RA-1717_10538_G_ACCAGMT_20230802_NCRR Executed Acc Agmt

Railroad Use Only
NS File No. 1295093
NCRR File No. o_h-089+5070
AC: t0005197
ENVIRONMENTAL RIGHT OF ENTRY AGREEMENT
Catlin Engineers & Scientists, ("Licensee"), a North Carolina professional engineering
and geology corporation, is contracted with the North Carolina Department of Environmental
Quality to provide environmental services at locations throughout North Carolina, and has
requested on behalf of the North Carolina Department of Environmental Quality that NORTH
CAROLINA RAILROAD COMPANY ("Company"), a North Carolina corporation, and
NORFOLK SOUTHERN RAILWAY COMPANY ("NSR"), grant Licensee and its
employees, agents, contractors, and subcontractors, permission to enter upon certain property
adjacent to a facility formerly known as Watts' Store, at 2100 Auburn Road, Wake County,
Garner, North Carolina, (Incident 10538 -UST), as indicated on the attached map, marked as
Exhibit A, (hereinafter referred to as the "Property") for the purpose of performing groundwater
sampling activities on the existing monitoring wells, on the Property, as detailed on the attached
map, marked as Exhibit A-1.
Company, in consideration of the covenants and conditions contained in this
Environmental Right of Entry Agreement (hereinafter referred to as the "Agreement"), and
insofar as its rights, title and interest permits, grants Licensee permission to enter on the Property
for the purposes stated in the preceding paragraph, subject to the terms and conditions set forth
below:
1. Licensee agrees to indemnify and hold Company and its officers, employees and
agents harmless from and against all costs, losses, claims, damages, or expenses, arising out of
any loss of life or personal injury or property loss or damage whatsoever, including response
costs in the event any well installed by Licensee acts as a conduit for any contamination of any
type, whether or not such loss, injury or danger purports to be caused by the negligence of
Company.
2. Costs and conditions for installation, maintenance, and monitoring:
a. All work done hereunder shall be done at Licensee's sole expense. No
work shall occur within twenty-six (26) feet of the center line of any track;
provided that Company reserves the right to require placement of wells at
distances even more than twenty-six feet from the center line of any track
if conditions dictate. No drainage condition shall be created or allowed to
exist that may be adverse to Company.
Licensee's work shall not interfere with the safe and proper support of
Company's roadbed and track. All work done hereunder shall occur
only during daylight hours at the location of the entry.
1
b. All work done hereunder shall be performed by Licensee with such
care, diligence, and cooperation of Licensee with Company and NSR
personnel as will avoid accident, damage or harm to persons or
property and delays to or interference with operations of Company or
NSR. If the work is to be performed in the vicinity of railroad
facilities, said work shall be performed in accordance with (a) the
latest American Railway Engineering Association Specifications, if
any, by reference hereby made a part hereof; and (b) to the entire
satisfaction of NSR's Division Engineer or his duly authorized
representative.
c. Licensee agrees to reimburse Company or NSR promptly, upon bill
rendered, for all expenses incurred by Company or NSR resulting from
or in connection with any such special engineering studies, field
supervision, flagging protection or other services as Company or NSR
may find necessary to perform in connection with Licensee's proposed
work.
d. It is expressly understood that the initial work of locating utilities
and installing monitoring wells will take approximately five (5)
days and that the well casing will be flush with the ground and
will be clearly marked, with an appropriate locking cap. Initial
sampling will be taken by Licensee approximately five (5) days
after well installation. In addition, Licensee will locate utilities
prior to undertaking soil excavation. Licensee will complete the
soil excavation, sampling, and backfill, and compaction within
five (5) days of commencement of the excavation.
3. NSR's Division Engineer shall be given prior notice of not less than seventy-two
(72) hours on each occasion that Licensee proposes to enter upon the Property. Licensee
understands that additional notice may be required if NSR is to provide, at a desired time, any
flagging which NSR may deem necessary.
