HomeMy WebLinkAbout09-09-19 City Commission Packet Materials - C7. Agreements with MRL for Water and Sewer Mains Installed for the MDT
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Bob Murray, Project Engineer
Shawn Kohtz, City Engineer
SUBJECT: MDT Maintenance Facility Utilities - Pipeline License’s and Temporary Right of Entry Agreements with Montana Rail Link.
MEETING DATE: August 26th, 2019
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Approve and authorize City Manager to sign the Pipeline License’s and Temporary Right of Entry Agreements with Montana Rail Link.
BACKGROUND: Attached is a copy of the Pipeline License’s and Temporary Right of Entry
Agreements with Montana Rail Link for the water and sewer mains that were installed for the
MDT maintenance facility in 2015. The City Attorney’s office has reviewed the legal form of
the licenses and agreements and found them to be acceptable.
When MDT constructed their new facility on the frontage road, they extended a water main and sewer force main to provide municipal services for their new buildings. As with all
development, following installation of the utilities, they were inspected and accepted for
maintenance and ownership by the City. The mains are installed on the north side of the frontage
road, but that is still within the railroad right of way. MDT and their consultants did not obtain the necessary permits from MRL to place the utilities within the railroad right of way. MRL is now requiring that we retroactively permit those utilities by executing the attached licenses and
agreements.
UNRESOLVED ISSUES: None
ALTERNATIVES: As suggested by the City Commission
FISCAL EFFECTS: $2,248 initial fee and thereafter an $898 yearly fee from the Water and Wastewater Funds. We are working with MDT for reimbursement of the initial fee.
Attachments: Licenses and Agreements
Report compiled on: 8/9/19
198
TEMPORARY AGREEMENT COVERING ADVANCERIGHT OF ENTRY AND OCCUPANCY NO. 602,227OF MONTANA RAIL LINK, INC. PROPERTY02BOZEMANMONTANA RAIL LINK, INC. whose mailing address is Real Estate Department, PO Box 16624, Missoula, Montana 59808-6624 (hereinafter called "Railroad"), hereby grants permission toCity of Bozeman, hereinafter called "Permittee",whose mailing address is: PO Box 1230Bozeman, MT 59771to enter upon its property for the purpose of an existing 4,134' longitudinal 8" ductile iron pipeline carrying potablewater at the City of Bozeman, County of Gallatin, State of Montana at Milepost 143+1864, Survey Station 7569+04 asshown on the plat dated 7/5/19 a copy of which is attached hereto as Exhibit "A" and made a part hereof.As a material consideration of this Agreement, without which it would not be granted, Permittee agrees, to the fullest extentprovided by law, to release Railroad and to defend, indemnify and hold Railroad harmless from and against any liability,claim, cost or damage on account of personal injury to or death of any persons whomsoever, or damage to or destruction ofproperty to whomsoever belonging, without regard to whether it was caused by defective trackage, equipment, or trackstructures. Nothing herein obligates Permittee to indemnify Railroad for Railroad's negligent acts or willful misconduct.This Agreement shall be and remain in full force and effect until a formal lease, permit or license is entered into by andbetween the parties hereto covering occupancy of the property. Railroad reserves the right to cancel this agreement withoutcause upon ten (10) days' written notice by Railroad.Permittee acknowledges that as a condition of this Agreement, without which it would not be granted, Permittee shall enterinto a formal lease, permit or license within thirty (30) days of presentation to Permittee by Railroad. If Permittee fails toexecute said Agreement then Railroad reserves the right to cancel this Temporary Advance Right of Entry. However,cancellation thereof shall not operate to release Permittee of any liability assumed and/or incurred by Permittee hereunder.Failure to execute this agreement within sixty (60) days of the effective date shall terminate any rights Permittee may haveunder this agreement. However, such failure shall not operate to relieve Permittee of any liabilities assumed hereunder.There is a Three Hundred Fifty Dollar ( $350.00 ]_ fee for this Agreement. Permittee shall have a copy of this Agreement atthe job site.Permittee shall provide Railroad's Roadmaster five (5) business days advance notice before entering upon Railroad'sproperty. Permittee shall conduct the work authorized by this Agreement in such a manner as not to interfere with themaintenance and operation of Railroad's operations. Permittee shall, at its own expense, restore any facilities on theRailroad's property which are in any way disturbed by Permittee's work as authorized under this Agreement. A Flagman maybe required at Permittee's expense and it shall be in Railroad's sole discretion as to whether flagging services are necessary.If Railroad determines that a Flagman is required, Permittee shall provide an advance deposit for the anticipated cost(s) ofthe flagging and shall reimburse Railroad for any remaining cost(s) within twenty (20) days after invoices are tendered. IfPermittee requires any or all of the following work: removal and/or replacement of track or bridging; protection of track orother railway facilities by flagging; or engineering and/or supervision, such work is to be performed by Railroad employees orRailroad-authorized contractors and the cost shall be borne by Permittee.In the event of a default by Permittee, Railroad shall be allowed to recover one hundred percent (100%) of its costs oroutstanding amounts owed, including any amount received by a collection agency in connection with pursuing any unpaidportion of rent or other amounts due under this Permit on Railroad's behalf.MRL TARE MunicipalityNovember 2012Page 1 of 2199
