HomeMy WebLinkAboutDoc. 2009-199, Assignment of RightsTES
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 22, 2009
Please see directions for completing this document on the next page.
DATE: April 13, 2009
FROM: George Kolb Road Department 322 -7113
TITLE OF AGENDA ITEM:
Consideration of signature of Document No. 2009 -199, an Assignment of Rights Under Contract for
Easements for the Deschutes Market Road Overpass project with Burlington Northern Santa Fe (BNSF)
Railway Company and Apex Property & Track Exchange, Inc. (APEX) for the easement over the
railroad tracks on the Deschutes Market Overcrossing project.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County is in the process of constructing the Deschutes Market Overcrossing project which
involves the construction of an overcrossing over the railroad tracks along with the closure of the
existing at -grade crossing. As a result of the installation of the overcrossing on the tracks, Deschutes
County is required by BNSF to obtain an easement over their right -of -way for the installation of the
Overcrossing. The Assignment of Rights Under Contract For Easements authorizes Apex Property&
Track Exchange , Inc. to act as an intermediary in the payment process for the easement required by
BNSF for the Deschutes Market Overcrossing. It has no bearing on the easement document that has
been signed by Deschutes County and BNSF. This document states the fact that APEX can facilitate
the collection and tracking of the funds.
FISCAL IMPLICATIONS:
Payment of the $86,250 for the easement is budgeted in this FY
RECOMMENDATION & ACTION REQUESTED:
The Road Department recommends signature of Document No. 2009 -199, the Assignment of Rights
Under Contract for Easements
ATTENDANCE: George Kolb, County Engineer
DISTRIBUTION OF DOCUMENTS:
Originals are to be returned Wanda Kunz (ext. 7103) at the Road Department for forwarding on to
BNSF for signature.
ASSIGNMENT OF RIGHTS UNDER CONTRACT
FOR EASEMENTS
APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporation, of
1001 Hingham Street, Suite 300, Rockland, MA 02370, (hereinafter called "Assignee "), BNSF
RAILWAY COMPANY, a Delaware corporation, (hereinafter called "Exchangor"),
DESCHUTES COUNTY, an Oregon political subdivision, (hereinafter called "Grantee ").
Whereas, Exchangor and Grantee heretofore entered into an Agreement dated
, 2009, (the "Contract "), wherein Exchangor, for
adequate and sufficient consideration, agrees to grant to Grantee the following described interest
in real property:
Certain easement rights in real property more particularly described on Exhibit
"A" attached hereto and made a part hereof for all purposes (hereinafter called the
"Easement ").
Whereas, the Contract specifically reserves for Exchangor the right to assign to Assignee
all of Exchangor's rights under the Contract, but not its obligations and warranties, for purpose of
consummating a like kind exchange as contemplated under Section 1031 of the Internal Revenue
Code of 1986, as amended.
Now, Therefore, Exchangor hereby assigns to Assignee all of the Exchangor's rights
under the Contract, as contemplated by Treasury Regulations Section 1.1031 (k)- 1(g)(4)(v),
including all deposits received prior to granting said Easement. Exchangor's obligations and
warranties under the Contract remain with the Exchangor, including the authority to grant said
Easement directly to the Grantee.
Assignee previously represented, warranted and covenanted to Exchangor, under the
Master Exchange Agreement dated January 1, 1997, that it will not transfer, assign, mortgage or
hypothecate the rights that it is receiving from the Exchangor and that Assignee shall not amend,
terminate, modify, supplement or otherwise alter any term, condition or other provision of the
Contract. At the same time the Easement is granted to the Grantee, rights received by Assignee
pursuant to this Assignment of Rights are hereby transferred to the Grantee.
Assignee is participating in this transaction only as a Qualified Intermediary and that for
purposes of any dispute regarding the Relinquished Property, Exchangor and Grantee shall look
solely to each other with respect to resolving any such dispute and neither one shall look
to the Assignee. This shall be binding upon and shall inure to the respective heirs, successors
and assigns of Exchangor and Grantee.
This instrument may be executed in any number of counterparts, each of which, when
duly executed, shall constitute an original hereof.
LEGAL COUNSEL
In Witness Whereof the parties hereto have executed this Assignment of Rights Under
Contract, to be effective as of the date on which the last party hereto signs.
Exchangor:
BNSF RAILWAY COMPANY
a Delaware corporation
By: Date:
David P. Schneider
General Director -Land Revenue Management
Assignee:
APEX PROPERTY & TRACK EXCHANGE, INC.,
a Massachusetts corporation
By: Date:
Print name:
Its:
Grantee:
DESCHUTES COUNTY,
an Oregon political subdivision
By: Date:
Print name: Tammy Baney
Its: Chair
By: Date:
Print name: Dennis R. Luke
Its: Vice Chair
By: Date:
Print name: Alan Unger
Its: Commissioner
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To: Chemult
Northwest Division
OregonTrunk Subdiv. -L.S. 0053 -5
Val. Sec. 52025
OT OR -04, Map S -10
Sec. 26, T16S, R12 W.M
December 16, 2008
M.P. 143.81
DRAWING NO. 3 -45409