HomeMy WebLinkAboutCSX 623629 FACILITY ENCROACHMENT AGREEMENT
fter recording, retum to
ugusta Utilities Department
Jtn: Land Acquisition
60 Bay Street, Suite 180
.ugusta, GA 30901
706) 312 4143
PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
Book 01244:0215 Augusta - Richmond County
200904910612/29/200910:37:36.00
$0.00 AGREEMENT
111111111111 11111 11111111111111I11111111111111111111111I1111
2009049106 Augusta - Richmond County
FACILITY ENCROACHMENT AGREEMENT
THIS AGREEMENT, Made and effective as of September 2, 2009, by and between CSX
RANSPORATATION INC, a Virginia corporation, whose mailing address is 500 Water Street,
lcksonville, Florida 32202, hereinafter called "Licensor," and AUGUSTA GEORGIA, a
mnicipal corporation, political subdivision or state agency, under the laws of the State of
reorgia, whose mailing address is 360 Bay Street, Augusta, Georgia 30901, hereinafter called
Licensee," WITNESSETH:
WHEREAS, Licensee desires to construct (unless previously constructed and designated
s existing herein), use and maintain the below described facility(ies), hereinafter called
Facilities," over, under or across property owned or controlled by Licensor, at the below
escribed location(s):
One (I) eighteen inch (18") diameter sub-grade pipeline crossing, solely for the
onveyance of potable water, located at or near Augusta, Richmond County, Georgia, Milepost
YG-9.38,
ereinafter, collectively, called the "Encroachment," as shown on print(s) labeled Exhibit "B,"
ttached hereto and made a part hereof; other details and data pertaining to said Facilities being
s indicated on Exhibit "A," also attached hereto and made a part hereof;
NOW, THEREFORE, in consideration of the mutual covenants, conditions, terms and
greements herein contained, the parties hereto agree and covenant as follows:
LICENSE:
1.1 Subject to Article 17, Licensor, insofar as it has the legal right, power and
uthority to do so, and its present title permits, and subject to:
(A) Licensor's present and future right to occupy, possess and use its
roperty within the area of the Encroachment for any and all purposes;
(B) All encumbrances, conditions, covenants, easements, and limitations
pplicable to Licensor's title to or rights in the subject property; and
(C) Compliance by Licensee with the terms and conditions herein
ontained;
oes hereby license and permit Licensee to construct, maintain, repair, renew, operate, use, alter
r change the Facilities at the Encroachment above for the term herein stated, and to remove
ame upon termination.
1.2 The term Facilities, as used herein, shall include only those structures and
ncillary facilities devoted exclusively to the transmission usage above within the Encroachment,
nd as shown on attached Facility Application Form and plan(s).
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
1.3 No additional structures or other facilities shall be placed, allowed, or
laintained by Licensee in, upon or on the Encroachment except upon prior separate written
msent of Licensor.
ENCROACHMENT FEE; TERM:
2.1 Licensee shall pay Licensor a one-time nonrefundable Encroachment Fee of
OUR THOUSAND Dollars AND 00/100 U.S. DOLLARS ($4,000.00) upon execution of this
greement. Licensee agrees that the Encroachment Fee applies only to the original Licensee
l1der this Agreement. In the event of a successor (by merger, consolidation, reorganization
ld/or assignment) or if the original Licensee changes its name, then Licensee shall be subject to
ayment of Licensor's current administrative and document preparation fees for the cost incurred
y Licensor in preparing and maintaining this Agreement on a current basis.
2.2 However, Licensee assumes sole responsibility for, and shall pay directly (or
:imburse Licensor), any additional annual taxes and/or periodic assessments levied against
icensor or Licensor's property solely on account of said Facilities or Encroachment.
2.3 This Agreement shall terminate as herein provided, but shall also terminate
pon: (a) Licensee's cessation of use of the Facilities or Encroachment for the purpose(s) above;
)) removal of the Facilities; (c) subsequent mutual consent; and/or (d) failure of Licensee to
)mplete installation within five (5) years from the effective date of this Agreement.
2.4 In further consideration for the license or right hereby granted, Licensee
ereby agrees that Licensor shall not be charged or assessed, directly or indirectly, with any part
f the cost of the installation of said Facilities and appurtenances, and/or maintenance thereof, or
)r any public works project of which said Facilities is a part.
CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee shall construct, maintain, relocate, repair, renew, alter, and/or remove
le Facilities, in a prudent, workmanlike manner, using quality materials and complying with any
pplicable standard(s) or regulation(s) of Licensor (A.R.E.M.A. Specifications), or Licensee's
articular industry, National Electrical Safety Code, or any governmental or regulatory body
aving jurisdiction over the Encroachment.
