Loading...
HomeMy WebLinkAbout99- Montana Rail Link & BNSF Railway Co.; MP 142 - Water Pipeline Easement 0, ~ .. ~ ,6f 1J.~'1S MUNICIPAL PIPELINE ALONG OR ACROSS RAILROAD RIGHT OF WAY PERMIT No. 600.640 02BOZEMAN Revised 9/13/99 This AGREEMENT, made this 13th day of September. 1999, wherein MONTANA RAIL LINK, INC., a Montana corporation, hereinafter called "Railroad", whose address is Property Management Division, PO Box 16630 Missoula, Montana, 59808- 6630, and THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, hereinafter called "BNSF", hereby grants permission to .. '.V' MONTANA ..~ RAlLLINK whose mailing address is CITY OF BOZEMAN PO BOX 640 BOZEMAN, MT 59771-0640 hereinafter called "Permittee". The Parties to this Permit are Railroad and Permittee. BNSF retains certain rights described herein and, by its signature, has consented to this agreement. In consideration of the mutual covenants and other valuable consideration, Railroad hereby grants permission to Permittee to excavate for, construct, maintain and operate a 16" underaround water pipeline 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 Milepost 141 +5150, Survey Station 749+63, City of Bozeman, County of Gallatin, State of Montana, as shown on the attached plat, marked Exhibit "A", dated January 8.1998 and made a part hereof, This permission is given upon the following terms and conditions: Special Provisions Permittee shall be required to control erosion run off from the hill above the Railroad tracks. 1. RENTAL OBLIGATIONS: a. Permittee will pay annually in advance to Railroad for this permit the sum of Four Hundred Twenty Five Dollars ( $ 425.00 ) for the first year and One Hundred Dollars ( $100.00 ) each year thereafter and will pay all taxes and assessments that may be levied against the facility. Failure to pay the annual premium for this agreement within sixty (60) days of the effective date shall terminate any rights Permittee may have under this agreement. However, such failure shall not operate to relieve Permittee of any liabilities assumed hereunder. b. Railroad reserves the right to review the rental rate of this permit. Railroad may make any necessary adjustments to the rate based on Railroad's standard rate review policies in effect at the time of the review, Railroad will provide Permittee written notice of any adjustment, within thirty (30) days of the review. Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advance does not imply nor will it serve to convert the permit to a definite term. c. In case of nonpayment of rental, or other charges, the same shall, until paid, constitute a lien on any facility or other property owned by Permittee on the Premises, foreclosable according to law. Permittee shall not remove the facility or property until the rental, or other charges are paid, unless directed to do so by Railroad. d. Additions to or replacement of the Facility are subject to the prior written approval of Railroad. Railroad will, upon approval of application for addition or replacement facilities, advise Permittee in writing of any change in payment on account of such additions or replacements, and bills thereafter will be rendered accordingly. 2. RESERVATIONS BY RAILROAD: a. Permittee, at Permittee's 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 October 21. 1997 and approved by the Railroad's Chief Engineer. If excavation is necessary, Permittee shall fill in the excavation and restore the surface of the ground to its previous condition subject to the 9/99 MRL > .' approval of the Railroad's Roadmaster. Furthermore, Permittee shall remove all false work and equipment used in the installation, repair or removal of the Facility. b. The Roadmaster shall have the right at any time when in the Roadmaster's 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. The Roadmaster may require additional work or change of location of the Facility as a matter of safety, or of appearance, or on account of additional tracks being laid, change of grade, construction of a facility, 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. All repairs and changes shall be made promptly by Permittee at its sole expense within thirty (30) days after being requested to do so. c. Permittee shall give the Roadmaster five (5) working days advance written notice of any work to be performed by Permittee in the excavation, construction, any reconstruction, maintenance, repair, change of location or removal of the Facility. Permittee shall conduct such work in such manner as not to interfere with the maintenance and operation of the railway. If there is a bona fide emergency, the five (5) working days advance notice may be