H. Wyatt Hanna I11 Attorney at Law
H. Wyatt Hanna, III VJV State Bar No. 1579
P. 0. Box 8070 South Charleston West Virginia 25303 (304) 744-3 150 FZX (304) 744-3 157 [email protected]
February 6,201 8
Ms. Ingrid Ferrell Director - Executive Secretary Division Public Service Commission of WV P.O. Box 812 Charleston, WV 25323
RE: Case No. 17-1408-W-CN The Town of Chapmanville
Dear Ms. Ferrell:
Enclosed please find for filing with regard to the above reference proceeding is the original and twelve ( 12) copies of all the necessary permits which is being submitted for the Town of Chapmanville and the Chapmanville Water and Sewer.
If you should have any questions, please do not hesitate to contact my office.
Sincerely,
H. Wyatt Hanna, III WV State Bar No. 1579
HWHIZVcds Enclosures cc: The Honorable Raamie Barker, Mayor (Letter only) Lana Pritchard Rick Roberts, PE (Letter only) Ronald Robertson, Esquire Michael D. Griffith, CPA (Letter only) TOWN OF CHAPMANVILLE W & S DEPARTMENT WATER SYSTEM UPGRADE PROJECT - PHASE II PERMIT SUMMARWSTATUS
Permit Agency Date Submitted Date Received Permit No. WV Bureau for Public Health March 24,201 7 April 11, 201 7 19,993 WV Division of Highways March 27,201 7 June 22,2017 2-201 7-0132 WV DEP (Stormwater) April 27, 2017 October 17,201 7 WVR108647 WV Culture and History January 24,201 7 February 22,201 7 17-304-LG Public Service Commission of WV September 29, 201 7 17-1408-W-CN US Fish and Wildlife January 24,201 7 January 31,201 7 N/A US Army Corps of Engineers January 24,201 7 May 9,2017 LRH-2017-92-GUY CSX Transportation, Inc. May 4,201 7 October 5,201 7 CSX842160 PWSID#: WV3302317
350 CAPITOL STREE
James Weimer, PE, PSC Logan County Health Department OEHS-EED St. Albans District Wee EW-100 Office Use Only 061201 0 Date Received Date Approved Approved by Permit Number Y WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES Bureau for Public Health Officeof Environmental Health Services 350 Capitol Street, Room 3 13 Charleston, WV 2530 1-37 13 Phone: 304-558-2981 Fax: 304-558-0691
PUBLIC WATER SUPPLY SYSTEM APPLICATION FOR A PERMIT TO CONSTRUCT, ALTER,OR RENOVATE (Please Prepare in 4 Copies)
APPLICANT: Town of Chapmanville - Water & Sewer Department STREET OR PO BOX: 983 North Main Street; P.0. Box 426 CITY: Chapmanville STATE: wv ZIP: 25508 TELEPHONE: 304-855-3227 E-MAIL: cvillewater@suddenlinkmail.( ENGINEERING FIRM: E. L. Robinson Engineering Company STREET OR PO BOX 5088 Washington St. W TELEPHONE: 304-776-7473 CITY: Charleston STATE: wv ZIP: 25313 TELEPHONE: 304-776-7473 E-MAIL: [email protected]
IN ACCORDANCE WITH TITLE 64, SERIES 3, PUBLIC WATER SUPPLY REGULATIONS OF THE WEST VIRGINTA DIVISION OF HEALTH, WE HEREBY MAEAPPLICATION TO CONSTRUCT, ALTER, OR REDIOVATE AS FOLLOWS: o improve reliability and enhance service for entia1 and commercial customers. 3-ZW7 Date
NOTE: A $300 application fee must accompany a permit application ($1 50 application fee for a water w ell p emit ap plication). M ake ch eck o r m oney o rder p ayable t o “Pest Virginia Department of Health and Human Resources”. Cash not accepted. Permit applications which include both water and sewer systems require only a single $300 fee. EG-5 06/20 10 WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES Bureau for Public Health Office of Environmental Health Services Environmental Engineering Division 350 Capitol Street, Room 3 13 Charleston, WV 25301-3713 Phone: 304-558-2981 Fax: 304-558-0691 WATER SYSTEM DESIGN INFORMATION AND DATA SXIEET
Complete all portions of the Design Data Sheet applicable to the project. Omission of required information will result in the application being denied. When both sewer system and water system are to be constructed, Design Data Sheets for both sewage and water must be completed and attached to the application.
Applicant t Project Location Downtown Ch-ville. alorlqiaDd around WV IO. CR 3113 county n Number of customers 21 2 or Estimated population or population equivalent served Number of home sites 184 Number of mobile home sites Estimated peak flow 285 gpm Minimum consumer pressure (static/residual) 40 40 psi Source of supply: Loaan County Public Service District (name of utility) Municipal J Public Service District Private Well Other (specify) Pressure at connection to public supply (static/residual) 101 100 psi Capacity of well, if applicable gPm Type of system Gravity J Hydropneumatic Other (specify)
Length of water lines of each size 0 LF IO”. 8.m I F 611. .7.560 I F 3” YES NO J Details of well construction attached J Fire hydrants to be installed (hydraulic calculations be included) - 7Storage tank required Size of tank Elevation of top and bottom of storage tank 4 Booster station required Size of station gpm - J Pressure reducing station required 4 Details of water treatment equipment (if applicable) J Chlorination Contact time minutes Form MM-I09 RCV.OS- 19-05 PERMIT TO ENTER UPON. UNDER, OVER OR ACROSS THE STATE ROADS OF THE STATE OF WEST VIRGINIA. AS PROVIDED FOR IN SECTION 6. ARTICLE 16, CHAPTER 17; SECTION 9, ARTICLE 16, CHAPTER 17; SECTION 8, ARTICLE 4. CHAPTER 17, WEST VIRGINIA CODE, 1931, AS AMENDED. THIS PERMIT, Made this 10 day of March 20 2, between the WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGH WAYS, a statutory corporation hereinafter called DIVISION and Town of Chapmanville Water & Sewer Department Address: P. 0. Box 426. Chapmanville. WV 25508 Phone No: (304)855-3227 hereinafter called APPLICANT. WITNESSETH In consideration of the hereinafter set out covenants and in accordance with Section 6, Article 16, Chapter 17; or Section 9, Article 16, Chapter 17; or Section 8, Article 4, Chapter 17, of the Offrcial Code of West Virginia, 1931. as amended, and the rules and regulations promulgated thereunder, APPLICANT does hereby apply to enter Route Type & No. see Attached Listing DOH Project No. MA (if applicable); at Chapmanville. W Mile Post WA in Loaan County, for the purposes hereinafter set forth and in accordance with the plans and specifications which are attached hereto and made a part hereof: ConShvctiOn Of ApptOXimately 16.401 feet of water line and atmurtenences on WVDOT ROW for ChaDmanville Water Svstem Upgrade Project Phase II
~ APPLICANT further agrees to accept the conditions hereinafter set forth: 1. APPLICANT shall deposit with DIVISION the sum of $ 13.940.85 in the form of an official, certified or cashier's check, or executed bond with surety satisfactory to DlVlSlON to cover any damage and inspection costs DIVISION may sustain by reason of the granting of this permit, including any expense incurred in restoring said highway to its original condition or the proper repair of any and all damages that may result within one (1) year from the date of the completion of said work. 2. APPLICANT agrees to reimburse DIVISION for inspection costs as follows: A. For any inspection costs incurred under this permit. B. At $ 0.85 per linear foot for 16.401 feet of water line installed under this permit C. At$ per linear foot for feet of sewer line installed under this permit 3. APPLICANT shali notify DIVISION at least 48 hours in advance of the date the work will begin. Failure to comply will be cause for cancellation of this permit. 4. APPLICANT agrees to protect its employees, equipment and users of the highway at all times in accordance with the current Division of Highways manual "Traffic Control For Stnet and Highway Construction and Maintenance Opcra!iow". 5. APPLICANT agrees to comply with all applicable state and federal laws in the performance of work under this permit. 6. Supplementary conditions cited on the reverse side of this permit are understood and agreed to be a part hereof.
