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Recorded Quitclaim Deedlllllllllllllllllll�llllllllll�llull'llllllll�lll�lllllllllllllllfllll�llllllll Page Ii94a Fees° $69 p i Debbie Pierson, Flathead County MT by MW 11/5/2020'3;3 WHEN RECORDED MAIL TO: City of Kalispell U' 201 First Ave E ° Kalispell, MIT 599011 RECORDED AT THE REQUEST OF: t� a) City of Kalispell U) 201 First Ave E Kalispell, MT 59901 `�> l ! — N 0 N QUITCLAIM DEED Ln rt THIS QUITCLAIM DEED ("Deed"), made this 30th day of September, 2020, by and between BNSF RAILWAY COMPANY, a Delaware corporation (" BNSF"), and CITY OF KALISPELL, a municipality formed under the laws of the State of Montana, with its principal office at 201 First Ave E, Kalispell, MT 59901 > ("Grantee"). 0 c�. WITNESSETH: That BNSF, for TEN AND NCl/100 DOLLARS ($10.00) and other good and valuable consideration, to it in hand paid, the receipt of which is hereby acknowledged, does hereby REMISE, RELEASE and FOREVER QUITCLAIM, without any covenants of warranty whatsoever and without recourse to BNSF, its successors and assigns, unto grantee, its successors and assigns, all of its right, title and interest, if any, in real estate and its rights under any leases related to such real estate, if any, subject however to all existing interests, including but not limited to all reservations, rights -of -way, leases, easements and other encumbrances, of record or otherwise, located in the County of Flathead, State of Montana„ more particularly described on the attached Exhibit A which is fully incorporated herein by reference (the "Property"), SUBJECT, to the terms of that certain Railbanking and Sale Contract„ dated September 30, 2020 ("Contract"), which terms are incorporated herein by this reference, this conveyance is dependent upon and pursuant to the issuance of a Notice of Interim Trail Use ("NITU") in Surface Transportation Board ("STB") Docket No. AB 6 (Sub -No. 495X), BNSF Railway Company— Abandonment Exemption in Flathead County" Montana, in accordance with 16 U.S.C. Section 1247(d), the STB's rules and regulations pertaining to interim trails use, and other applicable authorities, all as amended from time to time; SUBJECT, to interpretation pursuant to and in conformity with Section 8(d) of the National Trails System Act, 16 U.S.C. Section 1247(d), and the rules and regulations of the STB related thereto, all as may be amended from time to time.. GRANTEE SHALL ASSUME, INDEMNIFY, DEFEND AND HOLD HARMLESS BNSF FROM ALL FINANCIAL, MANAGERIAL AND LEGAL RESPONSIBILITY AND LIABILITY FOR THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY LIABILITIES AND RESPONSIBILITIES ASSUMED BY OR PLACED UPON GRANTEE PURSUANT TO AND IN ACCORDANCE WITH (1) THE NITU, (II) GRANTEE'S STATEMENT OF WILLINGNESS TO ASSUME FINANCIAL RESPONSIBILITY FILED BY GRANTEE WITH THE STB, AND (ill) ANY APPLICABLE STB ORDERS RELATED TO THIS TRANSACTION OR THE PROPERTY. Grantee acknowledges that any interim trail use by Grantee or its assigns shall be subject to the possibility of future restoration of rail service pursuant to federal law and/or BNSF's retained interests pursuant to the Contract. Grantee shall take all steps necessary„„„ at no expense to BNSF, to comply with any and all state and federal requirements relating to such interim trail use and/or restoration. SUBJECT, to Grantee's agreement that the use of the Property by Grantee (or its assignees) shall not impair future restoration of rail service pursuant to the National Trails System Act, as amended. RESERVING, unto BNSF, the right to reactivate and restore rail service on the Property pursuant to the National Trails System Act, as amended, or any equivalent or successor law, Should BNSF or any such assignee of BNSF exercise this right at any time, Grantee (or its assigns) shall allow reactivation of rail service on the terms and conditions herein and in the Contract. Upon BNSF's notice of intent to restore rail service ("Reactivation Notice"), Grantee shall remove all Buyer improvements from the Property at its own cost and