13-072.00 BNSF Railway CompanyTracking #12 -45835
LICENSE FOR FIBER OPTIC LINE
THIS LICENSE ( "License "), made as of the 29th day of April, 2013 ( "Effective Date ") by
and between BNSF RAILWAY COMPANY, a Delaware corporation ( "Licensor "), and CITY OF
SPOKANE VALLEY, a political subdivision of the State of Washington ( "Licensee ").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
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, maintain, and use in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications "), a fiber optic line containing a maximum of One (1)
conductors, ( "Fiber Optic Line ") across or along the rail corridor of Licensor at or near
the station of Spokane Valley, County of Spokane, State of WA, Line Segment 0045,
Mile Post 62.96, as shown on the attached Drawing No. 1- 55514, dated July 24, 2012,
attached hereto as Exhibit "A" and made a part hereof ( "Premises "). Cutting head must
travel at 0.0% grade (or downward) beginning 25' (minimum) from centerline of track
until it reaches a point 25' (minimum) from the centerline of track. Minimum pressure
must be applied to pumping the slurry to the cutting head during drilling. This will deter
the bentonite slurry used for lubrication from seeping up and fouling the track roadbed.
A BNSF Flagman must be present during installation and will monitor the ballast and
roadbed.
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.
Licensee acknowledges that one or more other parties, including, but not limited to,
various American nations, may have, or may have claim to have, ownership rights in
certain segments of certain of Licensor's rail corridors, and may claim that Licensee also
must obtain rights from it (or them) in order to occupy, or access, the Premises, and that,
in some cases such claims may be valid. Licensee acknowledges that Licensor's
ownership interest in many of its rail corridors is a determinable fee, a railroad right of
way or a rail service easement, which shall terminate when Licensor either: (i) ceases to
use those rail corridors for railroad purposes; or (ii) uses such rail corridors for purposes
found to be inconsistent with use of the corridors for railroad purposes, and that in such
circumstances, Licensor's right to license any such rail corridor, or rights under any
license of any such rail corridor, may be subject to termination as of the date the
circumstances set forth in either (i) or (ii) above, first arise (unless Licensee improves the
quality of title to the Premises by obtaining a patent or deed from the federal
government, if appropriate, or acquiring additional property interests from third parties).
Licensee also acknowledges that Licensor's ownership rights may terminate for other
reasons, such as termination of franchise rights, and that certain segments of Licensor's
rail corridors consist only of a trackage rights license to Licensor and enable Licensor to
provide rail service, or shared ownership with other railroads, and that Licensor may not
have rights to include those segments in any License to Licensee. Licensee further
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acknowledges that Licensee's rights to enter into a License on any Licensor rail corridor,
and its rights under any License of any Licensor rail corridor, are subject and
subordinate to all outstanding and /or future rights and encumbrances on Licensor's rail
corridor (including liens, security interests, and mortgages), and any and all easements,
other leases, licenses, permits or agreements which now or in the future relate to
Licensor's rail corridor, except Licensor in the future shall not place any encumbrance
upon any Licensor rail corridor then subject to a License to Licensee or enter into any
easement, lease, license, permit or agreement, which would materially disrupt
Licensee's ability to exercise rights under this License or to utilize the Fiber Optic
Facilities covered by a License and Licensee acknowledges that its ability to exercise
rights under this License or to utilize such Fiber Optic Facilities would not be materially
disrupted if either: (a) Licensee is relocated to another location within the applicable
Licensor rail corridor in accordance with the terms of the License, or could be located
elsewhere in the rail corridor; or (b) Licensor preserves fiber optic rights and makes
those rights available to Licensee at no charge payable by Licensee to the holder of the
land interest where such rights are located and changes following any conveyance by
Licensor of its ownership interest in such a parcel have not caused a significant physical
limitation on constructing Fiber Optic Facilities through such parcel (and Licensee
agrees that any cost of enforcing such rights shall be the responsibility of Licensee).
Licensor therefore conveys to Licensee no more right, title and interest in any rail
corridor than Licensor holds in such rail corridor at the time of conveyance, and Licensee
hereby releases Licensor from any and all liability, cost, loss, damage or expense in
connection with any claims that Licensor lacked sufficient legal title to convey the rights
described herein.
3. Licensee shall use the Premises solely for construction and maintenance and use of a
Fiber Optic Line. Licensee shall not use the Premises for any other purpose. Licensee
shall not use or store hazardous substances, as defined by the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended ( "CERCLA') or
petroleum or oil as defined by applicable Environmental Laws on the Premises.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in
the Premises, 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 Fiber Optic Line or entering
the Premises on behalf of Licensee shall be deemed servants and agents of Licensee
for purposes of this License.
TERM
6. This License shall commence on the Effective Date and shall continue for a period of
twenty (20) years, subject to prior termination as hereinafter described.