INSURANCE COVERAGE must be provided as follows:Permittee agrees to obtain and to keep in force and effect during the entire term of this Agreement, at Permittee's ownexpense, the following insurance coverage:a. Commercial General Liability Insurance with limits as provided for under Montana Law Section 2-9-108,MCA.b. Automobile Liability Insurance with limits as provided for under Montana Law Section 2-9-108, MCA.c. Worker's Compensation Insurance for those of its employees who are concerned in any way withPermittee's performance under this Agreement.d. Railroad Protective Liability Insurance naming only the Railroad as the Insured with coverage of at leastthe following:Railroad shall be named as the insured on such policyCoverage limits shall be not less than $2,000,000 per occurrence and $6,000,000 aggregatePermittee will remove any exclusion in its commercial general liability policy which excludes coverageof construction or demolition activities within 50 feet of a rail line.e. Permittee, as an option to the above referenced insurance coverages, excluding Railroad ProtectiveLiability Insurance, may provide Railroad with a letter from Permittee's Risk Management Division, or itsrespective Insurance Department, evidencing the necessary insurance coverages satisfactory to Railroad. IfPermittee is a qualified self insurer, Permittee agrees to treat Railroad as an additional insured as if therewas insurance and to be responsible for payment of any self insured retention or deductible.f. Railroad may require Permittee to obtain a surety bond guaranteeing all or part of the Agreement. Thesurety bond shall be issued by a surety licensed to do business in the state where the property is locatedand in a form and amount acceptable to Railroad. The surety shall also hold Certificates of Authority as anAcceptable Surety listed in the US Department of Treasury's Federal Register.g. Any Party performing any work related to this Agreement shall have a copy of the Agreement at thedesignated job site.Other requirements: All of the above except for Workers Compensation Liability Insurance shall contain thefollowing endorsements, 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 workbeing done within 50 feet of railroad property;• Shall release Railroad as to the payment of any earned premium;The furnishing of insurance required by this Agreement shall in no way limit or diminish the liability or responsibility ofPermittee as provided under any section of the Agreement. The insurance certificate provided by Permittee must besatisfactory to the Railroad as to insurance carriers covering the risk.The parties have executed this Agreement in duplicate this 15th day of August, 2019Montana Rail Link, Inc., a Montana corporationBy:Joe Gentri, Manager Real Estate AdministrationCITY OF BOZEMANBy:Printed Name:Title:MRL TARE MunicipalityNovember 2012Page 2 of 2200
PIPELINE LICENSE NO. 602,22702BOZEMANTHIS LICENSE ("License"), made as of the j5^_ day of August, 2019 ("Effective Date") by and betweenMONTANA RAIL LINK, INC., a Montana corporation ("Licensor"), whose mailing address is PO Box 16624, Missoula, MT59808-6624 and physical address is 101 International Way, Missoula, MT 59808,andwhose address isCity of Bozeman ("Licensee"),PO Box 1230Bozeman, MT 59771RECITALSA. Licensor is in the railroad transportation business and leases a system of rail tracks ("Licensor'sTrack(s)") and various real properties associated therewith from BNSF Railway Company, a Delaware corporation("BNSF"), pursuant to that certain Master Agreement between Licensor and BNSF dated July 21, 1987 ("Master Lease"),including the Premises described below which Licensee desires to license from Licensor.B. Licensor has agreed to license to Licensee the Premises, subject to the terms, conditions and limitationsprovided herein.AGREEMENTSNOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following:GENERAL1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of thirdparties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and uponthe terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings andspecifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"),one (1) Pipeline(s), ductile iron pipeline, eight (8} inches in diameter inside a _ inch _ casing ("PIPELINE"),across or along the rail corridor of Licensor at or near the station of Bozeman, County of Gallatin, State ofMontana, Mile Post 143+1864, Survey Station 7569+04, as shown on the attached plat, dated July 5, 2019,attached hereto as Exhibit "A" and made a part hereof ("Premises").2. Licensee shall not disturb any improvements of Licensor or BNSF or interfere with the use of such improvements.Licensee shall not disturb Licensor's or BNSF's existing lessees, licensees, easement beneficiaries or lienholders, if any, or interfere with the use of such improvements.3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with theDrawings and Specifications carrying potable water. Licensee shall not use the PIPELINE to carry any othercommodity or use the Premises for any other purpose.Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agreesperiodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance.Should Licensee not comply fully with the above-stated obligations of this Section, notwithstandinganything contained in any other provision hereof, Licensor may, at its option, terminate this License byserving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove thePIPELINE and restore Licensor's property as herein elsewhere provided.4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by theabandonment by Licensor or BNSF of the affected rail corridor, Licensor and BNSF shall not be liable to refundLicensee 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.Pipeline LicenseMRL Form 424 February 2015Page 1 of 12201
