HomeMy WebLinkAboutPort Townsend Southern Railroad Company - Agreement to install and maintain pipe across right of wayTHIS AGREAHETT, rade this day of
by and between tho PORT TOWSM SOUTHERr RAILROAD C&PATY, a corporation,
hereinafter roferrod to as the and CITY OF PORT TOMEND,
a Mon"Anal 0000rati0n, heryinaoftcr called the "Licensee",
W I T N E S S E T H
1. The Railroal CorTany, in oonsideratiun of the faithful per-
formance by the Licensee Of all its agreenients herein contained, hereby
2;r,a,xr1-.s uzrto the Lioensee permission and license to instmil and maintain o•
sixteen inch (16") steel pipe across the one hundred fact (1001) right of
v ay and underiaott.h W tracks of the Railroad Company in Lot two (2), Sec-
tion nineteen (19). Tomnship twenty.nine (29) North, Range one (l)
F., at station 87-05 of the Engineer's statjon- of C(), 'y
tor track at Porl--, Tavnrist-,`!d, in Jefferson County, Tashington.
2. Said permission amd licer se c,,re so gran ed upon the followinS
terms, conditions and limitations, for a breach of any of which by the
Licensee, the Railroad Crag nor if it so eleotz, --,nay cancel thi,,5, contract
and end and determine 0 Cr all riShts hereby granted unto the Licensee:
a) Said pipe shall be installed and maintained beneath the
surface of the ground, and, where it passes beneath the tracks of the Rail-
road Company, said pipe shall be installed and naintained at an elevatio2e,
of not less than -4 feet below the base of the rails of such tracks. S•M
pile shall be a steel pipe and shall not be larger than sixteen inches (16")
in diameter.
b) Said pipe shall be installed. and r-iaiiitained at the sole cost
and expense of the Licensee. It shall be used J1? ti for the purpose
of conducting water.
Cc)Cc)A21 -, -sork of installation, alteration and mairtenanae of
said pipe -v'v-here the some passes beneath said railroad. roadbed and tracks
shall be done by the Railroad Company, but the Liwen8ee shall and will
repay unto the Railroaa Company all cost thereof upon thy rendition of
proper bills therefor. - The Railroad Company nay, at its election, before
dcinZ any such work, require the Licensee to deposit with the Railroad
CorTany the estinated cost thereof; and if the actual cost shall prove
to be more or less than such astinated cost, the difference shall be re-
lundod by the Railroad CorTany or paid by the Licensee, as the case
may- be
if the Railroad Company shall deem it necessary to protect or
support saia track, or any thereof, 7hile such 7mr! in beinS acre, it
shall proviae such protection and support, and, at the conclusion of
such work, ren.ove the same and restore such track or tracks to its or
their forpwr condition of usefulness and safety; and all cost of such
work shall be deemed a part of the cost of installation, Alteration or
as the case inay be, of such pipe, and repaid unto the
Railroad Company as here. in'biefore provieod.
d) The Licensee shall not enter upon the 2milroad premises for
the purpose of installinz, alter ins, renewing, repairin, or removing
said pipe without first notifying the Superintendent having supervision
over the Railroad Companyls premises across which said pipe is so to be
installed and maintained. All of the work hereby authorized shall be
done and performed with care, skill and diliSence and to the entire sat-
isfaction of such Superintendent or of such represerItative as he Tray
desiSnate. The Licensee shall not do and thirS upon the Railroad Cam-
panyfs premises whioh will interfere With 01- ii-nipair any Lrnprovomort or
facilities now maintained or mKich nay hereafter be constructed, installed,
or maintained, upon s a railroad promises, by said Railroad Compe-Try or pur-
suant to its authority, or 7hich oil! obstruct or th(..' s`;'_Vety of
railroad operations; and the Licensee shall and will, at all times, in carry-
ing on any work upon said railroad premises hereby authorized, strictly con-
form t o all directions and recfairements of such Superintendent and His
representative; and the Licensee shall and nil! at the conclus,or of such
York, restore the surface of sTia railroad pranises to a condition zatisfac-
tory to such Superintendent and his said representative.
e) The Licensee shall at all tines Pyintuin the portion of saia
pipe which it hereby aSrees to maaiitain, in such state of repair that the
said railroad roadbed and roadbeds, track and tracts, and other inTroverents
or facilities, and the operation of said railroad, will be in no way obstruct-
ed, impaired or rendered danlero= if at an,7,-, tirr c, i1c, chall re -_i.sonably
appear to the Railroad Company that said pipe, or ang part thereof, is
liable to impair any of said improve'snents, or interfere with or end anSer aaid
railroad operations, the Railroad Company nay notify the Moonsee in writinz
Lo nake such repairs as oil! prevent such interference and obviate such
danger; and vpon receipt of such. notice, the Licensee' shall and Yiill in-aI.e
ately make the necessary repairs. in the event the Licensee shall fail to
make such repairs prouptly the Railroad Company, if it so elects, nay, in
addition to any othex remedial right or rQht of redress i,i may ha-,,-'e.'
