18-076.00 BNSF Railway Company: North Sullivan ITS Conduit & Fiber Optic Lines c-17(41
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LICENSE FOR COMMUNICATION LINE,TELEVISION CABLE,
AND/OR FIBER OPTIC LINE ACROSS OR ALONG RAILWAY PROPERTY
THIS LICENSE FOR COMMUNICATION LINE, TELEVISION CABLE AND/OR FIBER OPTIC LINE
("License")is made to be effective the 11th day of May,2018,(the"Effective Date")by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("Licensor") and CITY OF SPOKANE VALLEY, a Washington corporation
("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. 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") a communication line, television cable, and/or a fiber optic
line containing a maximum of one(1)conduit, together with all conductors and their supporting or containing
structures (collectively, the "Communication Line"), across or along Licensor's rail corridor at or near the
station of Spokane Valley, County of Spokane, State of Washington,tine Segment 0045, Mile Post 60.91 as
shown on the attached Drawing No. 70947, dated 3/23/2018, attached hereto as Exhibit "A" and
incorporated herein by reference (the "Premises"). Licensee warrants that it has exercised due care in
establishing the Drawings and Specifications and has conducted testing and carefully assessed the design
process to conclude that the risks associated with using and operating the Communication Line as intended
by Licensee will not pose any unreasonable risks to Licensor or to the Premises.
2. Term. This License shall commence on the Effective Date and shall continue for a period of twenty (20)
years, subject to prior termination as hereinafter described.
3. Existing Improvements. 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, repair,
maintenance or replacement of such improvements.
4. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the
Communication Line in accordance with the Drawings and Specifications. Licensee shall not use the
Premises for any other purpose.
5. Alterations. Except as set forth in this License, 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.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Twelve Thousand, Seven
Hundred and No/100 Dollars($12,700)as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "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.
7.2 Licensee agrees to reimburse Licensor(pursuant to the terms of Section 8 below)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 Communication Line, including but not limited to the furnishing
of Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear the cost of flagger
services and other safety measures provided by Licensor, when deemed necessary by Licensor's
• representative. Flagging costs shall include, but not be limited to, the following: pay for at least an
eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays
(as applicable); vacation allowance; paid holidays (as applicable); railway and unemployment
insurance; public liability and property damage insurance;health and welfare benefits;transportation;
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meals; lodging and supervision. Negotiations for railway labor or collective bargaining agreements
and rate changes authorized by appropriate Federal authorities may increase flagging rates.
Flagging rates in effect at the time of performance by the flaggers will be used to calculate the
flagging costs pursuant to this Section 7.
8. Payment Terms. All invoices are due thirty(30) days after the date of invoice. If Licensee fails 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 the due date until paid at an annual rate equal to the lesser of(i)the prime rate last published
in The Wall Street Journal in the preceding December plus two and one-half percent (2-1/2%), or (ii) the
maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor accepts and reserves the right,to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipe/lines/cables and appurtenances (other than the Communication Line) and other facilities or
structures of like character upon, over, under or across the Premises existing as of the Effective
Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional
facilities, structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as 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 4 above.
10. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the
Communication Line, Licensee shall, at its sole expense, within thirty(30)days after receiving written notice
from Licensor to such effect, make such changes in the Communication Line 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 Communication Line, or the construction of a new line to replace the
Communication Line. Notwithstanding the foregoing, Licensee agrees to make all emergency changes and
minor adjustments, as determined by Licensor in its sole discretion, to the Communication Line promptly
upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Communication Line.
11.1 Licensee shall notify Licensor's Roadmaster, Daniel Marvinac at 5324 East Trent, Spokane, WA
99212, telephone (509) 536-2528, or email daniel.mavinac@bnsf.com, at least ten (10) business
days prior to installation of the Communication Line and prior to entering the Premises for any
subsequent maintenance thereon. In the event of emergency, Licensee shall notify Licensor of
Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall
promptly thereafter follow up with written notice of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times
while on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's
tracks to the other.
11.4 Any contractors or subcontractors performing work on the Communication Line or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of
this License.
11.5 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
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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 endanger or interfere with (i) the existence or use of present or future tracks,
roadbeds or property of Licensor, (ii) the safe operation and activities of Licensor or existing third
parties, or(iii) the rights or interests of third parties. 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.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Communication Line in such
a manner and of such material that the Communication Line will not at any time endanger or interfere
with (i)the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii)the safe
operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third
parties. The construction of the Communication Line shall be completed within one (1) year of the
Effective Date, and any subsequent maintenance shall be completed within one(1)year of initiation.
