20200813Falls Water to Staff 29 Attachment 2.pdf

PIPELINE CROSSING AGREEMENT
ARTICLES OF AGREEMENT
(Agreement Number)
5003
Mile Post 21 (Main Line) Goshen ~ 1_.~Branch (at)
(Near) Amman Simple pipeline crossing.
Mile Post l.l_(Main Line) Goshen ~ ~Branch (at)
(Near) Amman Longitudinal Pipeline Encroachment.
THIS AGREEMENT is made and entered into as of the 8th
day of August, 1994, by and between (EASTERN IDAHO RAILROAD
COMPANY, an Idaho Corporation) (hereinafter the licensor) and
FALLS WATER COMPANY INC., a IDAHO Corporation to be addressed
at 405 11th street Idaho Falls (hereinafter the Licensee).
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO
AS FOLLOWS:
Article 1. LICENSE FEE.
Upon the execution of this Agreement, the Licensee
shall pay to the Licensor a one-time 1 icense fee of One
Thousand Dollars ( $1000.00 ).
Article 2. LICENSOR GRANTS RIGHT.
In consideration of the 1 icense fee to be paid by
Licensee and in further consideration of the covenants and
agreements herein contained to be by the Licensee kept,
observed and performed, the Licensor hereby grants to the
Licensee the right to construct and thereafter, during the
term hereof, to maintain and operate pipeline (s)
(hereinafter [collectively] the pipeline) in the location
shown and in conformity with the dimensions and
specifications indicated on the attached print 50_.Q_~_
marked Exhibit A.
Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION.
The grant of right herein made to the Licensee is
subject to each and all of the terms, provisions, conditions,
limitations and covenants set forth herein and in Exhibit B,
hereto attached.
Article 4. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If the contractor is to do any work performed on the
pipeline (including initial construction and subsequent
relocation or substantial maintenance and repair work), then
the Licensee shal 1 require its contractor to execute the
railroad's form contractor's Right of Entry Agreement.
Licensee acknowledges receipt of a copy of contractors Right
of Entry agreement and understanding of its terms, provisions
and requirements, and will inform its contractor of the need
to execute the Agreement. Under no circumstances will
Licensee's contractor be al 1 owed onto Licensor's premises
without first executing the contractor's Right of Entry
Agreement.
Article 5. INSURANCE.
A. The Licensee, at its expense, shall obtain the
insurance described in Exhibit B-1, hereto attached. The
Licensee will also provide to the Licensor a Certificate of
Insurance issued by its insurance carrier confirming the
existence of such insurance and that the policy or policies
contain the following endorsement:
EASTERN IDAHO RAILROAD COMPANY is named as an additional
insured with respect to all liabilities arising out of the
existence, use or any work performed on or associated with
the Culinary Water pipeline located on Railroad right of way
at Mile Post 21 at or near Amman Idaho.
B. If the Licensee named in this Agreement is a
public entity subject to any applicable statutory tort laws,
the limits of insurance described in Exhibit B-1 shall be the
limits the Licensee then has in effect or which is required
by applicable current or self-insured with the consent and
approval of the Licensor.
C. Al 1 insurance correspondence shal 1 be directed
to: EASTERN IDAHO RAILROAD COMPANY CONTRACTS AND REAL ESTATE
DEPARTMENT, MANAGER OF TRACK, 618 SHOSHONE STREET WEST, TWIN
FALLS, IDAHO 83301.
Article 6. TERM.
This Agreement shall take effect as of the date first
herein written and shall continue in full force and effect
until terminated as herein provided.
Article 7. SPECIAL PROVISIONS.
EASTERN IDAHO_ RAILROAD has Agreed to grant falls
Water Company Inc. an additional Longitudinal Lease at no
charge for the purpose of thiE-pipeline crossing. Providing
al 1 pipe is g_ minimum of L deep and approved Qy_ EASTERN
IDAHO RAILROAD for clearances and Falls Water Company Inc.
has g_ clear understanding that EASTERN IDAHO RAILROAD will
no~ be liable for any damage incurred to said pipeline.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date· first herein
written.
By
By
By
Witness
By
Title:
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L -• ..
•'H.il"': ! rl ..; , MC:.·-f 1 v1"4 I ~ ~' APPLICATION FOR ENCASED
NON-FLAMABLE PIPE LINE CROSSIJ'.'
NO SCALE Ji"!)