7. The work authorized under this permit shall be completed on or before (Date): 12nli2018 thb permit rFlirma 4rt all text herein is o verbatim reproduction of The West Virginia Dhision of Per;git Form MM-109, revision date May 19,2005. All aIhehmemtr are inclusive to this permit. CHAPTER 17 WEST VCRGINIA CODE, 1931
617-4-8. Use of roadbed by railroad, telephone company, ctc. No railroad or electric or other railway shall be constructed upon the roadbed of any sfate road, except to cross the same, nor shall any person, firm or corporation enter upon or construct any works in or upon such road, or lay or maintain thereon or thereunder any drainage, sewer or water pipes, gas pipes, efectric conduits or other pipes, nor shall any telephone, telegraph or electric line or power pole, or any other structure whatsoever, be erected upon, in or over any portion of a state road, except under such restrictions, conditions and regulations as may be prescribed by the state road commissioner. Whenever any railroad or electric or other railway, heretofore or hereafter constructed, shall cross any state road, it shall be required to keep its omroadbed, and the bed of the road or highway at such crossing, in proper repair, or else to construct and maintain an overhead or undergrade crossing, subject to the approval of the state road commissioner; and the tracks of such railroad or railway at grade crossings shall be so constructed as to give a safe and easy approach to and across the same, and when the construction of such approaches is made necessary by a change in the raiiroad grade at the grade crossing, the cost shall be upon the railway company.
817-16-6. Permit by commission or county court for openings in or structures on public roads; franchises and easements of oil, etc., transportation companies. No opening shall be made in any state or county-dimkt road or highway, nor shall any structure be placed therein or thereover, nor shall any structure, which has been so placed, be changed or removed, except in accordance with a permit fiom the state road commission or county court, as the case may be. No road or highway shall be dug up for laying or placing pipes, sewers, poles or wires, or for other purposes, and no trees shall be planted or removed or obstructions placed thereon, without the written pedt of the commission or county court, or its duly authorized agent, and then only m accordance with the regulations of the commission or court. The work shall be done under the supervision and to the satisfaction of the commission or court;and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the petmit was given, or by whom the work was done: Provided, however, That nothing herein contained shall be so construed as to prevent any oil or gas company or person having a proper permit or franchise fiom iransporting oil or gasoline along any of the public highways of this State, nor to give such company a franchise without paying to the landowners through whose lands such road passes the usual and customary compensation paid or to be paid to the landowners for such right of way. Any grant or franchise when made shall be construed to give to such company or person only the right to use the easement in such public road.
A violation of any provision of this section shall be a misdemeanor, and the person or corporation violating the same shaIl, upon conviction thereof, be fined not less than twenty-five nor mote than one hundred dollars for each offense.
817-16-9. Private driveways or approaches to roads; obstruction of ditches. The owner or tenant of land fronting on any state road shall construct and keep in repair all approaches or driveways to and from the same, under the direction of the state road commission, and, likewise, the owner or tenant of land fronting on any county-district road shall construct and keep in repair approaches 01 driveways to and from the same, under the direction of the county road engineer, and it shall be unlawful for such owner or tenant to fill up any ditch, or place any material of any kind or character in any ditch, so as in any manner to obstruct or interfere with the purposes for which it was made. SUPPLEMENTARY CONDITIONS
1. The person, fm or corporation to whom a permit is issued agrees to hold the State of West Virginia and DIVISION harmless on account of any damages to persons or property which may arise during the process of the work authoriZea by this permit or by reason thereof. 2. Applications for permission to perform work within highway rights of way shall be made on DIVISION’S standard permit form and shall be signed hy the authorized representative of the person, firm or corporation applying. 3. The APPLICANT shall give detailed information concerning the work to be performed and the application must include a sketch sufficient to show the nature of the work performed. 4. APPLICANT, his agents, successor, heirs or assigns, contractors or any other person, firm or corporation working under APPLICANT’S real or apparent authority, shall perform the work m a manner satisfactory to DIVISION. Damage to the road resulting at any time from work authorized under this permit shall be repaired by APPLICANT. Unsatisfactory repairs may be a wrrected by DIVISION or its authorized agent and the cost thereof paid by APPLICANT. 5. DIVISION assumes no liability for damage to the proposed work by reason of constructiOn or maintenance work on the road. 6. This permit is granted subject to removal of the authorized installation by APPLlCANT at no cost to DIVISION when required for improvement of the road, and subject to all regulations now or hderadopted by DIVISION. 7. Utility installation shall be in accordance with the current manual, “Accommodation of Utilities on Highway Right of Way”. 8. Driveways shall be m accordance with the current manual, “Rules and Regulations for Constructing Driveways on State Highway Rights-of-way.” 9. DIVISION reserves the right to cancel this permit at any time, should APPLICANT fail to comply with the terms and conditions under which it is granted. IO. This permit is granted only insofix as the DIVISION has a right to do so. TOWN OF CHAPMANVILLE WATER SYSTEM UPGRADE PROJECT PHASE I1 DOH PERMIT QUANTITIES . ROUTES SERVICES 1-INCH 2-INCH 6-INCH 10-INCH TOTALS Old Co 313 Rd 480 740 2,341 3,561 James St. 3/24 80 370 498 948 Center Ave. 119/39 60 270 58 1 91 1 Mays St, 210/16 60 60 225 345
Gore St. 210/17 ---__I____-- 200 200 Salam Blvd 210/6 260 42 302 110/84 220 220 Adams St. 110190 20 300 320 110/91 20 20 180 220 Lansing St. 110/85 420 600 1,204 2,304 Farley St. 110198 200 125 325 Ballard Dr. 110/97 120 150 270 Boise St. 110/83 60 366 426 Hartford St. 11Of82 I I 330 330 Altanta St. 110180 120 30 360 510 Brickyard Rd. 21011 1 90 800 890 Garnett St. 210/2 390 30 420 __ lola St. 21014 218 218 Eiloise Ave. I10/89 21 0 700 30 940 Edwards Ave. 10/21 90 900 68I 1,671 First St. 10/23 150 150 Third St. 10125 60 860 920 TOTALS 2,280 50 I 5,860 7,881 330 16,401 . I TOWN OF CHAPMANVILLE WATER SYSTEM I UPGRADE PROJECT PHASE II
I -.- w WEST VIRGINIA DEPARTMENT OF TRANSPORTATION Division of Highways Office of the District EngineerlManager District Two Jim Justice P. 0. Box 880 Huntington, West Virginia 25712-0880 . (304) 528-5625 Thomas J Smith, P. E. Governor Secretary of Transportation/ Commissioner of Highways
June 22,2017
Chapmanville Water & Sewer Department P.O. Box 426 Chapmanville WV 25508
Gentlemen:
Permit Number: 02-20 I 7-01 32 Description: construction of approximately 16,40 1 feet of water line and appurtenances on WVDOT ROW. Chapmanville Water System Upgrade Project Phase 11.
