HomeMy WebLinkAboutV. 96 P. 451 Port Townsend Southern Railroad Company - AgreementTHIS AGREAYE3-,T, this d2%v of (J' L'
71-1 -,-, -
1929,
by and between the PORT TOWNSEIND SOUTH:E,1-d,,f llhilaOAD ARTY, a corporKion,
hereinafter roferrod to as the "Railroad. Compaa-,y% and CITY OF PORT TGUSEND,
a municipal Corporation, hereinafter called the "Licensee"$
1. The Railroad Companyi in consideration of the faithful per-
fOrmance by the Licensee of all its aSreements herein contained, hereby
Eran,s unto the Licensee ter i? and license to install and yaintain a
sixteen inch (16"') steel pipe across the one hundred foot (1001) rilh-t of
way and underneath the trachs of the Railroad Company in Lot two (2), sec-
tion nineteen (A), !'awns'_ ip twenty -Ars (29) North, Range one (1) Test,
T. T., at station 67-05 of the EnSireer's Stations of Ri--tilroad Co-f';.pan'Yts
Mft in tr'Rck at Pon'-; To`vviisend, in jefferson County, 71shington.
2. Saij Permission and 10.-,ense ,,re so 'r"'roait'ed upon the followinc;
terms conditions and limitationo, for a breacln o -f any of -v,7'hich by the
Licensee, the Railroad Company, if it so elects, maycancel this contract
and end and determine any or all rights hereby granted unto the Licensee:
I l
Said pips shall be inst-ailed and Sia. intninod benea4th the
surface of the Sround, and, where it passes beneath the tracks of the Rail-
road Company, said pipe shall be installed and maintained at an elevation
J!. not less than 4 feet below the base of the railo of such tracks. Said
pipe shall be a steel Diye and shall not be larypr ±Ynn qinop,n ionvan flp"
in diameter.
b) Said pipe shall be installed. aad xaaiiltainad at the sale cost
and expense of the Licensee. it shall be used only for the purpose
of conducting mater.
c) All 7ork of installation, alteration and rairtenance of
said pipe YThere the same passes beneath said railroad roadbed and tracks
shQ1 be done by the Railroad Company, but the Licensee shall and will
repay unto the Railroad Company all cost thereof upon the rendition af
proper bills therefor. - The Railroad Company nay, at its elooton, before
doing any such work, reqpire the Licensee to deposit with the Railroad
Company the estiriated cost thereof; and if the aotual cost shall prove
to be more or less than such estimated cost, the differonce shall be re-
hunded by the Railroad CorTamy or paid by the Licensee, as the case
may be.
if the Railroad Company shall deem it necessary to protect or
support said track, or an, thereof, while such work is being done, it
shall provide such protection and support, and, at the conclusion. of
such work, romovthe saane and restore such track or tracks to its or
their former condition of usefulness and safety; and all cost Of such
vrork shall be deemed a part of the cost of ivstallation, alteration or
maintenance, as the case may be, of such pipe, and repaid unto the
Railroad Company as horeinbefore provided.
d) The Licensee shall not enter upon the Railroad premises for
the purpose of installing, altorinS, renewing, repairinG Or renOving
said pipe without first notifyinS the Superintendent having supervision
over the Railroad Com.panyts premises across whioh said pipe is so to be
installed and rnintaineV All of the work horeby authorized sha.l."I be
done and porformed with care, skill and diligence and to the entire sat-
isfaotion of such Superintendent or of such representative as he may
designate. The Licensee shall not do anythinS upon the Railroad Can,-
pany4s pre rises which will interfere with or impair any izrprovortcnt or
facilities new maintained or mhich nay hereafter be constructed, installed
2)
or naintaired, upon shin railroad promises, by said Railroad Company or pur-
suant to its authoritIV or which will obstruct or enavnSor the safety of
railroad operations; and the Licensee shall and will, at all timBs, in carry-
ing on any work upon said railroad promises hereby authorized, strictly con-
form to all directions and req:uirenents of such Superintendent and his
representative; and the Licensee shall and will at the conclusion of such
worRi restore the surface of said railroad pramises to a condition satisfac-
tory to such Superintendent and his said representative.