expense, unless otherwise agreed to in writing by BNSF, and shall reconvey the Property to BNSF free and clear of any encumbrances or liens not in effect prior to the date of this Deed (or shall otherwise commit to clear such encumbrances and/or liens within a reasonable period of time) at no cost to BNSF (except to the extent expressly provided otherwise herein below). Grantee shall have the right to salvage any non -rail -related facilities or improvements on the Property, provided such removal of Buyer improvements and all salvage shall be completed within one hundred eighty (1180) days of the Reactivation Notice, and any materials not salvaged within said time period shall be forfeited by Grantee absent written waiver by BNSF, If BNSF, or its successor, provides the Reactivation Notice, (i) any reconveyance of the Property shall be at fair market value, which shall be determined by a neutral appraisal process agreed upon between the parties, with the costs thereof to be shared equally, and (ii) BNSF shall not be liable for any penalties or direct, indirect, or consequential damages or costs, losses, or expenses arising out of the reactivation and restoration of rail service on the Property. If any dispute arises between the parties as to the fair market value determination or process for determination, such disputes shall be finally resolved pursuant to the dispute resolution procedures set forth in the Contract. ALSO RESERVING, unto BNSF, all coal, oil, gas, casing -head gas, and all ores and minerals of every kind and nature including sand and gravel underlying the surface of the Property, together with the full right, privilege, and license at any and all times to explore, or drill for and to protect, conserve, mine, take, remove, and market any and all such products in any manner which will not damage structures on the surface of the Property, together with the right of access at all times to exercise said rights; provided, however, BNSF's exercise of this reservation shall not permanently damage improvements placed on the Property by Grantee or its successors and shall not unduly burden the use of the Property as a recreational trail. In no event will BNSF have the right to conduct strip mining activities on the Property. Grantee covenants and agrees that the Property shall be used solely for non-residential purposes, that the groundwater will not be used for drinking water or irrigation purposes, and that no wells will be installed on the Property without BNSF's written consent. Within thirty (30) days after closing and prior to the public having access to the Property, Grantee shall, at its sole cost and expense, construct a protective chain link fence a minimum of six (6) feet in height upon, over and across the northernmost portion of the Property shown on page 7 of Exhibit A and more particularly depicted on the attached Exhibit B and by this reference made a part hereof. Grantee shall thereafter repair, maintain and renew said fence, so as to keep same in good repair at the sole cost of the Grantee. If fence is not constructed within this time frame, BNSF may construct said fence at the sole cost of Grantee and Grantee shall pay BNSF all associated costs within thirty (30) days of receipt of bills. Grantee has been allowed to make an inspection of the Property and has knowledge as to the past use of the Property. Based upon this inspection and knowledge, Grantee is aware of the condition of the Property and GRANTEE SPECIFICALLY ACKNOWLEDGES THAT THE PROPERTY IS BEING QUITCLAIMED ON AN "AS -IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE BNSF 11543 Kalispell, MT P a U e 12 PROPERTY, AND THAT GRANTEE IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM BNSF AS TO ANY MATTERS CONCERNING THE PROPERTY, including, without limitation, the physical condition of the Property; zoning status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (defined below), wetlands, asbestos, lead, lead -based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any of the