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Oil AHf waM TO OCTIMlllC lXl~TlllCl &NO
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NOTES :
11 ALL HORIZOHTAL OISTAHCES TO BE ..CA~D AT RIGHT ANGLEi FACIM CENTER LlNl 0, TRACK.
' '
Zl CA$ING TO tXTEM> SEYOHD TH£ CENTEltLINI OF TRACI AT RIGHT ANGLES THE GREATER OF ZD • ZO FT., OR 30 FT.,
A)Q BEYOND LIMIT OF RAILROAD RIOHT•OF•WAT IF NlCES'-'RY TO PAOYIDE PAOPER LENGTH OUTSIDE OF TRACK.
ll WIM.M.M OF' 50' FROM THE ENO °' NfY RAJLADAD MID&lt CtHTERLJNE Oii lllf'f CULVERT, OR FIU)M ANY WITCHING AllU.
•I !.IGHAL REPf'UENTATIVE l&IST 11 PMUNT l>U'ING IN!.TALLATION IF RAILROAD SIGNALS ARE IN THE VICJNITY OF CROSSING.
Al ~$'20 FT. TO RR' S MIL.£ POST NO. 'Z.l
Bl IS PIPE LINE CROSSING IJTHIN DEDICATED STREET ?'f\Jr.YES; HO;
Cl NAME OF STREET 4fF.,6efA21411u..p!<.2 J..AIJe --
D>CARRJER ~!PE:
COWOD l TY TO BE CONVEYED <!vLJ&'AP...Y 14)~
OPERATING PRESSURE._C;.:;° PSI 1Wil ... WALL THICKNESS~tJiDlAMETER Jp' ;MATERIAL f3l£'...
E> CASJNC PIPE: 11 WALL. THICKNESS~B'?J ;DIAMETER I? ;MATERIAL ft?. ; 6 01.z~~ ,.7LN~UJti:.1v.u~
NOTE :CASING hl.IST HAVE 2• CLEARANCE BETWEEN GREATEST
OUTSIDE DIAMETER OF CARRIER PJPE ANO INTERIOR
DIAMETER OF CASING PIPE • WHEN FURNISHING
DIMENSIONS. GIVE OUTSIDE OF CARRIER PIPE AND INSIDE OF CASING PIPE ·-.......1,_;;-;--i::;.... ______ _
Fl ~ETHOO OF INSTAL.L.lNG CASING PIPE UNDER TRACKlSJ:
____ ORY BORE AHO JACK (WET ~ORE MOT PEflM~TTEDl ; _TUNNEL ; OTHER OP§'.U =rJZ.efN~ti
ClOISTANCE rROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND
, JACK I NO PI TS WHEN WEA SURED AT Al OHT ANOL. ES TO TRACK----­
H l APPL l CANT HAS CONT AC TEO oWCM) Tj !2FQ&'AJ
OF u. P. C(),,MLJNICAT10N DEPARTMENT ANO HAS OETERMINEO FIBER
OPTIC CABLE ___ DOE? ;~DOES HOT ; EXIST IN VICINITY OF
PI PE ..... ",_
CROSSING FOR
fALL S Wlc 1'l::"'t.. ~o lN!
liiffi iWfi c ,,
FILE NO : S"o05
OFFICE OF CHIEF ENGiN
0 .. -I'~ :.:.
·p.£. E 940207
Form Approved, AVP-Law
EXHIBIT B
Section l. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foreqoing grant of right is subject and subordinate to the prior and
continuing righ~ and obligation of the Licensor to use and maintain its entire property
including the right and power of the Licensor to construct, maintain, repair, renew,
use, operate, change, modify or relocate railroad tracks, signal, communication, fiber
optics, or other .wirelines, pipelines and other facilities upon, along or across any
o~ all parts o~ its property, all or any of which may be freely done at any time or
t.unes by the Licensor without liability to the Licensee or to any other party for
compensation or damages.
(b) The foreqoing grant is also subject to all outstanding superior rights
(including those in favor of licensees and lessees of the Licensor's property, and
others) and the right of the Licensor to renew and extend the same, and is made without
covenant of title or for quiet enjoyment.
Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION.
(a) The Pipeline shall be constructed, operated, maintained, repaired. renewed,
modifi9d and/or reconstro1cted by the LicanRae in strict conformity with Eastern
Idaho Rai1road Company standards -. and all
amendments thereof and supplements thereto, which by this reference is hereby made a
part hereof, except as may be modified and approved by the Licensor's Vice
President-Engineering Services. In the event such Specification conflicts in any
respect with the requirements of any federal, state or municipal law or requlation,
such requirements shall govern on all points of conflict, but in all other respects the
Specification shall apply.
(b) Al:Cwork performed on property of the Licensor in connection with the
construction, maintenance, repair, renewal, modification or reconstruction of the
Pipeline shall be done to the satisfaction of the Licensor.