3.2 Location and construction of Facilities shall be made strictly in accordance
rith design(s) and specifications furnished to and approved by Licensor and ofmaterial(s) and
ize(s) appropriate for the purpose(s) above recited.
3.3 All of Licensee's work, and exercise of rights hereunder, shall be undertaken at
me(s) satisfactory to Licensor, and so as to eliminate or minimize any impact on or interference
rith the safe use and operation of Licensor's property and appurtenances thereto.
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
3.4 In the installation, maintenance, repair and/or removal of said Facilities,
icensee shall not use explosives of any type or perform or cause any blasting without the
:parate express written consent of Licensor. As a condition to such consent, a representative
ill be assigned by Licensor to monitor blasting, and Licensee shall reimburse Licensor for the
ltire cost and/or expense of furnishing said monitor.
3.5 Any repairs or maintenance to the Facilities, whether resulting from acts of
icensee, or natural or weather events, which are necessary to protect or facilitate Licensor's use
fits property, shall be made by Licensee promptly, but in no event later than thirty (30) days
fter Licensee has notice as to the need for such repairs or maintenance.
3.6 Licensor, in order to protect or safeguard its property, rail operations,
luipment and/or employees from damage or injury, may request immediate repair or renewal of
le Facilities, and if the same is not performed, may make or contract to make such repairs or
mewals, at the sole risk, cost and expense of Licensee.
3.7 Neither the failure of Licensor to object to any work done, material used, or
lethod of construction or maintenance of said Encroachment, nor any approval given or
Ipervision exercised by Licensor, shall be construed as an admission ofliability or
:sponsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or
:sponsibility of Licensee under this Agreement.
3.8 All work on the Encroachment shall be conducted in accordance with
icensor's safety rules and regulations.
3.9 Licensee hereby agrees to reimburse Licensor any loss, cost or expense
ncluding losses resulting from train delays and/or inability to meet train schedules) arising from
ny failure of Licensee to make repairs or conduct maintenance as required by Section 3.5 above
r from improper or incomplete repairs or maintenance to the Facilities or Encroachment.
PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Encroachment
)r the contracted purpose, Licensee, at its sole cost and expense, shall obtain all necessary
ermit(s) (including but not limited to zoning, building, construction, health, safety or
nvironmental matters), letter(s) or certificate(s) of approval. Licensee expressly agrees and
rarrants that it shall conform and limit its activities to the terms of such permit(s), approval(s)
nd authorization(s), and shall comply with all applicable ordinances, rules, regulations,
~quirements and laws of any governmental authority (State, Federal or Local) having
lfisdiction over Licensee's activities, including the location, contact, excavation and protection
~gulations of the Occupational Safety and Health Act (OSHA) (29 CFR 1926.651(b)), et aI., and
tate "One Call" - "Call Before You Dig" requirements.
4.2 Licensee assumes sole responsibility for failure to obtain such permit(s) or
pproval(s), for any violations thereof, or for costs or expenses of compliance or remedy.
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
MARKING AND SUPPORT:
5.1 With respect to any subsurface installation or maintenance upon Licensor's
roperty, Licensee, at its sole cost and expense, shall:
(A) support track(s) and roadbed in a manner satisfactory to Licensor;
(B) backfill with satisfactory material and thoroughly tamp all trenches to
revent settling of surface of land and roadbed of Licensor; and
(C) either remove any surplus earth or material from Licensor's property or
ause said surplus earth or material to be placed and distributed at location(s) and in such manner
icensor may approve.
5.2 After construction or maintenance ofthe Facilities, Licensee shall:
(A) Restore any track(s), roadbed and other disturbed property; and
(B) Erect, maintain and periodically verify the accuracy of aboveground
larkers, in a form approved by Licensor, indicating the location, depth and ownership of any
nderground Facilities or related facilities.
5.3 Licensee shall be solely responsible for any subsidence or failure oflateral or
lbjacent support in the Encroachment area for a period of three (3) years after completion of
Istallation.
TRACK CHANGES:
6.1 In the event that rail operations and/or track maintenance result in changes in
rade or alignment of, additions to, or relocation oftrack(s) or other facilities, or in the event
lture use of Licensor's rail corridor or property necessitate any change of location, height or
epth in the Facilities or Encroachment, Licensee, at its sole cost and expense and within thirty
W) days after notice in writing from Licensor, shall make changes in the Facilities or
ncroachment to accommodate such track(s) or operations.
6.2 If Licensee fails to do so, Licensor may make or contract to make such
hanges at Licensee's cost.
FACILITY CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of the
acilities or Encroachment in relation to the existing tracks and facilities, and shall relocate the
acilities or change the Encroachment, at Licensee's expense, should such relocation or change
e necessary to comply with the minimum clearance requirements of Licensor.
