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-
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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-