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EASEMENT AGREEMENT
FOR REEMS ROAD
(C&M Agreement)
THIS EASEMENT AGREEMENT FOR CONSTRUCTING A NEW AT GRADE CROSSING AT REEMS
ROAD ("Easement Agreement’) is made and entered into as of the day of
2023 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and
the Maricopa County, a political subdivision of the State of Arizona ("Grantee").
A. Grantor owns or controls certain real property situated at or near the vicinity of Waddell, County
of Maricopa, State of Arizona, at Railroad Line Segment 7208-1 Mile Post, 6.75, as described or depicted on
Exhibit "A" attached hereto and made a part hereof (the "Premises").
B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement
dated as of concerning improvements on or near the Premises
(the “C&M Agreement’).
Cc. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the
Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth
in this Easement and in the C&M Agreement incorporated herein as if fully set forth in this instrument which terms
shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason,
no longer in effect.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the
mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Section 1 Granting of Easement.
11 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M
Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein
as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance
with the terms of this Easement Agreement and the C&M Agreement.
1.2 Grant, Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over
the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and
all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature
whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and
loca] laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders,
including Environmental Laws (defined below) and zoning laws (collectively, "Laws"). Grantee may not make any
alterations or improvements or perform any maintenance or repair activities within the Premises except in
accordance with the terms and conditions of the C&M Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and
any other parties who may obtain written permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any existing pipe, power, communication, cable, or utility lines and
appurtenances and other facilities or structures of like character (collectively, "Lines”)
upon, over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon, over, under or across the
Premises; and
Easement Agreement : Form 704CM; Rev. 04/01/2022
(c) to use the Premises in any manner as the Grantor in its sole discretion deems
appropriate, provided Grantor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this
Easement Agreement, shall be perpetual.
Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has
made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal
property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has
‘not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this
Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR
CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS
INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S
CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON
OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED
USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE
PREMISES IN AN “AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL
LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected
or will inspect the Premises and enters upon Grantor's rail corridor and property with knowledge of its physical
condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges
that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as
hereinafter defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE
TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone
owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail
corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the
lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as
may be necessary to obtain any required permits, approvals or authorizations from applicable governmental
authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance,
or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will
provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such
fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of
the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such
natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains,
culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional
dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship
equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of
the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively,
“Other Improvements"), Grantee will be responsible at Grantee’s sole risk to locate and make any adjustments
necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying
them of any work that may damage these Other Improvements and/or interfere with their service and obtain the
owner’s written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements
on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations.
Grantee must also use all reasonable methods when working on or near Grantor property to determine if any
Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the
above-described premises free and clear from combustible materials and to cut and remove or cause to be cut
and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to
Easement Agreement Form 704CM; Rev. 04/01/2022
be done at such times and with such frequency as to comply with Grantee and local laws and regulations and
abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other
charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-
governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the
Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount
prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental
to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become
obligated to do so, Grantee shall be Jiable for all costs, expenses and judgments to or against Grantor, including
all of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and
local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and
the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not
maintain a "treatment," "storage," “transfer” or "disposal" facility, or "underground storage tank," as those terms
are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the
release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may
now or in the future be defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation
of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental
Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any
release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken
on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a
release or violation of Environmental Laws which occurred or may occur during the term of this Easement
Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the
construction or subsequent maintenance of the Improvements, soils or other materials considered to be
environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils.
Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency
having the capacity and authority to make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or
activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment
and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions
or activities; provided, however, that Grantee's reporting to Grantor shalt not relieve Grantee of any obligation
whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for
information regarding said conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory
to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above-
stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor
may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee.
Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9.
Section 8 Default and Termination. :
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly
perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific
3
Easement Agreement Form 704CM; Rev. 04/01/2022
performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of
such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or
remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor
or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of
work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any
obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement
Agreement.
8.2 Abandonment. Grantor may, atits option, terminate this Easement Agreement by serving five (5)
days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement
Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate
this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect
Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from
any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are
restored as required by Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not
in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration, Upon termination of this Easement Agreement,
whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee
shail, at its sole cost and expense, immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and all appurtenances
thereto from the Premises, as Grantor directs at Grantor's sole discretion;
(b) repair and restore any damage to the Premises arising from, growing out of, or
connected with Grantee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by
Grantee; and
(d) leave the Premises in the condition which existed as of the Effective Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee
to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have
a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor.
The terms of this'limited license include all of Grantee's obligations under this Easement Agreement. Termination
will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or
otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the
date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as
of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement,
all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes
that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or
take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the
attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any
such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this
Easement Agreement. :
Easement Agreement Form 704CM; Rev. 04/01/2022
Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement
Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an
exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with
a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such
notice.
Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall
be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be
delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft.
Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to
Grantee.
Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in
recordable form and shall not be placed on public record and any such recording shall be a breach of this
Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached
hereto as Exhibit "B" (the "Memorandum of Easement") subject to changes required, if any, to conform such
form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records
in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and
recorded as described above within _30_ days of the Effective Date, Grantor shall have the right to terminate this
Easement Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1. All questions concerning the interpretation or application of provisions of this Easement
Agreement shall be decided according to the substantive Laws of the State of California without regard to conflicts
of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of
Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument
and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the
parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding
upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement
Agreement, the prevailing party or parties shall be entitled to reasonable attorneys’ fees, costs and necessary
disbursements in addition to any other relief to which such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under
present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions
hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will
be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
14.5 This Easement Agreement and the C&M Agreement, which is incorporated herein, is the full and
complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the
Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of
the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of
Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the
parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
Section 15. | Administrative Fee. Grantee acknowledges that a material consideration for this agreement,’
without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay
upon return of this Easement Agreement signed by Grantee to Grantor's Broker a processing fee in the amount
Easement Agreement Form 704CM; Rev. 04/01/2022
of $2,500.00 over and above the agreed upon acquisition price. Said fee shall be made payable to BNSF Railway
Company by a separate check.
Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By:
Name:
Title:
Easement Agreement Form 704CM; Rev. 04/01/2022
RECOMMENDED FOR APPROVAL:
DocuSigned by: DocuSigned by:
Senior Right of Way Agent Right of Way Supervisor
ACCEPTED:
Board of Supervisors of Maricopa County
By:
Chairman of the Board
ATTEST:
Clerk of the Board of Supervisors Date
Approved as to form and within the powers and
authority of the Board of Supervisors
DocuSigned by:
Wayne Put. 10/19/2023
SoS AEE
Deputy County Attorney Date
Project: TT0561 Olive Avenue (SR303 to Reems Rd)
Item: D23501 (WJ)
Crossing ID: #025716A
Easement Agreement Form 704CM; Rev. 04/01/2022
EXHIBIT "A"
Premises
Easement - Exhibit A Form 704CM; Rev. 03/23/2019