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
7.2 If Licensee undertakes to revise, renew, relocate or change in any manner
rhatsoever all or any part of the Facilities (including any change in voltage or gauge of wire or
ny change in circumference, diameter or radius of pipe or change in materials transmitted in and
lrough said pipe), or is required by any public agency or court order to do so, plans therefor
llall be submitted to Licensor for approval before such change. After approval, the terms and
onditions of this Agreement shall apply thereto.
INTERFERENCE WITH RAIL FACILITIES:
8.1 Although the Facilities/Encroachment herein permitted may not presently
Iterfere with Licensor's railroad or facilities, in the event that the operation, existence or
laintenance of said Facilities, in the sole judgment of Licensor, causes: (a) interference
ncluding, but not limited to, physical or interference from an electromagnetic induction, or
Iterference from stray or other currents) with Licensor's power lines, communication, signal or
ther wires, train control system, or electrical or electronic apparatus; or (b) interference in any
lanner, with the operation, maintenance or use of the rail corridor, track(s), structures, pole
ne(s), devices, other property, or any appurtenances thereto; then and in either event, Licensee,
pon receipt of written notice from Licensor of any such interference, and at Licensee's sole risk,
ost and expense, shall promptly make such changes in its Facilities or installation, as may be
~quired in the reasonable judgment of the Licensor to eliminate all such interference. Upon
.icensee's failure to remedy or change, Licensor may do so or contract to do so at Licensee's sole
ost.
8.2 Without assuming any duty hereunder to inspect the Facilities, Licensor hereby
~serves the right to inspect same and to require Licensee to undertake repairs, maintenance or
djustments to the Facilities, which Licensee hereby agrees to make promptly, at Licensee's sole
ost and expense.
RISK, LIABILITY, INDEMNITY:
With respect to the relative risk and liabilities of the parties, it is hereby agreed that:
9.1 To the fullest extent permitted by State law (constitutional or statutory, as
mended), Licensee hereby agrees to, defend, indemnify, and hold Licensor harmless from and
gainst any and all liability, loss, claim, suit, damage, charge or expense which Licensor may
llffer, sustain, incur or in any way be subjected to, on account of death of or injury to any person
rhomsoever (including officers, agents, employees or invitees of Licensor), and for damage to
r loss of or destruction of any property whatsoever, arising out of, resulting from, or in any way
onnected with the construction, repair, maintenance, replacement, presence, existence,
perations, use or removal of the Facilities or any structure in connection therewith, or
~storation of premises of Licensor to good order or condition after removal, EXCEPT when
roven to have been caused solely by the willful misconduct or gross negligence of Licensor.
[OWEVER, to the fullest extent permitted by State law, during any period of actual
onstruction, repair, maintenance, replacement or removal of the Facilities, wherein agents,
quipment or personnel of Licensee are on the railroad rail corridor, Licensee's liability
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
ereunder shall be absolute, irrespective of any joint, sole or contributory fault or negligence of
.Icensor.
9.2 Use of Licensor's rail corridor involves certain risks ofloss or damage as a
~sult of the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of
)ss and damage to Licensee's Property or the Facilities in, on, over or under the Encroachment,
lcluding loss of or any interference with use or service thereof, regardless of cause, including
lectrical field creation, fire or derailment resulting from rail operations. For this Section, the
:rm "Licensee's Property" shall include property of third parties situated or placed upon
icensor's rail corridor by Licensee or by such third parties at request of or for benefit of
lcensee.
9.3 To the fullest extent permitted by State law, as above, Licensee assumes all
~sponsibility for, and agrees to defend, indemnify and hold Licensor harmless from: (a) all
laims, costs and expenses, including reasonable attorneys' fees, as a consequence of any sudden
r nonsudden pollution of air, water, land and/or ground water on or off the Encroachment area,
rising from or in connection with the use of this Encroachment or resulting from leaking,
ursting, spilling, or any escape of the material transmitted in or through the Facilities; (b) any
laim or liability arising under federal or state law dealing with either such sudden or nonsudden
ollution of air, water, land and/or ground water arising therefrom or the remedy thereof; and (c)
ny subsidence or failure of lateral or subjacent support of the tracks arising from such Facilities
:akage.
9.4 Notwithstanding Section 9.1, Licensee also expressly assumes all risk ofloss
rhich in any way may result from Licensee's failure to maintain either required clearances for
ny overhead Facilities or the required depth and encasement for any underground Facilities,
rhether or not such loss(es) result(s) in whole or part from Licensor's contributory negligence or
)int fault.
9.5 Obligations of Licensee hereunder to release, indemnify and hold Licensor
armless shall also extend to companies and other legal entities that control, are controlled by,
lbsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the rail
orridor on which the Encroachment is located, and the officers, employees and agents of each.