e) The Licensee shall at all Miss maintain the portion of saia
pipe which it hereby agrees to maiDtain, in such state of repair that the
said railroad roadbed and roadbeds, track and tracks, and other improvements
Ear facilities, and the opernbion of said railroad, will be in no way obstruct-
ed, impaired or rendered dangerous. if at any -bJiae it s1aall reasonably
appear to the Railroad Company that said pipe, or any part thereof, is
liable to !zpair any of said improvements, or interfere, with or ondanSer said
railroad operations, the Railroad Company nay notify the Lioensee in writinZ
o make such reGj:).tirs as will prevent such interference and obviate such
danger; and upon receipt of such notice, the Licensee shall and will immedi-
ately make the necessary repairs. In the event the Licensee shall fail to
make such repairs pronTtly the Railroad Company, if t' SCS elects, may, ir
addition to amy othei remedial right or right of redress 7hich it may, have,
3.-.-
ia7_
k:e the same oith its own forces and vevzs; Proviaej, that in any case of
E mergency, of nhioh the Railroad Conjany shall be the sole judSe, the Railroad
CompanT may 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 propor bills therefor, repay unto the Railroad Conpany all 00 thereof -
f) The Licensee shall and will pay and bear all assessments,
taxes or jorposts whatsoever which maT be assessed or levied aSainst, or on
account of, said pipand the use thereof, and it shall and All wholly
indemnify and save harmless the Railroad Cojm pan,, and its property from and
against any and all liens and claims on account of such assessment or tames.
13)
The Ralilroad Company shall have full right, notwithstandinS
this grant, to raise or lower the grade of all or any part Of said r
road right of any across, upon or under ohinh said pipe is installed, to
maintain all tracks or other improvements now on said right ofway, and
to construct aa)a additional roadbe0s, tracks, buildings or other
railroad facilities, teleSraph, telephone, transnission, distribution,
feed, trolley or other line or lines, buildings or railroad facilities
whatsoever, uponsaid right of way over and across said pipo, and to change,
re- looate and add to such improverants or facilities, ohether now or here-
after constructed, and to use said railroaa premises for all lawful pur-
poses; it being understood and agreed that the rights of the Railroad
CoI;ziUa,ny in or to the use of the said right of uay are, and at all times
shall be, superior to any rights or privileges hereby granted unto the
Lioensee. _',_nd in the event such changes or alterations, or additions, or
new construction., or &ir,,, thereof, shall require the removal of said pipe,
or ch,,:x,2es in, or additions to, or changes in the location of, Aid
pipe, or any part thereof, the Licensee shall and hereby agrees that K
will, at its soie cost, and within ton days after written notice fronn the
Railroad Company of its proposed changes, additions, or now construction,
remove said pipe, or nahe such changes in, or additions to, or changes iri_
the location—of said pipe a$ may be necessary to conform to the changes,
alterations or now construction of the Railroad Congany. if the Licensee
tp do so, the Railroad Conpary nay, if it so elects, in addi-
tion to any other remedy -Thdch it nahave, said pipe, Or :t! k, such
chanSes or alterations W, additions to, or changes in the location of,
such pipe, as are necessary to the carryinZ out of its proposed changes,
alterations, additions or new construction, with its own forces and means;
anj the Licensee shall and 7111, upon presentation of proper bills there-
for, repay unto the Railroad CoDpany all cost Of SuOh w0rhW if such pip(_
shall be altered, changed or re -located, as hereir provided, all tin pro-
visions hereof shall thereafter apply to said pipe in its changed or
altered condition and location. In the event said pipor any thereof..
shall be removed, as herein provided, this contract shall terminate forth-
with Mh respect to th@ pipe so removed.
hQ The Licensee assumes all risk of injury to its agents
amd eugloyes, including injuries resulting in death, and to its prop-
erty, and to the property of amy of such z, erts or employes, while upon
said railroacl,
pre
nises pursuant to, or as the result of,, any a.ut'horlty
or privilege hereby granted, whether resulting fram.railroad operNions
or otherw-ise. it further hereby assumes all liability for or on
account o? purson'a"! L-njiuxiesi including injuries resulting Y death, to any
porso-,.-i 7,7homsoever, and all liability for or ?,r= aocount OP injuries to
property, to whomsoever belonZing, in any manner caused or contributed
to by the installation, raintenance, condition, use or presence of such
pi, would n-' havepeupon. Said Railroad Company's premises, or i,, - o t'
sustained but for the presence of such pipe upon such premises.
