20200813Falls Water to Staff 29 Attachment 8.pdf

EASTERN IDAHO RAILROAD
LICENSE AGREEMENT FOR WIRE, PIPE AND CABLE
TRANSVERSE CROSSINGS AND LONGITUDINAL
OCCUPATIONS
THIS AGREEMENT, made this 22°d day of June, 2004 between EASTERN IDAHO
RAILROAD, which has a mailing address at 315 WEST 3RD, PITTSBURG, KANSAS
66762 party of the first part (hereinafter called "Railroad"), and Falls Water Company
having a mailing address at 1770 Sabin Drive, Idaho Falls, ID. 83406 as party of the
second part (hereinafter called "Licensee").
WITNESSETH, that said Railroad (which when used herein shall include any lessor,
successor or assignee of or operator over its railroad) insofar as it has the legal right and
its present title permits, and in consideration of the covenants and conditions hereinafter
stated on the part of Licensee to be kept and performed, hereby permits, as a temporary
license, Licensee to construct, maintain, repair, alter, renew, relocate and ultimately
remove:
(1) Waterline Agreement as hereinafter more fully described on the attached
Exhibit "A."
LOCATION: below the tracks, right of way and property owned by Railroad at
or near 2180' North of the Center line of Section 23, Township 2 North, Range
38 East, County of Bonneville, State ofldaho.
In accordance with construction plans, submitted by Licensee to and approved by the
Property Manager, incorporated herein by reference; also in accordance with current
issues of Railroad Specifications Nos. RB 4 and/or RB 8; all and any part thereof being
hereinafter referred to as the "FACILITIES"; said license, however, shall be under and
subject to the following terms, covenants and conditions as hereinafter recited, which are
hereby accepted and agreed to, by Licensee, to wit:
1. The Licensee shall pay to Railroad upon the execution hereof, the sum of
FIFTEEN HUNDRED DOLLARS ($1500.00) for the cost of the license
and fees.
2. (a) The Facilities shall be located, constructed and maintained in exact
accordance with said construction plans and for the purpose as outlined in
Page 1. No departure shall be made at any time there from except upon
permission in writing granted by the Property Manager, or his designee,
provided, however, that if any commission or other regulatory body duly
constituted and appointed in compliance with the laws of the State in which
the crossing or occupancy herein provided is situated, and having
jurisdiction in the premises, has by ruling or other general order determined
and fixed the manner and means of construction, maintenance, repair,
alteration, renewal, relocation or removal thereof, then said ruling or general
order shall prevail for the crossing or occupancy herein mentioned.
(b) The work of constructing, maintaining, repairing, altering, renewing,
relocating or removing the said Facilities shall be done under such general
conditions as will be satisfactory to and approved by the Property Manager,
or his designee, and as will not interfere with the proper and safe use,
operation and enjoyment of the property of Railroad. Licensee, at its own
cost and expense, shall, when performing any work in connection with the
Facilities, furnish any necessary inspectors, flagmen or watchmen to see that
men, equipment and materials are kept a safe distance away from the tracks
of Railroad.
( c) In addition to, but not in limitation of any of the foregoing provisions, if
at any time Railroad should deem inspectors, flagmen or watchmen
desirable or necessary to protect its operations or property, or its employees,
patrons or Licensees during the work of construction, maintenance, repair,
alteration, renewal, relocation or removal of said Facilities, of Licensee,
Railroad shall have the right to place such inspectors, flagmen, or watchmen
at the sole risk, cost and expense of Licensee, which covenants and agrees to
bear the full cost and expense thereof and to promptly reimburse Railroad
upon demand. The furnishing or failure to furnish inspectors, flagmen, or
watchmen by Railroad, however, shall not release Licensee from any and all
other liabilities assumed by Licensee under the terms of this Agreement.
3. If Licensee desires or is required, as herein provided, to revise, renew, add
to or alter in any manner whatsoever the aforementioned Facilities, it shall
submit plans to Railroad and obtain the written approval of the Property
Manager thereto before any work or alteration of the structure is performed
and the terms and conditions of this Agreement with respect to the original
construction shall apply thereto. Railroad reserves the right to make
adjustments in the rental charges.
4. (a) Licensee shall at all times be obligated to promptly maintain, repair and
renew said Facilities; and shall, upon notice in writing from Railroad and
requiring it so to do, promptly make such repairs and renewals thereto as
may be required by Railroad; or Railroad, for the purpose of protecting and
safeguarding its property, traffic, patrons or employees from damage or
injury, may with or without notice to Licensee at any time make such repairs
and renewals there to and furnish such material therefor as it deems
adequate and necessary all at the sole cost and expense of Licensee.
(b) In the event of an emergency, Licensee will take immediate steps to
perform any necessary repairs, and in the event Licensee fails so to do,
Railroad will perform said necessary repairs at the sole cost and expense of
Licensee.