9.6 If a claim is made or action is brought against Licensor, and/or its operating
:ssee, for which Licensee may be responsible hereunder, in whole or in part, Licensee shall be
otified to assume the handling or defense of such claim or action; but Licensor may participate
1 such handling or defense.
9.7 Notwithstanding anything contained in this Agreement, the limitation of
ability contained in the state statutes, as amended from time to time, shall not limit Licensor's
bility to collect under the insurance policies required to be maintained under this Agreement.
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
O. INSURANCE:
10.1 Prior to commencement of surveys, installation or occupation of premises
lursuant to this Agreement, Licensee shall procure and shall maintain during the continuance of
his Agreement, at its sole cost and expense, a policy of Commercial General Liabilitv Insurance
CGL ), naming Licensor, and/or its designee, as additional insured and covering liability
ssumed by Licensee under this Agreement. A coverage limit of not less than THREE
JILLION AND 00/100 U.S. DOLLARS ($3,000,000.00) Combined Single Limit per
Iccurrence for bodily injury liability and property damage liability is currently required as a
lrudent minimum to protect Licensee's assumed obligations. The evidence of insurance
overage shall be endorsed to provide for thirty (30) days' notice to Licensor, or its designee,
lrior to cancellation or modification of any policy. Mail CGL certificate, along with agreement,
D CSX Transportation, Inc., Speed Code J180, 500 Water Street, Jacksonville, FL 32202. On
ach successive year, send certificate to Speed Code C907 at the address listed above.
10.2 If Licensee's existing CGL policy(ies) do(es) not automatically cover
jcensee's contractual liability during periods of survey, installation, maintenance and continued
,ccupation, a specific endorsement adding such coverage shall be purchased by Licensee. If said
~GL policy is written on a "claims made" basis instead of a "per occurrence" basis, Licensee
hall arrange for adequate time for reporting losses. Failure to do so shall be at Licensee's sole
isk.
10.3 Licensor, or its designee, may at any time request evidence of insurance
lurchased by Licensee to comply with this Agreement. Failure of Licensee to comply with
jcensor's request shall be considered a default by Licensee.
10.4 Securing such insurance shall not limit Licensee's liability under this
\.greement, but shall be security therefor.
10.5 (A) In the event Licensee finds it necessary to perform construction or
lemolition operations within fifty feet (50') of any operated railroad track(s) or affecting any
ailroad bridge, trestle, tunnel, track(s), roadbed, overpass or underpass, Licensee shall: (a) notify
jcensor; and (b) require its contractor(s) performing such operations to procure and maintain
luring the period of construction or demolition operations, at no cost to Licensor, Railroad
'rotective Liabilitv (RPL) Insurance, naming Licensor, and/or its designee, as Named Insured,
vritten on the current ISO/RIMA Form (ISO Form No. CG 00 35 01 96) with limits of FIVE
JILLION AND 00/100 U.S. DOLLARS ($5,000,000.00) per occurrence for bodily injury and
Iroperty damage, with at least TEN MILLION AND 00/100 U.S. DOLLARS ($10,000,000.00)
ggregate limit per annual policy period, with Pollution Exclusion Amendment (ISO CG 28 31
1 85) if an older ISO Form CG 0035 is used. The original of such RPL policy shall be sent to
nd approved by Licensor prior to commencement of such construction or demolition. Licensor
eserves the right to demand higher limits.
(B) At Licensor's option, in lieu of purchasing RPL insurance from an insurance
ompany (but not CGL insurance), Licensee may pay Licensor, at Licensor's current rate at time
If request, the cost of adding this Encroachment, or additional construction and/or demolition
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
ctivities, to Licensor's Railroad Protective Liability (RPL) Policv for the period of actual
onstruction. This coverage is offered at Licensor's discretion and may not be available under all
ircumstances.
10.6 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee, pursuant
) State Statute(s), may self-insure or self-assume, in any amount(s), any contracted liability
rising under this Agreement, under a funded program of self-insurance, which fund will respond
) liability of Licensee imposed by and in accordance with the procedures established by law.
1. GRADE CROSSINGS; FLAGGING:
11.1 Nothing herein contained shall be construed to permit Licensee or Licensee's
ontractor to move any vehicles or equipment over the track(s), except at public road crossing(s),
{ithout separate prior written approval of Licensor (CSXT Form 7422).
11.2 If Licensor deems it advisable, during any construction, maintenance, repair,
:mewal, alteration, change or removal of said Facilities, to place watchmen, flagmen, inspectors
r supervisors for protection of operations of Licensor or others on Licensor's rail corridor at the
~ncroachment, and to keep persons, equipment or materials away from the track(s), Licensor
hall have the right to do so at the expense of Licensee, but Licensor shall not be liable for failure
) do so.