above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property; and any leases, easements, reservations, permits, orders, licenses, or other rights or agreements, affecting the Property, BNSF EXPRESSLY DISCLAIMS ANY WARRANTIES FOR THE PROPERTY OR APPURTENANCES THERETO, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO TITLE, MERCHANTABILITY, HABITABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR CONFORMITY OF THE PROPERTY TO ITS INTENDED USE, Grantee acknowledges and represents to BNSF that Grantee is aware of the risk that Hazardous Substances may be present on, under, in or about the Property and that Grantee has conducted such investigations of the Property, including but not limited to, the physical and environmental conditions thereof, as Grantee deemed necessary to satisfy itself as to the condition of the Property, and Grantee is relying and will rely solely upon same and not upon any information provided by or on behalf of BNSF or its agents or employees with respect thereto, GRANTEE ASSUMES THE RISK THAT ADVERSE MATTERS MAY NOT HAVE BEEN REVEALED BY GRANTEE'S INVESTIGATIONS, AND GRANTEE SHALL INDEMNIFY, HOLD HARMLESS AND HEREBY WAIVES, RELEASES AND DISCHARGES FOREVER BNSF (AND BNSF-S AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSEES AND INVITEES) FROM ANY AND ALL PRESENT OR FUTURE, KNOWN OR UNKNOWN, CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, BUT NOT LIMITED TO, THOSE IN CONTRACT, TORT AND, STRICT LIABILITY), DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL AND PUNITIVE), LOSSES (HEREIN DEFINED), INJURIES, LIABILITIES, COSTS (INCLUDING, BUT NOT LIMITED TO, FINES, PENALTIES, COURT COSTS AND ATTORNEYS' FEES) ARISING FROM OR IN ANY WAY RELATED TO (1) ANY LATENT OR PATENT CONDITIONS OF THE PROPERTY, (11) ANY BODILY INJURY OR DEATH OR LOSS OR DAMAGE TO THE PROPERTY OF ANY PERSON OR PERSONS WHOMEVER, INCLUDING THE PARTIES HERETO, IN ANY MANNER ARISING FROM OR GROWING OUT OF THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF GRANTEE OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS,, LICENSEES AND INVITEES IN CONNECTION WITH THE ENTRY UPON, OCCUPATION OR USE OF THE PROPERTY, AND/OR (III) ANY ALLEGED OR ACTUAL PRESENCE, USE, STORAGE, GENERATION, MANUFACTURE, TRANSPORT, RELEASE, LEAK, SPILL, DISPOSAL OR OTHER HANDLING OF ANY HAZARDOUS SUBSTANCES IN, ON, UNDER OR ABOUT THE PROPERTY. As used in this paragraph, the term "Losses" shall include without limitation (a) the cost of any investigation, removal, remedial or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause BNSF's remaining property or the operations or business of BNSF on its remaining property to be in compliance with the requirements of any Environmental Law, and (c) costs imposed under any Environmental Law enacted after the date of this Deed. As used herein, the term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health, occupational safety, natural resources, plant or animal life or the environment, including without limitation, principles of common law and equity, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. As used herein, the term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material, contaminant or waste as, defined, listed or regulated under any Environmental Law, and includes BNSF 11543 Kalispell, MT F1 a g e- 13 without limitation, petroleum, oil and any of its fractions, The rights of BNSF under this paragraph shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this Deed, the Contract or otherwise, This indemnity specifically includes the obligation of Grantee to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any Hazardous Substances or contaminants on the Property. Grantee acknowledges and agrees, that in no event shall this Deed or the Contract be construed to create a joint enterprise for the use or operation of the Property. Grantee further acknowledges that a material consideration for this conveyance, without which it wouild not be made, is the agreement by Grantee, for itself and for its successors and assigns, that BNSF, its predecessors, successors, and