HomeMy WebLinkAboutBNSF Railway Company - License (Front St. Property for Pole Banner)%. .,.
Law Department Approved
LICENSE
Contract No. 10 -3012
THIS LICENSE ( "License "), made as of the � s _� day of CM 2010
( "Effective Date ") by and between BNSF RAILWAY COMPANY, a Delaware corporation
( "Licensor ") and CITY OF YAKIMA, a Washington 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, licenses, easements,
liens or other encumbrances, and upon the terms and conditions set forth below, to use
the area of Licensor's property shown on the attached Drawing no. l - 49105, dated
4/27/2010, attached hereto, marked Exhibit "A ", and made a part hereof, situated at or
near Yakima, County of Yakima, State of Washington, Line Segment 0048, Mile Post
89.97 ( "Premises ") for the purposes specified in Section 3 below.
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 Premises exclusively as a site for a banner pole. Licensee shall not use
the Premises for any other purpose whatsoever. Licensee shall not use or store hazardous
substances, as defined by the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended ( "CERCLA ") or petroleum or oil as defined by applicable
Environmental Laws on the Premises.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in
the Premises, Licensor shall not be liable to refund Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the Premises, or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License.
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6. This License shall commence on the Effective Date and shall continue for a period of ten
(10) years, subject to prior termination as hereinafter described.
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Form 423; Rev. 04/26/05
Law Department Approved Contract No. 10 -3012
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of ONE
THOUSAND DOLLARS ($1,000.00) 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, 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
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 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.
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Law Department Approved Contract No. 10 -3012
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, Forrest Gibson at 4920 N. Railroad
Avenue, Pasco, WA 99301, telephone 509 -546 -3290, at least five (5) business
days prior to entering the Premises and prior to entering the Premises for any
subsequent maintenance thereon (if applicable). After completion of use of the
Premises for the purpose specified in Section 3, Licensee shall notify Licensor in
writing that such use has been completed.
(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
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Law Department Approved
Contract No. 10 -3012
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 and subject to the supervision of
Licensor's Roadmaster, locate, construct and maintain the pole 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 present or future tracks, roadbed and property of Licensor, or
the safe operation of its railroad. If at any time Licensee shall, in the judgment of
Licensor, fail to perform properly its obligations under this paragraph, Licensor
may, at its option, itself perform such work as it deems necessary for the safe
operation of its railroad, and in such event Licensee agrees to pay, within fifteen
(15) days after bill shall have been rendered therefor, the cost so incurred by
Licensor, but failure on the part of Licensor to perform the obligations of Licensee
shall not release Licensee from liability hereunder for loss or damage occasioned
thereby.
13. During the construction and any subsequent maintenance performed on pole, 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 pole shall
be completed within one (1) year of the Effective Date. Upon completion of the
construction of the pole 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 pole, Licensee shall, at its sole expense, within thirty (30) days after receiving
written notice from Licensor to such effect, make such changes in the pole 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 pole.
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
consulting with the Underground Services Association) to determine the
existence or location of pipelines and other subsurface structures prior to drilling
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Law Department Approved
Contract No. 10 -3012
or excavating with mechanized equipment. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's requested
entry on the Premises, Licensor will provide Licensee any information that
Licensor's Engineering Department has in its possession concerning the existence
and approximate location of Licensor's underground utilities and pipelines on the
Premises. 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
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 upon 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 the Premises for more than
ten (10) days, but must be properly disposed of by Licensee in accordance with
applicable Legal Requirements.
17. Upon completion of Licensee's work on the Premises or upon termination of this License,
whichever shall occur first, Licensee shall, at its sole cost and expense:
(a) remove all of its equipment from the Premises;
(b) remove the pole at the Licensor's sole discretion;
(c) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
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Law Department Approved Contract No. 10 -3012
(d) remedy any unsafe conditions on the Premises created or aggravated by Licensee;
and
(e) leave the Premises in the condition which existed as of the Effective Date of this
License.
18. Licensee's on -site supervision 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,
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
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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 POLE
FOR THE PURPOSES OF CERCLA OR OTHER 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
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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
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 $2,000,000
each occurrence and an aggregate limit of at least $ 4,000,000. 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.
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Law Department Approved Contract No. 10 -3012
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 $2,000,000 per occurrence and
$6,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and /or construction of the pole. THE
CONSTRUCTION OF THE POLE SHALL BE COMPLETED WITHIN
ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the
pole 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 $
a I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
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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 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 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.
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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.
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
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Law Department Approved Contract No. 10 -3012
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 pole
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
respond to Licensor's request for information regarding said conditions or
activities.
ALTERATIONS
23. Licensee may not make any alterations of 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.
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Law Department Approved Contract No. 10 -3012
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
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
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.
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,
Form 423; Rev. 04/26/05
-13-
• Law Department Approved Contract No. 10 -3012
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. — A0133
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
with a copy to: Iron Horse Development, LLC
c/o Iron Horse Real Estate
111 University Parkway, Suite 200
Yakima, WA 98901
If to Licensee: City of Yakima
129 N. 2nd Street
Yakima, WA 98901
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 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 laws of the State of Texas.
Form 423; Rev. 04/26/05
-14-
10 y Law Department Approved Contract No. 10 -3012
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.
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: �w • V
StenbPn M . Kuzma
Manager - Land Revenue anagealell
CITY OF YAKIMA
By.
Title:
Form 423; Rev. 04/26/05
-15-
EXHIBIT °'A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF YAKIMA
FORT WORTH, TEXAS
SCALE: 1 IN-=200 FT.
NORTHWEST DIV.
YAKIMA VALLEY SUBDIV. L.S. 0048
DATE 04/27/2010
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DESCRIPTION:
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AT YAKIMA
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