11.3 Subject to Licensor's consent and to Licensor's Railroad Operating Rules and
lbor agreements, Licensee may provide flagmen, watchmen, inspectors or supervisors during all
mes of construction, repair, maintenance, replacement or removal, at Licensee's sole risk and
xpense; and in such event, Licensor shall not be liable for the failure or neglect of such
mtchmen, flagmen, inspectors or supervisors.
2. LICENSOR'S COSTS:
12.1 Any additional or alternative costs or expenses incurred by Licensor to
ccommodate Licensee's continued use of Licensor's property as a result of track changes or wire
hanges shall also be paid by Licensee.
12.2 Licensor's expense for wages ("force account" charges) and materials for any
rork performed at the expense of Licensee pursuant hereto shall be paid by Licensee within
lirty (30) days after receipt of Licensor's bill therefor. Licensor may, at its discretion, request
n advance deposit for estimated Licensor costs and expenses.
12.3 Such expense shall include, but not be limited to, cost of railroad labor and
llpervision under "force account" rules, plus current applicable overhead percentages, the actual
ost of materials, and insurance, freight and handling charges on all material used. Equipment
mtals shall be in accordance with Licensor's applicable fixed rate. Licensor may, at its
iscretion, require advance deposits for estimated costs of such expenses and costs.
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PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
3. DEFAULT, BREACH, WAIVER:
13.1 The proper and complete performance of each covenant of this Agreement
hall be deemed of the essence thereof, and in the event Licensee fails or refuses to fully and
:ompletely perform any of said covenants or remedy any breach within thirty (30) days after
eceiving written notice from Licensor to do so (or within forty-eight (48) hours in the event of
Lotice of a railroad emergency), Licensor shall have the option of immediately revoking this
~greement and the privileges and powers hereby conferred, regardless of encroachment fee(s)
Laving been paid in advance for any annual or other period. Upon such revocation, Licensee
hall make removal in accordance with Article 14.
13.2 No waiver by Licensor of its rights as to any breach of covenant or condition
Lerein contained shall be construed as a permanent waiver of such covenant or condition, or any
ubsequent breach thereof, unless such covenant or condition is permanently waived in writing
IY Licensor.
13.3 Neither the failure of Licensor to object to any work done, material used, or
nethod of construction or maintenance of said Encroachment, nor any approval given or
upervision exercised by Licensor, shall be construed as an admission ofliability or
esponsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or
esponsibility of Licensee under this Agreement.
4. TERMINATION, REMOVAL:
14.1 All rights which Licensee may have hereunder shall cease upon the date of
a) termination, (b) revocation, or (c) subsequent agreement, or (d) Licensee's removal of the
'acility from the Encroachment. However, neither termination nor revocation of this Agreement
hall affect any claims and liabilities which have arisen or accrued hereunder, and which at the
ime of termination or revocation have not been satisfied; neither party, however, waiving any
hird party defenses or actions.
14.2 Within thirty (30) days after revocation or termination, Licensee, at its sole
isk and expense, shall (a) remove the Facilities from the rail corridor of Licensor, unless the
larties hereto agree otherwise, (b) restore the rail corridor of Licensor in a manner satisfactory to
jcensor, and (c) reimburse Licensor any loss, cost or expense of Licensor resulting from such
emoval.
5. NOTICE:
15.1 Licensee shall give Licensor at least thirty (30) days written notice before
loing anv work on Licensor's rail corridor, except that in cases of emergency shorter notice may
Ie given. Licensee shall provide proper notification as follows:
a. For non-emergencies, Licensee shall complete and submit Licensor's
)utside Party Number Request Form (Form # OP) by facsimile, to facsimile numbers: (904)
~45-3692 and (904) 633-3450. Licensee may also scan and email a completed form to email
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REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
lddress: OP _Request@csx.com. A blank form, as well as additional instructions and
nformation, can be obtained from Licensor's web site, via web link:
Ittp:/ /www.csx.comlfuseaction=aboutproperty _ corridoroIo20#scheduling.
b. For emergencies, Licensee shall complete all ofthe steps outlined in
;ection 15.1 a. above, and shall also include detailed information of the emergency. Licensee
.hall also call and report details of the emergency to Licensor's Rail Operations Emergency
relephone Number: 1-800-232-0144. In the event Licensor needs to contact Licensee
:oncerning an emergency involving Licensee's Facility(ies), the emergency phone number for
Jicensee is: 706-726-4066.
15.2 All other notices and communications concerning this Agreement shall be
lddressed to Licensee at the address above, and to Licensor at the address shown on Page 1, c/o
:SXT Contract Management, J180; or at such other address as either party may designate in
~riting to the other.