Within fifteen (15) days after completion of the construction of the Communication Line or the
performance of any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and
expense, restore the Premises to substantially their state as of the Effective Date, unless otherwise
approved in advance by Licensor in writing. On or before expiration or termination of this License
for any reason, Licensee shall, at its sole cost and expense, surrender the Premises to Licensor
pursuant to the'terms and conditions set forth in Section 24 hereof.
11.7 Licensor may direct one or more of its field engineers to observe or inspect the construction and/or
maintenance of the Communication Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). If ordered at any time to halt construction
or maintenance of the Communication Line by Licensor's personnel due to non-compliance with the
Drawings and Specifications 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 Communication Line, it being solely Licensee's
responsibility to ensure that the Communication Line is constructed and maintained in strict
accordance with the Drawings and Specifications and in a safe and workmanlike manner in
compliance with all terms hereof. Neither the exercise of, 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 11, 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, pursuant to the
terms of Section 8. Licensor's failure to perform any obligations of Licensee shall not alter the liability
allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden
poles on the Premises, if any, and will at all times keep the space around such poles free of such
material, and if removal of such combustible material shall not be attended to with fifteen (15) days
after having been requested by Licensor to do so, Licensor shall have the right itself to perform the
work and Licensee hereby agrees to reimburse Licensor for the expense so incurred.
11.9 Licensee shall, at its sole cost and expense, construct and at all times maintain the Communication
Line in accordance with the National Electric Code. The use of a rail mounted cable plow to install
the Communication Line is strictly prohibited unless advance written approval is granted by Licensor,
which approval Licensor may grant or withhold in its sole and absolute discretion. Unless otherwise
specified, all underground line shall be installed at least forty-eight(48) inches below grade level.
12. Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar 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
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structures exist below the surface, provided, however, that in lieu of the foregoing, 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.
Licensee may request information from Licensor concerning the existence and approximate location
of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed
Communication Line by contacting Licensor's Telecommunications Helpdesk at least thirty (30)
business days prior to installation of the Communication Line. Upon receiving Licensee's timely
request, Licensor will provide Licensee with the information Licensor has in its possession regarding
any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Communication Line and, if applicable, identify the location of such lines on the Premises pursuant
to Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of
information relating to subsurface conditions of the Premises and Licensee's operations will be
subject at all times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a
soil investigation must be performed by 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 Licensor's sole discretion, a remedial plan to deal
with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee
shall, at Licensee's sole cost and expense, carry out the approved plan in accordance with all terms
thereof and hereof.
12.3 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:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 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.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a)"Indemnitees"means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees,
and agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses,
liens, causes of action, suits, demands,judgments, and expenses(including,without limitation,court
costs, reasonable attorneys'fees,costs of investigation, removal and remediation, and governmental
oversight costs) environmental or otherwise; and (c) "Licensee Parties" means Licensee or
Licensee's officers, agents, invitees, licensees, employees, or contractors, or any party directly or
indirectly employed by any of them, or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL,AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES
FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR
RELATED TO (IN WHOLE OR IN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
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13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES
ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS
A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE
PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS
(DEFINED BELOW). LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS LICENSE IS MEANT BY
EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER
DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR
COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON
CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS,AND DEFEND
INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE
PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO
LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE
OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO,RELEASE,INDEMNIFY,DEFEND,AND HOLD THE
INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT
LIMITED TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE
FOLLOWING OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE
OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
13.6 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 and expenses incident to such defense, including, but
not limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
14. Personal Property Risk of Loss. 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.
15. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License
the following insurance coverage:
15.1 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 but in no event less than the amount otherwise carried by Licensee. Coverage
must be purchased on a post 2004 ISO occurrence or equivalent and include coverage for, but not
limited to, the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
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• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated on
the certificate of insurance:
• 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.
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, Inc.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by
Licensor.
It is agreed that the workers' compensation and employers' liability related exclusions in the
Commercial General Liability Insurance policy(s) required herein are intended to apply to employees
of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
15.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the certificate
of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by
Licensor.
15.3 Workers' Compensation and Employers' Liability Insurance. This insurance shall include coverage
for, but not limited to:
• Licensee's statutory liability under the workers' compensation laws of the state(s) in which the
services are to be performed. If optional under state laws, 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.