Enclosed is an approved copy of’ the referenced pennit. This approved permit is to be available at the project site at all times.
Notify Mr. Gregory L. Surber at 304-528-5830 or Gi-errorv.L.Surbcr~~w~~.~ovprior to the commencement of any work to arrange for inspection of the installation. All work must meet West Virginia Division of Highways (WVDOH) specifications.
At the conclusion of all work, a final inspection is required by the WVDOH. Please complete and return the enclosed form to initiate the final inspection phase. The completion and returning of this fonn in no way relieves the contractor of any responsibilities, as stated in the referenced permit.
If you have any questions, please contact the District Two Utility Section at 304-528-5828
Very truly yours,
James C.Collins, P.E. Assistant District Engineer
By:
Gregory L. Surber Acting District Utility Supervisor
JCC:Sas Enclosures cc: File
E.E.O./AFFIRMATIVEACTION EMPLOYER WEST VIRGINIA DEPARTMENT OF TRANSPORTATION Division of Highways Office of the District EngineerlManager District Two P. 0.Box 880 . Huntington, West Virginia 25712-0880 .(304) 528-5625
June 22,201 7
West Virginia Division of Highways 801 Madison Avenue Huntington, WV 25704
Attention: Gregory L. Surber Acting District Utility Supervisor
Sir:
Piease be advised that work authorized by the listed Permit has been completed.
Applicant: Chapmanville Water & Sewer Permit Number: 2-2017-0132
Signature:
Date Completed:
E.E.O./AFFIRWTNE ACTION EWLOYER .*.. - west virglnla department of environmental protection Division of Water and Waste Management Jim Justice, Governor 601 57th Sweet SE Austin C-on. Cabinn Secntat-y Charleaton, West Virginia 25304-2345 www.&p. wv.gov Phone: 304-926-0495 Fax: 304-926-0496 October 17,2017
LANA €“CHARD CHAPMANVILLE, TOWN OF PO BOX 426 CHAPMANVILLE. WV 25508 Re: General Permit Registration No. WVR108647 Water Distribution System upgrade Phase U, Logan County, Disturbed Acres ( I .6)
Dear Permittee:
Please be advised that this letter constitutes approval of your construction activity and you are now authorized to operate under WVNPDES General Water Pollution Control Permit No. WVOI 15924, issued on December 5, 2012. You should carefully read the contents of this General Permit and become familiar with all requirements needed IO rt?main in compliance with yoor pennit. The reissued General Permit is located on our website at: http://www.dep. wv.govNlrWE/Programs/stormwater/cs w/Documents/20 I 24b20Construction820 Storm water%20GP.pdf
A “Notice of Termination” must be completed and submitted when all disturbed areas are stabilized. The form is located at: http://www .dep.wv.gov~~grams/stonnwa;er/csw/Documen~~Co~s~ction%20St~mwate~20 Notice%200f%o20Te~nation.pdf.
Please note in particular the following important requirements:
1. Final stabilization means disturbed areas shaiI be covered by the appropriate permanent protection. Final stabilization includes; pavement, buildings. stable waterways (riprap, concrete, grass or pipe), a healthy, vigorous stand of perennial grass that uniformly covers at least 70 percent of the ground. stable outlet channels with velocity dissipation which directs site runoff to a natural watercourse. and any other approved structure or material.
2. In accordance with Section G.4 of the Cknerat Permit, a storm water pollution prevention plan (SWPPP) must be developed. The permittee may use the generic SWPPP developed by the Division of Water and Waste Management. The SWPPP is to be retained on site and be available for review by the Director or :he Director’s authorized representative as of the date of your coverage by the General Permit, which is the date of this letter.
3. The erosion and sediment control measures shalJ be maintained in proper condition to perfon the functions for which they were designed. In order to insure the efficiency and proper maintenance of these measures, :he permittee shall make sufficientiy frequent, periodic inspections to detect any impairment of the designed stability, capacity or environmental requirements of the approved
Promoting a healthy environment. LANA PRITCHARD Page 2 October 17,2017
measures. The permittee shall take immediate steps to conect any such impairment found to exist.
4. If the SWPPP proves to be ineffective in controlling erosion and the sediment in storm water discharges associated with industriallconstrwtion activities, or site conditions change, the Permittee shall amend the SWPPP and install appropriate sediment andor control devices in accordance with Section G.4.c) of the permit and the application insuuctions.
5. The current general permit expires on January 3,2018 and approval of stormwater discharges for this construction project expires one (1) year from today, provided YOU apply for coverage under the reissued pennit. If the project does not meet stabilization requirements (Section J) for termination of General Permit coverage one year from today, and verified by the submittal of a Notice of Termination (NOT) form. you must reapply for General Permit coverage. A project that disturbs one to less than three acres but will have consbuction activities one year or longer must file a Site Regisuation Application form.
Your annd permit fee has been assessed as $loO.OO. You will be invoiced by this agency one month prior to the anniversary date of your original approval date. Failure to submit the annual fee within ninety (90) days of the due date will render your permit void upon the date you are &led a certified written notice Lo that effect. Please be advised that a pro-rated annual permit fee may be assessed upon the completion date and proper stabilization.
Issuance of this approval of the General Permit registration does not authorize any injury to persons or property or invasion of other private rights, or any infringement of federal, state or local law or rules.
The validity of this General Permit Regiftration is contingent upom payment of the applicable annual permit fee, as required by Chapter 22, Article 11, Sectson 10 d the Code of West Virginia. Your efforts tow& preventing the degradation of our natural resources are greatly appreciated. If you have any questions, please contact Sharon Mullins of this Division at (304)926-0499 extension 1 132 or at [email protected].
Scott G. Mandirola Director WV DEP-Division of Water & Waste Mgt. 601 57th Si SE Charleston, WV 25304-2345 Phone: (304) 926-0495 Fax: (304)926-0463 The Culture Center 1900 Kanawha Blvd., E. Charleston, WV 25305-0300 Randall Reid-Smith, Commissioner Phone 304.558.0220 * www.wvculture.org Fax 304.558.2779 TDD 304.558.3562 EtOfAA lmpioycr February 22,201 7
h4r. Elliott Lewis, EIT E.L. Robinson Engineering SO88 Washington Street West Charleston, WV 253 13 RE: Town of Chapmanville Water System Upgrade Project Phase I1 FR# 17-304-LG
Dear Mr. Lewis:
We have reviewed the above referenced project to determine potential effects to cultural resources. As required by Section 106 of the National Historic Preservation Ac& as amended, and its implementing regulations, 36 CFR 800: “Protection of Historic Properties,” we submit our comments.
According to the submitted information, the Town of Chapmanville proposes to undertake Phase 11 of a water system upgrade project. The work will include the following: the replacement of approximately 16,100 feet or old distribution line in three areas with 6-inch or smaller diameter water main, the installation of fire hydrants, valves, individual customer services, and other related appurtenances. No additional aboveground structures such as wdter storage tanks, booster pump stations, etc. are proposed.
Archaeolopical Resources: A search ofour records located no previously documented archaeological resources within the proposed project areas. Submitted information indicates that the proposed consauction activities will be confined to previously disturbed areas. In our opinion, no archaeological historic properties will be affected by the proposed project. No further consultation is necessary with respect to archaeological resources. If, however, intact cultural materials are encountered during construction, please cease all activity within the discovery area and contact our oEce immediately.
Architectural Resources: We have reviewed the submitted information, and determined that the proposed project is replacement of old lines, maintenance, and fire hydrants. Most of the work will be buried when completed. It is our opinion that there are no resources eligible for listing in the National Register of Historic Places that will be affected by the projcct. No further consultation is necessary regarding architectural resources; however, we ask that you contact our office if your projcct should change.