15.3 Unless otherwise expressly stated herein, all such notices shall be in writing
md sent via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be
:onsidered delivered upon: (a) actual receipt, or (b) date of refusal of such delivery.
l6. ASSIGNMENT:
16.1 The rights herein conferred are the privileges of Licensee only, and Licensee
;hall obtain Licensor's prior written consent to any assignment of Licensee's interest herein; said
:onsent shall not be unreasonably withheld.
16.2 Subject to Sections 2 and 16.1, this Agreement shall be binding upon and
nure to the benefit of the parties hereto and their respective successors or assigns.
16.3 Licensee shall give Licensor written notice of any legal succession (by
nerger, consolidation, reorganization, etc.) or other change oflegal existence or status of
Jicensee, with a copy of all documents attesting to such change or legal succession, within thirty
30) days thereof.
16.4 Licensor expressly reserves the right to assign this Agreement, in whole or in
>art, to any grantee, lessee, or vendee of Licensor's underlying property interests in the
~ncroachment, upon written notice thereof to Licensee.
16.5 In the event of any unauthorized sale, transfer, assignment, sublicense or
:ncumbrance of this Agreement, or any of the rights and privileges hereunder, Licensor, at its
>ption, may revoke this Agreement by giving Licensee or any such assignee written notice of
ouch revocation; and Licensee shall reimburse Licensor for any loss, cost or expense Licensor
nay incur as a result of Licensee's failure to obtain said consent.
l7. TITLE:
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REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
17.1 Licensee understands that Licensor occupies, uses and possesses lands,
rights-of-way and rail corridors under all forms and qualities of ownership rights or facts, from
full fee simple absolute to bare occupation. Accordingly, nothing in this Agreement shall act as
:>r be deemed to act as any warranty, guaranty or representation of the quality of Licensor's title
for any particular Encroachment or segment of Rail Corridor occupied, used or enjoyed in any
manner by Licensee under any rights created in this Agreement. It is expressly understood that
Licensor does not warrant title to any Rail Corridor and Licensee will accept the grants and
privileges contained herein, subject to all lawful outstanding existing liens, mortgages and
mperior rights in and to the Rail Corridor, and all leases, licenses and easements or other
lnterests previously granted to others therein.
17.2 The term "license," as used herein, shall mean with regard to any portion of
the Rail Corridor which is owned by Licensor in fee simple absolute, or where the applicable law
:>f the State where the Encroachment is located otherwise permits Licensor to make such grants
to Licensee, a "permission to use" the Rail Corridor, with dominion and control over such
:lortion of the Rail Corridor remaining with Licensor, and no interest in or exclusive right to
:lossess being otherwise granted to Licensee. With regard to any other portion of Rail Corridor
:>ccupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives
lts exclusive right to occupy the Rail Corridor and grants no other rights whatsoever under this
i\greement, such waiver continuing only so long as Licensor continues its own occupation, use
:>r control. Licensor does not warrant or guarantee that the license granted hereunder provides
Licensee with all of the rights necessary to occupy any portion of the Rail Corridor. Licensee
further acknowledges that it does not have the right to occupy any portion of the Rail Corridor
leld by Licensor in less than fee simple absolute without also receiving the consent of the
)wner(s) of the fee simple absolute estate. Further, Licensee shall not obtain, exercise or claim
my interest in the Rail Corridor that would impair Licensor's existing rights therein.
17.3 Licensee agrees it shall not have nor shall it make, and hereby completely and
lbsolutely waives its right to, any claim against Licensor for damages on account of any
ieficiencies in title to the Rail Corridor in the event of failure or insufficiency of Licensor's title
:0 any portion thereof arising from Licensee's use or occupancy thereof.
17.4 Licensee agrees to fully and completely indemnify and defend all claims or
litigation for slander of title, overburden of easement, or similar claims arising out of or based
lpon the Facilities placement, or the presence of the Facilities in, on or along any
Encroachment( s), including claims for punitive or special damages.
17.5 Licensee shall not at any time own or claim any right, title or interest in or to
Licensor's property occupied by the Encroachments, nor shall the exercise of this Agreement for
my length of time give rise to any right, title or interest in Licensee to said property other than
:he license herein created.
17.6 Nothing in this Agreement shall be deemed to give, and Licensor hereby
~xpressly waives, any claim of ownership in and to any part of the Facilities.
Page 11 of 14 0
Book 01244:0226 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
17.7 Licensee shall not create or permit any mortgage, pledge, security, interest,
lien or encumbrances, including without limitation, tax liens and liens or encumbrances with
respect to work performed or equipment furnished in connection with the construction,
installation, repair, maintenance or operation of the Facilities in or on any portion of the
Encroachment (collectively, "Liens or Encumbrances"), to be established or remain against the
Encroachment or any portion thereof or any other Licensor property.