assigns, shall be in no manner responsible to Grantee, any subsequent owner, purchaser, or any person for any claims, demands, damages, causes of action, including loss of access, or suits regarding the quiet and peaceable possession of the Property, title thereto, or condition thereof.Grantee acknowledges and affirms that BNSF may not hold fee simple title or any other particular interest in the Property, and that BNSF's interest in the Property, if any, may rise only to the level of an easement for railroad purposes. GRANTEE IS WILLING TO ACCEPT BNSF'S TITLE TO THE PROPERTY, IF ANY, ON THIS BASIS AND EXPRESSLY RELEASES BNSF, ITS SUCCESSORS AND ASSIGNS FROM ANY CLAIMS THAT GRANTEE OR ITS SUCCESSORS MAY HAVE AS A RESULT OF THE CONVEYANCE TO BE MADE PURSUANT TO THIS DEED. IN LIGHT OF BNSF'S, DISCLOSURE THAT IT MAY NOT HOLD FEE SIMPLE TITLE OR ANY OTHER INTEREST IN THE PROPERTY, GRANTEE SHALL INDEMNIFY, DEFEND AND HOLD, BNSF HARMLESS FROM ANY SUIT OR CLAIM FOR DAMAGES, PUNITIVE OR OTHERWISE, EXPENSES, ATTORNEYS' FEES, OR CIVIL PENALTIES THAT MAY BE IMPOSED ON BNSF AS THE RESULT' OF' ANY PERSON OR ENTITY CLAIMING AN INTEREST IN THE PROPERTY OR CLAIMING THAT BNSF DID NOT HAVE THE RIGHT TO TRANSFER THE PROPERTY TO GRANTEE. Grantee further acknowledges, that, according to BNSF's records, BNSF's interest in the Property may be subject to reversion upon abandonment of use for railroad purposes or cessation of interim trail use, and that this Deed releases and quitclaims only BNSF's interest, if any, that BNSF may have in the Property. If any of the terms under this Deed shall be unlawful or void for violation of (a) the rule against perpetuities or some analogous statutory provision, or (b) any other statutory or common law rules imposing like or similar time limits, then such terms shall continue only for the period of twenty-one (21) years after the death of the last survivor of the lineal descendants of Elizabeth 11, Queen of England, living as of the date hereof. The covenants and agreements set forth herein above, shall be binding upon Grantee and its heirs, successors and assigns, and shall be covenants running with the land benefitting BNSF and its heirs, successors and assigns. Any division of land described herein is exempt from the requirements of MCA Title 76 Chapter 3 pursuant to MCA 76-3-201 (1)(h) as a creation of rights -of -way. TO HAVE AND TO HOLD the Property unto the said Grantee, its successors and assigns, forever, [Signature pages below] BNSF 11543 Kalispell, MT PH g e 14 IN WITNESS WHEREOF, BNSF has caused this, instrument to be signed by its authorized representative, on the day and year first above written. BNSF RAILWAY COMPANY, a Delaware corporation By: Stevan B. Bo . bb Its: Executive Vice President and Chief Marketing Officer 6 1, a - Z&- , On this -?,?"day of L-e f 2020, before me appeared Stevan B, Babb, to me CA personally known, who being by me duly sworn, did say that he is Executive Vice President and Chief Marketing Officer of BNSF RAILWAY COMPANY, a Delaware corporation, that the foregoing instrument was signed in behalf of said corporation by authority of its Board of Directors and said authorized representative acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set and and affixed my notarial seal the day and year last above written, My BNSF 11543 Kalispell, MT F1 a Lj ir,-,, 15 Public rimission Expires: any wpm RHONDA BURTON Notary ID #3474626 My CQmmission Expires September 21:,2024 GRANTEE'S SIGNATURE PAGE Accepted: GRANTEE: CITY OF KALISPELL, a municipaVityjprmed under the laws of the State of Montana BY: Print Name:' Title: STATE OF _L]0rk0`10\,_ COUNTY OF Peq-4"W01A )SS. On this day of k)e"2020, before me appeared a) �,-) R u, � z L to me personally known, who being by me duly sworn, did say that he or she i�ft e�2 jj�-4r of CITY OF KALISPELL, a munu'6pality formed under the laws of the State of Montana and that said instrument was signed in behalf of said municipality by authority of or other applicable governing body and said municipality acknowledged said