4. This Agreement (a) shall not be assigned or transferred without written approval
of the Company and NSR and (b) may be terminated at will by the Company, NSR, or Licensee
on five (5) days' written notice to the other party and shall automatically terminate three years
from the effective date; provided, however, that termination shall not relieve Licensee, or its
contractors, of any obligation or liability incurred prior to such termination.
5. As used herein, the term "Licensee" shall be deemed to include
Licensee and its agents and contractors.
6. Before entering the Property, Licensee shall secure the
permission of the tenant, IF ANY, who is in possession of that Property.
7. Permits, regularity compliance, and liens:
2
a. Licensee or its contractor shall secure, at its or their own
expense, any permits or licenses required by federal, state, or local laws or
ordinances and shall comply with all applicable laws, including (but not limited
to) any laws, regulations, standards, and permit requirements relating to
environmental pollution or contamination or to occupational health and safety.
Licensee shall indemnify and hold harmless Company from and against any and
all claims arising out of or connected with the violation, by Licensee, of any
law, standard, regulation, or permit requirement.
b. If any mechanics' or materialmen's liens, or similar lien, is
asserted against the Property, or any other property of Company, as a result of
the exercise of any license herein granted, Licensee shall immediately satisfy,
defend, or obtain the release of such lien, all at Licensee's expense, and
Licensee shall indemnify and hold harmless Company from and against any
claims arising out of or connected with such lien.
8. No work of any character shall be started on the Property until:
a. Certificates of Insurance, specifying that the policies are
applicable to the particular work, have been furnished to and accepted by
Company and NSR and as evidence that Licensee, contractor and subcontractor
maintain the following insurance coverages:
(i) Workers' Compensation Insurance in satisfaction of
statutory requirements of the state where the Property covered by
this Agreement is located. Also, Employers' Liability Insurance
having limits of not less than $500,000 each accident, $500,000
per disease - policy limit, and $500,000 per disease - each
employee.
(ii) Commercial General Liability Insurance having a
combined single limit of not less than $2,000,000 per occurrence
for all loss, damage, cost and expense, including attorney's fees,
arising out of bodily injury, liability and property damage
liability during the policy period. Such policy shall be endorsed
to name Company and NSR as an additional insured and shall
include a severability of interests provision. In addition,
Licensee's policy shall be endorsed to reflect Contractual
Liability Insurance specifically relating to the indemnity
provisions of this Agreement. Any exclusion for construction or
demolition activities (including installing wells or bore holes, but
not for work done by means of a hand augur) conducted within
50 feet of railroad tracks shall be deleted from Licensee's policy.
(iii) In the event Licensee cannot obtain contractual liability
insurance to cover the obligations assumed under this
Agreement, Licensee or its contractor shall procure and furnish
to Company either:
(A) a Railroad Protective Liability Insurance
Policy having a combined single limit of
$2,000,000 per occurrence and $6,000,000 in the
aggregate applying separately to each annual
period. Said policy shall provide coverage for all
loss, damage, or expense arising from bodily
injury and property damage liability, and physical
damage to property attributed to acts or omissions
at the job site. Said policy shall name Company as
the named insured and the policy shall be
underwritten on Insurance Service Offices Form
No. CG 0035 10 01 or its equivalent or,
(B) a risk finance fee of $1,900.00 ( herein called the
"Risk Financing Fee"), payable to NSR, in
exchange for which NSR will include the project
under NSR's Master Railroad Protective Liability
Insurance Policy, eliminating the need for
Licensee to purchase a separate railroad protective
liability insurance policy for Company.
(iv) Automobile Liability Insurance having a combined single
limit of not less than $500,000 per occurrence. Said policy shall
name Company as an additional insured and shall include a
severability of interests provision.
b. Company has advised the Licensee that limits, form, and
substance of insurance policies and certificates of insurance are
satisfactory to Company and shall be maintained for the duration of this
agreement. Said policies and certificates should be forwarded to
Property Manager, North Carolina Railroad Company, 2809 Highwoods
Blvd, Suite 100, Raleigh, North Carolina, 27604. The furnishing by
Licensee of such insurance and the acceptance of the same by Company
is not intended to and shall not reduce, limit, affect or modify the
primary obligations and liabilities of Licensee under the other provisions
of this agreement.
c. Prior to entering the Property for any purpose authorized
representatives of Licensee will meet with NSR's Division Engineer,
and with a representative of NSR's Communications and Signals
Department to receive any instructions NSR may have concerning the
Licensee's activities on the Property. Licensee agrees to follow, at its
expense, all such instructions, and in such manner as is satisfactory to
NSR.
