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HomeMy WebLinkAbout1996-037 Easement - Pacific RR9 5-I . 028 GRANT OF EASEMENT THIS AGREEMENT made and effective this 9--4 day of March, 1996, by and between CENTRAL OREGON & PACIFIC RAILROAD, INC. a Delaware Corporation, with an address for the purposes of this Agreement of 4040 Broadway, Suite 200, San Antonio Texas, 78209, herein called "Railroad"; and the CITY OF ASHLAND, OREGON, an Oregon municipal corporation, herein called "Grantee". GRANT OF EASEMENT In consideration for the sum of Seventy Five Thousand Four Hundred Eighty Four Dollars and Zero Cents ($75,484.00), and other obligations contained herein, Railroad hereby grants, to the extent that Railroad's title permits it to do so, a perpetual, nonexclusive casement to Grantee to use only for the purpose of installing, constructing, operating, maintaining, repairing and replacing a public bicycle trail, hereinafter named the "Bike Trail", across, along and upon the real property described as Parcels 1, 2, and 3 on the attached Exhibit "A", which is incorporated by this reference as though set forth in full (hereinafter termed "'Easement Premises"). TERMS AND CONDITIONS OF GRANT This Grant of Easement is made subject to and conditioned upon the following Terms, which Grantee hereby promises to faithfully observe and perform: 1. The rights herein granted are expressly limited vertically and shall not extend beyond a plane parallel with and fifteen (15) above the roadway surface of the Bike Trail as such Bike Trail is originally constructed, EXCEPT THAT lighting fixtures and similar appurtenances may extend above said plane, PROVIDED THAT any such facilities shall be removed or reconfigured within thirty (30) days after any notification from Railroad that such facilities interfere with any intended use of the space above said plane. 2. This grant is subject and subordinate to the prior right of Railroad, its successors and assigns, to use all the property described herein. There is reserved unto Railroad, its successors and assigns the right to construct, reconstruct, maintain, use and remove existing and future telecommunications, electric power, pipeline, and other utility facilities in, on, over, under, across and along the Easement Premises. 3. Nothing in the Terms of this Agreement shall be construed to convey or otherwise vest in Grantee any right to install or to authorize the installation of any ditches, pipes, drains, sewer or underground structures, or any telegraph, telephone or telecommunications facilities of any kind, or any electric power line or any pipeline in, upon, over, under, across or along the Easement Premises, EXCEPT as such facilities may be necessary solely for the limited purpose of the maintenance of the Bike Trail. 96-1 028 4. Grantee shall obtain any necessary governmental authority, permits or clearances to construct, reconstruct, maintain and use the Bike Trail. Any contractor performing any work on the Easement Premises or on the adjacent property of Railroad shall execute Railroad's standard form of Contractor's Right of Entry agreement prior to commencing any work on the Easement Premises or on any adjacent property of Railroad. 5. Grantee shall bear the entire cost and expense of constructing, reconstructing and maintaining the Bike Trail. 6 As part of the consideration hereof, Grantee agrees to pay Railroad an amount equal to all assessments levied by order of any lawful body against the subject property of Railroad (and which may have been paid by Railroad) to defray any part of the expense incurred in connection with the construction or reconstruction of the Bike Trail commenced within two (2) years from the date of this Agreement. 7. Should Grantee at any time abandon the use of the Easement Premises or any part thereof, or fail to use the same for the purposes set forth herein for a continuous period of five (5) year, the Easement granted by this Agreement shall cease to the extent of the use so abandoned or discontinued, and Railroad shall at once have the right, in addition to but not in qualification of the rights hereinabove reserved, to resume exclusive possession of the Easement Premises, or the part of the Easement Premises that has been abandoned or the upon which use has been discontinued. Upon termination of the rights hereby granted for any reason, Grantee agrees to remove the Bike Trail, including all paving, from the property of Railroad, to restore the property of Railroad as nearly as practicable to the state and condition in which it existed prior to the construction of the Bike Trail and to bear all expense thereof. In the event that Grantee fails, neglects or refuses to remove the Bike Trail and restore the property of Railroad, Railroad may perform the removal and restoration at the expense of Grantee and payable in full to Railroad upon demand. 