5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf ofLicensee shall be deemed servants and agents of Licensee for purposes of this License.6. This License is subject and subordinate to the Master Lease. BNSF hereby agrees by its signature below torecognize Licensee's rights under this License, if, prior to the termination of this License, or to the expiration of theterm of this License, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters andrepossesses the Premises after a default by Licensor under the Master Lease. If BNSF succeeds to the rights ofLicensor as the "Licensor" under this License, Licensee agrees that (i) BNSF shall not be liable or responsible forany breach of or default under this License arising prior to the date that BNSF succeeds to the rights of Licenseeas the "Licensor" under this License; (ii) BNSF shall not be required to cure or correct any breach or default underthis License arising prior to the date that BNSF succeeds to the rights of Licensor as the "Licensor" under thisLicense; and (iii) no breach of or default under this License arising prior to the date that BNSF succeeds to therights of Licensor as the "Licensor" under this License shall excuse, delay, release or relieve Licensee from thepayment and performance of all of Licensee's duties and obligations under this License. The preceding sentenceis not intended and shall not be construed to affect any rights or remedies of Licensee against Licensor arising orresulting from a breach of or default under this License by Licensor prior to the date that BNSF succeeds to therights of Licensor as the "Licensor" under this License. If BNSF succeeds to the rights of Licensor as the"Licensor" under this License, Licensee agrees to recognize BNSF as the "Licensor" under this License and timelytender payment and performance of Licensee's duties and obligations under this License to BNSF as if BNSFwere named as "Licensor" in this License.COMPENSATION7. (a) Licensee shall pay Licensor, annually in advance for this License the sum of Seven Hundred Thirty EightDollars ($738.00) for the first year and Four Hundred Thirteen ($413.00) each year thereafter ascompensation for the use of the Premises.(b) Licensor reserves the right to review the rental rate of this License. Licensor may make any necessaryadjustments to the rate based on Licensor's standard rate review policies in effect at the time of thereview. Licensor will provide Licensee written notice of any adjustment, within thirty (30) days of thereview. Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advancedoes not imply nor will it serve to convert the License to a definite term.(c) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costsand expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor'sFlagman and any vehicle rental costs incurred. The cost of flagger services provided by the Licensor,when deemed necessary by Licensor's representative, will be borne by the Licensee. The flagging rate ineffect at the time of performance by the Contractor hereunder will be used to calculate the actual costs offlagging pursuant to this paragraph.(d) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to payany monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay intereston such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at anannual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate lastpublished in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%),and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal inthe preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) themaximum rate permitted by law, whichever is less.COMPLIANCE WITH LAWS8. (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") relatingto the construction, maintenance, and use of the PIPELINE and the use of the Premises.(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor'sapplicable safety rules and regulations.Pipeline LicenseMRL Form 424 February 2015Page 2 of 12202
DEFINITION OF COST AND EXPENSE9. For the purpose of this License, "cost" or "costs" "expense" or "expenses" includes, but is not limited to, actuallabor and material costs including all assignable additives, and material and supply costs at current value whereused.RIGHT OF LICENSOR TO USE10. Licensor and BNSF except and reserve the right, to be exercised by Licensor and BNSF and any other partieswho may obtain written permission or authority from Licensor or BNSF:(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communicationlines and appurtenances and other facilities or structures of like character upon, over, under or across thePremises;(b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilitiesor structures upon, over, under or across the Premises; or(c) to use the Premises in any manner as the Licensor or BNSF in each party's respective sole discretiondeems appropriate, provided Licensor and BNSF use all commercially reasonable efforts to avoidmaterial interference with the use of the Premises by Licensee for the purpose specified in Section 3above.LICENSEE'S OPERATIONS11. (a) Licensee shall notify Licensor's Roadmaster at the number shown on Exhibit "A" at least five (5) businessdays prior to installation of the PIPELINE and prior to entering the Premises for any subsequentmaintenance thereon.(b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from oneside of Licensor's tracks to the other.12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activityusing mechanized equipment and/or machinery, or place or store any mechanized equipment, tools orother materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unlessLicensee 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 ofdanger to or interference with the existence or use of present or future tracks, roadbed or property ofLicensor and BNSF, or the safe operation and activities of Licensor and BNSF. If ordered to cease usingthe Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shallimmediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor andBNSF have no duty or obligation to monitor Licensee's use of the Premises to determine the safe naturethereof, 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 theliability allocation provided by this License.