waived; however, if emergency work is necessary, Permittee shall make every effort to notify Railroad that such work is to be performed. Permittee shall, at its own expense, restore any facilities on the Premises which are in any manner disturbed by such maintenance, repairs or removal. d. If the 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, fumishes any material or flagging service or incurs any expense whatsoever on account of the excavation for, construction, reconstruction, maintenance. repair, change of location, removal of the Facility or otherwise, Permittee shall reimburse Railroad for the cost thereof within twenty (20) days after bills are rendered. If the excavation for construction, reconstruction, maintenance, repair, change of location. or removal of the Facility, requires any or all of the following work: removal and/or 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. e. Permittee hereby accepts Railroad and BNSF's rights, and any others who have obtained or may obtain permission or authority from Railroad and BNSF, to (a) have unconditional access to any part of the Premises and to (b) construct, operate, maintain, renew and relocate any and all existing or future pipe, power, and communication lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; (c) construct, operate. maintain. renew and relocate such additional facilities; and (d) make such other use of the surface as Railroad and BNSF deem necessary and desirable for railroad purposes. f, Nothing herein contained shall imply or import a covenant on the part of Railroad for quiet enjoyment, or imply any warranty of title for peaceable possession. g. If 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, or its other permittees. Permittee upon being informed by Railroad of such interference shall discontinue operation of and remove the grounding system, or take such steps as may be necessary to avoid and eliminate all such interference. The cost of any additions or removals of the grounding systems shall be borne solely by the Permittee. If the Railroad determines there is any interference covered by this paragraph that affects the safety of Railroad's operations. Permittee shall, upon notice from Railroad. cease using the Facility for any purpose whatsoever. Railroad may also require that the Facility be removed. In addition, Railroad may require any other protective measures as Railroad may deem advisable until the protective devices required by this paragraph have been installed, put in operation. tested, and found to be satisfactory to correct the interference. Permittee further agrees to indemnify and save harmless Railroad and BNSF 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 operations, use or existence of any such grounding system. 3. UTILITY NOTICE REQUIREMENTS: Permittee shall notify all utility operators and other third parties who may have a facility located on the subject premises prior to commencement of any construction or excavation. Permittee assumes all liability for any damage caused to any utility operator or third party. 4. EQUAL PROTECTION: It is agreed that the provisions of this agreement are for the equal protection of other railroad companies, including National Railroad Passenger Corporation (AMTRAK), permitted to use Railroad's property. MRL 2 9/99 ->,J 5, DEFAULT: a. If Permittee shall default on any covenant or agreement herein assumed, and such default shall not be remedied or corrected within thirty (30) days after written notice by Railroad to Permittee of such default, this Lease shall terminate without further notice. Any waiver by Railroad of any default shall not be construed as a waiver of any subsequent default. While such default continues Permittee shall not remove from said Premises any building or other property owned by Permittee unless directed to do so by Railroad. and shall remain subject to all terms and conditions contained herein. b. If Permittee defaults on any covenant or agreement herein assumed, three (3) or more times in any given year, Railroad shall have the right to terminate this agreement immediately with or without notice to the Permittee. Railroad shall be entitled to recover its reasonable attorney fees and any costs associated with Permittee's default under this agreement. C. Should it become necessary for Railroad to give Permittee written notice of the Permittee's default of any covenant or agreement herein assumed. Permittee shall pay to Railroad an additional sum of One Hundred Fifty Dollars ($150.00) to cover Railroad's cost of giving said written notice. Said sum shall be paid whether or not an attorney is retained by Railroad. This additional sum shall be paid by Permittee at the time it corrects or cures its default, or the default shall not be considered cured. 