HomeMy WebLinkAbout600,189 - City of Bozeman Montana
aR /NK PIPELINE
No. 600,189
This AGREEMENT, made this 17th day of February 19 92, between
MONTANA RAIL LINK, INC., a Montana corporation, hereinafter called"Railroad;'whose address is 101 International Way, Missoula,
Montana 59802,and BURLINGTON NORTHERN RAILROAD COMPANY,a Delaware corporation,hereinafter called"BN Company,"and
whose post office address is City of Bozeman
411 E. Main Street
Bozeman, MT 59771
hereinafter called "Permittee."
WITNESSETH:
Railroad,for and in consideration of the fee herein provided to be paid to it by Permittee and of the covenants and promises hereinafter
made to be observed and performed by Permittee, does hereby grant to Permittee license and permission to excavate for, construct,
maintain and operate a 6" water line.
hereinafter referred to as the ''facility,'' upon, along or across the right of way of Railroad, underneath the surface thereof, and under
the tracks of its railroad, as the case may be, at or near RC)!ZQMnn Station, in the
County of Gallatin State of Mont- na to be located
as shown highlighter]_ P ach on the plat hereto attached, marked
Exhibit 'A," dated February 10, 1992 and by reference thereto made a part hereof.
Permittee in consideration of such license and permission hereby covenants and promises as follows:
1. Permittee will pay annually in advance to Railroad for this permit the sum of no charge -- public right of way.
and will also pay all taxes and assessments that may be levied or assessed against said facility. Railroad reserves the right to
change the said charge at any time while this permit remains in effect upon thirty(30) days' written notice. This provision for pay-
ment shall in no way restrict Railroad's right of termination under Paragraph 9 hereof.
2. Permittee, at Permittees sole cost and expense, shall excavate for, construct, reconstruct, maintain and repair the facility placing
the same in accordance with the specifications provided in application dated 11/13/91 heretofore approved
by the Railroad's Chief Engineer.
Permittee shall fill in the excavation, and restore the surface of the ground to its previous condition subject to the approval of the
Railroad's Roadmaster upon which the facility is located. Said Roadmaster shall have the right at any time when in his judgment
it becomes necessary or advisable, to require any material used in the work to be replaced with like material or with material
of a more permanent character; also to require additional work or change of location of said facility as a matter of safety, or of
appearance, or on account of additional tracks being laid, change of grade thereof, construction of a building, or for any other
reason whether or not connected with the operation, maintenance, or improvement of the railway of Railroad, all of which shall
be done at the expense of Permittee in the manner herein provided.
3. Permittee shall give to the said Roadmaster at least two (2) days' advance notice of any work to be done by Permittee in the
excavation, construction, any reconstruction, maintenance, repair, change of location or removal of the facility, and shall conduct
such work in such manner as not to interfere with the maintenance and operation of the railway of Railroad.
4. In the event that Railroad, at the request of Permittee or any agent or contractor of Permittee, or for the protection of its property
and operations, does any work, furnishes any material or flagging service, or incurs any expense whatsoever on account of the
excavation for, construction, any reconstruction, maintenance, repair, change of location, removal of the facility or otherwise, Permit-
tee shall reimburse Railroad for the cost thereof within twenty(20) days after bills are rendered therefor. If the excavation for con-
struction, any reconstruction, maintenance, repair, change of location, or removal of the facility, requires any or all of the following
work: removal and replacement of track, bridging, protection of track or other railway facilities by work or flagging, engineering
and/or supervision, such work is to be performed by Railroad employees and the cost borne by Permittee.
5. In the event any cathodic electrolysis or other electrical grounding system is installed in connection with the facility which, in the
opinion of Railroad, in any way interferes with any train signals,telephone or telegraph lines, or other facilities of Railroad, Permittee
upon being informed by Railroad of such interference shall forthwith discontinue operation of and remove said grounding system,
or take such steps as may be necessary to avoid and eliminate all such interference. Permittee further agrees to indemnify and
save harmless Railroad and BN Company from and against any damages,claims, losses, suits or expenses in any manner arising
from or growing out of interference with the signals, telephone or telegraph lines of Railroad by the operation, use or existence
of any such grounding system.