(b) Licensee shall, at its sole cost and expense construct and maintain the PIPELINE in such a manner andof such material that it will not at any time be a source of danger to or interference with the existence oruse of present or future tracks, roadbed or property of Licensor or BNSF, or the safe operation andactivities of Licensor and BNSF. Licensor may direct one of its field engineers to observe or inspect theconstruction and/or maintenance of the PIPELINE at any time for compliance with the Drawings andSpecifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor'spersonnel due to non-compliance with the same or any other hazardous condition, Licensee shallimmediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor andBNSF have no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solelyLicensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with theDrawings 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 inany way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgmentof Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and atLicensee's sole expense, arrange for the performance of such work as it deems necessary for the safetyPipeline LicenseMRL Form 424 February 2015Page 3 of 12203
13.14.15.16.of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses ofsuch work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations ofLicensee shall not alter the liability allocation hereunder.During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall performsuch work in a manner to preclude damage to the property of Licensor and BNSF, and preclude interference withthe operation of the railroad. The construction of the PIPELINE shall be completed within one (1) year of theEffective Date. Upon completion of the construction of the PIPELINE and after performing any subsequentmaintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to their formerstate as of the Effective Date of this License.If at any time during the term of this License, Licensor or BNSF shall desire the use of the rail corridor in such amanner as would, in Licensor's or BNSF's reasonable opinion, be interfered with by the PIPELINE, Licenseeshall, at its sole expense, within thirty (30) days after receiving written notice from Licensor or BNSF to sucheffect, make such changes in the PIPELINE as in the sole discretion of Licensor or BNSF, as applicable, as maybe necessary to avoid interference with the proposed use of the rail corridor, including, without limitation, therelocation of the existing or the construction of a new PIPELINE(s).(a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shallexplore the proposed location for such work with hand tools to a depth of at least three (3) feet below thesurface 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 detectionequipment or other generally accepted industry practice (e.g., consulting with the Underground ServicesAssociation) to determine the existence or location of pipelines and other subsurface structures prior todrilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be madethirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor willprovide Licensee any information that Licensor has in the possession of its Engineering Departmentconcerning the existence and approximate location of Licensor's underground utilities and pipelines at ornear the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee willreview all such material. Licensor does not warrant the accuracy or completeness of information relatingto subsurface conditions and Licensee's operations will be subject at all times to the liability provisionsherein.(b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soilinvestigation will need to be performed by the Licensee and reviewed by Licensor and BNSF prior toconstruction. This study is to determine if granular material is present, and to prevent subsidence duringthe installation process. If the investigation determines in Licensor's and BNSF's reasonable opinion thatgranular material is present, Licensor and BNSF may select a new location for Licensee's use, or mayrequire Licensee to furnish for Licensor's and BNSF's review and approval, in its sole discretion aremedial plan to deal with the granular material. Once Licensor and BNSF have approved any suchremedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan inaccordance with all terms thereof and hereof.Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at alltimes 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; or17.(b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavatedmaterials may remain on Licensor's property for more than ten (10) days, but must be properly disposedof by Licensee in accordance with applicable Legal Requirements.Upon termination of this License, Licensee shall, at its sole cost and expense:(a) remove all of its equipment from the Premises;(b) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor and BNSF,fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensorand BNSF;Pipeline LicenseMRL Form 424 February 2015Page 4 of 12204