17.8 In the event that any property of Licensor becomes subject to such Liens or
Encumbrances, Licensee agrees to pay, discharge or remove the same promptly upon Licensee's
receipt of notice that such Liens or Encumbrances have been filed or docketed against the
Encroachment or any other property of Licensor; however, Licensee reserves the right to
challenge, at its sole expense, the validity and/or enforceability of any such Liens or
Encumbrances.
18. GENERAL PROVISIONS:
18.1 This Agreement, and the attached specifications, contains the entire
understanding between the parties hereto.
18.2 Neither this Agreement, any provision hereof, nor any agreement or provision
included herein by reference, shall operate or be construed as being for the benefit of any third
person.
18.3 Except as otherwise provided herein, or in any Rider attached hereto, neither
the form of this Agreement, nor any language herein, shall be interpreted or construed in favor of
or against either party hereto as the sole drafter thereof.
18.4 This Agreement is executed under current interpretation of applicable
Federal, State, County, Municipal or other local statute, ordinance or law(s). However, each
separate division (paragraph, clause, item, term, condition, covenant or agreement) herein shall
have independent and severable status for the determination oflegality, so that if any separate
division is determined to be void or unenforceable for any reason, such determination shall have
no effect upon the validity or enforceability of each other separate division, or any combination
thereof.
18.5 This Agreement shall be construed and governed by the laws of the state in
which the Facilities and Encroachment are located.
18.6 If any amount due pursuant to the terms of this Agreement is not paid by the
due date, it will be subject to Licensor's standard late charge and will also accrue interest at
eighteen percent (18%) per annum, unless limited by local law, and then at the highest rate so
permitted.
18.7 Licensee agrees to reimburse Licensor for all reasonable costs (including
attorney's fees) incurred by Licensor for collecting any amount due under the Agreement.
Page 12 of 14 0
Book 01244:0227 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
18.8 The provisions of this License are considered confidential and may not be
disclosed to a third party without the consent of the other party(s), except: (a) as required by
statute, regulation or court order, (b) to a parent, affiliate or subsidiary company, (c) to an
auditing firm or legal counsel that are agreeable to the confidentiality provisions, or (d) to
Lessees of Licensor's land and/or track who are affected by the terms and conditions of this
Agreement and will maintain the confidentiality of this Agreement.
18.9 Licensor shall refund to Licensee any overpayments collected, plus any taxes
paid in advance; PROVIDED, however, such refund shall not be made when the cumulative total
involved is less than One Hundred Dollars ($100.00).
19. RESERVED:
20. RESERVED:
Page 13 of14 /ZJ
Book 01244:0228 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
PS - FORM 1001-G
REVISED APRIL 29, 2008
AGREEMENT NO. CSX623629
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
(each of which shall constitute an original) as of the effective date of this Agreement.
Witness for Licensor: CSX TRANSPORATATION INC
_~ c:=::~-_~ ----..-,... ~
'"'-~'-'-~;:::~.~~_.___ - . /') /A./-L/' "
~ ~-
Print/Type Name:
Marie A. Musfeldt
Oi rector
Print/Type Title:
AUGUSTA GEORGIA
By: U2~A. ~
f\~ ~~\)q
~
Who, by the execution hereof, affirms that he/she has
the authority to do so and to bind the Licensee to the
terms and conditions of this Agreement.
Print/Type Name: David S. Copenhaver
Print/Type Title:
Mayor
Tax ID No.: 58-22042-74
Authority under Ordinance or
Resolution No.
Dated
() CTO BEl<.. (., 200 cr
/
Page 14 of 14 121
Book 01244:0229 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
FORM CSXT 7455 - R... 0710212007 <P... 1 of 4) \
APPLICATION FOR PIPELINE CROSSING/PARALLELISM 1
~
~TATION
lications are to be submitted in accordance with CSXT's Pipeline Specification DATE RECEIVED
~. Failure to strictly adhere to these specifications will result in delays, additional costs
sible return of your application. Drawings should either be 8W' x 11", 8W' x 14" or
7" size (refer to Drawing requirement checklist). CSXT reserves the right to approve or
any application.
ginal and one copy of this application form, together with plan and profile drawings,
750.00 nonrefundable Review Fee are to be submitted to: CSX Transportation, Inc.,
J1 Services Department, J180, 500 Water Street, Jacksonville, FL 32202.
ark may proceed on CSXT's right of way until the Licensee has received a fully executed agreement and obtained
~ to proceed from CSXT's local Roadmaster or its designee.
,0 future maintenance responsibilities CSXT will not enter into an agreement with a Developer. It is the
loper's responsibility to coordinate the application with the local governing municipal authority.