This policy shall also contain the following endorsements or language, which shall be indicated on
the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liability Insurance. This insurance shall name only 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 Communication Line. THE CONSTRUCTION OF THE COMMUNICATION LINE SHALL BE
COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the
Communication Line 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 12 03 and
include the following:
• Endorsed to include the Pollution Exclusion Amendment.
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
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• The original policy must be provided to Licensor prior to performing any work or services under
this License.
• Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all property in any
named insured's care, custody and control arising out of the acts or omissions of the contractor
named on the Declarations."
In lieu of providing a Railroad Protective Liability Policy, fora period of one(1)year from the Effective
Date, 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
$506.
I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
15.5 Other Requirements:
15.5.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. In addition, Licensee's insurers, through the terms of the policy or a policy
endorsement, must waive their right of subrogation against Licensor for all claims and suits,
and the certificate of insurance must reflect the waiver of subrogation endorsement.
Licensee further waives its right of recovery, and its insurers must also waive their right of
subrogation against Licensor for loss of Licensee's owned or leased property, or property
under Licensee's care, custody, or control.
15.5.3 Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted
by Licensor, any 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 License, be covered by Licensee's
insurance will be covered as if Licensee elected not to include a self-insured retention or
other financial responsibility for claims.
15.5.4 Prior to entering the Premises, 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. Licensee shall notify Licensor in
writing at least 30 days prior to any cancellation, non-renewal, substitution, or material
alteration. In the event of a claim or lawsuit involving Licensor arising out of this License,
Licensee will make available any required policy covering such claim or lawsuit.
15.5.5 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.
15.5.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain
coverage in force for a minimum of three years after expiration or termination of this License.
Annually, Licensee agrees to provide evidence of such coverage as required hereunder.
15.5.7 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 License. Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
15.5.8 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.
15.5.9 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,
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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.
15.5.10 Failure to provide evidence as required by this Section 15 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.
15.5.11 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.
15.5.12 These insurance provisions are intended to be a separate and distinct obligation on the part
of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be
bound thereby regardless of whether or not indemnity provisions are determined to be
enforceable.
15.5.13 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC",
"BNSF Railway Company"and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 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 Communication Line and the use of the
Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program
at the Website "www.BNSFcontractor.com" (the "Safety Orientation") within one year prior to
entering upon the Premises. Additionally, Licensee must ensure that each and every employee of
Licensee, its contractors, agents and invitees possess a card certifying completion of the Safety
Orientation prior to entering upon the Premises. Licensee must renew the Safety Orientation
annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all
additional rights-of way, easements, licenses and other agreements relating to the grant of rights and
interests in and/or access to the Premises(collectively, the"Rights")and such other rights, licenses,
permits, authorizations, and approvals (including without limitation, any necessary local, state,
federal or tribal authorizations and environmental permits) that are necessary in order to permit
Licensee to construct, maintain, own and operate the Communication Line and otherwise to perform
its obligations hereunder in accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does
not expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if
the initial stated term of any such Right expires in accordance with its ordinary terms on a date earlier
• than the last day of the term of this License, Licensee shall, at its cost, exercise any renewal rights
thereunder, or otherwise acquire such extensions, additions and/or replacements as may be
necessary, in order to cause the stated term thereof to be continued until a date that is not earlier
than the last day of the term of this License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own,operate
or use the Communication Line in accordance with the terms and conditions of this License, this
License thereby shall automatically expire upon such expiration or termination of the Right.
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17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements 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, and 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.
17.2 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 on the Premises. Licensee agrees periodically
to furnish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the
provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800)
832-5452 of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii)
violation of Environmental Laws, or (iii) 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, from, or affecting 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.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws
arising in any way with respect to the Communication Line 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.
17.5 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, property, or the environment 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.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 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.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR IMPLIED, CONCERNING (A)THE SCOPE OF THE LICENSE OR OTHER RIGHTS
GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE
COMMUNICATION LINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND
ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE
RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
Form 421;Rev.20140801
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19. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or
claiming any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder, except for the pro-rata
part of any recurring charge paid in advance, or(ii)for any damage Licensee sustains in connection with the
eviction.