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Seven
Thousand Nine Hundred and Five and No /100 Dollars ($7905) as compensation
for the use of the Premises.
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(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, maintenance, and
use of the Fiber Optic Line, 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 (2 112 %), 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 Fiber Optic Line and the use of the Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety- training program at the following
Internet Website " http:// 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.
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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 5324 East Trent Spokane, WA
99212, telephone (509) 536 -2305, at least ten (10) business days prior to
installation of the Fiber Optic Line 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. Licensee shall, at its sole cost and expense, construct and at all times maintain the Fiber
Optic Line in accordance with the National Electric Code. The use of a rail mounted
cable plow to install Licensee's Fiber Optic Line is strictly prohibited unless advance
written approval is granted by Licensor. Unless otherwise specified, all underground line
shall be installed at least 48 inches below grade level.
13. (a) Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and /or
machinery, or place or store any mechanized equipment, tools or other materials,
within twenty -five (25) feet of the centerline of any railroad track on the Premises
unless Licensee has obtained prior written approval from Licensor. Licensee
shall, at its sole cost and expense, perform all activities on and about the
Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of
the Premises is safe. Neither the exercise nor the failure by Licensor to exercise
any rights granted in this Section will alter the liability allocation provided by this
License.
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(b) Licensee shall, at its sole cost and expense and subject to the supervision of
Licensor's Roadmaster, locate, construct and maintain Fiber Optic Line in such a
manner and of such material that it will not at any time be a source of danger to
or interference with the present or future tracks, roadbed and property of
Licensor, or the safe operation of its railroad. Further, the Fiber Optic Line shall
be constructed, installed and maintained in conformity with the plans and
specifications shown on the print attached hereto as Exhibit A and made a part
hereof (which, if present, are to be deemed part of the Drawings and
Specifications). Licensor may direct one of its field engineers to observe or
inspect the construction and /or maintenance of the Fiber Optic Line at any time
for compliance with the Drawings and Specifications. If ordered at any time to
halt construction or maintenance of the Fiber Optic Line 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 Fiber Optic Line, it being solely Licensee's responsibility to
ensure that the Fiber Optic Line 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 judgment
of Licensor, fail to perform properly its obligations under this paragraph, Licensor
may, at its option, itself perform such work as it deems necessary for the safe
operation of its railroad, and in such event Licensee agrees to pay, within fifteen
(15) days after bill shall have been rendered therefor, the cost so incurred by
Licensor, but failure on the part of Licensor to perform the obligations of Licensee
shall not release Licensee from liability hereunder for loss or damage occasioned
thereby.
14. Licensee shall, at its sole cost and expense, remove all combustible material from
around wooden poles that Licensee or its contractors are responsible for placement of
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.
15. During the construction and any subsequent maintenance performed on the Fiber Optic
Line, 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 Fiber Optic Line shall be completed within one (1) year of the Effective Date.
Upon completion of the construction of the Fiber Optic Line 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.
16. 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 Fiber Optic 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 Fiber
Optic Line as in the sole discretion of Licensor may be necessary to avoid interference
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with the proposed use of Licensor's rail corridor, including, without limitation, the
relocation of the existing or the construction of a new Fiber Optic Line.
17. (a) Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the ground
to determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shall have the right
to use suitable detection equipment or other generally accepted industry practice
(e;c., 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 Fiber Optic Line, 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 Fiber Optic Line. 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 of less than 10.0 feet
below base 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.
18. 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.
19. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) remove the Fiber Optic Line and all appurtenances thereto at the Licensor's sole
discretion;
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(b) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
(d) leave the Premises in the condition which existed as of the Effective Date of this
License.
20. Licensee's on -site supervision shall retain /maintain a fully - executed copy of this License
at all times while on the Premises.
LIABILITY
21. (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
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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 21(a), LICENSEE
SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, NOW AND FOREVER
WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE
STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER ", "OPERATOR ", "ARRANGER ", OR "TRANSPORTER" WITH
RESPECT TO THE FIBER OPTIC LINE 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
22. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
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RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
INSURANCE
23. Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability Insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $2,000,000 each
occurrence and an aggregate limit of at least $4,000,000. Coverage must be
purchased on a post 1998 ISO occurrence or equivalent and include coverage
for, but not limited to, the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
♦ The employee and workers compensation related exclusions in the above
policy shall not apply with respect to claims related to railroad employees.
♦ The definition of insured contract shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
No other endorsements limiting coverage may be included on the policy.
