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02/07/2012 04M Pipeline Licenses Agreement with BNSF Railway; "H" Street Railway Right-of-Way 'lf Ie � t BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT M Item No. L i 11 1 For Meeting of February 7, 2012 ?s%.' X Fi ..: - 'i. ' , f.a 1:. } ..: , ...; H ";' « CV, . V: -i$ �: �'. .'i+H' :,'F A44 04 .?4.4 ITEM TITLE: Resolution authorizing two Pipeline License Agreements with BNSF Railway for the City of Yakima's Industrial Waste Collection System within "H" St between Front St. and First Avenue SUBMITTED BY: Scott Schafer, Wastewater Manager Shelley Willson, Wastewater Utility Engineer CONTACT Shelley Willson /509.575 6077 PERSON /TELEPHONE: SUMMARY EXPLANATION: Construction of a main irrigation line provided the opportunity for the extension of the City of Yakima's Industrial Waste (IW) Line to the area previously occupied by Boise Cascade. A portion of the IW Line will need to be bored under the Burlington Northern Santa Fe (BNSF) Railway line within "H" St. between Front Street and First Avenue Two forcemain pipes will be housed in a carrier pipe that will be bored or jacked under the railway. The City of Yakima has obtained Certificates of Insurance as required by BNSF and will participate in BNSF Blanket Policy. The attached resolution authorizes the City Manager to execute the attached Pipeline License Agreements with BNSF Railway There are two separate agreements, one for each forcemain line. The City of Yakima will be required to pay a $2,500 license fee and $1,000 for a required BNSF Blanket Insurance Policy for each line franchise. Costs related to construction are not known at this time, but will be covered under the actual project budget for capital improvement budgeted in Wastewater's 476 Account. BNSF will invoice the City for their actual costs incurred during construction of the pipeline. Resolution X Ordinance Other (specify) Two BNSF License Agreements Contract: Mail to: Railroad Property Management ATTN Kim Johnson Rath 111 University Parkway Suite 200 Yakima WA 98901 Contract Term: Amount: Expiration Date: Insurance Required? Yes Funding Source: Wastewater 476 Phone: 509.966.5916 APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Staff respectfully requests City Council approve the resolution. BOARD /COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Click to download ❑ Pipeline License 11 -3028 ❑ Pipeline License 11 -3029 ❑ Blanket Railroad Protective Program ❑ CIAW Certificate of Insurance ❑ Resolution BNSF Agreements RESOLUTION NO. R -2012- A RESOLUTION authorizing the City Manager to execute an agreement between BNSF Railway and the City of Yakima for two Pipeline Licenses (11 -0328 and 11 -0329) to allow installation of two Industrial Waste pipes under BNSF Railway right -of -way within "H" St. WHEREAS, the City of Yakima (City) owns and operates wastewater collection and treatment facilities in accordance with applicable Federal, State and Local regulations; and, WHEREAS, the City desires to install a 24 -inch carrier pipe containing two Industrial Waste (IW) Lines, 4 -inch and 6 -inch PVC pipes, under BNSF right -of -way within "H" St. to provide potential needs associated with industrial waste from food processing industries such as wineries or breweries; and, WHEREAS, the installation of this pipeline segment within "H" St. between Front St. and First Ave. and within BNSF Railway right -of -way is necessary to provide for such IW services of future development to the former Boise Cascade site; and, WHEREAS, BNSF Railway has provided Pipeline Licenses 11 -3028 and 11 -3029; and, WHEREAS, BNSF Railway requires such Pipeline Licenses to be executed by the City of Yakima, now therefore; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute Pipeline License Agreements #11 -3028 and #11 -3029, attached hereto and by reference made a part hereof, to allow installation of two Industrial Waste Lines, which Agreements include the associated actual costs incurred by BNSF during construction, a $1,000 blanket insurance policy and a $2,500 license fee per pipeline. ADOPTED BY THE CITY COUNCIL this 7th day of February, 2012. ATTEST: Micah Cawley, Mayor Deborah Kloster, City Clerk Law Department Approved #11-3028 BF #: PIPELINE LICENSE THIS LICENSE ( "License "), made as of the day of , 2012 ( "Effective Date ") by and between BNSF RAILWAY COMPANY, a Delaware corporation ( "Licensor ") and , a corporation ( "Licensee "). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non - exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications "), one (1) Pipeline, 4 inches in diameter inside a 24 inch steel casing ( "PIPELINE "), across or along the rail corridor of Licensor at or near the station of Yakima, County of Yakima, State of Washington, Line Segment 0048, Mile Post 90.68 as shown on the attached Drawing No. 1- 53377, dated 12/5/2011, attached hereto as Exhibit "A" and made a part hereof ( "Premises "). 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying industrial waste. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances ", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above - stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licenser's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in Form 424; Rev. 04/26/05 -1- Law Depaitment Approved #11-3028 BF #: the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro -rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Twenty Five Hundred Dollars and No /l00 ($2,500.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $600.00 for an eight (8) hour basic day with time and one -half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one -half percent (2 1/2 %), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the Form 424; Rev. 04/26/05 -2- I Law Department Approved #11 -3028 BF #: preceding June plus two and one -half percent (2 1/2 %), or (b) twelve percent (12 %), or (ii) the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ( "Legal Requirements ") relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's- applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety - training program at the following Internet Website " http : / /contractororientation.com ". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensor's Roadmaster, Andy Vulgas at 602 West 3 Street, Ellensburg, WA 98926, telephone 206 - 625 -6880, at least five (5) business days Form 424; Rev. 04/26/05 -3- Law Depaiti rent Approved #11 -3028 BF #: prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and /or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non - compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Form 424; Rev. 04/26/05 - 4 - Law Department Approved #11 -3028 BF #: Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's Premises to their former state as of the Effective Date of this License. 14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of new a PIPELINE(s). 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26 -inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and Form 424; Rev. 04/26/05 -5- Law Department Approved #11 -3028 BF#: approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on -site supervisions shall retain /maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES ") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, Form 424; Rev. 04/26/05 -6- I Law Department Approved #11 -3028 B F #: LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES ") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER ", "OPERATOR ", "ARRANGER ", OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THE PURPOSES OF CERCLA OR OTHER Form 424, Rev. 04/26/05 -7- Law Department Approved #11 - 3028 BF #: ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ( "FELA ") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL Form 424; Rev. 04/26/05 -8- Law Department Approved #11 -3028 B F #: BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and Form 424; Rev. 04/26/05 -9- Law Department Approved #11 -3028 BF #: $10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to include Evacuation Expense Coverage Endorsement. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $ ❑ I elect to participate in Licensor's Blanket Policy; ❑ I elect not to participate in Licensor's Blanket Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non - contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation, Contractor's Pollution Legal Liability and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor and Iron Horse Development, LLC as an additional insured with respect to work performed under this agreement. Severability of Form 424; Rev. 04/26/05 - 10 - Law Department Approved #11 -3028 BF #: interest and naming Licensor and Iron Horse Development, LLC as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed to self - insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self - insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non - renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In_the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and CIass VII or better, and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then - current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. Form 424; Rev. 04/26/05 -11- Law Department Approved #11 -3028 BF #: The fact that insurance (including, without limitation, self - insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation ", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws "). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832 -5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the PIPELINE which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right -of -way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly Form 424; Rev. 04/26/05 -12- Law Department Approved #11 -3028 BF #: respond to Licensor's request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor's prior written consent. NO WARRANTIES 24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment Form 424; Rev. 04/26/05 - 13 - Law Department Approved #11-3028 BF #: of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes ") levied or assessed upon the Improvements by any governmental or quasi - governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to. Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: BNSF Railway Company 2500 Lou Menk Dr. — AOB3 Fort Worth, TX 76131 Attn: Senior Manager Real Estate Form 424; Rev. 04/26/05 -14- Law Department Approved #11 -3028 13F #: with a copy to: Iron Horse Development, LLC 11 l University Parkway, Suite 200 Yakima, WA 98901 If to Licensee: City of Yakima 204 West Pine Street Yakima,WA 98902 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the PIPELINE and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Washington without regard to conflicts of law provisions. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Form 424; Rev. 04/26/05 - 15 - Law Department Approved #11 -3028 BF #: MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Iron Horse Development, LLC is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY By: CITY OF YAKIMA 204 West Pine Street Yakima,WA 98902 By: Title: Form 424; Rev. 04/26/05 -16- TRACKING NO. 11 -3028 EXHIBIT 'A' ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND CITY OF YAKIMA SECTION: 13 a' R}- .1._ SCALE: 1 IN.= 100 FT. TOWNSHIP: 13N WA -02 = NORTHWEST DIV. RANGE: 1 8E YAKIMA VALLEY SUBDIV. L.S. 0046 MERIDIAN: WILLM NIP, DATE 12/05/2011 A: . i +° ALL UNDER AGREEMENT NO. BN 8583. S -11163 PROPERTY LINE 4 y' - ,t, TO WASHINGTON CENTRAL RALROAD CO. INC. DATE 07 -29 -1986 n r i+ ;. FROM MP 0.929 TO MP .14.0 WIT in / SUBJE TO flBER OPTIC RIGHT17 H EXCEPTIONS. S. ✓ G tt IC\ r -:.:.,--ii. MP 90.68 r ES 4780 +60 _or y _ ----�. -- ... 34,4, '..-• ' \ ^ ' �I . I`� -Av.,' r c - �r-r_- .r.`' - - . li ' / — -. a�YC' ;,.. a . w� e _ Jt�•PLG • Ni••f cvr[ �r ...i ' '.'"Il / r *a _ es / Ld5.7 430' `�' A MA I ti TO ELL • `Q7im, •+ y4' sr,r;. - - - - DESCRIPTION OF PIPELINE PROPERTY LINE PIPELINE SHOWN BOLD CARRIER CASING CARRIER CASING PIPE PIPE PIPE PIPE SIZE: 4" 24" LENGTH ON R /W: 300' 300' CONTENTS: INDUSTRIAL WASTE WORKING PRESSURE: 50 PS I PIPE MATERIAL: PVC STEEL BURY: BASE /RAIL TO TOP OF CASING 5.5' SPECIFICATION /GRADE: SDR 1§ SCH 20 BURY: NATURAL GROUND 4.5' WALL THICKNESS: 0.267 0.375 " BURY: ROADWAY DITCHES 4.5' COATING: - - CATHODIC PROTECTION YES VENTS: NUMBER .....1 ____SIZE — HEIGHT OF VENT ABOVE GROUND 4' NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT YAKIMA COUNTY OF YAKIMA STATE OF WA JWD DRAWING NO. 1 -53377 Law Department Approved #11 -3029 BF #: PIPELINE LICENSE THIS LICENSE ( "License "), made as of the day of , 2012 ( "Effective Date ") by and between BNSF RAILWAY COMPANY, a Delaware corporation ( "Licensor ") and , a corporation ( "Licensee "). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non - exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications "), one (1) Pipeline, 6 inches in diameter inside a 24 inch steel casing ( "PIPELINE "), across or along the rail corridor of Licensor at or near the station of Yakima, County of Yakima, State of Washington, Line Segment 0048, Mile Post 90.68 as shown on the attached Drawing No. 1- 53378, dated 12/5/2011, attached hereto as Exhibit "A" and made a part hereof ( "Premises "). 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying industrial waste. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances ", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above - stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in Form 424; Rev. 04/26/05 -1- Law Department Approved #11 -3029 BF #: the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro -rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue for a period of twenty -five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Twenty Five Hundred Dollars and No /100 ($2,500.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with • Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $600.00 for an eight (8) hour basic day with time and one -half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one -half percent (2 1/2 %), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the Form 424; Rev. 04/26/05 -2- Law Department Approved #11 -3029 BF #: preceding June plus two and one -half percent (2 1/2 %), or (b) twelve percent (12 %), or (ii) the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ( "Legal Requirements ") relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety- training program at the following - Internet Website " http : / /contractororientation.com ". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensor's Roadmaster, Andy Vulgas at 602 West 3 Street, Ellensburg, WA 98926, telephone 206 - 625 -6880, at least five (5) business days Form 424; Rev. 04/26/05 -3- Law Department Approved #11 -3029 BF#: prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty -five (25) feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and /or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non - compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Form 424; Rev. 04/26/05 -4- Law Department Approved #11 - 3029 BF #: Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's Premises to their former state as of the Effective Date of this License. 14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of new a PIPELINE(s). 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice . (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26 -inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and Fonn 424; Rev. 04/26/05 -5- Law Department Approved #11 -3029 BF #: approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following,, completion of that portion of, the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole -cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on -site supervisions shall retain /maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES ") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, Form 424; Rev. 04/26/05 -6- Law Department Approved #11 -3029 BF #: LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES ") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER ", "OPERATOR ", "ARRANGER ", OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THE PURPOSES OF CERCLA OR OTHER Form 424; Rev. 04/26/05 -7- Law Department Approved #11 -3029 BF #: ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE, UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ( "FELA ") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALS O EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and /or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL Form 424; Rev. 04/26/05 -8- Law Department Approved #11-3029 BF #: BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and Form 424; Rev. 04/26/05 -9- Law Department Approved #11 -3029 BF #; $10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and /or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. ♦ The original'policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $ ❑ I elect to participate in Licensor's Blanket Policy; ❑ I elect not to participate in Licensor's Blanket Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non- contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation, Contractor's Pollution Legal Liability and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor and Iron Horse Development, LLC as an additional insured with respect to work performed under this agreement. Severability of Form 424; Rev. 04/26/05 - 1 0 - Law Department Approved #11 -3029 BF#: interest and naming Licensor and Iron Horse Development, LLC as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed to self - insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self - insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non - renewal, substitution or material alteration.. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every live years, Licensor may reasonably modify the required insurance coverage to reflect then - current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. Form 424; Rev. 04/26/05 -11- I Law Department Approved #11-3029 BF #: The fact that insurance (including, without limitation, self - insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation ", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws "). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832 -5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the PIPELINE which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right -of -way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly Form 424; Rev. 04/26/05 - 12 - Law Department Approved #11 -3029 BF #: respond to Licensor's request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor's prior written consent. NO WARRANTIES 24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment Form 424; Rev. 04/26/05 - 13 - Law Department Approved #11-3029 B F #: of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes ") levied or assessed upon the Improvements by any governmental or quasi - governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: BNSF Railway Company 2500 Lou Menk Dr. — AOB3 Fort Worth, TX 76131 Attn: Senior Manager Real Estate Form 424; Rev. 04/26/05 -14- Law Department Approved #11-3029 B F #: with a copy to: Iron Horse Development, LLC 111 University Parkway, Suite 200 Yakima, WA 98901 If to Licensee: City of Yakima 204 West Pine Street Yakima,WA 98902 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the PIPELINE and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. i 1 APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Washington without regard to conflicts of law provisions. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Form 424; Rev. 04/26/05 -15- I Law Department Approved #1I-3029 BF #: MISCELLANEOUS 37. in the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein. contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of' any provision herein by Licensee shall in no way impair the right of' Licensor to enforce that provision for any subsequent breach thereof. Iron Horse Development, LLC is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY By: CITY OF YAKIMA 204 West Pine Street Yakima,WA 98902 By: Title: Form 424; Rey., 04/26105 - 16 - TRACKING NO. 11 -3029 I. EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY N N- AND N CITY OF YAKIMA v SECTION: 13 e1P R}- u. SCALE: 1 IN.= isa FT. TOWNSHIP: 13N WA -02 cc NORTHWEST DIV. RANGE: 18E a- YAKIMA VALLEY SUBDIV. L.S. 0048 MERIDIAN: WILLM 23 DATE 12/05/2011 ""7 + NOTE' J ^^ ALL R/W UNDER AGREEMENT NO. BN 8583, S -11163 PROPERTY LINE ' a . y! ". TO WASHINGTON CENTRAL RAI.ROAD CO. INC. DATE 07 -29 -1986 � c, FROM 1`P 0.929 TO AP 14.017 WITH EXCEPTIONS. to i SUBJECT TO FIBER OPTIC RIGHTS. 4. oh1 - , r « .. . , MP 90.68 J r ,, ..� f r ES 4780.60 -- - -- - - '• .4.4. �� , _ ti '.. —.,- . •al __..— 1.1 :: . ... �,.- M.. <.y. y:.. y. .. �...r- :'ils;.a -'— ly..— . _ , .r. �:'t.: :S `.a - . _. - - JG en , r ,, + .. .1 Y ..4 - n LdS.7 9: / — ,n r• ' — - - M� . t� TO ELLit BURG — I '•1.3i' " — — --- r . &S DESCRIPTION OF PIPELINE PROPERTY LINE PIPELINE SHOWN BOLD CARRIER CASING CARRIER CASING PIPE PIPE PIPE PIPE SIZE: 6" 24" LENGTH ON R /W: 300' 300' CONTENTS: INDUSTRIAL WASTE WORKING PRESSURE: 50 PSI PIPE MATERIAL: PVC STEEL BURY: BASE /RAIL TO TOP OF CASING 5.5' SPECIFICATION /GRADE: SOR 1 9 SCH 29 BURY: NATURAL GROUND 4.5' WALL THICKNESS: 0.383 ' 0.375 BURY: ROADWAY DITCHES 4.5' COATING: - - CATHODIC PROTECTION YES VENTS: NUMBER —2— SIZE _2 HEIGHT OF VENT ABOVE GROUND 4 '_ NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT YAKIMA , COUNTY OF YAKIMA STATE OF WA JwD DRAWING NO. 1 -53378 BNSF Railway Company Blanket Railroad Protective Program — Leases/Permits Application for Insurance BNSF REQUIRES RAILROAD PROTECTIVE LIABILITY INSURANCE IN THE NAME OF BNSF RAILWAY COMPANY FOR LIMITS OF $2MM PER OCCURRENCE/$6,000,000 AGGREGATE or $5M/$ IOM (depending on Pennit/Lease Specifications) PER ISO/RIMA POLICY FORM C000351093 ENDORSED TO INCLUDE LIMITED SEEPAGE, POLLUTION AND EVACUATION COVERAGE. 1. Contractor Name: Clt OT qkl m O Are you the permittee: YES ,0 NO ❑ Address: \NI d, - 12>►V Have you applied for a permit : YES El NO ❑ aZt W Do you have a contract with BNSF: YES NO NO ❑ e inc . W l\ critIo2. If not, who is the contract with: Contractor Contact: 1 LNA ►") u' ■ (Name) . S"1 _ . elk g (Phone) 2. Who is your BNSF /Iron Horse A .509.854.