with its can. forces and mooms; Proviacd, that in any case of
euargency, of which the Railroad Company shall be the sole judge, the Railroad
Company you make such repairs without notice. if for any reason the Railroad
Company shall make such repairs, the Licensee shall and will, upon the present-
ation of proper bills therefor, repay ixnto the 7",Alroad Company all cost thereof.
f) The Licensee shall and will pay ane bear all assessments,
taxes or Hgosts whatsoever Mich may be assesstd or levied against, or on,
account of, ssid pipe and the use thereof, and it shall and will Molly
indemnify and save harmless the Railroad Ccm:pa._riy its property from and
against any and all liens and claims on account of such. assessment or taxes.
Q) The Railroad Company shall have full right, notwithstanding
this grant, to raise or lower the grade of all or any part of said rail-
roaa right of may across, upon or under -,-,,hi(;h said pipe is installed, to
all tracks or other improvements now on said right of way, and
to construct and additional roadbeds, tracks, buildings or other
railroad facilities, tolelragh, telephone, trans-rLission,,
Feed, trolley or other line or U-nes, buildings or railroad facilities
whatsoever, upon said right of say over and ac1'os8 said pipe, and to change,
re-looate and add to such i-rrovem --nJ;8 or facilities, :j-heth.or or here-
after constructed. and to use said railroad premf2es for all lawful pur-
poses; it being understood and agreed that the rights of the Railroad
Co pa in or to the use of the said right of may are, and at all times
shall be, superior to amy rights or privileges hereby granted unto the
Lioensoe. J--nd. in the event such changes or alterOiors, or additions, or
now construction, or any thereof, shall require the renovol of saij pipe,
at any changes in, or additions to, or changes in the location of, Aid
pipeo or any part thereof, the Liocnsee shall and hereby aEreos that Y
will, at its sole cost, and within ten days after uritten notice from the
Milroad Company of its proposed changes, additions, or new construction.,
remove said pipe, or rate such changes in, or additions to, or changes W
the location of said pipe as may be necessary to conform to the changes,
alterations or new construction of the Railroad CoKTany. if the Licensee
shall fail to do so, the Railroad ConTamy nay, if it so elects, in addi-
ticr to any other re.-ae,,5Ly which it rny have, remove said pipe, or s-uicln
chanSes or alterations i• , additions to, or changes in the location of,
such pipe, as are necessary to the carrying out of its proposed changes,
alterations, additions or new construction, its fol-ces and
and the Licensee shall and will, 1i2on presentation of proper bills there-
fc,r, rcjp a,y the Rz-,,ilrc>,d Co-').-zr/- cost of such work. If such pipe
shall be altered, changed or re-located, as herein provided, all the pro-
visions heraof shall thereafter apply to said pipe in its changed or
altered condition and location. in the ovent said pipe, or amy thereof,
shall be removed, as herein provided, this contract shall terminate forth-
vith 71th respect to the pipe so removed.
h) The Licennee assumes all risk of injury to 08 agents
and employes, including injuries resultinZ it death, and to its prop-
erty, and to the property of any of such aZents or employes, while upon.
said railroad premises pursuant to, or as the result of, an-,y- a-uthorii,-,y
or privilege hereby granted, thether resulting fram.railroad operptions
or otherwise. It further horeb-, all liability for or ar.i
account 02 Personal injuries, including injuries resulting > death, to annY
p e-r,: cn, -,,7.horisoavar, and all liability for or on account of Hjuries to
property,. to 7tomsoever belonging, in any nanner caused or contributed
to by the installation, mainUnance, condition, use or presence of such
pipe upon said Railroad Company's premises, or vAichwould not have beer,
sustained but for the presence of such pipe upon such promises.