4
10. All insurance described above shall be maintained until all work contemplated
hereunder has been satisfactorily completed. Insurance companies may cancel or make
significant changes in the insurance by permission of the Licensee and Company, or upon giving
thirty (30) days' written notice to Licensee and Company of their intent to do so.
11. After termination of this Agreement or after completion of the groundwater
sampling project, whichever first occurs, Licensee agrees to remove all then -existing monitoring
well(s) on the Property, in accordance with state procedures. Removal procedures shall include
pulling or reaming the well casing(s) and grouting the hole(s) to ground surface. Licensee agrees
to remove all vents, pipes, and other facilities on the Property and to restore the Property and
shall leave it free of debris and holes in the ground and in such condition as is satisfactory to
Company. Restoration of the Property shall be completed within thirty (30) days after
termination of this Agreement.
12. If any of the foregoing provisions is held for any reason to be unlawful or
unenforceable, the parties intend that only the specific words found to be unlawful or
unenforceable are severed and deleted from this agreement and that the balance of the
Agreement remain a binding enforceable Agreement to the fullest extent permitted by law.
13. If there is a conflict between the terms of another contract and this Agreement
concerning this Property, the parties to this Agreement agree that the terms of this Agreement
shall control.
14. Analysis and reports:
a. Licensee warrants that it is analyzing only for the presence of petroleum
constituents in the groundwater and soil.
b. Licensee agrees to give Company and NSR a complete copy of
the results of the analyses of any samples taken from the Property, and advise of
any planned corrective action and closure of well(s).
15. With the exception of public grade crossings, Licensee shall not cross the tracks
of Company with any vehicle unless it shall have executed such separate agreement as shall be
provided by Company.
16. Company and NSR agree that, by entering into this Consent, (i) NSR is not
making any admission regarding any matter between NSR and Company; (ii) Company is not
making any admission regarding any mater between NSR and Company; (iii) NSR is not
waiving any claim or defense against Company or any affiliate of Company; (iv) Company is not
waiving any claim or defense against NSR; (v) NSR does not waive or prejudice any position ,
claim or defense with regard to any legal or administrative proceedings in which Company or its
affiliates and NSR are currently involved or may become involved, including but not limited to
any claim or defense with respect to any leasehold rights, environmental obligation or liability,
possessory rights, or holdover or non -holdover status of Company; and (vi) Company does not
waive or prejudice any position , claim or defense with regard to any legal or administrative
proceedings in which Company or its affiliates and NSR are currently involved or may be
5
involved, including but not limited to any claim or defense with respect to any leasehold rights,
environmental obligation or liability, possessory rights, or holdover or non -holdover status of
Company.
17. The terms set forth in the attached Exhibit B, consisting of three
pages and titled "Agreement and Consent of Norfolk Southern Railway
Company," are incorporated into this Agreement as if set forth verbatim herein.
18. Effective date. This Agreement shall run for three (3) years from the effective
date of this Agreement, the effective date being the date that the final signature is affixed to this
document, as detailed below. No entry upon the Property is permitted herein shall occur until
after all conditions have been complied with.
19. Licensee will pay to NCRR a one-time administration fee of FIVE HUNDRED
DOLLARS ($500.00), payable on or before the Effective Date.
Executed in triplicate, each part being an original, this 2nd day of (S f .,
2021.