We appreciate the opportunity to be of service. Ijyou have questions regarding our cornmen& or the Section 106process, pleme contoa Carolyn Kender, Archaeologist, or Ernes/ E. Blevins, Structural Hisforianat (304) 558-0240.
Deputy State Historic Preservation Officer
SMP/CW United States Department of the Interior
FISH AND WILDLIFE SERVICE West Virginia Field Office 694 Bevcrly Pike Elkins, West Virginia 26241
Contact Name: Elliott Lewis
Email Address or Fax Number: [email protected]
FWS File # 2017-1-0269 All future correspondence should clearly reference this file #.
Project: Chapmanville Water System Upgrade Project, Phase II, Logan County
Date of Lettcr Request: January 24,2017
This is in response to your letter requesting threatened and endangered species information in regard to the proposed project listed above. These comments are provided pursuant to the Endangered Species Act (ESA, 87 Stat. 884, as amended; 16 U. S. C. 153 1 et seq.).
We have made a “no effect” determination that the project will not affect federally listed endangered or threatened species. Therefore no biological assessment or hrther section 7 consultation under thc ESA is required with the Fish and Wildlife Service. Should project plans change or amendments be proposed that we have not considered in your proposed action, or if additional information on listed and proposcd species becomes available, or if new species become listed or critical habitat is designated, this determination may be reconsidered.
Definitive determinations of the presences of waters of the United States, including wetlands, in thc project area and the need for permits, if any, are made by the U.S. Army Corps of Engineers. They may be contacted at Huntington District, Regulatory Branch, 502 Eighth Street, Huntington, West Virginia, 25701, telephone (304) 399-57 10.
1/27/201 7 fd# 1/31/2017 Reviewer’s signature and date Supervisor’s signature and date DEPARTMENT OF THE ARMY HUNTINGTON DISTRICT, CORPS OF ENGINEERS 502 EIGHTH STREET HUNTINGTON, WEST VIRGINIA 25701-2070
Regulatory Division SouthlTransportation Branch MAY 09 2017 LRH-20 17-92-GUY
PROVISIONAL NATIONWIDE PERMIT 12 VERIFICATION
Mr. Raamie Barker Town of Chapmanville P.O. Box 426 Chapmmville, West Virginia 25508
Dear Mr. Barker:
I refer to the Department of the Army @A) permit application received in this office on March 2,201 7, requesting authorization to discharge temporary fill material into waters of the United States in conjunction with the Town of ChapmanviIle Water System Upgrade project. The proposed project would include the installation of one water lime with three (3) crossings at two (2) separate locations, totaling 14 linear feet (If), dong two (2) unnamed tributaries (UNT) of the Guyandotte River. The project site is located near Chapmanville, in Logan County, West Virginia at approximately latitude 37.97168, longitude -82.01915. The project has been assigned the following file number: LRH-20 17-92-GUY. Please reference this number on all future correspondence related to this project.
The United States Army Corps of Engineers (Corps) authority to regulate waters of the United States is based on the definitions and limits of jurisdiction contained in 33 CFR 328 and 33 CFR 329. Section 404 of the Clean Water Act (Section 404) requires a DA permit be obtained prior to discharging dredged and/or fill material into waters of the United States, including wetlands. Section 10 of the Rivers and Harbors Act of 1899 (Section IO) requires a DA permit be obtained for any work in, on, over or under a navigable water.
Based on a review of the aquatic resources in the permit application, two (2) streams, totaling 14 If, are located within the proposed project site. The streams identified above and on the enclosed preliminary jurisdictional determination (PJD)form may be waters of the United States in accordance with the Regulatory Guidance Letter for Jurisdictional Determinations (JDs) issued by the Corps on October 3 I, 20 16 (Regulatory Guihce Letter No. 16-0 1). As indicated in the guidance, this PJD is non-binding and cannot be appealed (33 CFR 33 1.2) and only provides a written indication that waters of the United States may be present on-site.
You have declined to exercise the option to obtain an approved JD in this instance and at this time. However, for the purposes of the determination of impacts, compensatory mitigation, and other resource protection measures for activities that require authorization from this office, the streams referenced above will be evaluated as if they were waters of the United States. -2-
Enclosed with this document please find two (2) copies of the preliminary JD form. If you agree with the findings of this preliminary JD and understand your options regarding the same, please sign and date one copy of the form and return it to this office within 30 days of receipt of this letter. You should submit the signed copy to the following address:
United States Amy Corps of Engineers Huntington District 502 Eighth Street Huntington, West Virginia 25701 Attn: SouWTmportation Branch LRH-20 17-92-GUY
The proposed project, as described in the submitted DA permit application, has been reviewed in accordance with Section 404 and Section 10. Based on your description of the proposed work, and other information available to us, it has been determined that this project would involve activities subject to the requirements of Section 404.
According to the information provided, you propose to discharge temporary fill in conjunction with the installation of a new waterline with three (3) crossings at two (2) separate locations, totaling 14 If of two (2) UNT of the Guyandotte River. Please reference the attached Table 1 for the exact location and length for each of the crossings. According to the information provided, the discharge of fill material into waters of the United States would be temporary in nature. The discharge of fill materid would occur during low flow conditions and would only affect the length necessary to replace the water line. All temporary structures associated with the waterline installation would be removed after construction. Following the project implementation the stream would be returned to pre-construction contous. The pupose of the project is to install new waterline in order to provide better service to customers.
Based on your description of the proposed work, and other information available to us, it has been determined the proposed Town of Chapmanville Water System Upgrade project meets the criteria of Nationwide Permit Number (NWP) No. 12 (attached) under the January 6,2017, Federal Register, Issuance of Nationwide Permits (82 FR 1860) provided you comply with all terms and conditions of the enclosed material. The Nwsexpire on March 18,2022.
An individual Section 401 Water Quality Certification (40 1 WQC) or a waiver must be obtained fiom the West Virginia Department of Environmental Protection (WVDEP)to validate this NWP verification. No work in waters of the United States in association with this project may commence until you receive the required 401 WQC (or waiver) from the WVDEP. The WVDEP may be contacted at: -3-
West Virginia Department of Environmental Protection 601 57th Street Charleston, West Virginia 25304 304-926-0499 Once you have successfidly completed the WQC process, you must forward a copy of the project specific WQC or waiver to this office (the Corps office address is provided in the top margin of the first page of this correspondence). If the project remains unchanged it is not necessary to contact this office for re-verification of your project, you may commence work. If your project is modified during the WVDEP’s WQC process, you must contact this office to determine if the modified project is still authorized by the enclosed NWP or if a new PCN must be submitted to this office. No discharges in waters of the United States shall commence prior to obtaining the necessary authorization from this office.
This verification is valid until the NWPs are modified, reissued, or revoked. All of the existing NWPs are scheduled to be modified, reissued, or revoked prior to March 18,2022. It is incumbent upon you to remain informed of changes to the NWPs. We will issue a public notice when the NWPs are reissued. Furthermore, if you commence or are under contract to commence these activities before the date that the relevant nationwide pennit is modified or revoked, you will have twelve (12) months &om the date of the modification or revocation of the NWPs to complete the activities under the present terms and conditions of these nationwide permits.
Please be aware this nationwide permit authorization does not obviate the requirement to obtain other Federal, state or local authorizations required by law. A copy of this NWP and verification letter must be supplied to your project engineer responsible for construction activities. A copy of the verification letter must be kept at the site during construction.