-as (Phone) Contact Person: WW1 .v41fn�borl Raclin 1J" ' 3 3 3. Job Description: lrti•A-at 1 4" and `' line. 1 2.4" co.s1nq pt pe . CO al r'‘ will be 1. c lcel e r dr�..t 1cotit.,c1 urde.r B' s F� Boo .. t" on Et /W WNISV Job Location (LS/MP) : L ► r1 e 'S.C1rn ex it 004$ ? t4 t ? -t cto . 'toB BNSF Contract File # and or Tracking #: I I -° 30 2A:5 and 1t - 30'.9' ) 0 Please Specify Limits Needed: $2M /$6M: 0 $5M/$ 10M: Transverse: YES Z NO ❑ Longitudinal: YES ❑ NO • Open Cut: YES ❑ NO g ■ Length (feet): • Underground # of Bores: 1 13 0r e ■ Overhead or Underground: • Overhead YES ❑ NO Track Construction - # of Feet / a 4. Start Up and Estimated Completion Dates: o ar!r t)e t... 20 (2. Coin .'Ie 5. Misc. Contract Cost Total: (refer to attach) \bO.C)Q a Contract Cosi Within 50 Ft. of Track: 6. Permittee's Insurance: C. Aor,l ( TT d. eked J Refer to Permit/Real Estate Agreement for the Other Insurance Requirements 7. Quoted Premium: /, D'S"D . Quoted By: 40-ev M 1 Date: i // (/ / 2 . Above quote will be placed with Lexington Insurance which is an A p.XYInsurance Company. g . In order to bind coverage, we will need a check sent for the quoted premium made payable to Marsh USA. Inc., referencing account.#4f3"to the below Lock Box, along with a copy of this completed form. /DlI Marsh USA Inc. Dallas P 0. Box 973770 RRP Contact: Dallas, TX 75397 -3770 Zeferina Mireles: Phone: 214 -303 -8529, OvernifhtAddress: email: Zeferina.Mireles anmarsh.com - Marsh USA Inc Lock Box Number 973770 Rosa M. Martinez, Phone: 214 -303 -8519, TXI - 0006 - e- mail:Rosa.M.Martinez( marsh.com 14800 Frye Road, Fort Worth, TX 76155 Fax No. 214 303 8021 L Miscellaneous Permits and Contracts: • Abandoned Track/Tie Removal • Boom/auger - Installation and Repair • Bridge Surface Repair • Building Demolition (15,000 square feet maximum) • Fiber Optic /Communication lines installation • Installation of Pedestrian Cross Walks (ground level) and Repair • Installation of Private Grade Crossing and Repair • Leased Property , New Construction or Repair • Maintenance of Right -of -Way (includes roadbed/mainline grading) • Parking Lot Construction • Pedestrian/bike trails • Rehabilitation of track • Repair/lnstallation of culverts • Road Resurfacing • Rock Scaling (no blasting) • Sewer Maintenance • Snow Removal • Soil Test Herrings • Spur and Sidetrack Construction (include maintenance and repair) • Station and Building Repair • Structural Bridge Repair • Vegetation Control - Cutting and Spraying • Environmental access (Phase 2) • Remediation work '•✓,,c, Y i':O4':' 7 v�^ : rz :,: <::��•,•:r.,,�::.:: .... , .. .. ., .: ....._..,. .. ..,, •: feet <r :r;� :. • t c: z...,. n; -: r: o,i'i: <: `., +•,w'Tl / '" " h v �� v ,r,'::: '.i.3 :: "` ;.: •s.. .[..; .. C .r . ..:. .,.,,. ... r.... .,. ...,.., ',�., :.,... ., .r.. .. ::. .,.. �:..<�. :r:, „r. ..:. <Y f,:•r ifc�il;�+:af�ii :�:it . Ao it:: - „ + :•r �s:,..;. : 1i�'cS'ao.,...., e, t.,: ., � ..,. ..,, " :... r.;, ��.. .. �.;� - -.: $ .: r:r , l� .Y - kk er - .; j fG r THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE MEMORANDUM OF COVERAGE (MOC) BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the MOC must be endorsed, If SUBROGATION IS WAIVED, subject to the terms and conditions of the MOO, certain coverage may reqpife an endorsement, A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement s . y tr ' !a • ._ . ...... .. ...,, , .. �. ... -.. „ .. ..... ... . . ...a °:,vi.S'I ,,. ^ {. r . :.r, . r ., :L's1�.3; 'iik c 23•Tv ?::y %Si;'^.'$l,;:et' .,..Y.. :�..;;. PIS' f;iN :W+ >” ... .. «!.. CANFIELD GENERAL LIABILITY 18106 140TH AVENUE N.E. CIAW /Munich Re W00DINVILLE, WA 98072 -6874 AUTOMOBILE LIABILITY PHONE (425) 482 -6767 FAX (425) 482 -2777 CIAW / Munich Re A' :ai`.._ ......... :: PROPERTY City of Yakima CIAW I Munich Re 129 N. 2nd Street Yakima, WA 98901 CRIME/ PUBLIC EMPLOYEE DISHONESTY CIAW / Munich Re' :i� yr . :., .. •...... ..r -n. r; � : rv : fi ...... t 2....•. w THIS IS TO CERTIFY THAT THE COVERAGES LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE COVERAGE PERIOD INDICATED, NOT WTHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF CONTRACT OR OTHER DOCUMENT WTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE MOC DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH MCC. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. .... S L3 •T:S: s,. f�' +•�2," `•; �:A':' <:•.