HomeMy WebLinkAbout02/07/2012 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