6. TERMINATION: a. Notwithstanding any requirement herein for payment of rental in advance for a term in excess of one month, it is further agreed that either party may terminate this Permit at any time upon giving the other party not less than one (1) years written notice of such termination. Rent shall be paid by Permittee until a final inspection has been made by Railroad approving the condition of the Premises. If this Permit is terminated, Permittee, shall have one (1) full year prior to the termination date to remove Permittee's property and any existing improvements (regardless of who made them) from the Premises. If Permittee fails to do so, Permittee hereby grants Railroad the absolute right to remove the property at the cost of Permittee, or keep, convey, destroy, or otherwise dispose of the property in any way Railroad chooses and, in addition, Permittee agrees to pay any net cost incurred by Railroad in doing so. b. Except as otherwise provided in Sections 1c and 5 hereof, before the Permit expires, Permittee shall, at its own sole cost and expense, remove and cause to be removed all facilities. structures, foundations, footings, materials, signs or signboards, debris or other articles or facilities owned or used by Permittee or placed on, above or below the surface of the Premises by Permittee, Permittee agrees to restore and level the Premises to a condition satisfactory to Railroad. c. It is expressly understood by Permittee that until such time as the Premises are surrendered to Railroad free and clear of all facilities, structures, foundations, footings, materials, signs or signboards, debris or other articles or facilities not belonging to Railroad, and the Premises are restored to a neat and orderly condition satisfactory to Railroad, Permittee shall be liable to Railroad for such rental, as determined by Railroad. Permittee shall also be liable to Railroad for any and all losses and/or damages which Railroad may sustain or become liable for as a result of Permittee's failure to restore the Premises to a neat and orderly condition satisfactory to Railroad. Railroad may at its own sole election dispose of any such property or improvements as provided in Section 6a above. 7. ASSIGNMENT OF PERMIT: a, Without the prior written consent of Railroad and BNSF, Permittee shall not assign or sublet this Permit or any interest therein, or grant a security interest in any facilities or improvements on the Premises, and no heir, personal representative, administrator, receiver, master, sheriff, trustee in bankruptcy, or other assignee by operation of law shall assign or sublet without such written consent. However, such consent shall not be unreasonably withheld, conditioned, delayed or denied. For the purposes of this section, a merger or corporate reorganization of any entity controlled by, controlling or under common control of permittee shall not be deemed a transfer of assignment. Permittee shall provide evidence of such merger or reorganization that is satisfactory to Railroad. b. If this Permit is assigned, Railroad will credit all uneamed rental hereunder to the assignee, unless advised otherwise, Any other disposition of uneamed rental will be made by Railroad only upon the joint written request to both Permittee and Permittee's assignee at the time the assignment is submitted to Railroad for its consent. MRL 3 9/99 . !. 8, NOTICE REQUIREMENT: All notices hereunder to be given by Railroad to Permittee may be given by letter from Railroad or its agents or attorney and forwarded by Certified Mail, Return Receipt Requested, postage prepaid, addressed to Permittee at Permittee's mailing address above stated or at such address as Permittee may later give Railroad in writing. All notices hereunder to be given by Permittee to Railroad may be given by letter from Permittee or Permittee agent or attorney and forwarded by Certified Mail, Return Receipt Requested, postage prepaid, addressed to Railroad's Property Management Division, PO Box 16630, Missoula, Montana, 59808.6630. All notices hereunder to be given by Permittee to BNSF may be given by letter from Permittee or Permittee's agent or attorney and forwarded by Certified Mail; Return Receipt Requested, postage prepaid, addressed to BNSF's Property Management Department, PO Box 961050, Fort Worth, Texas 76161-0050. 