6. Permittee agrees that the said Pipe Line and the use of same shall not damage the railroad or structures of Railroad or BN Com-
pany or any other property upon the premises of Railroad or BN Company, or be a menace to the safety of Railroad's operations
or any other operations conducted on said premises. Permittee does hereby release, indemnify and save harmless the Railroad,
BN Company and their successors and assigns, from and against all loss, damages, claims, demands, actions, causes of action,
costs, and expenses of every character which may result from any injury to or death of any person whomsoever, including but
not Limited to employees and agents of the parties hereto, or from loss of or damage to property of any kind or nature to whom-
soever belonging, including but not limited to property owned by, leased to, or in the care, custody, and control of the parties
hereto, when such injury, death, loss or damage is caused or contributed to by, or arises from, the construction, installation,
maintenance, condition, use, operation, removal, or existence of said Pipe Line upon Railroad or BN Company premises. Said
indemnification shall be ineffective to the extent prohibited by law. The liability assumed by Permittee herein shall not be affected
or diminished by the fact, if it be a fact, that any such suit or action brought against Railroad or BN Company may arise out
of negligence of Railroad, BN Company, its officers, agents, servants or employees, or be contributed to by such negligence.
This indemnification includes damages to parties not signatory to this agreement which are caused by or result from damage
to Permittee's property.
(OVER)
M R L032
7. It is understood by the parties that said Pipe Line will be in danger of damage or destruction by fire or other causes incident
to the operation, maintenance or improvement of the railway, and Permittee accepts this permit subject to such dangers. It
is therefore agreed, as one of the material considerations of this permit, without which the same would not be granted, the
Permittee hereby assumes all risk of loss, damage or destruction to said Pipe Line without regard to whether such loss be
occasioned by fire or sparks from locomotives or other causes incident to or arising from the movement of locomotives, trains
or cars of any kind, misaligned switches, or in any respect from the operation, maintenance or improvement of the railway,
or to whether such loss or damage be the result of negligence or misconduct of any person in the employ or service of Railroad
or BN Company, or of defective appliances, engines, or machinery, and Permittee does hereby save and hold harmless Railroad
and BN Company from all such damage, claims and losses.
8. Permittee shall not transfer or assign this permit without the written consent of Railroad.
9. Nothing herein contained shall imply or import a covenant on the part of Railroad for quiet enjoyment.
10. Either party hereto shall have the right to terminate this permit, and the same shall terminate, at the expiration of thirty (30)
days after the giving of written notice by one party to the other of intention to terminate same. Any such notice shall be good
if deposited in the United States mails addressed to the parry being notified at such party's post office address above stated..
Upon termination Permittee shall promptly remove the Pipe Line from Railroad's premises and if Permittee shall fail to remove
same or any other material or property owned by it within the time prescribed in a notice of termination, Railroad may appropri-
ate such property to its own use without compensation, or may remove the same at the expense of Permittee.
11. Upon any failure of Permittee punctually and strictly to observe and perform the covenants and promises made herein by
Permittee to be kept and performed, Railroad may terminate this agreement on ten (10) days' notice to Permittee, remove the
facility, and restore the right of way to its previous condition at the cost and expense of Permittee.
12. Any notices given under the provision of this agreement shall be good if deposited postpaid in a United States post office
addressed to Permittee at Permittee's post office address above stated or as otherwise directed by Permittee.
13. The License and permission herein granted is subject to permits, leases and licenses, if any, heretofore granted by Railroad
affecting the premises upon which said facility is located.
14. In the event either party seeks legal action to enforce the terms of this agreement, the prevailing party shall be entitled to
attorney fees.
15. If any work is to be performed within 50 feet of the rails, Permittee shall provide a Railroad Protective Policy with the Railroad
and BN Company named insured. Limits shall be a minimum of$500,000 for each occurrence and$1,000,000 annual aggregate..
16. (a) Lessee/Permittee covenants, agrees,and represents that it will not use or dispose of toxic or hazardous wastes and/or materials
without prior written consent of Railroad and/or BN Company.
(b) Lessee/Permittee covenants and agrees to obey all local, state, and Federal laws, regulations and ordinances. Lessee/Per-
mittee agrees to notify Railroad and/or BN Company of any violation or breach of any such law, regulation or ordinance
which relates in any way to toxic or hazardous wastes and/or materials or any other environmentally detrimental substance.
(c) Lessee/Permittee agrees to respond to and participate in any environmental clean-up action required on this property, caused
or contributed to be Lessee/Permittee's acts or occupation of this property. Further Lessee/Permittee will respond and par-
ticipate in any environmental clean-up actions as above described whether or not Lessee/Permittee is presently occupying
this property.
(d) Lessee/Permittee agrees that in addition to all other indemnification provisions in the lease/permit, he/she/it accepts all respon-
sibility for environmental damage created on the premises by Lessee or caused by buildings or improvements owned by
Lessee on the Premises during this lease/permit and will indemnify and protect Railroad and BN Company from all cost
related to such environmental damage. This provision and all other indemnification provisions are to remain in effect after
the termination of this Lease/Permit.