Upon completion of the work associated with the Town of Chapmanville Water System Upgrade project, the attached certification must be signed and returned to this office. If you have any questions concerning the above, please contact Lauren A. Pritt of the SouthlTransportation Branch at 304-399-5275or by email at [email protected].
Sincerely,
SarahM. Workman Regulatory Project Manager SouWTransportation Branch
Enclosure (next page) -4-
cc: Mr. Eugene E. Lewis E.L. Robinson Engineering Co. 5088 Washington Street, West Charleston,West Virginia 25313
Ms. WilmaReip West Virginia Department of Environmental Protection 601 57thStreet Charleston, West Virginia 25304 -4-
Cwhg 1 LaW& L Lengitade mow Regime or Length in Other Pertinent ??mber (“N) (W Csavardbl class lilnear &?et elf) InlFermrrfktn of Impact 1 37.960 -82.02352 Intermittent 2 Waterline Installation 2 37.96 1 -82.02194 Intermittent 2 Waterline Installation 3 37.983 -82.0 1577 Intermittent 10 Waterline Installation
Table 2. On-site Aquatic Resources associated with the Town of Chapmanville Water System Upgrade Extension Project
UNT Guyandotte River 1 37.960 I -82.02352 1 Intermittent 4 If Non-Section IO, Non-Wetland UNT Guyandotte River 2 37.983 1 -82.01577 I Intermittent 10 If Non-Section 10, Non-Wetland -5-
SPECIAL CONDITIONS OF THE NWP VERIFICATION ISSUED FOR THE TOWN OF CHAPMANVILLE WATERLINE INSTALLATION LRH-2017-92-GUY Page 1 of 1
1. West Virginia Individual State Section 401 Water Quality Certification or a waiver is required for this Section 404 Nationwide Permit Verification to be valid. No work in waters of the United States in association with this project may commence until the required certification (or waiver) is obtained. All conditions attached to or contained within the certification are hereby incorporated by reference as being special conditions of the United States Army Corps of Engineers Nationwide Permit 12 verification. - ---
,.e’ / 500 Water Street, Jf80 Jacksonville, FL 32202 904.279.3806 Eric Horton(@csx.com Eric Horton Contract Specialist
October 5,2017
Mr. Roberts E.L Robinson Engineering 5088 Washington St. West Charleston, WV 25313
Agreement No.: CSX842160 Dated: September 1,2017
Dear Mr. Roberts,
Attached is the fully-executed Agreement of the above reference file.
In accordance with this Agreement, Agreement Holder is responsible for paying the actual cost of CSXT protection services and/or support services, including all applicable surcharges (collectively "Fees").
No work is to be performed on CSXT property without Roadmaster's authorization.
It is your responsibility to schedule any work on CSXT property with QXT Outside Services. Please visit the CSX Property Portal to complete the Outsise Party (OP) Application in order to have your work scheduled.
It was a pleasure assisting you with this project and we look forward to working with you in the future.
Should there be any questions, please feel free to give us a call at the above referenced number.
Sincerely,
Eric Horton
Attachement PS- FORM 1001-G REVISED APRIL 29,2008 AGREEMENT NO. CSX8421 GO FACILITY ENCROACHMENT AGREEMENT THIS AGREEMENT, made and effective as of September 1,2017, by and between CSX TRANSPORTATION, MC., a Virginia corporation, whose mailing address is 500 Water Street, Jacksonville, Florida 32202, hereinafter called "Licensor," and TOWN OF CHAPMANVILLE WATER & SEWER DEPARTMENT, a municipal corporation, political subdivision or state agency, under the laws of the State of West Virginia, whose mailing address is P.O. Box 426, Chapmanville, West Virginia 25508, hereinafter called "Licensee," WITNESSETH:
WHEREAS, Licensee desires to construct (unless previously cokructed and designated as 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 described location(s):
1. One (1) ten inch (1 0") diameter sub-grade pipeline crossing, solely for the conveyance of potable water, located at or near Chapmanville, Logan County, West Virginia, Florence Division, Logan Subdivision, Milepost CLS-54.37, Latitude N37:58:16.00, Longitude W82:01:09.00:
hereinafter, called the "Encroachment," as shown on print(s) labeled Exhibit "A," attached hereto and made a part hereof;
NOW,THEREFORE, in consideration of the mutual covenants, conditions, terms and agreements herein contained, the parties hereto agree and covenant as follows:
1. LICENSE:
1 .I Subject to Article 17, Licensor, insofar as it has the legal right, power and authority to do so, and its present title permits, and subject to:
(A) Licensor's present and fiture right to occupy, possess and use its property within the area of the Encroachment for any and all purposes; 03) AI1 encumbrances, conditions, covenants, easements, and limitations applicable to Licensor's title to or rights in the subject property; and
(C) Compliance by Licensee with the terms and conditions herein contained; does hereby license and permit Licensee to construct, maintain, repair, renew, operate, use, alter or change the Faciiities at the Encroachment above for the term herein stated, and to remove same upon termination.
1.2 The term Facilities, as used herein, shall include only those structures and ancillary facilities devoted exclusively to the transmission usage above within the Encroachment, and as shown on attached Exhibit A.
Page 1 of 14 0 PS - FORM 1001-G REVISED APIUL 29,2008 AGREEMENT NO. CSX8421GO
1.3 No additional structures or other facilities shall be placed, allowed, or maintained by Licensee in, upon or on the Encroachment except upon prior separate written consent of Licensor.
2. ENCROACHMENT FEE;TERM: 2. I Licensee shall pay Licensor a one-time nonrefundable Encroachment Fee of FIVE THOUSAND ONE HUNDRED AND 00/100 U.S. DOLLARS ($5,100.00) upon execution of this Agreement. Licensee agrees that the Encroachment Fee applies only to the original Licensee under this Agreement In the event of a successor (by merger, consolidation, reorganization and/or assignment) or if the original Licensee changes its name, then Licensee shall be subject to payment of Licensor's current administrative and document preparation fees for the cost incurred by Licensor in preparing and maintaining this Agreement on a current basis.
2.2 However, Licensee assumes sole responsibility for, and shall pay directly (or reimburse Licensor), any additional annual taxes andlor periodic assessments levied against Licensor 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 upon: (a) Licensee's cessation of use of the Facilities or Encroachment for the purpose(s) above; (b) removal of the Facilities; (c) subsequent mutual consent; and/or (d) failure of Licensee to complete 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 hereby agrees that Licensor shall not be charged or assessed, directly or indirectly, with any part of the cost of the installation of said Facilities and appurtenances, andor maintenance thereof, or for any public works project of which said Facitities is a part.
3. CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee shall construct, maintain, relocate, repair, renew, alter, and/or remove the Facilities, in a prudent, workmanlike manner, using quality materials and complying with any applicable standard@)or regulation(s) of Licensor (CSXT Specifications), or Licensee's particular industry, National Electrical Safety Code, or any governmental or regulatory body having jurisdiction over the Encroachment.
3.2 Location and construction of Facilities shall be made strictly in accordance with design@)and specifications furnished to and approved by Licensor and of material@)and size@)appropriate for the purpose(s) above recited.
3.3 All of Licensee's work, and exercise of rights hereunder, shall be undertaken at time(s) satisfactory to Licensor, and so as to eliminate or minimize any impact on or interference with the safe use and operation of Licensor's property and appurtenances thereto.