9. COMPLIANCE WITH FIRE STANDARDS: Permittee must obtain Railroad's written consent to use Premises for loading, unloading or storing hazardous materials as defined in 49 CFR parts 171 through 179 and identified in Tariff BOE 6000 M and subsequent issues. Permittee agrees to comply strictly with the standards of the National Board of Fire Underwriters as recommended by the National Fire Protection Association, as well as any applicable federal, state, or municipal regulations and laws, and shall also comply strictly with the provisions, if applicable, of "Rules Governing the Location, Maintenance and Operation of Facilities for Handling Flammable and Nonflammable Gases," hereto attached as Exhibit "B" and by this reference made a part of this Permit. For the purpose of providing protection from stray currents or static electricity, or to prevent interference with existing signaling Railroad may install bonding in the track serving the Premises, and Permittee shall reimburse Railroad for the cost thereof. Track bonding is required on Spur Lines used for loading or unloading flammable liquids at the location of the loading or unloading activity. 1 o. INSURANCE COVERAGE must be provided as follows: a. Permittee agrees to obtain, to keep in force and effect, and to pay premiums on worker's compensation insurance for those of its employees who are concerned in any way with Permittee's performance under this permit. b. Whenever construction, demolition and/or any other repair operations occur within fifty (50) feet of any railroad track, a separate railroad protective policy, written in the name of Montana Rail Link, Inc., The Burlington Northern And Santa Fe Railway Company and Catellus Management Corporation, is required with limits of $2,000,000 per occurrence and $6,000,000 aggregate. The policy must be submitted to the Railroad and approved in advance of any activity on Railroad property. c, Any party performing any work related to this permit shall have a copy of the permit at the designated job site. d, Permittee, as an option to the above referenced insurance coverages, may provide Railroad with a letter from Permittee's Risk Management Division, or its respective Insurance Department, evidencing the necessary insurance coverages satisfactory to Railroad. e. The furnishing of insurance required. by this Agreement shall in no way limit or diminish the liability or responsibility of Permittee as provided under any section of the Agreement. 11. PERMITTEE'S RELEASES AND OBLIGATIONS TO INDEMNIFY: a. Railroad, BNSF and Permittee mutually agree and understand the Facility is in proximity to the railroad tracks. As a material consideration of this Permit, without which it would not be granted, the Permittee agrees, to the fullest extent provided by the applicable law, to defend, indemnify and hold Railroad, and BNSF, harmless from and against any liability, claim, cost or damage on account qf personal injury to or death of any persons whomsoever, or damage to or destruction of property to whomsoever belonging, caused by or contributed to Permittee's occupation of the property during the term of this agreement. b, The Parties agree covenant and warrant that it will not create or permit any condition on the premises that could represent a threat to human health or environment. The Permittee will release, defend, indemnify and hold harmless Railroad and BNSF from and against any suit cause of action, claim, cost or obligation with respect to any damages caused by, contributed to, or aggravated by Permittee's presence on and use of the Facility, or Permittee's violation of any laws, ordinances, regulations or requirements pertaining to solid or other wastes, chemicals, oil and gas, toxic, corrosive, or any other hazardous materials, surface or groundwater, and the storage, handling, use or disposal of any such material to the extent that such damages are directly attributable to the Permittee's actions or omissions. MRL 4 9/99 , '... c. The obligations of Permittee to release, defend, indemnify and hold harmless Railroad and BNSF will apply to any suit, cause of action, claim, cost or obligation including, without limitation, those alleged under the common law or pursuant to a federal or state statue or regulation such as those arising in tort, trespass, nuisance, and strict liability, and those asserted pursuant to the Resource Conservation and Recovery Act, 42, USC Section 6901, et sea., the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC Section 9601 et sea., the Clean Water Action, 33 USC Sections 1251 et sea., and any other applicable state and federal laws as hereafter amended. d. 