�.: :.;;2,0: :yy - � ,1 .RAN.. 9 ,... :..... ..:...... r ...... ........era,, :...,w . .. .,. , , .....z.,...,. ..:, ..�.�„ . ,. >NL. IfR•'..: -..�; .;a�S�R1PTi0 �:=: g' > .....a ....... �. .•. ..< ....f. . .l,... ... ..v , l i.... r,... .r.:r.... .. rrCC.! . w.�.....::: :::" $p .�r ..., r. ..... . -. .. .? :... r..C. , .N..: .. ....... .......: .. ............ .. �. i a... .. .. :. ;vf43 ':.�CY+v} :............... r. .. ...n., .. ..OA.... ,.,✓,,.. . rv. ..: , .,. ,:. .,. .mf ... .1.. .. .I. - .lvli:a: " ::$4 /v. . :w- ?.... ./ .,��•�: ...:n j::; N , ......, ..... :.: .......... ........, :...... r., ....,,..,...rf t , o. 2o-. .,;D r� „•i..,...::....::. �` - <,.,,: ••.' < ..r.::: r Sic 9%'ir;% i < >•r. : i Gf':i GENERA'C LIABILITY. ” COMMERCIAL GENERAL LIABILITY CIAW111234514 09/01/2011 09/01/2012 GENERAL AGGREGATE $25,000,000 OCCURRENCE FORM PRODUCT - COMP /OP AGG $25,000,000 INCLUDES STOP GAP PERSONAL & ADV INJURY $15,000,000 EACH OCCURRENCE $15,000,000 (LIABILITY IS SUBJECT TO A $100,000 SIR PAYABLE FROM PROGRAM FUNDS) ANNUAL PROGRAM AGGREGATE , $50,000,000 ':- AUTOMOBILE LIA$ILt.TV' :•. - ..- - �.. ANYAUTO CIAW111234514 09/01/2011 09/01/2012 COMBINED SINGLE LIMIT $15,000,000 (LIABILITY IS SUBJECT TO A $ 100,000 SIR PAYABLE FROM PROGRAM FUNDS) ANNUAL PROGRAM AGGREGATE $50,000,000 , CIAW111234514 09/01/2011 09/01/2012 ALL RISK PER OCC EXCL EQ & FL EXCLUDED EARTHQUAKE PER OCC Declined FLOOD PER OCC Declined (PROPERTY IS SUBJECT TO A $ N/A SIR PAYABLE FROM PROGRAM FUNDS) ANNUAL PROGRAM AGGREGATE NONE 6RI NI EIP U BLIC E M PL4YEEDISHONESTY CIAW111234514. 09/01/2011 09/01/2012 PER LOSS $1,000,000 .DESCRIPTION. sOPERATIONS.T LOGATIQN8 l.VEHIGLE6.9.SP.ECIAL ITEM$' :' Reference #11 -3028; installation and/or construction of the pipeline. Burlington Northern Santa Fe Corporation, BNSF Railway Company and the subsidiaries, successors, assigns and affiliates of each and Iron Horse Development, LLC are named as Additional Insureds as respects this contract only and are subject to coverage terms, conditions and exclusions. MOC #CIAW111234514 does not exclude work done within 50' of railroad tracks. Additional Insured endorsement and Waiver of Transfer of Rights and Recovery form are attached. Should any of the coverages described above be cancelled before the expiration date thereof, notice will be given within 30 days or in accordance to the provisions of the MOC. CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED COVERAGE BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF THE MOC. :,,,_ ....,- �Et1 IP J _ t�A7�i391,1?Elt.. ........._......._,:�_ �,....,....,� , ..AUK �3RI�i±D��P.r; s BNSF Railway Company Insurance Company Audit Department ) P O Box 140528 C3t� ca.r,� / ���e Kansas City, MO 64114 2577580 ADDITIONAL INSURED ENDORSEMENT THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: GENERAL LIABILITY COVERAGE PART How Coverage is Changed It is agreed that the interest of any Additional Insured is recognized as their interests may appear, providing the certificate of insurance that this is attached to has been issued and is on file with the Company. Other terms: All other terms of your Memorandum of Coverage remain the same. ' I WAIVER OF TRANSFER OF RIGHTS AND RECOVERY AGAINST OTHERS TO US THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: Insurance Company Audit Department P.O. Box 140528 Kansas City, MO 64114 If insurance with any other insurer is available to cover a Claim for an Insured for any coverage under this memorandum whether on a primary, excess or contingent basis, the insurance under this memorandum is excess of and does NOT contribute with such other insurance. The insurance under this memorandum is NOT subject to the terms, conditions, or limitations of any other insurance If This condition does NOT apply with respect to excess insurance purchased specifically to be in excess of this memorandum. Any person or organizations as shown in the Schedule above, for whom we make a payment under this insurance must transfer their right to recovery against any other party. After a Claim they must do everything necessary to secure, and nothing to impair these rights. However, we will waive our right of recovery against any person or organization as shown in the Schedule above with respect to which the Insured has waived its right of recovery prior to the Occurrence, Accident or Wrongful Act in an Insured Contract Other terms: All other terms of your Memorandum of Coverage remain the same. 2577580