(c) Prior to the commencement of any work in connection with the construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of
the Pipeline where it passes underneath the roadbed and track or tracks of the
Licensor, the Licensee shall submit to the Licensor plans setting out the method and
manner of handling the work, including the shoring and cribbing, if any, required to
protect the Licensor' a operations, and shall not proceed with the work until such plans
have been approved by the Vice President-Engineering Services of the Licensor and then
the work shall be done to the satisfaction of the Vice President-Engineering Services
or his authorized representative. The Licensor shall have the right, if it so elects,
to provide such support as it may deem necessary for the safety of its track or tracks
during the time of construction, maintenance, repair, renewal, modification,
relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor
provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days
after bills shall have been rendered therefor, all expense incurred by the Licensor in
connection therewith, which expense shall include all assignable costs.
(d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly
compacted and the grade even with the adjacent surface of the ground.
Section 3. NOTICE OF COMMENCEMENT OF WORK.
If an emergency should arise requiring immediate attention, the Licensee
shall provide as much notice as practicable to Licensor before commencing any work.
In all other situations, the Licensee shall notify the Licensor at least ten (10) days
(or such other time as the Licensor may allow) in advance of the commencement of any
work upon property of the Licensor in connection with the construction, maintenance,
repair, renewal, modification, reconstruction, relocation or removal of the Pipeline.
All such work shall be prosecuted diliqently to completion.
Exhibit B
Page 1 of 4
: : \ FO?.".S\P:z~:.:o. :<:..--::
"P'L E 940207
Form Approved, AVP-Law
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost and expense incurred in connection
with the construction, maintenance, repair and renewal and any and all modification,
revision, relocation, removal or reconstruction of the Pipeline, including any and all
expense which may be incurred by the Licensor in connection therewith for supervision,
inspection, flagging, or otherwise.
Section S. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE.
(a) The license herein granted is subject to the needs and requirements of the
Licensor in the operation of its railroad and in the improvement and use of its
property, and the Licensee shall, at the sole expense of the Licensee, reinforce the
Pipeline, or move all or any portion of the Pipeline to such new location or remove the
Pipeline from such property, as the Licensor may designate·, whenever, in the
furtherance of its needs and requirements, the Licensor shall find such action
necessary or desirable.
(b) All the terms, conditions and stipulations herein expressed with reference
to the Pipeline on property of the Licensor in the location hereinbefore described
shall, so far as the Pipeline remains on the property, apply to the Pipeline as
modified, changed or relocated within the contemplation of this section.
Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION.
The Pipeline and all parts thereof within and outside of the limits of the
property of the Licensor shall be constructed and, at all times, maintained, repaired,
renewed and operated in such manner as to cause no interference whatsoever with the
constant, continuous and uninterrupted use of the tracks, property and facilities of
the Licensor, and nothing shall be done or suffered to be done by the Licensee at any
time that would in any manner impair the safety thereof.
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
(a) Fiber optic cable systems may be buried on the Licensor's property.
Protection of the fiber optic cable systems is of extreme importance since any break
could disrupt service to users resulting in business interruption and loss of revenue
and profits. Licensee shall telephone the Licensor at 1-800-366-9193 (a 24-hour
number) to determine if fiber optic cable is buried anywhere on the Licensor's premises
to be used by the Licensee. If it is, Licensee will telephone the telecommunications
company(ies) involved, arrange for a cable locator, make arrangements for relocation
or other protection of the fiber optic cable, and will commence no work on the right
of way until all such protection or relocation has been accomplished. Licensee shall
indemnify and hold the Licensor harmless from and against all costs, liability and
expense whatsoever (including, without limitation, attorneys' fees, court costs and
expenses) arising out of or caused in any way by Licensee's failure to comply with the
provisions of this paragraph.
(b) In addition to other indemnity provisions in this Agreement, the Licensee
shall indemnify and hold the Licensor harmless from· and against all costs, liability
and expense whatsoever (including, without limitation, attorneys' fees, court costs and
expenses) caused by the negligence of the Licensee, its contractor, agents and/or
employees, resulting in (1) any damage to or destruction of any telecommunications
system on Licensor's property, and/or (2) any injury to or death of any person employed
by or on behalf of any telecommunications company, and/or its contractor, agents and/or
employees, on Licensor's property, except to the extent that such costs, liability or
expenses are caused by the direct active negligence of the Licensor. Licensee further
agrees that it shall not have or seek recourse against Licensor for any claim or cause
of action for alleged loss of profits or revenue or loss of service or other
~onsequential damage to a telecommunication company using Licensor's property or a
customer or user of services of the fiber optic cable on Licensor's property.
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES.