18.(c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee'suse of the Premises;(d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and(e) leave the Premises in the condition which existed as of the Effective Date of this License.Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on thePremises.LIABILITY19. (a)(b)TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITSCONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR, BNSF,BURLINGTON NORTHERN SANTA FE LLC AND EACH OF THE AFOREMENTIONED PARTIES'AFFILIATED COMPANIES, AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS,LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES ANDAGENTS (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, COURTCOSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATIONAND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITYDIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLEOR 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 ORCONTRIBUTED BY LICENSEE, OR(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES,EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYEDBY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY NEGLIGENCE OF ANYINDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TOINDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES (1) TO THE EXTENTPROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANINDEMNITEE OR (2) WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE.FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THELIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TONOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THESTRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT AN INDEMNITEE IS AN "OWNER","OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THEPURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY,DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMSREGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREESTHAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANYWAY SUBJECT LICENSOR OR BNSF TO CLAIMS THAT LICENSOR OR BNSF IS OTHER THAN ACOMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TOINDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCHCLAIMS. IN NO EVENT SHALL LICENSOR OR BNSF BE RESPONSIBLE FOR THEENVIRONMENTAL CONDITION OF THE PREMISES.Pipeline LicenseMRL Form 424 February 2015Page 5 of 12205
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, [AND SHALLCAUSE ITS CONTRACTOR TO AGREE] REGARDLESS OF ANY NEGLIGENCE OR ALLEGEDNEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEESAGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFEREDBY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, ORCONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OROTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMSBASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS ORREGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILERINSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCECONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.(d) Upon written notice from any Indemnitee, Licensee agrees to assume the defense of any lawsuit or otherproceeding brought against such Indemnitee by any entity, relating to any matter covered by this Licensefor which Licensee has an obligation to assume liability for and/or save and hold harmless suchIndemnitee. 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 insatisfaction of judgments.PERSONAL PROPERTY WAIVER20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATEDMATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEEWILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLEOR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.INSURANCE21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the followinginsurance coverage:A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with acombined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least$10,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and includecoverage 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 withrespect to claims related to railroad employees.• The definition of insured contract shall be amended to remove any exclusion or other limitation forany 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 hiredC. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, butnot limited to:• Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work isto 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 diseasepolicy limit, $500,000 by disease each employee.Pipeline LicenseMRL Form 424 February 2015Page 6 of 12206
D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor and BNSF as theInsureds with separate coverage limits for Licensor and BNSF, each in an amount not less than$5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage obtained under this policyshall only be effective during the initial installation and/or construction of the PIPELINE. THECONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THEEFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an additionalRailroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standardISO form CG 00 35 10 93 and include the following:• Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93).• Endorsed to include the Limited Seepage and Pollution Endorsement.• Endorsed to include Evacuation Expense Coverage Endorsement.• No other endorsements restricting coverage may be added.• The original policy must be provided to the Licensor prior to performing any work or services underthis License.Other Requirements:Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitivedamages and certificates of insurance shall reflect that no exclusion exists.Licensee agrees to waive its right of recovery against Licensor and BNSF for all claims and suits against Licensorand BNSF. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensorand BNSF 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 Licensorand BNSF 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 shallbe primary and non-contributing with respect to any insurance carried by any Indemnitee. The certificate ofinsurance must reflect that the above wording is included in evidenced policies.All policy(ies) required above (excluding Workers Compensation, Licensee's Pollution Legal Liability and ifapplicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor andBNSF as additional insureds with respect to work performed under this License. Severability of interest andnaming Licensor and BNSF 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 and BNSF. If granted byLicensor and BNSF, any deductible, self-insured retention or other financial responsibility for claims shall becovered directly by Licensee in lieu of insurance. Any and all Licensor and BNSF liabilities that would otherwise,in accordance with the provisions of this License, be covered by Licensee's insurance will be covered as ifLicensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims.Prior to commencing any work, Licensee shall furnish to Licensor an acceptable certificate(s) of insuranceincluding 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 suchpolicy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution ormaterial alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of aclaim or lawsuit involving Licensor or BNSF arising out of this License, Licensee will make available any requiredpolicy covering such claim or lawsuit.Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a currentBest's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which theservice 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 License. Allocated LossExpense shall be in addition to all policy limits for coverages referenced above.Pipeline LicenseMRL Form 424 February 2015Page 7 of 12207
Not more frequently than once every five years, Licensor and BNSF may reasonably modify the requiredinsurance coverage to reflect then-current risk management practices in the railroad industry and underwritingpractices in the insurance industry.If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractorshall provide and maintain insurance coverages as set forth herein, naming Licensor and BNSF as additionalinsureds, and shall require that the subcontractor shall release, defend and indemnify Licensor and BNSF to thesame extent and under the same terms and conditions as Licensee is required to release, defend and indemnifyLicensor and BNSF herein.Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate thisLicense immediately. Acceptance of a certificate that does not comply with this section shall not operate as awaiver of Licensee's obligations hereunder.The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemedto release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisionsof this License. Damages recoverable by Licensor and BNSF shall not be limited by the amount of the requiredinsurance coverage.For purposes of this section, BNSF shall mean "Burlington Northern Santa Fe LLC", "BNSF Railway Company"and the subsidiaries, successors, assigns and affiliates of each.ENVIRONMENTAL22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its useof 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 hlazardous 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 thePremises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined byEnvironmental Laws on or about the Premises.(b) Licensee shall give Licensor immediate notice to Licensor's Manager of Environmental Projects at (406)523-1415 and to BNSF's Resource Operations Center at (800) 832-5452 of any release of hazardoussubstances on or from the Premises and to Licensor's Manager of Environmental Projects at (406) 523-1415, Licensor's Real Estate Department, promptly, in writing, and to BNSF's Manager EnvironmentalLeases at (785) 435-2386 for any violation of Environmental Laws, or inspection or inquiry bygovernmental authorities charged with enforcing Environmental Laws with respect to Licensee's use ofthe Premises. Licensee shall use the best efforts to promptly respond to any release on or from thePremises. Licensee also shall give Licensor's Manager of Environmental Projects, Licensor's Real EstateDepartment, promptly, in writing, and BNSF's Manager Environmental Leases immediate notice of allmeasures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure suchrelease or violation and shall provide to Lessor's Manager of Environmental Projects, Licensor's RealEstate Department, and BNSF's Manager Environmental Leases copies of all reports and/or dataregarding any investigations or remediations of the Premises.(c) In the event that Licensor and/or BNSF have notice from Licensee or otherwise of a release or violation ofEnvironmental Laws arising in any way with respect to the PIPELINE which occurred or may occur duringthe term of this License, Licensor and BNSF 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 violationaffecting the Premises or Licensor's right-of-way.(d) Licensee shall promptly report to Licensor and BNSF in writing any conditions or activities upon thePremises known to Licensee which create a risk of harm to persons, property or the environment andshall take whatever action is necessary to prevent injury to persons or property arising out of suchconditions or activities; provided, however, that Licensee's reporting to Licensor and BNSF shall notrelieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptlyrespond to Licensor's and/or BNSF's request for information regarding said conditions or activities.Pipeline LicenseMRL Form 424 February 2015Page 8 of 12208
ALTERATIONS23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or anybuildings or other structures adjacent to the Premises without Licensor's and BNSF's prior written consent.NO WARRANTIES24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THISLICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THEFUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THANTHOSE 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 OFLAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.QUIET ENJOYMENT25. LICENSOR DOES NOT WARRANT ITS LICENSE INTEREST IN OR BNSF'S TITLE TO THE PREMISES NORUNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NOCOVENANT OF QUIET ENJOYMENT IS MADE.DEFAULT26.