Page 2 of 14 0 PS- FORM 1001-G REVISED APRIL 29,2008 AGREEMENT NO.CSX8421 GO 3.4 In the installation, maintenance, repair and/or removal of said Facilities, Licensee shall not use explosives of any type or perform or cause any blasting without the separate express written consent of Licensor. As a condition to such consent, a representative will be assigned by Licensor to monitor blasting, and Licensee shall reimburse Licensor for the entire cost andlor expense of fitmishing said monitor.
3.5 Any repairs or maintenance to the Facilities, whether resulting from acts of Licensee, or natural or weather events, which are necessary to protect or facilitate Licensor's use of its pmperty, shall be made by Licensee promptly, but in no event later than thirty (30) days after 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, equipment and/or employees from damage or injury, may request immediate repair or renewal of the Facilities, and if the same is not performed, may make or contract to make such repairs or renewals, 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 method of construction or maintenance of said Encroachment, nor any approval given or supervision exercised by Licensor, shall be construed as an admission of liability or responsibility by Licensor, or as a waiver by Licensor of any of the obligations, jiability and/or responsibility of Licensee under this Agreement,
3.8 All work on the Encroachment shall be conducted in accordance with Licensor's safety rules and regulations.
3.9 Licensee hereby agrees to reimburse Liceiisor MY loss, cost or expense (including losses resulting from train delays andor inability to meet train schedules) arising from any failure of Licensee to make repairs or conduct maintenance as required by Section 3.5 above or from improper or incomplete repairs or maintenance to the Facilities or Encroachment.
3.10 In the event it becomes necessary for the Licensee to deviate from the approved Exhibit, Licensee shall seek prior approval hmCSXT, or when appIicable, an official field representative of CSXT permitted to approve changes, authorizing the necessary field changes and Licensee shall provide CSXT with complete As-Built Drawings of the completed work. As-Built Drawings shall be submitted to Licensor in either electronic or hard copy form upon the substantial completion of the project and upon Licensor's request,
4. PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Encroachment for the contracted purpose, Licensee, at its sole cost and expense, shall obtain all necessary permit@)(including but not limited to zoning, building, construction, health, safety or environmental matters), letter@)or certificate(s) of approval. Licensee expressly agrees and warrants that it shalt conform and limit its activities to the terms of such permit(s), approval(s) and authorization(s), and shall comply with all applicable ordinances, rules, regulations, requirements and laws of any governmental authority (State, Federal or Locat) having
Page 3 of 14 0 PS - FORM 1 0014 REVISED APRIL 29,2008 AGREEMENT NO. CSX842 I GO jurisdiction over Licensee's activities, including the location, contact, excavation and protection regulations of the Occupational Safety and Health Act (OSHA) (29 CFR 1926.65 1 (b)), et ai., and State "One Call" - "Cali Before You Dig" requirements.
42 Licensee assumes sole responsibility for failure to obtain such permit(s) or approval(s), for any violations thereof, or for costs or expenses of compliance or remedy.
5. MARKING AND SUPPORT 5.1 With respect to any subsurfwe installation or maintenance upon Licensor's property, Licensee, at its sole cost and expense, shall:
(A) support track(s) and roadbed in a manner satisfactory to Licensor; 031 backfill with satisfactory material and thoroughly tamp all trenches to prevent settling of surface of land and roadbed of Licensor; and ((3 either remove any surplus earth or material from Licensor's property or cause said surplus earth or materia1 to be placed and distributed at location(s) and in such manner Licensor may approve.
5.2 AAer construction or maintenance of the Facilities, Licensee shall:
(A) Restore any track@),roadbed and other disturbed property; and
(B) Erect, maintain and periodically verify the accuracy of aboveground markers, in a form approved by Licensor, indicating the location, depth and ownership of any underground Faciiities or related facilities.
5.3 Licensee shall be solely responsible for any subsidence or failure of lateral or subjacent support in the Encroachment area for a period of three (3) years after completion of installation.
6. TRACK CHANGES:
6.1 In the event that rail operations andlor track maintenance result in changes in grade or alignment of, additions to, or relocation of track@) or other facilities, or in the event future use of Licemor's rail corridor or property necessitate any change of location, height or depth in the Facilities or Encroachment, Licensee, at its sole cost and expense and within thirty (30) days after notice in writing from Licensor, shall make changes in the Facilities or Encroachment to accommodate such track(s) or operations.
6.2 If Licensee faits to do so, Licensor may make or contract to make such changes at Licensee's cost.
Page4 of 14 0 PS - FORM 1001-G REVISED APRIL 29,2008 AGREEMENT NO. CSX8421GO 7. FACILITY CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of the Facilities or Encroachment in relation to the existing tracks and facilities, and shall relocate the Facilities or change the Encroachment, at Licensee's expense, should such relocation or change be necessary to comply with the minimum clearance requirements of Licensor.
7.2 If Licensee undertakes to revise, renew, relocate or change in any manner whatsoever all or any part of the Facilities (including any change in voltage or gauge of wire or any change in circumference, diameter or radius of pipe or change in materials transmitted in and through said pipe), or is required by any public agency or court order to do so, plans therefor shall be submitted to Licensor for approval before such change. After approval, the terms and conditions of thjs Agreement shall apply thereto.
8. INTERFERENCE WITH RAU,FACILITIES:
8.1 A Ithough the Facilitieflncroachment herein permitted may not presently interfere with Licensor's railroad or facilities, in the event that the operation, existence or maintenance of said Facilities, in the soie judgment of Licensor, causes: (a) interference (including, but not limited to, physical or interference from an electromagnetic induction, or interference from stray or other currents) with Licensor's power lines, communication, signal or other wires, train control system, or electrical or electronic apparatus; or (b) interference in any manner, with the operation, maintenance or use of the rail corridor, track(s), structures, pole Iine(s), devices, other propem, or any appurtenances thereto; then and in either event, Licensee, upon receipt of written notice fmm Licensor of any such interference, and at Licensee's sole risk, cost and expense, shall promptly make such changes in its Facilities or installation, as may be required in the reasonablejudgment of the Licensor to eliminate all such interference. Upon Licensee's failure to remedy or change, Licensor may do so or contract to do so at Licensee's sole cost.
8.2 Without assuming any duty hereunder to inspect the Facilities, Licensor hereby reserves the right to inspect same and to require Licensee to undertake repairs, maintenance or adjustments to the Facilities, which Licensee liercby agrees to make promptly, at Licensee's soie cost and expense.
9. RISK, LLABILITY, 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 amended), Licensee hereby agrees to, defend, indemnify, and hold Licensor Itarmless from and against any and all Iiability, toss, claim, suit, damage, charge or expense which Licensor may suffer, sustain, incur or in any way be subjected to, on account of death of or injury to any person whomsoever (including officers, agents, employees or invitees of Licensor), and for damage to or loss of or destruction of any property whatsoever, arising out of, resulting from,or in any way
Page5of14 0 PS - FORM 10014 REVISED APRIL 29,2008 AGREEMENT NO. CSX8421GO connected with the construction, repair, maintenance, replacement, presence, existence, operations, use or removal of the Facilities or any structure in connection therewith, or restoration of premises of Licensor to good order or condition after removal, EXCEPT when proven to have been caused solely by the willful misconduct or gross negligence of Licensor. HOWEVER, to the hlfest extent permitted by State law, during any period of actual construction, repair, maintenance, replacement or removal of the Facilities, wherein agents, equipment or personnel of Licensee are on the railroad rail corridor, Licensee's liability hereunder shall be absolute, irrespective of any joint, sole or contributoiy fault or negligence of Licensor.