The Licensee shall, and hereby agrees that, it will, at all
s.tvs and keep the Railroad Company free, clear and haj%miess
from any and all claims and costs resuil7 -2; from aziy ''v' Jury., the ris'kn
of o'r liabi]-ity for the Licensee has co assumed. Ana
in case the Railroad Compamy shall suffer or be held liable for an. n, I "I
l'oss, or costs -.-"I atsoever, on of injury, 4a_ s. ris l .:
of, or -for is assured by a.'s
provided, including any injury- from leakage from such pipe, the Licen-
see shall, and hereby stipulates it reimburse Me Rail-
road Company to the full amount of the loss or damage Mich the Rail-
road Company may !-,.i.viji ,,c _°nd a:'aovur_14 or for
the Railroad Cg-rape-ny Laay have been so held liable, including all costs,
The foregoinE stipu!aQn__-_s C r :-1,5 -annpt ion of risk, liability
and indcunity shall be applicable regarfloss of thrz,
of the Railroad Corpany, and of ion qents or engloyes, cRuoino or Con-
tribuMnS to such lose, injury, MaE5 or liabilily4 70thin6 in par-
agraph (h) heruof shall be oonstroud as crea3inS a right of recovery in
favor of any third party Minh would not othernise exist,,
70 Mn ' , 3 - - n thir -SrcaIlieoptloqtoforfyi'5 a,,nd , ,;
and any, or all rights and privileges hereby conferred, for any
breach of the conditions hereof, shall not be considered as an..
exclusivs remedy, but the .rid ailro,,,d shall be entibled to
any rumedial right or right of redress, at lau or in equity, for
any such breach, or threatened breach, as it --j-ouid have boo_-a
titled to had no right of forfeitare been reserved. And the
failure of the Railroad Cm_,ipary to assert any ASK of forfeiture
or remedial right or right of rsdress, for any breach by the
Licensee Of any duty or obliSa7 iozn i iiposed upoA said Licensee
the terms hereof, shall not be deamed of isac','-'i Cluty or
obligation, but tHo Railroad Conpany nay assert such right of for-
foiture or other renwMal right or right of redress for any future
breach, or threatened breach, of such or any other duty or obliga-
tion herein contained. Zeither shall anny tprmi;aotion of -Enis
contrraot' 'or rights and privileges hereb., raiy'jz-J, lbe constri'to'cl
as releasing the Licensee fram, any ass-mr-aption of risk or liability,
or any obligation of indemnl;y, I;") ejn-y _r---"-"M er
ring prior to such termination and the restoration of the said
railroad premises as herein provided.
1. It is hereby AQUA& and aSreod that, in the eve-03
of the almdament by the licensee of said pipe, via riShts heral-n
gran%d to saia Liconsua shall thereapon cease and doterqdne.
C n?
5. upon any termination of Vis Contract and the rights
and privileges hereby ranted, The RafIlropd --'Iay such
pipe from beneath said roadbed and restore sail roadbed, and Me
Licensee shall and will repay unto the Ccl_pa-a,r of
nd the Licensee shall and mill, at its sole cost an ,3.
expense, promptly remove such pipe from the reEninder of said
railroad premises and restore said premises to as good condition
as they were p'rio- r to of such pipe b y the
Licensee. Said work shall be done and
direction and supervisinn. to the satisfaction oQ
the said Superintendent and his representative. in case of the
fai%re of the Licensee to do and pe•foru such xmrk as Novo pro-
vided, The R- ilro,,,,d. Co-ra:),a:rry ray do the same and the Licensee shall
and will, upon presentation of proper bills therefor, repay unto
the Railroad Com"'-!any t1ne cost themof. The Licensee shall, ausll
it does hereby4 rolease the Railroad from any and all
WAZes and claWs for damages for injury to, aestriction or loy3
of, such pipe so removed by the Railroad Company, Avever cause&
6. "Cost", for the purpose of this be
all assignable costs plus ton per cent (10%) on all labor ituns
and fifteen per cent (15§) or all material items to CUT= elements
of expense not capable of exact and shall include a,
reasonable amnunt for enSineering and superintendence.
7)
7, it is understood and %rued that the provisions h5raia,
providloS for of AM b, the Licensee and for indennity of
the Railroad ConTany- by the Licensee, shall apply not only
ti s'7 but tc, d-,. ,ay oI.' the Railroad Corganyq lessees or licensees using
said track; and any notice to be Eiven to the Railroad Comp r.-'-' n's ore
provided, shall, in said track is AN6 operated by a Lessee of
the Railroad ConTany, be Eiven to such Less=
8. The Zrarts nnJ obligations of either party hereby made ox
oraated, shall extend to ant be hindi, upon the wcoessor or successors
in interest of such party; and the benefits hereof inuriag in favor of
either party shall inure in foTor of the successor 0, ,C ....... j,
of such party as wall; Proviaed, however, that the Licensee shall not
assign this agreement or any interesb therein, or any riSob to use said
pipe, or any riSht Or privilege hereby tunto ib,
30-isent; oJr' t3ne 11, 'ilroadl
1X 71TUESS
to be duly
herein written
ATTEST-
HEREOF, tho parties hereto ha
DG-'.7E in duplicate originals
a caused these presents
the day and year firs-o
0C' 77Y OF