~rba1 approvals will be granted. No Blasting on/under/near CSXT right of way. No Directional Boring.
tiOD Date:
CSXT File/Agreement Number: t5:,\t {()2 DLo2g
~jff~f~I~~~~:~~;s '
,Check:here'ifagr~emen.rs.hould be J:1Uliled to this address
'",: '<'.' ':-;":' ";'.' " .::. . ~"..:' ~~..:,.',.:" ",:",', '.. .
A~gustaJ Georgia
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(0) Other
Describe:
Individual
Check here i a reement should be mailed to this address
G Swift & Associates
David L Har rove President
1206 Interstate Pkwy
Continued on Page 2...
Exhibit .'AH
Sheet \ of 4.
CSXT FU;- N(.}:.C~I,fi)f~.02:1
FORM CSXT 7455 -Rev. 07/02/2007 (page 2 of 4)
Book 01244:0230 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
\
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m Date:
CSXT File/Agreement Number: CJ:>Y- (023(02.... g
~~~lq~t~3:b4~~:t ~t;;i~~.~l~~{~;~~~,i~f::~~;t~:
Crossing Only
(Complete Section A or
B
,85
Valuation Station: I
llIe ost Location for Parallelism
en location Enters CSXT RfW:
W: ft. T/S/E!
La.titude: N
If K.nown:
Latitude: N
If K.nown:
"" Entrance
"'" Entrance
"'" Exit
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No
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Book 01244:0231 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
" FORM CSXT74S5 -Rev. 07/02/2007 (page 3 of4)
CSXTFile/AgreementNuxnber: b-? ldl3 (V2C{
tlon Date:
DYes DNa
Yes
Yes
Yes
No
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nents:'_
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Exhibit uA"
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Book 01244:0232 Augusta - Richmond County
2009049106 12/29/2009 10:37:36.00
FORM CSXT 7455 - Rev. 07/0212007 (page 4- of 4)
j DRAWING REQUIREMENTS FOR PIPELINE CROSSlNGIP ARALLELISM
on Date; Agreement Number: C-8I- (p ''2?JtoL '9
~tlon and measurements are to be oiearly labeled and shown on a/l drawings. All drawings are to be submitted with CSXT's
1cupancy applioation form No. 7455. Faliure to strictly adhere to these requirements may result in delays, additional costs and
ltum of your application.
should eithar be aoW x 11", SoW x 14" or 11" x 17" size. CSXT reserves the right to approve or deoilne anyapplicstion. Gray or
me soale requIred, Aarlal photos must be separate from the drawing.
All applicable boxes must be checked.
(Note: Metric Information will NOr be accepted.)
Jle Drawfng(s) size 8% x11,8% x140r 11x17.
'all plan view for parallelisms
~ Arrow
block with owner's legal nama, drawing number and date,
, plpeilne In bold IInos.
9nce and ,dlrectlon from CSXT actual milepost monumentlmarker (not the DOT sign at the road crossing).
ance end direction trom nearest track and public road Intersection.
lie road rlght.ot-way Dnes (If within the confines of a public road crossing).
-
:T right-of-way nnes relallve to centerline at adjacent track(s).
th of CSXT right of way.
Ie of crossing at traek(s), and number of tracks crossed.
1 View. cross-section and prolile of casing and carrier pipes.
,ts where ptpellne enters and leaves CSXT's right-of-way.
af length of carrier and casing pipe within CSXT right of way.
,ss-section of track at encroachment, Including relevant dimensions.
,thfminlmum cover of casing pipe measured from:
e( iop of pipe to bottom of raft
crY Within the right-of-way but net beneath the track(s)
GY" Below any ditches
scrlption of Casing Pipe End Seals
asurement to any manhole(s)/other(s) from nearest/adjacent track(s) and milepost.
e and location of Vent pIpes on cross sectlorJproflle drawing (for flammable substance with sealed casing pipe).
:ation of shut off valves:
(a) Crossings: No further than 2,OC.o feet from centerline of nearest track;
(b) Parallelisms: Within 2,000 feet of entrance and exlt point of CSXT rlght-of.way
Cation of any CSXT signals, signal equIpment, road crossing wamlng devices, poles, pole linee, bridges, and llny other facllitres relevant to the
lellne and the location of the pipeline.
caHan of all proposedJperfcl'1Tled geotechnical borings - This is requIred for all casings with an O.D. of 48 Inches 0; grester.
dillies, structures, obstruc!lons. etc... to be relocated.
stance oHace of launching &. Receiving Pits located from centerline of adjacent track@ 00'.
lunChing Plt and Receiving Pit DimensIons: \Nidth, Length and Depth.
1St I have reviewed CSXT's PIpeline Specifications and the foregoing Information complies with !he current CSX Pipeline Sp6clf1catlons, governing
egulations, llt1d accurate!J-reftetls the proposed pipeline crosslng/parl'i1lelism of CSXT's right of way.
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