The Licensee shall, and hereby agrees that it will, at all
tOns, save Paxnal heep the Railroza Company free, clear and e s s
Jfromanyandallclaimsandcostsresultingfro.q. any ir.'(vry, the risk -
of which, or liability for-:,--hich, the Licensee has so assumed. And
in case the Railroad Companoy shall suffer or be held liable for ann7_1
az,so or costs whatsoever, on account of auy injury, the ris'
of, or liability for which is assumed by tI'e as he,,reirLbefore
provided, including any injury from leakage from suchpipe, the Licen-
see shall, and hereby stipulates that it will, reimburse the Rail-
road Conpany to the full amount of the loss or dosage nhioh the Rail-
xos.d. may havT so sustained, and snount of, as, -v oh
the Railroad Company may have been so held liable, includiag all costs,
The foregoing stipulativr.'.s 7or of risk, liability
and inac......
3:.
ty shall be applWable regaraless of neSIAZence upon the pa&,-
of the of in kgonts or employes, causing or con-
tributing to such loss, injury, Wage or liability. 70thi, in par-
agraph (h) hereof shall be construed as creaUNE a right of recovery VI
3avor of any third party .'fir.- _.h ruuid not othernise exist,
o-hoon to forfwi 5 a.nd- delcerralina, this agree--naeyb
and any or all rights and privileges hereby conferred, for any
broach of the conditions hereof, shall not be considered as an
exclusivs ramedy, but the Railroad Co:-,,,,pan.y shall be entitled to
any rumedial right or right of redress, at lau or in equity, for
any such breach, or threatened breach, as it mould have been en-
titied to had no right of forfeiture been reserved. And the
failure of the Railroad Company to assert any right of forfeiture
Car remedial right or right of relress, for any breach by the
Licensee of any duty or objiSation imposed said L13,!)-ns6oo by
the tornz hereof, shall not be de ed a waiver of such duty or
obligation, but the Railroad Company ray assert such right of for-
foiture or other right or right of redress for any future
breach, or threatanK breach, of such or any other duty or ObliSa-
Won herein cJnt_:nwV® !either shall any tarmination of this
oontraot, or tie rights and privileges hereby ;ranbed, be construed
as releasing the Licensee fra-'a any assu-'aption of rish or liability,
or any obligation of in,cKmrxiiby' Uith respeo"'L to any 111!aLtller Occux--
rinS prior to such tormination and the restoration of the said
railroad presises as heroia provides.
1. It is hereby stipulated and a6reed that, in the event;
of the abwdoment by the Licensee of Suid pipe, v4e riShts horwin
grunted to said Licansua shall theroapon cease and deterndne,
8)
turminatiOn of Ws contract and the MOTIcs
and privilWil. s hereby rante?, The Raf",,iroad :rn,y remove s' oh.
pipe frum beneath said roadbed and rcsvore said roadbed, an tie
Licensee shall nmd will repay unto the Tlail'road Com"r"a',n. -':"Il cost of
inri the Licensee shall and will, at its sole cost and
e,K-pe-n, se, pro:aa2tly remove such pipe from. the remainder of said
railroad premises and restore said promises to as good condition
as they 7are prior to the installation of such pipe b y the
Licensee. , Said work shall be done and perforLod undor the
direction and supervisio-.,i of, and co-a-aipletud to tho satisfaction
the said Superintendent and his reprosentative. in case of the
fai!Qre of tim Licensee to do and perform such work as above pro-
vided, The Railroad Company ray do the same and the Licensee shall
and will, upon presentation of proper bills therefor, repay unto
the Railroad Company the cost thorwoh The Licensee shall, and
it does hereby, ralease the Railroad fra'Fi f"."qy aalct a"Ll
dana6es and for for injury to, destruction or loss
of, such pipe so removed by - the Railroad Company, however caused.
6. "Cost", for the purpose of this sIncs,11 be
all assignable costs plus ton per cent (10%) on all labor itans
and fifteen per cent (15y) all _nat;erial items to cover elemenbs
of expense not capable of exact ascartainment, and shall include a,
reasonable amount for engineering and superintendance.
7)
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