction of the road, it shall be responsible for the maintenance, repair and general upkeep of the access road constructed by the City within the confines of the property owned at the time of this agreement. Westway shall not be responsible for any maintenance, repair and general upkeep of the public street that is north of the existing property lines. 5. Westway may enclose the access road with a padlocked gate, or some other security gate system if they so desire. In the event that this occurs, Westway shall provide the City of Omaha with a key to the padlocked gate or the appropriate codes to gain access at all times. Neither party shall restrict the other the reasonable use of the access road. 6. The grant of this Easement runs with the land and shall be binding on and shall inure to the benefit of the parties hereto, their heirs, successors or assigns. 7. This Easement shall only terminate with the mutual agreement of the parties. e 6th P.M. in Douglas County, Nebraska; thence N86°53'40"E along the South line of said Tax Lot 27 for a distance of 261.89 feet to the point of beginning; thence N15°24'03"E for a distance of 16.50 feet; thence on a non-tangential curve to the left with a chord bearing of S08°20'29"E, chord length = 18.98 feet, radius = 49.80 feet, for a distance of 19.09 feet; thence NO2°37'11"W for a distance of 315.52 feet; thence on a non-tangential curve to as Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska CITY OF OMAHA-,a Municipal Corporation ATTEST-"\ `, w 1/do By r jta.i' ,2/8/D7 Buster Brown \ Michael Fahey, , City Clerk, City of Omaha T Mayor, City of Omaha APPROVED AS TO FORM: /2-/er'l" D CITY ATTORNEY STATE OF NEBRASKA) COUNTY OF DOUGLAS) On this day of , 2007, before me, a Notary Public in and for said County, personally came Michael Fahey, Mayor of the City of Omaha, Nebraska, a Municipal Corporation, to me personally known to be the respective officer of said Municipal corporation and the identical person whose name is affixed to the foregoing instrument, and acknowledged the execution thereof to be their respective voluntary act and deed as Mayor and the voluntary act and deed of said Municipal Corporation. WITNESS my hand and Notarial Seal the day and year last above written. Notary Seal: &-ry? GENERAL NOTARY-State of Nebraska NOTARY PUBLIC CYNTHIA I.FORD My Comm.Exp.Aug.16,2007 STATE OF NEBRASKA) COUNTY OF DOUGLAS) On this 8;c day of , 2007, before me, a Notary Public in and for said County, personally came Buster Brown, City Clerk of the City of Omaha to me personally known to be the respective officer of said Municipal corporation and the identical person whose name is affixed to the foregoing instrument, and acknowledged the execution thereof to be their respective voluntary act and deed as City Clerk and the voluntary act and deed of said Municipal Corporation. WITNESS my hand and Notarial Seal the day and year last above written. Notary Seal: C----- -L irLk____ GENERAL NOTARY-State of Nebraska le CYNTHIA 1.FORD NOTARY PUBLIC My Comm.Exp.Aug.16,2007 1 des to gain access at all times. Neither party shall restrict the other the reasonable use of the access road. 6. The grant of this Easement runs with the land and shall be binding on and shall inure to the benefit of the parties hereto, their heirs, successors or assigns. 7. This Easement shall only terminate with the mutual agreement of the parties. e 6th P.M. in Douglas County, Nebraska; thence N86°53'40"E along the South line of said Tax Lot 27 for a distance of 261.89 feet to the point of beginning; thence N15°24'03"E for a distance of 16.50 feet; thence on a non-tangential curve to the left with a chord bearing of S08°20'29"E, chord length = 18.98 feet, radius = 49.80 feet, for a distance of 19.09 feet; thence NO2°37'11"W for a distance of 315.52 feet; thence on a non-tangential curve to as Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska Westway Terminal Company Inc., a Delaware Corporation PRESIDENT or AUTHORIZED OFFICER ATTEST: (Name Title) (Name and Title) WAYNE N. DRIGGERS , PRESIDENT VICTORIA SABRIO, OFFICE MANAGER STATE OF LOUI S IANA ) (Corporate Seal) PARISH ) SS e am=OF ORLEANS ) On this 24 th day of OCTOBER , 20 06 , before me, a Notary Public in and for said • County, personally came WAYNE N. DRTGGERS , PRESIDENT (Name) (Title) of Westway Terminal Company Inc., a Delaware Corporation, and VICTORIA SABRIO OFFICE MANAGER , of said Corporation, (Name) (Title) to me personally known to be the respective officers of said corporation and the identical persons whose names are affixed to the foregoing instrument, and acknowledged the execution thereof to be their respective voluntary act and deed as such officers and the voluntary act and deed of said Corporation, and the Corporate Seal of said Corporation to be thereto affixed by its authority. WITNESS my hand and Notarial Seal the day and year last above written. NOT Y .4:LIC Notary Seal: Thomas P.Anzelmo,Jr., Notary No. 61268 is affixed to the foregoing instrument, and acknowledged the execution thereof to be their respective voluntary act and deed as City Clerk and the voluntary act and deed of said Municipal Corporation. WITNESS my hand and Notarial Seal the day and year last above written. Notary Seal: C----- -L irLk____ GENERAL NOTARY-State of Nebraska le CYNTHIA 1.FORD NOTARY PUBLIC My Comm.Exp.Aug.16,2007 1 des to gain access at all times. Neither party shall restrict the other the reasonable use of the access road. 6. The grant of this Easement runs with the land and shall be binding on and shall inure to the benefit of the parties hereto, their heirs, successors or assigns. 7. This Easement shall only terminate with the mutual agreement of the parties. e 6th P.M. in Douglas County, Nebraska; thence N86°53'40"E along the South line of said Tax Lot 27 for a distance of 261.89 feet to the point of beginning; thence N15°24'03"E for a distance of 16.50 feet; thence on a non-tangential curve to the left with a chord bearing of S08°20'29"E, chord length = 18.98 feet, radius = 49.80 feet, for a distance of 19.09 feet; thence NO2°37'11"W for a distance of 315.52 feet; thence on a non-tangential curve to as Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska EXHIBIT "A" jr,-) f i "I' Att 4,411/ 696.70' CITY OF OMAHA S. P. 90-03A PUBLIC WORKS DEPARTMENT er and by virtue of the authority granted by Section 2.12 of the Home Rule Charter of the City of Omaha, 1956, as amended. INTRODUCED BY COUNCILMEMBER APPROVED BY: ahles7 PASSED ON 3 �Q� ACTING MAYOR OF THE 1lY OF OMAHA DATE ATTEST: 1 C Y CLERK OF F THE CITY OF OMAHA DAM- APPROVED AS TO FORM: • //,4 />_-(?-,tge iITY ATTORNEY DATE P:\FIN\14848pjm.doc Prepared by and return to: Patrick D. Pepper McGrath, North,Mullin&Kratz, PC LLO Suite 3700, 1601 Dodge Street Omaha, NE 68102 EASEMENT AGREEMENT EASEMENT AGREEMENT ("Agreement"), made and entered into this (g day of THIS , 200f a "Effective Date"), by Westway Terminal Company, Inc., a Delaware corporation ('Westvdfy"), and City of Omaha, a municipal corporation organized under the laws of the State of Nebraska ("City"). RECITALS A. Westway is the owner of that certain real estate located in Douglas County, Nebraska and legally described on Exhibit "A" attached hereto and incorporated herein by reference (the "Westway Property"). B. City recently purchased and is the owner of that certain real estate that was a portion of Exhibit "A" located in Douglas County, Nebraska and legally described in Exhibit "B" attached hereto and incorporated herein by reference (the " City Property"). The City purchased the City Property from Westway to construct a viaduct upon and above the City Property. C. The City desires to grant Westway access by any means, including but not limited to pedestrian, rail, vehicular, and pipeline access over the City Property to the extent that such grant does not interfere with the City's use of the property for a viaduct, abutments, and utility use. WITNESSETH NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Easement. City does hereby grant to Westway, its successors, heirs, assigns, invitees, licensees, lessees and agents, the perpetual right of ingress and egress in, on, over and across the full extent of the City Property (also referred to as the "Easement Area") by any means, including but not limited to for pedestrian, rail, vehicular, and pipeline access to the 7. This Easement shall only terminate with the mutual agreement of the parties. e 6th P.M. in Douglas County, Nebraska; thence N86°53'40"E along the South line of said Tax Lot 27 for a distance of 261.89 feet to the point of beginning; thence N15°24'03"E for a distance of 16.50 feet; thence on a non-tangential curve to the left with a chord bearing of S08°20'29"E, chord length = 18.98 feet, radius = 49.80 feet, for a distance of 19.09 feet; thence NO2°37'11"W for a distance of 315.52 feet; thence on a non-tangential curve to as Civic` • • Center, 1819 Farnam Street, at which - hearing all persons interested may be heard.