CATLIN NEERS & SC TISTS
By:
Title: As f--/ CEO
NORTH CAROLINA RAILROAD COMPANY
NORFOLK SOUTHERN RAILWAY COMPANY
By:
Title: lMzrclsun (2) 1)4IZUz(
6
t. NORTH CAROLINA RAILROAD COMP ANY EXHIBIT A Milepost 089 -NC plus 5,070 (+/-) Feet Raleigh, Wake County, North Carolina Area Licensed by North Carolina Railroad to Catlin Engineers & Scientists (+1- 11,790 Sq. Ft.) This map has been prepared by the North Carobna Railroad Crtn any (NCRR) principally for its purposes by utilizing information received from various private and governmental sources available to the public, and compiled into its Geographic Information System (GIS) As GIS mapping is a representation of information from various sources, it is not intended to be a substitute for a sealed land survey prepared by a registered North Carolina surveyor The primary sources of the data shown on the map should be consulted for verification and to confirm the fitness thereof for arty particular use. This information is not intended for use by third parties without approval by NCRR Parcel No. 1, 8
EXHIBIT A-1
®MW -7
®MW -9 IGB
GR4 Mill RO
FORMER
N
MW -3 MW -6D DISPENSERiI$LAND
ti
'FORMER 550 -GAL.
KEROSENE UST
LEGEND
®,M W-2
MW -5
I nitoring Well ® Mo
(Type II)
Monitoring Well
(Deep)
Potable
Water Supply Well
in Approximate Location
of Former UST
Parcel Boundary
®
I FORMER 1;000iGALï
GASOLINE UST.
. f \®
.
1
Source: Esf ar`a oEye ,parthstar Geograp IOs, CNES/Airbus
r USDA, U , IGN,agd'the GI.S User Community
NOTE: Well locations were obtained from previous reports by other consultants and are approximate. 30 15 0 30 60 ilib
Feel -
RtO.ECT TCLE
FIGURE CATLIN
Engineers and Scientists
LIAM WATTS W
2100
RAUBURN
RO
ALEIGH, NC
AD
STORE
SITE MAP
3
IYISEENT NO
12604 JOa NO
221081
GTE
APR 2021
SCALE
AS SHOWN DRAWNAT AEIXEC IM
KMU/SJO
8
EXHIBIT B
AGREEMENT AND CONSENT OF NORFOLK SOUTHERN
RAILWAY COMPANY
WHEREAS, Company, Licensee, and NSR desire to enter into the attached Agreement regarding the
property described therein (the "Premises").
NOW THEREFORE, in consideration of the above recitals and the promises and agreements
contained herein, as well as for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, NSR, Company, and Licensee agree as follows:
1. NSR gives its consent to the Agreement pursuant to the terms and conditions of this Consent. All of the
terms of this Consent are hereby incorporated by reference into the Agreement. The term "NSR" as used
in this Agreement and Consent and as used in the Agreement shall include NSR's officers, agents and
employees, and any parent company, subsidiary or affiliate of NSR and their officers, agents and
employees.
2. The parties agree and understand that any right or claim of Company held in or by virtue of the Agreement
shall also inure to the benefit of, and be enforceable by NSR or by any successor or assignee of Company
or NSR, and NSR shall not be responsible for any obligations, duties or indemnities of Company to
Licensee under the Agreement. NSR reserves any pre-existing rights, claims and defenses against
Company and Licensee and said rights, claims and defenses shall not be waived or limited in any way by
the Agreement.
3. Licensee understands that NSR makes no warranties or representations regarding the condition of or title
to the Premises. Licensee takes the Premises "AS IS" and expressly waives any and all claims against
NSR relating to or arising from the condition of or title to the Premises and the property surrounding the
Premises, including without limitation, any claims and costs relating to environmental contamination
under any applicable laws (such as, without limitation, those which might arise under CERCLA, RCRA,
and the North Carolina Oil Pollution and Hazardous Substances Act).
4. Without the written consent of NSR, (i) neither the Agreement nor this Consent may be assigned in whole
or in part by Company or Licensee; (ii) Licensee shall not enter into any sublicense or sublease of the
Premises; and (iii) the Agreement shall not be amended by Company or Licensee. No consent by NSR to
any sublease, sublicense, assignment, or amendment of the Agreement shall be construed to be consent to
any further sublease, sublicense, assignment, or amendment of the Agreement.