5. (a) The superv1s1on over the location of the construction work and
inspection of the Facilities and the approval of the material used in
construction, maintenance, repair, alteration, renewal, relocation and
removal of the aforesaid Facilities covered by this Agreement shall be
within the jurisdictional rights of Railroad.
(b) The right of supervision over the location of the construction work and
inspection of the Facilities from time to time thereafter by Railroad, shall
extend for an appropriate distance on each side of the property of Railroad
as the method of construction and materials used may have an important
bearing upon the strength and stability of the Facilities over, under, upon or
in the property of Railroad.
6. Licensee shall comply with all Federal, State and Local laws, and assume
all cost and expense and responsibility in connection therewith, without any
liability whatsoever on the part of the Railroad.
7. (a) It is understood between the parties hereto that the operations of
Railroad at or near the Facilities involve some risk, and Licensee as part of
the consideration for this license hereby releases and waives any right to ask
for or demand damages for or account of loss of or injury to the Facilities
(and contents thereof) of Licensee that are over, under, upon or in the
property and facilities of Railroad including the loss of or interference with
service or use thereof and whether attributable to the fault, failure or
negligence of Railroad or otherwise.
(b) And Licensee also covenants and agrees to and shall at all times
indemnify, protect and save harmless Railroad from and against all cost or
expense resulting from any and all losses, damages, detriments, suits,
claims, demands, costs and charges which the said Railroad may directly or
indirectly suffer, sustain or be subjected to by reason or on account of the
construction, placement, attachment, presence, use, maintenance, repair,
alteration, renewal, relocation or removal of said Facilities in, on, about or
from the premises of Railroad whether such losses and damages be suffered
or sustained by Railroad directly or by its employees, patrons or licensees,
or be suffered or sustained by other persons or corporations, including
Licensee, its employees and agents who may seek to hold Railroad liable
therefor, and whether attributable to the fault, failure or negligence of
Railroad or otherwise, except when proved by Licensee to be due directly to
the sole negligence of Railroad.
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( c) If a claim or action is brought against either party and for which the other
party may be responsible hereunder in whole or in part, such other party
shall be notified and permitted to participate in the handling or defense of
such matter.
8. All cost and expenses in connection with the construction, maintenance,
repair, alteration, renewal, relocation and removal of said Facilities shall be
borne by Licensee, and in the event of work being performed or material
furnished by Railroad under the stipulated right to perform such work of
construction, maintenance, repair, alteration, renewal, relocation or removal
under any section hereof, Licensee agrees to pay to Railroad the actual cost
of material plus the current applicable overhead percentages for storage,
handling, transportation, purchasing and other related material management
expenses and the actual cost of labor plus the current applicable overhead
percentages as developed and published by the accounting department of
Railroad for fringe benefits, payroll taxes, administration, supervision, use
of tools, machinery and other equipment, supplies, employers liability
insurance, public liability insurance and other insurance, taxes and all other
indirect expenses. It is to be understood that the aforementioned material
and labor overhead charges are to be applied at the rates which are effective
at the time of the performance of any work by employees of Railroad on the
said Facilities. Licensee agrees to pay such bills within thirty (30) days of
the presentation thereof by Railroad.
9. Licensee shall, at its sole cost and expense, upon request in writing of
Railroad, promptly change the location of said Facilities covered by this
Agreement, where located over, upon or in the property and facilities of
Railroad, to another location, to permit and accommodate changes of grade
or alignment and improvement in or additions to the facilities of Railroad
upon land now or hereafter owned or used by Railroad to the intent that said
construction shall at all times comply with the terms and conditions of this
Agreement with respect to the original construction; or in the event of the
lease, sale or disposal of the premises or any part thereof encumbered by
this license, then said Licensee shall make such adjustments or relocations
in its Facilities as are over, upon or in the property and facilities of Railroad
as may be required by said Railroad or its grantee; and if Licensee shall fail
or refuse to comply therewith, then the duly authorized agents of Railroad
may make such repairs or adjustments or changes in location and provide
necessary material therefore.
10. Upon termination of this Agreement or upon the removal or abandonment
of the Facilities covered hereby, all the rights, title and interest of Licensee
hereunder shall cease and determine, and this instrument shall thereupon
become and be null and void, without any liability on the part of either party
to the other party except only as to any rentals and liability accrued prior
thereto, and Licensee shall remove its said Facilities and appurtenances from
Railroad property, and right of way and all property of Railroad shall be
restored in good condition and to the satisfaction of Railroad. If Licensee
fails or refuses to remove its Facilities and appurtenances under the
foregoing conditions, Railroad shall be privileged to do so at the cost and
expense of Licensee, and Railroad shall not be liable in any manner to
Licensee for said removal.
11. In the event the Facilities consist of an underground occupation, Licensee
will be responsible for any settlement caused to the roadbed, right of way
and/or tracks, facilities and appurtenances of Railroad arising from or as a
result of the installation of the said Facilities for a period of one (1) year
subsequent to the date of completion of the installation, and Licensee agrees
to pay to Railroad on demand the full cost and expense therefore.