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 BNSF. Subject to paragraph b above, Permittee further agrees to participate in any environmental cleanup action required on this property which is caused by Permittee's acts or occupation of this property. However, nothing herein obligates Permittee to indemnify Railroad or BNSF for any such personal injury, death or property damage that results from Railroad or BNSF's negligent acts or willful misconduct. e. All of the indemnities and assumptions of liability and obligations of Permittee under this section will survive the termination of the permit. f. Permittee agrees that the construction, operation, maintenance, use or removal of the Facility shall not damage the railroad or structures of Railroad or BNSF, or any other property including property of any lessee or permittee upon the premises of Railroad or BNSF, or be a menace to the safety of Railroad's operations or any other operations conducted on the premises. 12. SURVIVAL: Any obligation between the parties existing at the time of termination shall survive according to applicable law, 13, ATTORNEY FEES: If either Party takes legal action to enforce any terms of this agreement, the prevailing Party shall be entitled to recover its reasonable attorney fees and all costs associated with the action. 14. MISCELLANEOUS PROVISIONS: a. The parties warrant and represent that the party signing this agreement on behalf of each has authority to enter into this agreement and to themselves be bound respectively, to the terms, covenants and conditions contained herein. Each party shall deliver to the other, upon request, all documents reasonably requested by the other evidencing such authority, including a copy of any corporate or partnership resolutions, consents or minutes reflecting the authority of persons or parties to enter into agreements on behalf of such party, b. All questions regarding the interpretation or application of provisions of this Permit shall be decided by a court of competent jurisdiction and according to the laws of the State where the property is located. c. If any term or provision of this agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision shall be valid and be enforced to the fullest extent permitted by law. A waiver of any right to enforce any provision of this permit in one instance shall not be deemed to be a waiver of any future right to enforce any provision hereof. d. This Permit is the full and complete agreement between Railroad and Permittee with respect to all matters relating to use of the Premises, and supersedes any and all other agreements between the parties hereto relating to use of the Premises. Subject to the foregoing provisions, this agreement and all of the covenants and promises thereof, shall inure to the benefit of and be binding upon the parties hereto, their respective personal representatives administrators, successors and assigns. In addition to, and not in exclusion of, other provisions of this permit, Railroad holds BNSF harmless from liability occurring as a result of Railroad's provision of rail freight service over the property described herein. MAL 5 9/99 r '" The parties hereto have executed this agreement the day and year first above written. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By: C us PERMITTEE CITY OF BOZEMAN By -1 \ Title ~\~'-I N\..~"-I.~7~ MRL 6 9/99 jI ~:lJ~2: lJ e, - 0 Cb~~~ :)Olb-- 1000"'<: 1bCl.!!l..::o 3::EP1Il8 o <Cl' Cl. "'<: :r-~3 ~I"~~ 0:':-- ::0 j" 3' ~ 2 ~<Cl OJ s:;:ot;J-' ::;';0: 0 =: Ib "'<: (') ~ 100 ~OJ~ ...., Ib -, erO';;' 10 ... " 3lbJ: o Vl Ib ::soCii'" ~:t:) -3,51 -o<Cl Ib ./>. 3~~ _,... I ::::.~N ~o~ 10":) .!-" ~~0I2: ... 0 NO ~*cr::: :i 0 c... "'<: ~:)~!:!1 10" _<Cl ~" :) ~::::)>.9. lJ....... 1b8.-~ ~ Cl. ~ 1:1 Ib ::0 10 Ib cQ..... < 3:: :r- 1Il iii' 0.... 0 "'<: I~'" ~Q~~ I>t'... :lJ ~ 3'~ IbOIO -Cl ;0: OJ ~. ~;;J 1b~",<:1E ~-"'? ~OJ..- _ 0 Ib 0 <Cl 0' c: 3 ~ ;jJ Q - :. . VI )>.0' ....:t 5' I,Q I I 1-' I I I I I I I I ~ i 0 ~ ~ -0 0 Z "1 --.. '- -< (') ,.., VI ;-'i ~ I 0 ...... (') ~ ::0 :lJ ;;; I ::0 - 0 -0 0' "6 I :1E I"l ~ o :!1 C) ~ ..- :tl :to (') ;0; ..- I ~ I :::! I I ~ r I ~ I I t I~ I trj >< I ::r: I ~ I~ Cd ~ "'- ~ i n " ~ II" I ./>. 0 I C ",::2; o ~-I :J> I . ....~ I ..~ -.. I -.. ....,~- ac:::l(')J:C: 3S:-Ig.~V. o:r-- . ~ _. CD _ ;:~: 0 ~ ~ v, ~:J -... , , -I ~' 9. 5' VlOQ3::ii>- -g, ('). g l;l.. (') :.Cl ....~o _1O.-g:.3 )>.lOgQc:3 .....~g.::o:J5 _ o' Q Cl.-. 13:::.:::::lbC) CXl c: <ri Q 0100"-"':::: 0....-..5'00 ~~-I:':-5~ N :!.::oo..(') _ 0 10 ii' 0 1C'('):r-~3 ~ 2. 0 I" g-lJ 'J:.~o...g ~~lbj"O"'<: )>. ... '"0 :J "Ill;,;. ~ 0. ~ c)' Q Vl Z C) -0 "6 ...., -000'- ~....,....,~ "O-lNR ~J:1Il- cl"l "a np;a-o C:oo- !;:Vl3::-l ::0"'" VI Vl-l-l -l-lJ:o 0.....,.., .....~(')~ ~(')~~ .:""1 ..... ,..,> ::O3::::O~ )>.....,!::z ('))>.Z- ;0; '^ ...., 3:: ,v, c: ~ 3:: ,..., c ..... 0 '- 0 1 Z ,..., VI I '- (') I I "1 '1 I , 1 I !