5. In consideration of the rights granted by NSR to Licensee by this Consent, Licensee agrees to indemnify
and hold NSR harmless to the same extent as Company is indemnified and held harmless pursuant to the
Agreement. In addition, without limiting the indemnities provided in the Agreement, Licensee specifically
shall indemnify and hold harmless NSR from and against any and all attorney's fees, costs, expenses,
liabilities, injuries, claims (including third party claims and any claims under any environmental laws and
regulations such as CERCLA, RCRA, and the North Carolina Oil Pollution and Hazardous Substances
Control Act) and damages arising from or related to (1) the Agreement; (2) any acts or omissions by
Licensee at or near the Premises, (3) Licensee's violations of environmental laws and regulations, and (4)
environmental contamination caused by Licensee. For purposes of this paragraph, the term Licensee shall
mean its officers, employees, agents, contractors, guests or invitees.
6. NSR must be given at least thirty (30) days notice prior to the placement of any equipment, structure,
facility, fixture, or other improvement on the Premises other than those permitted by this Agreement.
1
7. Company and NSR agree that, by entering into this Consent, (i) NSR is not making any admission regarding any matter between NSR and Company; (ii) Company is not making any admission regarding any matter between NSR and Company; (iii) NSR is not waiving any claim or defense against Company or any affiliate of Company; (iv) Company is not waiving any claim or defense against NSR; (v) NSR does not waive or prejudice any position, claim or defense with regard to any legal or administrative
proceedings in which Company or its affiliates and NSR are currently involved or may become involved, including but not limited to any claim or defense with respect to any leasehold rights, environmental
obligation or liability, possessory rights, or holdover or non -holdover status of Company; and (vi)
Company does not waive or prejudice any position, claim or defense with regard to any legal or administrative proceedings in which Company or its affiliates and NSR are currently involved or may be
involved, including but not limited to any claim or defense with respect to any leasehold rights, environmental obligation or liability, possessory rights, or holdover or non -holdover status of Company.
8. Licensee acknowledges that NSR has not made any inspection of the Premises and that the Premises are located at or near active or inactive railroad facilities, structures, or related property.
9. No work of any character shall be started on the property until Certificates of Insurance, specifying that
the policies have been furnished and accepted by NSR as evidence that Licensee, Contractor, and
Subcontractor maintain the following insurance coverages:
(a) Commercial General Liability Insurance having a combined single limit of not less than $2,000,000 per occurrence for all loss, damage, cost and expense, including attorney's fees, arising out of bodily
injury, liability and property damage liability during the policy period. Such policy shall be endorsed to name NSR as an additional insured and shall include a severability of interests provision. In addition, Licensee's policy shall be endorsed to reflect Contractual Liability Insurance specifically relating to the indemnity provisions of this agreement. Any exclusion for construction or demolition activities (including installing wells or bore holes, but not for work done by means of a hand augur) conducted within 50 feet of railroad tracks shall be deleted from Licensee's policy.
(b) In the event Licensee cannot obtain contractual liability insurance to cover the obligations assumed under this Environmental Right of Entry Agreement, Licensee or its contractor shall procure and furnish to NSR a Railroad Protective Liability Insurance Policy having a combined single limit of $2,000,000 per
occurrence and $6,000,000 aggregate. Said policy shall name NSR as the named insured.
(c) Workers' Compensation Insurance in satisfaction of statutory requirements of the state where the
property covered by this agreement is located. Also, Employers' Liability Insurance having limits of not less than $500,000 each accident, $500,000 per disease - policy limit, and $500,000 per disease - each
employee.
(d) Automobile Liability Insurance having a combined single limit of not less than $500,000 per
occurrence. Said policy shall name NSR as an additional insured and shall include a severability of interests provision.
(e) The insurance required herein shall be of such form and content as may be acceptable to NSR, and shall be maintained for the duration of this agreement. Evidence of such insurance (a certificate of insurance for the general liability insurance policy and the original policy of Railroad Protective Liability Insurance) must be furnished to NSR at NSR Risk Manager, Three Commercial Place, Norfolk, VA 23510
(or such other current address provided to Licensee) and approved by NSR prior to Licensee's entry on the Premises. The insurance required herein shall not limit the liability assumed by Licensee under this
Consent or the Agreement.
2