(a) The Licensee shall fully pay for all materials joined or affixed to and
labor performed upon property of the Licensor in connection with the construction,
Exhibit B
Page 2 of 4
~:\FORMS\PLEEXB.K.."'O
PL E 940207
Form Approved, AVP-Law
maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall
not permit or suffer any mechanic's or materialman's lien of any kind or nature to be
enforced against the property for any work done or materials furnished thereon at the
instance or request or on behalf of the Licensee. The Licensee shall indemnify and
hold harmless the Licensor against and from any and all liens, claims, demands, costs
and expenses of whatsoever nature in any way connected with or growing out of such work
done, labor performed, or materials furnished.
( b) The Licensee shall promptly pay or discharge all taxes, charges and
assessments levied upon, in respect to, or on account of the Pipeline, to prevent the
same from becoming a charge or lien upon property of the Licensor, and so that the
taxes, charges and assessments levied upon or in respect to such property shall not be
increased because of the location, construction or maintenance of the Pipeline or any
improvement, appliance or fixture connected therewith placed upon such property, or on
account of the Licensee's interest therein. Where such tax, charge or assessment may
not be separately made or assessed to the Licensee but shall be included in the
assessment of the property of the Licensor, then the Licensee shall pay to the Licensor
an equitable proportion of such taxes determined by the value of the Licensee's
property upon property of the Licensor as compared with the entire value of such
property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the event the Licensor authorizes the Licensee to take down any fence
of the Licensor or in any manner move or disturb any of the other property of the
Licensor in connection with the construction, maintenance, repair, renewal,
modification, reconstruction, relocation or removal of the Pipeline, then in that event
the Licensee shall, as soon as possible and at Licensee's sole expense, restore such
fence and other property to the same condition as the same were in before such fence
was taken down or such other property was moved or disturbed, and the Licensee shall
indemnify and hold harmless the Licensor, its officers, agents and employees, against
and from any and all liability, loss, damages, claims, demands, costs and expenses of
whatsoever nature, including court costs and attorneys' fees, which may result from
injury to or death of persons whomsoever, or damage to or loss or destruction of
property whatsoever, when such injury, death, damage, loss or destruction grows out of
or arises from the taking down of any fence or the moving or disturbance of any other
property of the Licensor.
Section 10. INDEMNITY.
(a) As used in this Section, "Licensor" includes other railroad companies using
the Licensor's property at or near the location of the Licensee's installation and
their officers, agents, and employees; "Loss" includes loss, damage, claims, demands,
actions, causes of action, penalties, costs, and expenses of whatsoever nature,
including court costs and attorneys• fees, which may result from: (a) injury to or
death of persons whomsoever (including the Licensor's officers, agents, and employees,
the Licensee's officers, agents, and employees, as well as any other person); and/or
(b) damage to or loss or destruction of property whatsoever (including Licensee's
property, damage to the roadbed, tracks, equipment, or other property of the Licensor,
or property in its care or custody).
(b) As a major inducement and in consideration of the license and permission
herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from
any Loss which is due to or arises from:
1. The prosecution of any work contemplated
installation, construction, maintenance,
reconstruction, relocation, or removal
thereof; or
by this Agreement including the
repair, renewal, modification,
of the Pipeline or any part
2. The presence, operation, or use of the Pipeline or contents escaping
therefrom,
except to the extent that the Loss is caused by the sole and direct negligence of the
Licensor.
Exhibit B
Page 3 of 4
L:\FORMS\PLE:EXB.KJO
"ISL E 940207
·· Form Approved, AVP-Law
Section 11. REMOVAL OF PIPELINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever, the Licensee shall,
at Licensee's sole expense, remove the Pipeline from those portions of the property not
occupied by the roadbed and track or tracks of the Licensor and shall restore, to the
satisfaction of the Licensor, such portions of such property to as good a condition as
they were in at the time of the construction of the Pipeline. If the Licensee fails
to do the foregoing, the Licensor may do such work of removal and restoration at the
cost and expense of the Licensee. The Licensor may, at its option, upon such
termination, at the entire coat and expense of the Licensee, remove the portions of the
Pipeline located underneath its roadbed and track or tracks and restore such roadbed
to as good a condition as it was in at the time of the construction of the Pipel~ne,
or it may permit the Licensee ·to do such work of removal and restoration to the
satisfaction of the Licensor. In the event of the removal by the Licensor of the
property of the Licensee and of the restoration of the roadbed and property as herein
provided, the Licensor shall in no manner be liable to the Licensee for any damage
sustained by the Licensee for or on account thereof, and such removal and restoration
shall in no manner prejudice or impair any right of action for damages, or otherwise,
that the Licensor may have against the Licensee.