8. in the event Grantee breaches or fails to perform or observe any of the terms and conditions of this Agreement, or fails to cure such breach or default within 15 days, or if not capable of cure within 15 days, fails to cure such breach or default within the reasonable time set by Railroad after consultation with Grantee, Railroad may terminate Grantee's rights under this Easement Agreement in addition to and not in any limitation of any other remedy of Railroad. The failure of Railroad to exercise such right at any time shall not waive Railroad's right to terminate for any future breach or default. 9. No termination of this Agreement shall release Grantee from any liability or obligation with respect to any matter occurring prior to such termination, nor shall such termination release Grantee from any obligation to remove the Bike Trail or to restore the Easement Premises to its original condition. O25 10. The Easement granted to Grantee is subject to all covenants, conditions, restrictions, exceptions, casements, rights-of-way, rights-of-access, agreements, reservations, encumbrances, liens and other matters as the same may be of record; any matters which would be disclosed by survey, investigation or inquiry; and any tax, assessment or other governmental lien against the Easement Promises, ESPECIALLY INCLUDING, BUT NOT LIMITED TO those exceptions and reservations contained in that certain deed dated December 31, 1994 from Southern Pacific Transportation Company to Railroad, which deed was record in the records of Jackson County as Document No. 95-00050 on January 3, 1995. 11 Grantee shall maintain the existing drainage on the Easement Premises in such manner so as not to impair the Railroad property adjacent to the Easement Premises and so as not to redirect or increase the quantity or flow velocity of any surface water runoff or any streams in a manner that would impair or negatively impact Railroad's drainage system or upon any property of Railroad. If the Easement Premises or any existing drainage are modified or improved, Grantee agrees to construct and maintain, in accordance with all applicable statutes, regulations, ordinances, codes, covenants, and restrictions, an adequate drainage system from the Easement Premises. 12. Grantee hereby covenants and agrees that Railroad shall not be required to erect or maintain any fences, railings or guard rails along the Easement Premises or the adjacent property of Railroad; shall not be responsible or required to pay any part of the cost of erecting or maintaining such fences, railings or guard rails, or be liable for any damage, loss or injury that may result by reason of their existence or non-existence. Grantee covenants and agrees that it, at its sole expense, shall erect and forever maintain to the satisfaction and approval of Railroad's General Manager, a fence along the trackside boundary of the Easement Premises. 13. The parties intend that all benefits and burdens contained in this Agreement shall be binding upon each of them, and the heirs, successors and assigns of each of them, and shall run with the Easement Premises granted herein. 14. Grantee expressly acknowledges that Grantee is accepting the grant of the Easement Premises AS IS and expressly acknowledges that Grantee has relied upon its own independent investigation of the physical condition of the Easement Premises. Grantee hereby releases Railroad, its officers, directors, shareholders, employees and agents from all responsibility and liability regarding the condition (including, but not limited to, the presence of any hazardous or toxic materials), valuation or utility of the Easement Premises. 15. Grantee acknowledges that Railroad is operating and will continue to operate a railroad upon the property adjoining and adjacent to the Easement Premises and recognizes that such operation may create risk of injury or damage to property; noise; vibration; or other impacts or purported nuisances affecting the Easement Premises. Grantee accepts this Grant of Easement and the Easement Premises subject to all such risks or injury, damage to property, noise, vibration and other impacts or alleged nuisances and hereby agrees to release, to indemnify, to defend and to save harmless the Railroad from and against all claims, liability and loss arising in any way either directly or indirectly from the operations of Railroad. Additionally, Grantee waives any right to direct or consequential damages for any loss or injury on or to the Bike Trail, whether resulting from fire, derailment or by any other means whatsoever. The waiver contained in this Paragraph shall include damages due to loss of or interference with service or use of service due to any fault, failure or negligence of Railroad, whether active or passive, but shall not include any damages due to Railroad's willful misconduct. 16. Grantee agrees to indemnify Railroad for any damage to Railroad facilities whether caused by Grantee, its employees or contractors in the construction, operation or maintenance of the Bike Trail, EXCEPT THAT in no event shall Grantee be liable to Railroad for damages to Railroad's Facilities caused by Railroad's sole negligence. 