LIENS AND TAXES
21. Liens and Charges. 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 21 or any other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied
or assessed by any governmental or quasi-governmental body upon the Communication Line or any other
improvements constructed or installed on the Premises by or for Licensee(collectively,the"Improvements")
or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT,TERMINATION,AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to
provide evidence of insurance as required pursuant to the terms of Section 15, the following events are also
deemed to be events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this
License and Licensee fails to cure said default within thirty (30) days after written notice is provided
to Licensee by Licensor, or in case of any assignment or transfer of this License in violation of
Section 26 below, Licensor may, at its option, terminate this License by serving five(5)days' notice
in writing upon Licensee. Notwithstanding the foregoing, Licensor shall have the right to terminate
this License immediately if Licensee fails to provide evidence of insurance as required in Section
15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in any
other provision of this License, Licensor may, at its option, terminate this License by serving five (5)
days' notice of termination upon Licensee.
23.3 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 23
shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or
in equity.
23.4 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above,this License may be terminated
by either party, at any time, by serving thirty (30) days' written notice of termination upon the other
party. Such termination shall not release either party hereto from any liability or obligation under the
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening
prior to the date of termination or thereafter in case by the terms of the License it is provided that
anything shall or may be done after termination hereof.
23.5 Licensee agrees not to assert that termination of this License is a discontinuance in service that
requires prior approval by the FCC and represents and warrants that it has redundant facilities that
would allow it to continue the provision of service after termination of this License.
Form 421;Rev.20140801
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24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Communication Line and
all appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission
the Communication Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from,
growing out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to
Licensor or if Licensee fails to complete its obligations under Section 24.1 above (the"Restoration
Obligations"), Licensee shall have a limited license to enter upon the Premises solely to the extent
necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of
Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration
Obligations are completed. Neither termination nor expiration shall release Licensee 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, if later, the date when Licensee
surrenders the Premises and all of the Restoration Obligations are completed.
24.3 If Licensee fails to complete the Restoration Obligations within thirty(30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Communication
Line and the other Improvements or otherwise restore the Premises, and in such event Licensee
shall,within thirty(30)days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon
written notice to Licensee, take and hold the Communication Line and the other Improvements and
personal property as its sole property, without payment or obligation to Licensee therefor, or (iii)
specifically enforce Licensee's obligation to restore and/or pursue any remedy at law or in equity
against Licensee for failure to so restore. Further, if Licensor has consented to the Communication
Line and the other Improvements remaining on the Premises following termination, Licensee shall,
upon request by Licensor, provide a bill of sale in a form acceptable to Licensor conveying the
Communication Line and the other Improvements to Licensor.
MISCELLANEOUS
25. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same
extent as if each such successor and assign was named a party to this License.
26. Assignment.
26.1 Licensee may not sell,assign,transfer,or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written
consent of Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any
attempted assignment by Licensee in violation of this Section 26 shall be a breach of this License
and, in addition, shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign"shall include without limitation (a)any sale of the
equity interests of Licensee following which the equity interest holders of Licensee immediately prior
to such sale own, directly or indirectly, less than 50%of the combined voting power of the outstanding
voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of(i) Licensee
and (ii)to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or(c)
any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding
the foregoing,any reorganization, recapitalization, merger or consolidation following which the equity
interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or
Form 421;Rev.20140801
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Tracking#17-58785
consolidation own, directly or indirectly,at least 50%of the combined voting power of the outstanding
voting equity interests of Licensee or any successor thereto or the entity resulting from such
reorganization, recapitalization, merger or consolidation shall not be deemed an assignment. THIS
LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF
LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the
contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contravention of the provisions of this License (a "Purported Assignment") to another party (a
"Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges granted
under this License shall be deemed to be the Purported Transferee's agreement to be bound by all
of the terms and provisions of this License, including but not limited to the obligation to comply with
the provisions of Section 15 above concerning insurance requirements. In addition to and not in
limitation of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend
and hold harmless Licensor for all 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) a Purported
Assignment.
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this License.
27. Notices. Any notice, invoice, or other writing 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: Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to: BNSF Railway Company
2301 Lou Menk Dr. —GOB-3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
If to Licensee: City of Spokane Valley
10210 +11t7 E Sprague Ave
Suiter1-00
Spokane Valley, WA 99206
28. Survival. 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 Communication Line and the other
Improvements are removed and the Premises are restored to its condition as of the Effective Date.
29. Recordation. It is Understood and agreed that this License shall not be placed or allowed to be placed on
public record.
30. Applicable Law. 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.
31. Severability. 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.
Form 421;Rev.20140801
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32. Integration. 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.