Section 12. WAIVER OF BREACH.
The waiver by the Licensor of the breach of any condition, covenant or
agreement herein contained to be kept, observed and performed by the Licensee shall in
no way impair the right of the Licensor to avail. itself of any remedy for any
subsequent breach thereof.
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Pipeline for
one ( l) year, or if the Licensee continues in default in the performance of any
covenant or agreement herein contained for a period of thirty (30) days after written
notice from the Licensor to the Licensee specifying such default, the Licensor may, at
its option, forthwith immediately terminate this Agreement by written notice.
(b) In addition to the provisions of subparagraph (a) above, this Agreement may
be terminated by written notice given by either party hereto to the other on any date
in such notice stated, not less, however, than thirty (30) days subsequent to the date
upon which such notice shall be given.
(c) Notice of default and notice of termination may be served personally upon
the Licensee or by mailing to the last known address of the Licensee. Termination of
this Agreement for any reason shall not affect any of the rights or obligations of the
parties hereto which may have accrued, or liabil.ities, accrued or otherwise, which may
have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement, in whole or in part, or any
rights herein granted, without the written consent of the Licensor, and it is agreed
that any transfer or assignment or attempted transfer or assignment of this Agreement
or any of the rights herein granted, whether voluntary, by operation of law, or
otherwise, without such consent in writing, shall be absolutel.y void and, at the option
of the Licensor, shall terminate this Agreement.
Section 15. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 14 hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
Exhibit B
Page 4 of 4
L:\FORMS\PLEEXB.J(JO
PL X/E INS 940208
Form Approved, AVP-Law
EXHIBIT B-1
Pipeline (Hazardous, Flammable, 12" or Larger)
Insurance Requirements
Licensee shall, at its· own sole cost and expense, procure the following kinda of
insurance and promptly pay when due all premiums for that insurance. The following
insurance shall be kept in force during the life of this Agreement.
A. General Public Liability insurance providing bodily injury, including
death, personal injury and property damage coverage with a combined single
limit of at least $2, 000, 000 each occurrence or claim and a general
aggregate limit of at least $4, 000, 000. This insurance shall provide
Broad Form Contractual Liability covering the indemnity provisions contai~ed in. this Agreement, Underground Hazard, Products-completed
Operations with products-completed operation aggregate of at least
$2,000,000, a separate general aggregate for the project (ISO Form CG 25
03 or equivalent), Broad Form Property Damage, a waiver of governmental
inununity (ISO Form CG 25 04 or equivalent) severability of interests and
name Licensor as an additional insured with respect to all liabilities
arising out of Licensee• s obligation to Licensor in the Agreement.
Coverage purchased on a claims made form shall provide for at least a
three (3) year extended reporting or discovery period if (a) the coverage
is changed from a claims made form to an occurrence form, (b) there is a
lapse/cancellation of coverage, or (c) the succeeding claims made policy
retroactive date is different from the expiring policy.
B. Automobile Public Liability insurance providing bodily injury and property
damage with a combined single limit of at least $2,000,000 each occurrence
or claim. This insurance shall provide contractual liability by
endorsement ISO Form CA oo 25 or equivalent covering all motor vehicles
including hired and non-owned, mobile equipment to the extent it may be
excluded from general liability insurance, severability of interests and
name Licensor as an additional insured with respect to all liabilities
arisi?g out of Licensee's obligation to Licensor in the Agreement.
c. Worker's Compensation insurance covering the statutory liability as
determined by the compensation laws of the state ( s) affected by this
Agreement and Employers• Liability. Also compliance with all laws . of
states which require participation in their state workers' compensation fund.
The Licensee hereby waives its right to subrogation, as respects the above insurance
policy ( ies) , against Licensor for payments made to or on behalf of employees of
Licensee or its agents and for loss of its owned or leased property or property under
its care, custody and control while on or near Licensor's right-of-way or other real
property. Licensee's insurance shall be primary with respect to any insurance carried
by Licensor.
Licensee shall furnish to Licensor certificate(s) of insurance evidencing the required
coverage and endorsement(&) and upon request a certified duplicate original of any of
those policies. The insurance company ( iea) issuing such policy ( iee) shall notify
Licensor in writing of any material alteration including any change in the retroactiva
date in any "claims-made" policies or substantial reduction of aggregate limits, if
such limits apply, or cancellation thereof at least thirty (30) days prior thereto.
The insurance policy ( ies) shall be written by a reputable insurance company or
companies acceptable to Licensor or with a current Best's Insurance Guide Rating of B
and Class VII or better. Such insurance company shall be authorized to transact
business in the state(s) affected by this Agreement.