17. Grantee does hereby release, indemnify and promise to defend and save harmless Railroad from and against any and all liability, loss, damage, expense, actions, and claims, including costs and reasonable attorney fees incurred by Railroad in defense thereof, asserted or arising directly or indirectly on account of or out of any acts or omissions of Railroad, its officers, directors, shareholders, employees, agents and contractors, EXCEPT THAT Grantee shall not be required to indemnify Railroad against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of Railroad or its agents or employees. 18. Railroad and Grantee agree that this Agreement shall be governed, construed and enforced in accordance with the laws of the State of Oregon. 19. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party, except to the extent incorporated under this Agreement. IN WITNESS WHEREOF the parties have caused this instrument to be executed in duplicate as of the day and year first above written. CEN~rRAL ORE~CIFIC RAILROAD, INC. By:~'X--o-,, Title: CITY OF ASHLAND, OREGON STATE OF TEXAS COUNTY OF BEXAR On this ,-~.~ day of March, in the year 1996, before me, /~C1~¥.[~.. b' ~IC~)[ b ,a tary public in and for the County of Bexar, State of Texas, personally appeared J[oq~/~6t. ~). ~al/! ~.~ known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) who executed the within instrument as therein named and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. ' *~.~<.~.'..~.~:~.~._ ELA D. NICHOLS , ~ ..'g~ , ..,~,,~.~,;~..October 13, 1998 Notary Public My Commission Expires: [ 0/ [3 ['~ ~ STATE OF OREGON ) ) $So COUNTY OF JACKSON ) On this ~ day of-Mm'eh, in the year 1996, before me, _Da~ [~a.i'& CI, B'I.ql~£ll~:3.'~ a notary public in and for the County of Jackson, State of Oregon, personally appeared (.~)([4t~i,~l(: 13~/. ~_Jo;{~.~21 known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) who executed the within instrument as l'~,(t;Lt.i ~ , therein named and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. My Commission Expires: Notary Public O28 CITY OF ASHLAND B I KEWAY RIGHT-OF-WAY DESCRIPTION EXHIBIT A CITY HALL ASHLAND, OREGON 97520 telephone (code 503) 482-3211 A strip of land 12.0 feet in width, over, across and through that portion of the Central Oregon & Pacific Railroad Company's (former Southern Pacific Railroad Company) railroad right of way, situated in the Northeast Quarter of Section 9 and the Northwest Quarter of Section 10, Township 39 South, Range 1 East of the Willamette Base and Meridian, Jackson County, Oregon and being more fully described as follows: The above strip of land shall be situated between two lines, the Northeasterly line being parallel with and 18.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the Central Oregon & Pacific Railroad Company's existing railroad tracks; The Southwesterly line being parallel with and 30.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the Central Oregon & Pacific Railroad Company's existing railroad tracks; These two lines shall close upon the Easterly right of way line of North Mountain Avenue, as set forth on that survey filed in the office of the Jackson County Surveyor as No. 13679 and upon the centerline of East Main Street, as said street is now filed for public record, as required. EXCEPTING THRREF~ that portion situated within the right of way of East Main Street, as said street is filed for public record. Together with and subject to covenants, easements, restrictions of record and those apparent on the land. GRANTOR: Central Oregon & Pacific Railroad Company GRANTEE: City of Ashland 20 East Main Street Ashland, Oregon 97520 Service Center Section ref: C95T16C.leg August 11, 1995 Surveyor's Registration Renewal Date: June 30, 199~ EXHIBIT A- Page 1 1. CITY OF ASHLAND CITY HALL ASHLAND, OREGON 97520 lelephone (code 503) 482-3211 B I K EWAY RIGHT-OF-WAY DESCRIPTION A strip of land 10.0 feet in width, over, across and through that portion of the Central Oregon & Pacific Railroad Company's (former Southern Pacific Railroad Company) railroad right of way, situated in the East half of Section 10, Township 39 South, Range 1 East of the Willamette Base and Meridian, Jackson County, Oregon and being more fully described as follows: Commencing at the Southeast corner of Donation Land Claim No. 39, said Township and Range; THENCE South 89 degrees 49 minutes 44 seconds East for a distance of 1263.22 feet, more or less, to a point in the Easterly right of way line of Walker Avenue, per filed survey no. 6668; THENCE North 00 degrees 11 minutes 19 seconds West along said Easterly right of way line of Walker Avenue, for a distance of 206.65 feet to a point of intersection with the Southwesterly right of way line of the Central Oregon & Pacific Railroad Company's right of way, said point being 30.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks and being the TRUE POINT OF BEGINNING; THENCE leaving said Easterly right of way line South 55 degrees 13 minutes 31 seconds East, parallel with and 30.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the Central Oregon & Pacific Railroad Company's existing railroad tracks, for a distance of 335.0 feet to an angle point; TH]{NCE leaving said Southwesterly right of way line and normal therefrom, North 34 degrees 46 minutes 29 seconds East for a distance of 10.0 feet to an angle point; THENCE North 55 degrees 13 minutes 31 seconds West, parallel with and 20.