9.2 Use of Licensor's rail corridor involves certain risks of loss or damage as a result of the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of loss and damage to Licensee's Property or the Facilities in, on, over or under the Encroachment, including loss of or any interference with use or service thereof, regardless of cause, including electrical field creation, fire or derailment resulting from rail operations. For this Section, the term "Licensee's Property" shall include property of third parties situated or placed upon Licensor's rail corridor by Licensee or by such third parties at request of or for benefit of Licensee.
9.3 To the fullest extent permitted by State law, as above, Licensee assumes all responsibility for, and agrees to defend, indemnify and hold Licensor harmless from: (a) all claims, costs and expenses, including reasonable attorneys' fees, as a consequence of any sudden or nonsudden poIlution of air, water, land andlor ground water on or off the Encroachment area, arising from or in connection with the use of this Encroachment or resulting from leaking, bursting, spilling, or any escape of the material transmitted in or through the Facilities; (b) any claim or liability arising under federal or state law dealing with either such sudden or nonsudden pollution of air, water, land andlor ground water arising therefrom or the remedy thereof; and (c) any subsidence or failure of lateral or subjacent support of the tracks arising from such Facilities leakage.
9.4 Notwithstanding Section 9.1, Licensee also expressly assumes all risk of loss which in any way may result fi-om Licensee's failure to maintain either required clearances for any overhead Facilities or the required depth and encasement for any underground Facilities, whether or not such loss(es) result(s) in whole or part fiom Licensor's contributory negligence or joint fault.
9.5 Obligations of Licensee hereunder to release, indemnify and hold Licensor harmless shall also extend to companies and other legal entities that control, are controlled by, subsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the rail corridor 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, andlor its operating lessee, for which Licensee may be responsible hereunder, in whole or in part, Licensee shall be notified to assume the handling or defense of such claim or action; but Licensor may participate in such handling or defense.
Page 6 of 14 0 PS - FORM 1001-G REVISED AFWL 29,2008 AGREEMENT NO.CSX8421 GO 9.7 Notwithstandinganything contained in this Agreement, the limitation of liability contained in the state statutes, as amended from time to time, shall not limit Licensor's ability to collect under the insurance policies required to be maintained under this Agreement.
10. INSURANCE:
10.1 Prior to commencement of surveys, installation or occupation of premises pursuant to this Agreement, Licensee shall procure and shall maintain during the continuance of this Agreement, at its sole cost and expense, a policy of
(0 Statutory Worker's Compensation and Employers Liability Insurance with available limits of not less than ONE MILLION AND 00/100 US. DOLLARS ($1 ,OOO,OOO.OO), which must contain a waiver of subrogation against CSXT and its Affiliates;
(ii) Commercial General Liability coverage (inclusive of contractual liability) with available limits of not less than FIVE MILLION AND OOf I00 US. DOLLARS ($5,000,000.00), naming Licensor, and/or its designee, as additional insured and in combined single limits for bodily injury and property damage and covering the contractual liabilities assumed under this Agreement. The evidence of insurance coverage shall be endorsed to provide for thirty (30) days' notice to Licensor, or its designee, prior to cancellation or modification of any policy. Mail CGL certificate, along with agreement, to CSX Transportation, Inc., Speed Code J 180,500 Water Street, Jacksonville, FL 32202. On each successive year, send certificate to [email protected].
(iii) Business automobile liability insurance with available limits of not less than ONE MILLION AND 00/100 U.S. DOLLARS ($1,000,000.00) combined single limit for bodily injury andlor property damage per occurrence;
(iv) Such other insurance as Licensor may reasonably require.
10.2 If Licensee's existing CGL policy(ies) do(es) not automatically cover Licensee's contractual liability during periods of survey, installation, maintenance and continued occupation, a specific endorsement adding such coverage shafl be purchased by Licensee. If said CGL policy is written on a "claims made" basis instead of a 'per occurrence" basis, Licensee shall arrange for adequate time for reporting losses. Failure to do so shall be at Licensee's sole risk.
10.3 Licensor, or its designee, may at any time request evidence of insurance purchased by Licensee to comply with this Agreement. Failure of Licensee to comply with Licensor's request shall be considered a defauit by Licensee.
10.4 Securing such insurance shall not limit Licensee's liability under this Agreement, but shall be security therefor.
10.5 (A) In the event Licensee finds it necessary to perform construction or demolition operations within fifly feet (50') of any operated railroad track(s) or affecting any
Page 7 of 14 0 PS - FORM 1001-G REVISED APRIL 29, 2008 AGREEMENT NO. CSX8421 GO railroad bridge, trestle, tunnel, track(s), roadbed, overpass or underpass, Licensee shall: (a) notify Licensor; and (b) require its contractor(s) performing such operations to procure and maintain during the period of construction or demolition operations, at no cost to Licensor, Railroad Protective Liabilitv RPLI Insurance, naming Licensor, and/or its designee, as Named Insured, written on the current ISO/RlMA Form (IS0 Form No. CG 00 35 01 96) with limits of FIVE MILLION AND 0011 00 U.S. DOLLARS ($5,000,000.00)per occurrence for bodily injury and property damage, with at least 'EN MILLION AND 00/100 U.S. DOLLARS ($10,000,000.00) aggregate limit per annual policy period, with Pollution Exclusion Amendment (IS0 CG 28 3 I 1 1 85) if an older IS0 Form CG 00 35 is used. The original of such RpL policy shall be sent to and approved by Licensor prior to commencement of such construction or demolition. Licensor reserves the right to demand higher limits.
(B) At Licensor's option, in lieu of purchasing WL insurance from an insurance company (but not CGL insurance), Licensee may pay Licensor; at Licensor's current rate at time of request, the cost of adding this Encroachment, or additional construction andtor demolition activities, to Licensor's Railroad Protective Liabilh RPL) Policy for the period of actual construction. This coverage is offered at Licensor's discretion and may not be available under all circumstances.
10.6 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee, pursuant to State Statute(s), may self-insure or self-assume, in any amount(s), any contracted liability arising under this Agreement, under a funded program of self-insurance, which find will respond to liability of Licensee imposed by and in accordance with the procedures established by law.
11. GRADE CROSSINGS; PROTECTION SERVICES:
11.1 Nothing herein contained shall be construed to permit Licensee or Licensee's contractor to move any vehicles or equipment over the track(@,except at public road crossing(s), without separate prior written approval of Licensor.
11.2 If Licensor deems it advisable, during any construction, maintenance, repair, renewal, alteration, change or removal of said Facilities, to place watchmen, flagmen, or field construction managers for protection of operations of Licensor or others on Licensor's rail corridor at the Encroachment, and to keep persons, equipment or materials away from the track@),Licensor shall have the right to do so at the expense of Licensee, but Licensor shall not be liable for failure to do so.
12. LICENSOR'S COSTS:
12.1 Any additional or alternative costs or expenses incurred by Licensor to accommodate Licensee's continued use of Licensor's property tis a result of track changes or wire changes shall also be paid by Licensee.
12.2 Licensor's expense for wages ("force account" charges) and materials for any work performed at the expense of Licensee pursuant hereto shall be paid by Licensee within
Page 8 of 14 0 PS- FORM 1001-G REVISED APNL 29,2008 AGREEMENT NO.CSX8421 BO thirty (30) days after receipt of Licensor's bill therefor. Licensor may, at its discretion, request an advance deposit for estimated Licensor costs and expenses.
12.3 Such expense shall include, but not be limited to, cost of railroad labor and supervision under "force account" rules, plus current applicable overhead percentages, the actual cost of materials, and insurance, freight and handling charges on all material used. Equipment rentals shall be in accordance with Licensor's applicable fixed rate. Licensor may, at its discretion, require advance deposits for estimated costs of such expenses and costs.