12. In the event the said Facilities consist of electrical power or communication
wires and/or appurtenances, Licensee shall at all times be obligated
promptly to remedy any inductive interference growing out of or resulting
from the presence of its Facilities; and if Licensee should fail so to do, then
Railroad may do so, and Licensee agrees to pay to Railroad on demand the
full cost and expense therefore.
13. As part of the consideration of the within Agreement, Licensee covenants
and agrees that no assessments, taxes or charges of any kind shall be made
against Railroad or its property by reason of the construction of said
Facilities of Licensee, and Licensee further covenants and agrees to pay to
Railroad promptly upon bills rendered therefore the full amount of any
assessments, taxes or charges of any kind which may be levied, charged,
assessed or imposed against Railroad or its property by reason of the
construction and maintenance of said Facilities of Licensee.
14. The rights conferred hereby shall be the privilege of Licensee only, and no
assignment or transfer hereof shall be made, or other use be permitted than
for the purpose stated on page 1 without the consent and agreement in
writing of Railroad being first had and obtained.
15. This Agreement with the rights granted may be terminated at any time by
either party hereto upon not less than thirty (30) days' written notice to the
other; and upon the expiration of the said thirty (30) days after service of
such notice, this Agreement and the permission and privileges hereby
granted shall absolutely cease and terminate.
16. This Agreement shall take effect after signed by both parties.
1 7. Automobile mileage charges incurred by aforementioned Railroad inspectors,
flagmen or watchmen in connection with the installation, maintenance, etc., of
said Facilities will be based on allowances approved by the United States
Government in effect at the time the expenses are incurred.
18. Environmental Compliance
18.1 Licensee represents that it has conducted a complete inspection of
the Facilities and except as noted herein, finds the Facilities to be
reasonably free from pollution-induced conditions.
18.2 Without limiting any other provisions of this Agreement,
Licensee, at its expense, will at all times maintain and keep the
Facilities and all improvements and property now or hereafter
erected or placed thereon, including but not limited to, the
structures, equipment, and operations, in compliance with all
federal, state, and local laws, rules and regulations designed to
prevent or control the discharge of substances in the land, water, or
air, and Licensee agrees to indemnify, hold harmless and defend
Railroad from and against any and all suits, actions, proceedings,
fines, claims, or the cleanup, response, removal or remediation of
any environmental condition arising from or alleged to arise from a
violation of any such environmental law, rule, or regulation, unless
and except where such violation shall have been caused solely by
the fault of the Railroad.
18 .3 Without limiting any other provision of this Agreement, Railroad
shall have the right to enter and inspect the Facilities in order to
determine whether Licensee is complying with such laws, rules,
and regulations, but no such inspection or absence of inspection by
Railroad shall be construed to relieve Licensee of its obligations to
comply with all such laws, rules and regulations.
18.4 In the event any cleanup, response, removal or remediation of any
environmental condition is required by a governmental entity
(hereinafter collectively referred to as "Response Action"),
Licensee shall not be entitled to any damages, actual or
consequential, by reason of the Response Action's interference
with Licensee's use of the Facilities. Licensee shall not be entitled
to an abatement in the rent for any interference with Licensee's use
of the Facilities due to a Response Action. Licensee shall permit
Railroad and its contractors full, unrestricted and unconditional
access to the Facilities for the purpose of completing or engaging
in a Response action for which Licensee is responsible should
Licensee fail to diligently pursue and complete such Response
Action to the satisfaction of Railroad. Railroad's completion of
any Licensee's obligations hereunder shall not be deemed a waiver
of Licensee's obligations under this Agreement. Railroad shall
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08/13/2004 10:16 2085224099 FALLS WATER CO PAGE 02
have the right, but not the obligation, to conduct reasonable
inspections of Licensee's Response Action and Licensee shall
provide Railroad all infonnati.on requested by Railroad regarding
Licensee's Response Action or any environmental condition for
which Licensee is responsible.
19. Licensee shall maintain a policy of comprehensive general liability and
railroad protecti.ve liability insurance for at least s2,ooo,ooo.oo combined
single limit, bodily injury and property damage per occurrence, $6,000,000
aggregate. Licensee shall maintain a policy of railroad protective liability
insurance for at least $2,000,000.00 per occurrence, $6,000,000.00 aggregate.
The Railroad must be a "named" or "additional'' insured. Licensee shall
fum.ish certificates to Railroad and provide not less than 30 days notice of
cancellation or materials change in coverage.
The terms of this Agreement shall be binding and effective upon all the parties hereto,
and unless and until terminated, as hereinbefore provided, this Agreement shall inure to
the benefit of and be binding upon the parties hereto~ their successors and assigns,
subject, however, to the provisions of Article ''14" of this Agreement.
IN WITNESS WHEREOF, the said parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
WITNESS: B~k.+J
Falls Water Company
BY:K.~~
I ' ~
PLACE ARROW INDICATING NORTH
DIRECTION RELATIVE
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