HomeMy WebLinkAboutPermit Law Department Approved Tracking#09-39106
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PIPELINE LICENSE
THIS LICENSE ("License"), made as of the 18th day of March, 2010 ("Effective Date")
by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY
OF RENTON, 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, 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(s), Forty-Eight (48) inches in diameter
("PIPELINE"), across or along the rail corridor of Licensor at or near the station of
Renton, County of King, State of WA, Line Segment 0410, Mile Post 11.79, as shown on
the attached Drawing No. 1-47547, dated September 16, 2009, 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 STORM WATER.
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
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.
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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 Two
Thousand Five Hundred and No/100 Dollars ($2500) 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 $800.00 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 Joumal 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 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
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require its contractor to complete the safety-training program at the following
Internet Website "http://www.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 at 2454 Occidental Ave S St Seattle,
WA 98134, telephone (206) 625-6462, at least ten (10) business days 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
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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. 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 a new 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
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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
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
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(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, 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
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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
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 BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
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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
$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)
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♦ 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 cont racto The limits of coverage are the same as above. The cost is $1000.
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 Staubach Global Services - RR, Inc.
as an additional insured with respect to work performed under this agreement.
Severability of interest and naming Licensor and Staubach Global Services - RR, Inc. 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
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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 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
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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 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.
Form 424;Rev. 04/26/05
-11 -
Law Department Approved Tracking#09-39106
W401 *400,
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 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)
Form 424;Rev.04/26/05
-12-
Law Department Approved Tracking#09-39106
10400. Nuor
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: Staubach Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
Attn: Licenses/Permits
with a copy to: BNSF Railway Company
2500 Lou Menk Dr. —A0133
Fort Worth, TX 76131
Attn: Manager— Land Revenue Management
If to Licensee: City of Renton
1055 So Grady Way
Renton, Washington 98057
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 Texas 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
Form 424;Rev.04/26/05
-13-
Law Department Approved Tracking#09-39106
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.
Staubach Global Services — RR, Inc. 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
Staubach Global Services - RR, Inc., its Attorney in
Fact
3017 Lou Menk Drive, Suite 100
Fort W h, TX 76131-2800
By:
Ed Darter
Title: Vice President- National Accounts
CITY OF RENTON
1055 So Grady Way
Renton, Washington 98057
By.
Title:
Form 424;Rev.04/26/05
-14-
' e
TRACKING NO.09—391 06
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
0
CITY OF RENTON "'
N
t0
SCALE: 1 IN.=400 FT. SECTION: 18
NORTHWESTDIV. WA 02 TOWNSHIP: 23N Q
WOOD I NV I L L E SUBD I V. L.S. 0410 os RANGE: 05E
DATE 09/16/2009 II MERIDIAN: WILLM
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�a PROPERTY LINES !81.11 co- �,.
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IV f
it t'Ifr all, 1181 ,a r,14+ �Y Y 4 {II +i "A. §_ iEr 4� f
� ,t + II+ ���, oi` , liil>�, � NOTE:
STORM WATER LINE TO BE
r' !i! q�l w,lY+rf IUi INSTALLED UNDER SHATTUCK ST. BRIDGE.
,
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DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER CASING CARRIER CASING
PIPE PIPE PIPE PIPE
SIZE: 48" N/A LENGTH ON R/W: 106' N/A
CONTENTS: STORM WATER WORKING PRESSURE: MAX 5 PSI
PIPE MATERIAL: HDPE — BURY: BASE/RAIL TO TOP OF CASING 18. 5'
SPECIFICATION / GRADE: __M-294 — BURY: NATURAL GROUND 4• 5
17-
WALL THICKNESS: 3 — BURY: ROADWAY DITCHES 4.
COATING: N/A — CATHODIC PROTECTION N/A
VENTS: NUMBER N/A SIZE — HEIGHT OF VENT ABOVE GROUND —
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
NEAR RENTON
COUNTY OF KING STATE OF WA JPG
DRAWING NO. 1- 47547