13. DEFAULT, BREACH, WAIVER
13.1 The proper and complete performance of each covenant of this Agreement shall be deemed of the essence thereof, and in the event Licensee fails or refuses to fully and completely perform any of said covenants or remedy any breach within thirty (30) days aRer receiving written notice from Licensor to do so (or within forty-eight (48) hours in the event of notice of a milroad emergency), Licensor shall have the option of immediately revoking this Agreement and the privileges and powers hereby conferred, regardless of encroachment fee(s) having been paid in advance for any annual or other period. Upon such revocation, Licensee shall make removal in accordance with Article 14.
13.2 No waiver by Licensor of its rights as to any breach of covenant or condition herein contained shall be construed as a permanent waiver of such covenant or condition, or any subsequent breach thereof, unless such covenant or condition is permanently waived in writing by Licensor.
13.3 Neither the failure of Licensor to object to any work done, material used, or method of construction or maintenance of said Encroachment, nor any approval given or supervision exercised by Licensor, shall be construed as an admission of liability or responsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or responsibility of Licensee under this Agreement.
14. TERMINATION, FUEMOVAL:
14.1 A11 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 Facility from the Encroachment. However, neither termination nor revocation of this Agreement shall affect any claims and liabilities which have arisen or accrued hereunder, and which at the time of termination or revocation have not been satisfied; neither party, however, waiving any third party defenses or actions,
14.2 Within thirty (30) days after revocation or termination, Licensee, at its sole risk and expense, shall (a) remove the Facilities from the rail corridor of Licensor, unless the parties hereto agree otherwise, (b) restore the rail corridor of Licensor in a manner satisfactory to Licensor, and (c) reimburse Licensor any loss, cost or expense of Licensor resulting from such removal.
Page9of14 0 PS- FORM 10014 REVISED APRIL 29,2008 AGREEMENT NO. CSX842 160 15. NOTICE:
15.1 Licensee shall give Licensor at least thirty (30) days written notice befo1.e doing any work on Licensots rail corridor, except that in cases of emergency shorter notice may be given. Licensee shall provide proper notification as foIlows:
a. For non-emergencies, Licensee shall submit online via the CSX Property Portal from Licensor's web site, via web Iink https~/propettyportal.csx.~o~~pu bss_res/ps~res/jsfYpu bliclindex. faces b. For emergencies, Licensee shall complete all of the steps outlined in Section 15.1 a. above, and shall also include detailed information of the emergency. Licensee shall also call and report details of the emergency to Licensor's Rail Operations Emergency Telephone Number: 1-800-232-0144. In the event Licensor needs to contact Licensee concerning an emergency involving Licensee's Facility(ies), the emergency phone number for Licensee is: 304-855-3227.
15.2 AI1 other notices and communications concerning this Agreement shall be addressed to Licensee at the address above, and to Licensor at the address shown on Page 1, c/o CSXT Contract Management, J 1 80; at such other address as either party may designate in writing to the other.
15.3 Unless otherwise expressly stated herein, all such notices shall be in writing and sent via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be considered delivered upon: (a) actual receipt, or (b) date of refusal of such delivery.
16. ASSIGNMENT:
16.1 The riglits herein conferred are the privileges of Licensee only, and Licensee shall obtain Licensor's prior written consent to any assignment of Licensee's interest herein; said consent shall not be unreasonably withheld.
16.2 Subject to Sections 2 and 16.1, this Agreement shall be binding upon and inure 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 merger, consolidation, reorganization, etc.) or other change of legal existence or status of Licensee, 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 part, to any grantee, lessee, or vendee of Licensor's underlying property interests in the Encroachment, upon written notice thereof to Licensee.
16.5 In the event of any unauthorized sale, transfer, assignment, sublicense or encumbrance of this Agreement, or any of the rights and privileges hereunder, Licensor, at its
Page IO of 14 0 PS - FORM 1001-G REVISED APRIL 29,2008 AGREEMENT NO. CSX842160 option, may revoke this Agreement by giving Licensee or any such assignee written notice of such revocation; and Licensee shall reimburse Licensor for any loss, cost or expense Licensor may incur as a result of Licensee's failure to obtain said consent.
17. TITLE:
17.1 Licensee understands that Licensor occupies, uses and possesses lands, rights-of-way and rail corridors under a11 forms and qualities of ownership rights or facts, From full fee simple absolute to bare occupation. Accordingly, nothing in this Agreement shall act as or be deemed to act as any warranty, guaranty or representation of the quaIity 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 superior rights in and to the Rail Corridor, and a11 leases, licenses and easements or other interests previously granted to others therein.
17.2 The term "license," as used herein, shalI mean with regard to any portion of the Rail Corridor which is owned by Licensor in fee simple absolute, or where the applicable law of the State where the Encroachment is located otherwise permits Licensor to make such grants to Licensee, a r'permission to use" the Rail Corridor, with dominion and control over such portion of the Rail Corridor remaining with Licensor, and no interest in or exclusive right to possess being otherwise granted to Licensee. With regard to any other portion of Rail Corridor occupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives its exclusive right to occupy the Rail Corridor and grants no other rights whatsoever under this Agreement, such waiver continuing only so long as Licensor continues its own occupation, use or 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 heid by Licensor in less than fee simple absolute without also receiving the consent of the owner(@of the fee simple absolute estate. Further, Licensee shall not obtain, exercise or claim any 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 absotutely waives its right to, any claim against Licensor for damages on account of any deficiencies in title to the Rail Corridor in the event of failure or insufficiency of Licensor's title to any portion thereof arising fi-om Licensee's use or occupancy thereof.
17.4 Licensee agrees to filly and compIetely indemnify and defend all claims or litigation for slander of title, overburden of easement, or simiIar claims arising out of or based upon the Facilities placement, or the presence of the Facilities in, OR or along any Encroachment(s1, including claims for punitive or special damages.
17.5 Licensee shaIl 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
Page I1 of 14 0 PS - FORM 100 I-G REVISED APRIL 29,2008 AGREEMENT NO. CSX8421 GO any length of time give rise to any right, title or interest in Licensee to said property other than the license herein created.
17.6 Nothing in this Agreement shall be deemed to give, and Licensor hereby expressly waives, any claim of ownership in and to any part of the Facilities.
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 witli 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 #at 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 andlor 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 dmffer thereof.
18.4 This Agreement is executed under current interpretation of applicable Federal, State, County, Municipal or other local statute, ordinance or law@). However, each separate division (paragraph, clause, item, term, condition, covenant or agreement) herein shall have independent and severable status for the determination of legality, so that if any separate division is determined to be void or unenforceable for any reason, such determination shall have no effwt 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 tenns 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
Page 12of 14 B PS- FORM 1001-G REVISED APRIL 29,2008 AGREEMENT NO. CSX8421GO eighteen percent (I 8%) per annum, unless limited by Iocal 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.
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 paify(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 refbnd shall not be made when the cumulative total involved is less than One Hundred Dollars ($100.00).
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Page 13 of 14 0 PS- FORM 1001-0 REVISED APRIL 29,2008 AGREEMENT NO. CSX842 1 GO M 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 TRANSPORTATION,INC.
By:
Print/Type Name:
Prinflype Title:
TOWN CHAF'MANMLLE WATER & Witness for Licensee: OF
By:
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.
Prinflype Title: /?'?%or
Authority under Ordinance or
Resolution No. 9
Dated
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