instru ent to be the d u ly authorized free act and deed of said municipality. IN TESTIMONY WHEREOF, I have hereunto set my hand year last above written. COLMLYN EVENSON NOTARY PUBLIC for the OR! TA4 State of Montana Residing at MontaKalispelt, LK, na I SEAL' Noi ry Public .1% -"A, My Commission Expires d affixed my notarial seal the day and July 24, W22— j My Commission Expires BNSF 11543 Kalispell, MT �'j I �� �J �� 16 EXHIBIT A LAND IN SECTIONS T 8, AND 18 OF TOWNSHIP 28 NORTH, RANGE 21 WEST', AND SECTION 13 OF TOWNSHIP 28 NORTH, RANGE 22 WEST, P.M. MONTANA, CITY OF KALISPELL, FLATHEAD COUNTY, MONTANA, MORE PARTICULARLY DESCRIBED AS: PARCELS A,B, C, C, E,, F, Gi, H, I, J, AND K„ ACCORDING TO CERTIFICATE OF SURVEY #21492, FILED ,JULY 10, 2020 AS DOCUMENT #202000019163, RECORDS OF FLATHEAD COUNTY, lLTA [*]i7v BNS'F 11543 Kalispell, MT P a g e 17 ['EAST TERMINUS AND FENCE PLAN FOLLOWS THIS PAGE] BNSF 11543 Kalispell, MT P a g e ---, 18 ( � � � � � \� � \� _.� LL LLJ gag 0 < UJ z U) U) \:\\\\\ � �� �� ^ °� » � \ \ t : � <\ � 22: � \ :S1 City of Kalispell 201 First Ave E Kalispell, MT 59901 IN •-r w� - r City of Kalispell 201 First Ave E Kalispell, MT 59901 P rya + 1114pr Clf��hr`roBUPb�uu d,"ficri &JV.�tg,�rid�CB ��G�4mr� THIS QUITCLAIM DEED (""Deed"), made this 30th day of September, 2020, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and CITY OF KALISPELL, a municipality formed under the laws of the State of Montana, with its principal office at 201First Ave E, Kalispell, MT 59901 ("Grantee"). WITNESSETH: That BNSF, for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, to it in hand paid, the receipt of which is hereby acknowledged, does hereby REMISE, RELEASE and FOREVER QUITCLAIM, without any covenants of warranty whatsoever and without recourse to BNSF, its successors and assigns, unto Grantee, its successors and assigns, all of its right, title and interest, if any, in real estate and its rights under any leases related to such real estate, if any, subject however to all existing interests, including but not limited to all reservations, rights -of -way, leases, easements and other encumbrances, of record or otherwise, located in the County of Flathead, State of Montana, more particularly described on the attached Exhibit A which is fully incorporated herein by reference (the "Property"). SUBJECT, to the terms of that certain Railbanking and Sale Contract„ dated September 30, 2020 ("Contract"), which terms are incorporated herein by this reference, this conveyance is dependent upon and pursuant to the issuance of a Notice of Interim Trail Use ("NITU") in Surface Transportation Board ("STB") Docket No. AB 6 (Sub -No. 495X), BNSF Railway Company— Abandonment Exemption in Flathead County, Montana, in accordance with 16 U.S.C. Section 1247(d), the STB's rules and regulations pertaining to interim trails use, and other applicable authorities, all as amended from time to time; SUBJECT, to interpretation pursuant to and in conformity with Section 8(d) of the National Trails System Act, 16 U.S.C. Section 1247(d), and the rules and regulations of the STB related thereto, all as may be amended from time to time. GRANTEE SHALL ASSUME, INDEMNIFY, DEFEND AND HOLD HARMLESS BNSF FROM ALL FINANCIAL, MANAGERIAL AND LEGAL RESPONSIBILITY AND LIABILITY FOR THE PROPERTY, INCLUDING WITHOUT' LIMITATION ANY LIABILITIES AND RESPONSIBILITIES ASSUMED BY OR PLACED UPON GRANTEE PURSUANT TO AND IN ACCORDANCE WITH (1') THE NITU, (11') GRANTEE'S STATEMENT OF WILLINGNESS TO ASSUME FINANCIAL RESPONSIBILITY FILED BY GRANTEE WITH THE STB, AND (111) ANY APPLICABLE STB ORDERS RELATED TO THIS TRANSACTION OR THE PROPERTY. Grantee acknowledges that any interim trail use by Grantee or its assigns shall be subject to the possibility of future restoration of rail service pursuant to federal law and/or BNSF's retained interests pursuant to the Contract, Grantee shall take all steps necessary, at no expense to BNSF, to comply with any and all state and federal requirements relating to such interim trail use and/or restoration.