B. Business Automobile Insurance. This insurance shall contain a combined single
limit of at least $1,000,000 per occurrence, and include coverage for, but not
limited to the following:
# Bodily injury and property damage
Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability Insurance. This insurance shall
include coverage for, but not limited to:
♦ Licensee's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and /or construction of the Fiber Optic
Line. THE CONSTRUCTION OF THE FIBER OPTIC LINE SHALL BE
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COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further
maintenance of the Fiber Optic 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 3510 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Licensor prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's qlanket Railroad Protective Liability Insurance Policy available to Licensee or
its cont :7,elect r. The limits of coverage are the same as above. The cost is $460.
to participate in Licensor's Blanket Policy;
Q 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 and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shall name
Licensor and Jones Lang LaSalle Global Services - RR, Inc. as an additional insured
with respect to work performed under this agreement. Severability of interest and
naming Licensor and Jones Lang LaSalle 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
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not to include a deductible, self- insured retention, or other financial responsibility for
claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments. The policy(ies)
shall contain a provision that obligates the insurance company(ies) issuing such
policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non -
renewal, substitution or material alteration. This cancellation provision shall be indicated
on the certificate of insurance. In the event of a claim or lawsuit involving Railroad
arising out of this agreement, Licensee will make available any required policy covering
such claim or lawsuit.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
Licensee represents that this License has been thoroughly reviewed by Licensee's
insurance agent(s) /broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every 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.
Form 422; Rev. 04/26/05
-11 -
Tracking #12 -45835
ENVIRONMENTAL
24. (a) Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws "). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee shall
not release or suffer the release of oil or hazardous substances, as defined by
Environmental Laws on or about the Premises.
(b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations
Center at (800) 832 -5452 of any release of hazardous substances on or from the
Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of Licensee
to investigate, remediate, respond to or otherwise cure such release or violation.
(c) In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the f=iber Optic
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.
(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
25. 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.
Form 422; Rev. 04/26105
-12-
Tracking #12 -45835
NO WARRANTIES
26. 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
27. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
DEFAULT
28. 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 28 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
29. 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 29 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
30. 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.
Form 422; Rev. 04/26/05
-13-
Tracking #12 -45835
31. 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
32. 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
33. Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (ii)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party no
less than thirty (30) days' advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 1.00
Fort Worth, TX 76131 -2800
Attn: Licenses /Permits
with a copy to: BNSF Railway Company
2500 Lou Menk Dr. — AO63
Fort Worth, TX 76131
Attn: Manager — Land Revenue Management
If to Licensee: City of Spokane Valley
11707 E Sprague Ave, Suite 106
Spokane Valley, WA 99206
SURVIVAL
34. 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 Fiber Optic Line and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
Form 422; Rev. 04/26/05
-14-
Tracking #12 -45835
RECORDATION
35. It is understood and agreed that this License shall not recorded in the public real
property records of Spokane County, Washington. The parties further understand that
Washington law limits the ability of the Licensee to shield from public disclosure any
information given to the Licensee. Accordingly, the parties agree to work together to
avoid disclosures of this License or other information which would result in economic
loss or damage to Licensor because of mandatory disclosure requirements to third
persons. The Licensee shall give Licensor reasonable notice of public records requests
for this License or other Lessor documents.
APPLICABLE LAW
36. 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
37. 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
38. This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
39. 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.
Form 422; Rev. 04/26/05
-15-
Tracking #1245835
40. 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.
Jones Lang LaSalle 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
Jones Lang LaSalle Global Services - RR, Inc.,
its Attorney in Fact
3017 Lou Menk Drive, Suite 100
Fort W i TX 76131 -2
By:
arter
Title: Vice President - National Accounts
CITY OF SPOKANE VALLEY
11707 E Sprague Ave, Suite 106
M
Title
Form 422; Rev. 04/26/05
-16 -
TRACKING NO. 12-45835
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF SPOKANE VALLEY
SECTION: 4 �p Rr
SCALE: I IN. =—IgD—FT. TOWNSHIP:--- 25N rft-O'IA
NORTHWEST DIV. RANGE: 44E
SPOKANE — SUBDIV. L.S. 20.4.5 MERIDIAN: - WILLM
DATE 07/24/2012
an MR I kl
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4
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ES 4039489.. 1 TO
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to
PROPERTY 1 I EAJw-�
NOTE'. DESCRIPTION OF WIRES UNDER TRACK
1-2" HOPE CONDUIT OCCUPIED WIRES LOCATED AS SHOWN BOLD
TYPE FIBER OPTIC SIZE OF CONDUIT 2 °x418'
NUMBER OF CONDUITS 1 CONDUIT MATERIAL HDPE
VOLTAGE WALL THICKNESS 0.216"
LENGTH ON R/W 418'
NOTE: CASING TO BE DIRECTIONALLY BORED BASE OF RAIL 51
AT SPOKANE VALLEY TO TOP OF CONDUIT 5.
COUNTY OF SPOKANE STATE OF WA miw
DRAWING NO. 1-55514