33. Joint and Several Liability. If 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.
34. Waiver. 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.
35. Interpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship; both parties hereby agree that this License shall not be
subject to the principle that a contract would be construed against the party which drafted the same.
Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
convenience of reference only and are not intended to be a part or to affect the meaning or
interpretation hereof. The exhibit or exhibits referred to herein shall be construed with and as an
integral part of this License to the same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes"and"including"are deemed to be followed by"without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written"and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a
visible form; references to any person are also to that person's successors and permitted assigns;
"hereof", "herein", "hereunder" and comparable terms refer to the entirety hereof and not to any
particular article, section, or other subdivision hereof or attachment hereto; references to any gender
include references to the masculine or feminine as the context requires; references to the plural
include the singular and vice versa; and references to this License or other documents are as
amended, modified or supplemented from time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes,
be deemed an original but which together shall constitute one and the same instrument, and the signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
documents, and counterparts of this License may also be exchanged via email or electronic facsimile
machines and any email or electronic facsimile of any party's signature shall be deemed to be an original
signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE—SIGNATURE PAGE FOLLOWS
Form 421;Rev.20140801
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Tracking#17-58785
This License has been duly executed by the parties hereto as of the date below each party's signature; to be
effective, however, as of the Effective Date.
LICENSOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By: Jones Lang LaSalle Brokerage, Inc.,
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
By: SNING.".4._ •KAAmiga,,
Shane Krueger
Title: Vice President— Permits & Special Projects
Date:
LICENSEE:
CITY OF SPOKANE VALLEY, a Washington corporation
1 b2-I D
E Sprague Ave
Celle 1-06
Spokane Valley, WA 99206
By:
Title: C 4 .er
Date: 4/z4 12.0 Va
Form 421;Rev.20140801
-14-
COi;.RDINATE SYSTEM: WA N TRACKING NO. 17-58785
v
v
N
EXHIBIT "A" N
ATTACHED TO CONTRACT BETWEEN u:
BNSF RAILWAY COMPANY w
AND -N-
CITY OF SPOKANE VALLEY
SCALE:1 IN = 100 FT SECTION: 2
NORTHWEST DIV. _ ,„..,—..------TOWNSHIP----TOWNSHIP& RANGE:
SPOKANE SUBDIV. 25N 44E
L.S. 0045 MP: 60.91 --""" MERIDIAN: WILLM
DATE: 3/23/2018
EXISTING CONDUIT
®1 .��AGREEMENT UNKNOWN
INSTALL CAMERA ON
EXISTING SIGNAL POLE/LUMINAIRE ARM
o
AGREEMENT UNKNOWN CONNECT TO EXISTING CONDUIT
N
0
MP60.91 0
-117.197020 47.695161
A
N
1-3"GALVANIZED STEEL CONDUIT
LENGTH 742'
WALL THICKNESS-0.205" 30' 1,,............,DISTANCE ABOVE TOP OF RAIL-24'4"
INSTALL ON WEST SIDE OF BRIDGE
0
Z
U)
C
TO'. OTIS ORCHARD
m
I
TO'. IRVIN 1 a
r
NOTE:
ALL R/W SUBJECT TO FIBER OPTIC ESM'T,
NO.S-13917 TO U.S.SPRINT,DATED 07-19-1991 Source:Esri,DigitalGlobe,GeoEye,Earthstar Geographics,
FROM FARGO, ND.TO SPOKANE,WA. CNES/Airbus DS,USDA, USGS,AeroGRID,IGN,and the GIS User
Community
NOTE: TOTAL LENGTH ON ROW-272'
1-3"GALVANIZED STEEL
1 OCCUPIED CONDUIT DESCRIPTION OF WIRES UNDER TRACK
0 VACANT WIRES LOCATED AS SHOWN BOLD
TYPE FIBER OPTIC SIZE OF CONDUIT 3"
NUMBER OF CONDUITS 1 CONDUIT MATERIAL GALVANIZED STEEL
VOLTAGE N/A WALL THICKNESS 0.205"
LENGTH ON R/W 230'
NOTE:CONDUIT TO BE INSTALLED BY OPEN TRENCH NATURAL GROUND
TO TOP OF CONDUIT 4'
AT SPOKANE VALLEY
COUNTY OF SPOKANE STATE OF WA JNC
REVISION 1 DRAWING NO. 70947