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 341.99 feet to a point in the Easterly right of way line of Walker Avenue, as set forth hereinabove; EXHIBIT A - Page 2 028 BIKEWAY RIGHT-OF-WAW DESCRIPTION Page 2 THENCE South 00 degrees 11 minutes 19 seconds East along the Easterly right of way line of Walker Avenue for a distance of 12.20 feet to the point of beginning. Together with and subject to covenants, easements, restrictions of record and those apparent on the land. GRANTOR: Central Oregon & Pacific Railroad Company August 11, 1995 GRANTEE: City of Ashland 20 East Main Street Ashland, Oregon 9752~ Walker Avenue to School District Section ref: C95T16B.leg PROFESSIONAL LAND SURVEYOR OREGON JULY 8. 1G66 ~ER~I~ L gWAIN Surveyor's Registration Renewal Date: June 30, 1996 EXHIBIT A - Page 3 96-1 CITY OF ASHLAND CITY HALL ASHLAND, OREGON 97520 telephone (code 503) 482-3211 B I KEWAY R I GHT- O F- WAY DESCRIPTION A strip of land, variable in width, over, across and through that portion of the Central Oregon & Pacific Railroad Company's (former Southern Pacific Railroad Company) railroad right of way, being more fully described as follows: Commencing at the Southeast corner of Donation Land Claim No. 45, Township 39 South, Range 1 East of the Willamette Base and Meridian, Jackson County, Oregon; THENCE North 00 degrees 06 minutes 30 seconds East along the Easterly boundary line of said claim, for a distance of 2554.54 feet, more or less, to intersect the Central Oregon & Pacific Railroad Company's Southwesterly railroad right of way line, said right of way line being 50.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad t racks; THKNCE South 55 degrees 12 minutes 26 seconds East, parallel with and 50.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 787.92 feet to the TRUE POINT OF BEGINNING; THENCE continuing South 55 degrees 12 minutes 26 seconds East, parallel with said railroad tracks, as set forth hereinabove, for a distance of 1057.16 feet to a point in the section line common to Sections 11 and 14, said Township and Range; THENCE South 89 degrees 54 minutes 31 seconds East along the section line common to Sections 11 and 14, said Township and Range for a distance of 35.13 feet to a point 30.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks; THENCE leaving said section line, South 55 degrees 12 minutes 26 seconds East, parallel with and 30.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 1079.85 feet to a point in the Westerly boundary line of the Northeast Quarter of the Northwest Quarter of Section 14, said Township and Range; THENCE South 00 degrees 00 minutes 01 seconds East along said Westerly boundary line, for a distance of 24.35 feet to a point which bears 50.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks; THENCE leaving said Westerly boundary line, South 55 degrees 12 minutes 26 seconds East, parallel with and 50.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 762.62 feet to a point in the Westerly right of way line of Tolman Creek Road, 30.0 feet Westerly of, when measured normal therefrom, the Engineer's Centerline as re-surveyed, established and now of public record; EXHIBIT A - Page 4 9t;-1 B I KEWAY R I GHT-O F- WAY DESCRIPTION Page 2 Jaclc~on County, Oregon Recorded OFFICIAL RE~©RDS APR 0 9 1996 ~~County'Clerk THENCE North 00 degrees 02 minutes 43 seconds West along said Westerly road right of way line, for a distance of 18.28 feet to a point which bears 35.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks; THENCE leaving said Westerly road right of way line, North 55 degrees 12 minutes 26 seconds West, parallel with and 35.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance cf 702.18 feet to an angle point; TI{KNCE North 35 degrees 39 minutes 35 seconds West for a distance of 50.81 feet to a point which bears 18.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks; THENCE North 55 degrees 12 minutes 26 seconds West, parallel with and 18.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 1113.66 feet to an angle point; THENCE North 70 degrees 45 minutes 37 seconds West fon a distance of 63.40 feet to a point which bears 35.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks; THENCE North 55 degrees 12 minutes 26 seconds West, parallel with and 35.0 feet Southwesterly of, when measured normal therefrom, the average centerline of the existing railroad tracks, for a distance of 1007.16 feet to an angle point; THENCE South 34 degrees 47 minutes 34 seconds West and normal therefrom, the average centerline of the existing railroad tracks, for a distance of 15.00 feet to the point of beginning. Together with and subject to covenants, easements, restrictions of record and those apparent on the land. GRANTOR: Central Oregon & Pacific Railroad Company GRANTEE: City of Ashland 20 East Main Street Ashland, Oregon 97520 ref: C95T16.1eg Cemetery to To]man Creek Road Section EXHIBIT A - Page 5 August 15, 1995 PROFESSIONAL OREQON JUL.Y 8. Ig66 ~ERA~m L, 9WAIN Surveyor' 8 Reg~e:~a:~on Rene~a[ De~e: ~une 3e, [996