(e) The obligation of Lessee/Permittee to indemnify BN Company and Railroad pursuant to the foregoing shall apply to any
common law cause of action, whether or not codified, including, without limitation, causes of action arising in tort,trespass,
nuisance, and strict liability, and to federal and state statutory causes of action, proceedings brought pursuant to federal
or state statutory rights, or any proceeding or cause of action based on regulations promulgated pursuant to any federal
or state statute, including, without limitation, the Resource Conservation and Recovery Act, 42 U.S.C. SS 6901-69 (West
1983 &Supp. 1988), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. SS 9601-74
(West 1983 & Supp. 1988), as amended, the Clean Water Act, 33 U.S.C. SS 300f to 300j-11, and any similar or applicable
federal, state, or local statute in force as of the date of this Lease Agreement or hereafter adopted or amended.
Subject to the foregoing provisions, this agreement and all of the covenants and promises thereof, shall inure to the benefit or
and be binding upon the parties hereto, their respective executors, administrators, successors and assigns.
In addition to, and not in exclusion of, other provisions of this lease, Railroad holds BN Company harmless from liability occurring
as a result of Railroad's provision of rail freight service over the property described herein. Permittee holds BN Company and
Railroad harmless from any actions or omission of Permittee causing liability.
IN WITNESS WHEREOF, Railroad and Permittee have executed this agreement this 17th day of February , 19 92 .
PERMI. EE CITY OF BOZEMAN BURLINGTON NORTHERN RAILROAD COMPANY consents to
this agreement; s set'-forth above.By
;
By
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Title City Manager
Date
MO RAIL LINK,. I C.
Title Pro=Prty nPir 1 opm n Manager
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THE !NCUSTRY,
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U CROS-Sj-.G OF THE TRACK W17H ANY VEHICLE Date Scale
OR EQUIPMENT IS PROHI017EO.
Christopher J.Danos
FAIZWAe Assistant Vice President �\ Montana Rai: Leak
Econonuc Development&Real Estate
2d`0 Lou fir=LDrive Montana Rail Link.Inc.
C"I Oiorh.q r 7d 3: 101 International Drive (406)523-1500
Post Office Box 16390 (406)523-1493 fax
9,47-867-8385 Of ne Missoula,Morttana _Iv Yvvr monlanarail_com
Chrstopher uanc;@ SNSr corn USA 59ZO3
November 23,2023 Via Certified Mail
City of Bozeman-Permits
PO Box 1230
Bozeman, MT 59771
Re: Agreement 600189 dated effective as of 2/17/1992 (together with any subsequent
supplements or amendments,the "Agreement")between Montana Rail Link, Inc.,
a Montana corporation("MRL") and City of Bozeman-Permits, regarding certain
property located at or near Bozeman, Gallatin County, Montana; Notice of
Assignment.
To Whom It May Concern:
This letter concerns the Agreement referenced above. In accordance with the Agreement,
MRL hereby notifies City of Bozeman-Permits that the land subject to the Agreement has either
transferred or reverted to BNSF Railway Company, a Delaware corporation ("BNSF'). In
connection therewith, MRL has assigned all of its rights, interests, and obligations under the
Agreement to BNSF. BNSF, in turn,has assumed all of MRL's obligations under the Agreement.
The assignment and assumption between MRL and BNSF will become effective on January 1,
2024 (the "Assignment Effective Date"). As of the Assignment Effective Date, BNSF's notice
address is as follows:
BNSF Railway Company
2650 Lou Menk Drive,MOB-2
Fort Worth, Texas 76131
Attn.: CRED
with a copy to: Jones Lang LaSalle Brokerage,Inc.
2650 Lou Menk Drive,MOB-2
Fort Worth, Texas 76131
Attn.: Lease Administration
If you make payments related to the Agreement, please be advised that the invoice for
December 2023 will be sent to you by MRL in November 2023 and should be paid to MRL. The
invoice for January 2024 will be sent you by BNSF's agent, Jones Lang LaSalle Brokerage, Inc.,
in December 2023 and should be paid to BNSF Railway Company.
Thank you for your cooperation.
.
73 of71
Very truly yours,
BNSF Railway Company,
a Delaware corporation
By: ti� �•?Gv���
Name: Christopher Danos
Title: Assistant Vice President
Montana Rail Link,Inc.,
a Montana corporation
It
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By:
Name: Joe R.acicot
Title: President
IN