} • • BUSTER BROWN, City Clerk That • wgRaper during that time was regularly published and �. 26 o7 >�ic{ iifioUin the County of Doug! • State of Nebraska. in g 'i ER,:�' f�.iyr, , . � { NOTARY • Subscribed in my,s-sence and sworn to before • P Ii§iler''re IRE N 3 a r`� me this ' 2 6th 'day of A 'tioiLitl opies • anua p 7 • dj. ' '6 2O' ;- Q, F��� t Pub an r D glas County, tate of Nebraska • Westway Property to the extent that such grant does not interfere with the City's use of the property for a viaduct, its abutments, and utility use. Should Westway construct a facility of any type on its property west of the viaduct, the City grants Westway subsurface utility line easements through the Easement Area, as long as the use of the subsurface utility line easements does not interfere with the City's use or the use of any entity permitted to use the easement area by the City. Further, Westway agrees to coordinate placement of any utilities with the City and to provide as-built plans to the City for any utility use after installation. The grant includes all rights reasonably necessary to utilize such easement for the construction of a permanent spur track over the City Property. The City's approval or rejection of Westway's use of the easement must not be unreasonable. 2. No Waiver. The failure of either party to enforce its rights under this Agreement for any period of time shall not constitute a waiver of any rights hereunder, and the waiver of any rights under any particular term or provision hereunder at any particular time shall not prevent a party from later enforcing such term or provision. 3. Run With the Land. This Agreement shall not terminate with the sale or encumbrance of either the burdened or the benefited property but shall be perpetual and run with the land and be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto. 4. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Nebraska. 5. Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof. This Agreement shall not be modified except by a written instrument signed by the party against whom enforcement is sought. 6. Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby. The paragraph headings are for convenience and reference only and shall not limit or otherwise affect the meaning hereof. 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- 1 the right to do so thereafter. Invalidation of any one of these covenants, conditions or restrictions shall in no way affect any other provisions which shall remain in full force and effect. 10. Indemnification. Except as limited by the obligations itemized in other paragraphs of this Agreement, or by the City's negligent actions, Westway shall indemnify and hold City harmless from and against any claims, demands, liabilities, fines, losses, damages, expenses, charges or costs (including attorney's fees) based on or arising from Westway's negligent use of the City Property, as well as any injury to person(s), including death, resulting from the exercise by Westway or any of its agents, services, employees, or contractors of any rights on City Property under this Agreement. 11. Indemnification. Except as limited by the obligations itemized in other paragraphs of this Agreement, or by Westway's negligent actions, City shall indemnify and hold Westway harmless from and against any claims, demands, liabilities, fines, losses, damages, expenses, charges or costs (including attomey's fees) based on or arising from City's negligent use of the City Property, as well as any injury to person(s), including death, resulting from the exercise by City or any of its agents, services, employees, or contractors of any rights on City Property under this Agreement. [Intentionally left blank;signatures and acknowledgements on following page.] -3- es hereto. 4. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Nebraska. 5. Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof. This Agreement shall not be modified except by a written instrument signed by the party against whom enforcement is sought. 6. Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby. The paragraph headings are for convenience and reference only and shall not limit or otherwise affect the meaning hereof. 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- • • IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date. WESTWAY TERMINAL COMPANY, INC., a De = are co ..ration . .mjl f/i Name: AYNE N. D-1 GERS Title: President ` = CITY OF OMAHA, a municipal corporation organized under the laws of the State of Nebraska ATTEST: By: Name: Mike Fahey 1 ��, Title: Mayor star rows, City'C1erk APPROVED AS TO FORM: STATE OF Louisiana ) ss. ,l`h PARISH OF Orleans ) � � ASSISTANT CITY ATTORNEY On the 1st day of December, 2006, before me, the undersigned, a Notary Public in and for said County and State, personally appeared WAYNE N. DRIGGERS, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity on behalf of WESTWAY TERMINAL COMPANY, INC., a Delaware corporation, and acknowledged the execution thereof to be his voluntary act and deed and the voluntary act and deed of said corporation. WITNESS my hand and notarial seal. Notary Public Thomas P.Anzelmo, Jr., Notary,,No.61268 STATE OF NEBRASKA ) ) ss. COUNTY OF DOUGLAS ) On the i ce-- day of J' , 2006, before me, the undersigned, a Notary Public in and for said County and State, personally appeared rsonally known to me to be the person whose name is subscribed to the withi instrument and acknowledged to me that he executed the same in his authorized capacity on behalf of CITY OF OMAHA, a municipal corporation organized under the laws of the State of Nebraska, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the within instrument. WITNESS my hand and notarial seal. GENERAL NOTARY-State of Nebraska Notary ubIic CYNTHIA I.FORD My Comm.Exp.Aug.16,2007 -4- for convenience and reference only and shall not limit or otherwise affect the meaning hereof. 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- Exhibit"A" WESTWAY PROPERTY That part of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter(NE % SE '/) of Section 3, Township 14 North, Range 13 East of the 6th P.M., in the City of Omaha, formerly South Omaha, in Douglas County, Nebraska, bounded by the South right-of-way line of"M" Street on the North,by the Chicago, Burlington&Quincy Railroad right-of-way on the West,the North line of Tax Lot 21 on the South, and the levee right-of-way running North and South on the East, together with vacated "M" Street adjacent thereto on the North; AND A 15 foot pipeline easement lying 7.5 feet either side of a line running through Tax Lot 27, in the Northeast Quarter of the Southeast Quarter(NE '/ SE 'A)of Section 3, and Government Lot 3, in the Northwest Quarter of the Southwest Quarter(NW 'A SW % )of Section 2, both in Township 14 North, Range 13 East of the 6th P.M., in the City of Omaha, in Douglas County,Nebraska, whose center line is more particularly described as follows: Beginning at a point which is South 09°27' West, 226.76 feet from the intersection of the South right-of-way line of vacated "M" Street and a Westerly right-of-way line of levee; thence North 73°21'35" East, 148.67 feet; thence South 71°58'15" East, 258.84 feet, to the high bank of the Missouri River. (South right-of-way line of"M" Street assumed East-West in direction.) EXCEPT CITY PROPERTY AND EASEMENT AREA Part of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter of Section 3, Township 14 North, Range 13 East of the 6th P.M. in Douglas County, Nebraska described as follows: Commencing at the Northwest corner of said Tax Lot 27;thence N87°13'22"E along the South line of"M" Street for a distance of 142.67 feet to the point of beginning; thence on a non-tangential curve to the right with a chord bearing of S25°48'30"W, chord length= 380.68 feet, radius=407 feet, for a distance of 396.13 feet to a point on the East line of BNSF Railroad property; thence S03°57'28"W for a distance of 119.34 feet; thence on a non-tangential curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 1 ed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- Exhibit"B" CITY PROPERTY AND EASEMENT AREA Part of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter of Section 3, Township 14 North, Range 13 East of the 6th P.M. in Douglas County, Nebraska described as follows: Commencing at the Northwest corner of said Tax Lot 27;thence N87°13'22"E along the South line of"M" Street for a distance of 142.67 feet to the point of beginning;thence on a non-tangential curve to the right with a chord bearing of S25°48'30"W, chord length= 380.68 feet, radius =407 feet, for a distance of 396.13 feet to a point on the East line of BNSF Railroad property; thence S03°57'28"W for a distance of 119.34 feet;thence on a non-tangential curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a . distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 4 Nebraska, whose center line is more particularly described as follows: Beginning at a point which is South 09°27' West, 226.76 feet from the intersection of the South right-of-way line of vacated "M" Street and a Westerly right-of-way line of levee; thence North 73°21'35" East, 148.67 feet; thence South 71°58'15" East, 258.84 feet, to the high bank of the Missouri River. (South right-of-way line of"M" Street assumed East-West in direction.) EXCEPT CITY PROPERTY AND EASEMENT AREA Part of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter of Section 3, Township 14 North, Range 13 East of the 6th P.M. in Douglas County, Nebraska described as follows: Commencing at the Northwest corner of said Tax Lot 27;thence N87°13'22"E along the South line of"M" Street for a distance of 142.67 feet to the point of beginning; thence on a non-tangential curve to the right with a chord bearing of S25°48'30"W, chord length= 380.68 feet, radius=407 feet, for a distance of 396.13 feet to a point on the East line of BNSF Railroad property; thence S03°57'28"W for a distance of 119.34 feet; thence on a non-tangential curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 1 ed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- 1 . 0 -0 0 -a 13 03 co C M M e ' n ~ O 11 o C m 1.1 )211 NI 0 m Z v z Z z 73 c, CO Imi m nf: OCo CV) a: :(D7 \ , C m r.Z121 IZ"ir A p co 70 MCA 'Cl : CI A �+0 NcCo t , I lir:: poA -..,• (C3 • O� <a �n :nil, 12):). � \i" zOO �, H , Zaz 2 o w P VA �. CD •s7 z \\ • as follows: Beginning at a point which is South 09°27' West, 226.76 feet from the intersection of the South right-of-way line of vacated "M" Street and a Westerly right-of-way line of levee; thence North 73°21'35" East, 148.67 feet; thence South 71°58'15" East, 258.84 feet, to the high bank of the Missouri River. (South right-of-way line of"M" Street assumed East-West in direction.) EXCEPT CITY PROPERTY AND EASEMENT AREA Part of Tax Lot 27, located in the Northeast Quarter of the Southeast Quarter of Section 3, Township 14 North, Range 13 East of the 6th P.M. in Douglas County, Nebraska described as follows: Commencing at the Northwest corner of said Tax Lot 27;thence N87°13'22"E along the South line of"M" Street for a distance of 142.67 feet to the point of beginning; thence on a non-tangential curve to the right with a chord bearing of S25°48'30"W, chord length= 380.68 feet, radius=407 feet, for a distance of 396.13 feet to a point on the East line of BNSF Railroad property; thence S03°57'28"W for a distance of 119.34 feet; thence on a non-tangential curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 1 ed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- v1d 'NOTICE TO PUBLIC- — THE DAILY RECORD The following Ordinance has been set for' City Council hearing on January 30,2007, OF OMt�ill�A H A at 2:00 p.m., in the Legislative Chambers, Omaha/Douglas Civic Center, 1819 Farnam, Street, at which hearing all persons. RONALD A. HENNINGSEN, Publisher interested,may be heard. PROOF OF PUBLICATION AN ORDINANCE providing for the Mayor to sign and the City Clerk to attest the execution of Two Easement Agreements with Westway Terminal Company (Westway) UNITED STATES OF AMERICA, which are associated with the Gibson Road Viaduct Project alk/a Special Project 90-03; The State of Nebraska, and to provide an effective date thereof. District of Nebraska, SS. BUSTER BROWN, City Clerk County of Douglas, 1--26-07 City of Omaha, J.BOYD being duly sworn,deposes and says that she is LEGAL EDITOR of THE DAILY RECORD, of Omaha, a legal newspaper, printed and published daily in the English language, having a bona fide paid circulation in Douglas County in excess of 300 copies, printed in Omaha,in said County of Douglas,for more than fifty-two weeks last past; that the printed notice hereto attached was published in THE DAILY RECORD,of Omaha,on January 26 , 2007 That v 'aper during that time was regularly published and in G i* the County of Dougl: and State of Nebraska. V *'•• CONOTARY 1 M M SS ON , Subscribed in m resence and sworn to before blislaer's raIRE9 .a me this / 2 ath day of • A •tiRr}sl.ty4ipge p.-• —A 7 TqT`i$'NE . 10 N P b in an for ouglas County, tate of Nebraska chord length= 380.68 feet, radius=407 feet, for a distance of 396.13 feet to a point on the East line of BNSF Railroad property; thence S03°57'28"W for a distance of 119.34 feet; thence on a non-tangential curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 1 ed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2- -NOTICE TO PUBLIC' — THE DAILY RECORD ORDINANCE NO.37640 AN ORDINANCE providing for the Mayor OF OMAHA /�II/� to sign and the City Clerk to attest the execution of Two Easement A with Westway Terminal Company greements(Westway) RONALD A. HENNINGSEN, Publisher which are associated with the Gibson Road PROOF OF PUBLICATION Viaduct Project a/k/a Special Project 90-03y, and to provide an effective date thereof. SUMMARY; AN ORDINANCE providing for the Mayor, UNITED STATES OF AMERICA, t signando the City Clerk to attest the The State of Nebraska, execution of Two Easement Agreements SS. with Westway Terminal Company (Westway) District of Nebraska, .which are associated with the Gibson Road Viaduct Project Ala Special'Project 90-03; County of Douglas, and to provide an effective date thereof. City of Omaha, PASSED: February 6,2007, 6-0 APPROVED BY: MIKE FAHEY 2/8/07 J.BOYD MAYOR OF THE CITY OF OMAHA being duly sworn,deposes and says that she is BUSTER BROWN, 1A n7 City Clerk LEGAL EDITOR of THE DAILY RECORD, of Omaha, a legal newspaper,printed and published daily in the English language, having a bona fide paid circulation in Douglas County in excess of 300 copies, printed in Omaha,in said County of Douglas,for more than fifty-two weeks last past; that the printed notice hereto attached was published in THE DAILY RECORD,of Omaha,on February 14, 2007 That d<;IIewspaper during that time was • gularly published and in a ttfcplaticgn in the County of Dougl. , [aid State of Nebraska. ,�. ......... ,r .1109 L Subscribed in �.resence and sworn to before Q•(P��pN Pubiishe �s $ 17 0 me this 14th day of itional Copies 4.•• �1�7 •.STATE Oi No bli an uglas County, State of Nebraska • ntial curve to the left with a chord bearing N30°08'33"E, chord length= 539.40 feet, radius= 504 feet, for a distance of 569.17 feet to a point on the South line of"M" Street;thence S87°13'22"W for a distance of 97.01 feet to the point of beginning. 1 ed to be an original, but such counterparts when taken together shall constitute but one and the same Agreement. 8. Maintenance. City anticipates that the surface area of the Easement Area will not be improved or paved in any fashion. City will make reasonable effort to insure that the Easement Area is not overgrown with brush or other foliage. City understands that Westway may access the property that it owns west of the viaduct by pedestrian and vehicular traffic and will insure that access is not impaired by brush, trees, grass, or other foliage. If City fails to reasonably maintain the easement area as required hereunder, Westway shall, upon thirty (30) days written notice supported by reasonable documentation, have the right, but not the obligation, to complete the reasonably required maintenance, at which time the party completing the repair shall be entitled to reimbursement from the other party for the cost of maintenance. 9. Enforcement. Enforcement of the rights of any party hereto shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, condition or restriction set forth herein, either to restrain the violation or to recover damages. In any action to enforce any term or condition of this Easement Agreement, the prevailing party shall be entitled to recover its costs incurred, including its attomey's fees. Failure to enforce any covenant, condition or restriction herein shall not be deemed a waiver of -2-