(a)(b)If default shall be made in any of the covenants or agreements of Licensee contained in this document, orin case of any assignment or transfer of this License by operation of law, Licensor or BNSF may, at theiroption, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver byLicensor or BNSF of any default or defaults shall not constitute a waiver of the right to terminate thisLicense for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's orBNSF's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be inaddition to, and not in limitation of, any other remedies that Licensor or BNSF may have at law or inequity.In the event of a default by Licensee, Licensor shall be allowed to recover one hundred percent (100%) ofits costs or outstanding amounts owed, including any amount received by a collection agency inconnection with pursuing any unpaid portion of rent or other amounts due under this License onLicensor's behalf.LIENS AND CHARGES27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairsdone, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post anynotices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent theattachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shallnot relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License.Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessedupon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessedagainst Licensor or the Premises that are attributable to the Improvements.TERMINATION28. This License may be terminated by Licensor or BNSF, at any time, by serving thirty (30) days' written notice oftermination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's MutualTermination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License andall rights of Licensee shall absolutely cease.29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities andobligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shallnot release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any eventshappening prior to the date of termination.ASSIGNMENTPipeline LicenseMRL Form 424 February 2015Page 9 of 12209
30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequentassignee, shall assign or transfer this License or any interest herein, without the prior written consent and approvalof Licensor and BNSF, which may be withheld in Licensor's and BNSF's sole discretion.NOTICES31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the sameshall 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 theparty to be notified may designate by giving the other party no less than thirty (30) days' advance written notice ofsuch change in address.If to Licensor, at the address shown above.If to Licensee, at the address shown above.If to BNSF: BNSF Railway CompanyJones Lange LaSalle Brokerage, Inc., Its Attorney in Fact4200 Buckingham Road, Suite 110Ft. Worth, TX 76155SURVIVAL32. 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 oftermination or expiration, or, if later, the date when the PIPELINE and improvements are removed and thePremises are restored to its condition as of the Effective Date.RECORDATION33. It is understood and agreed that this License shall not be placed on public record.APPLICABLE LAW34. All questions concerning the interpretation or application of provisions of this License shall be decided according tothe substantive laws of the State of Montana without regard to conflicts of law provisions.SEVERABILITY35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to beeffective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to beinvalid 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.INTEGRATION36. This License is the full and complete agreement between Licensor and Licensee with respect to all mattersrelating to Licensee's use of the Premises, and supersedes any and all other agreements between the partieshereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended toterminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor or BNSFharmless in any prior written agreement between the parties.MISCELLANEOUS37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee hereincontained shall be the joint and several covenants and agreements of such parties.Pipeline LicenseMRL Form 424 February 2015Page 10 of 12210
38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right ofLicensor to enforce that provision for any subsequent breach thereof.IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the dayand year first above written.LICENSORMontana Rail Link, Inc., a Montana corporationBy:Joe Gentri, Manager Real Estate AdministrationLICENSEECity of BozemanBy:Printed Name:Title:BNSF's execution in the space provided below evidences BNSF's consent to this License. This License is not valid andshall have no force and effect without BNSF's signature.BNSFBNSF Railway CompanyJones Lange LaSalle Brokerage, Inc., Its Attorney in Fact4200 Buckingham Road, Suite 110Ft. Worth, TX 76155By:Shane Krueger, Vice PresidentPipeline LicenseMRL Form 424 February 2015Page 11 of 12211
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PIPELINE LICENSE NO. 602,22902BOZEMANTHIS LICENSE ("License"), made as of the 15th_ day of August, 2019 ("Effective Date") by and betweenMONTANA RAIL LINK, INC., a Montana corporation ("Licensor"), whose mailing address is PO Box 16624, Missoula, MT59808-6624 and physical address is 101 International Way, Missoula, MT 59808,andwhose address isCity of Bozeman ("Licensee"),PO Box 1230Bozeman, MT 59771RECITALSA. Licensor is in the railroad transportation business and leases a system of rail tracks ("Licensor'sTrack(s)") and various real properties associated therewith from BNSF Railway Company, a Delaware corporation("BNSF"), pursuant to that certain Master Agreement between Licensor and BNSF dated July 21, 1987 ("Master Lease"),including the Premises described below which Licensee desires to license from Licensor.B. Licensor has agreed to license to Licensee the Premises, subject to the terms, conditions and limitationsprovided herein.AGREEMENTSNOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following:GENERAL1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of thirdparties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and uponthe terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings andspecifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"),one (1) Pipeline(s), 1.5 inches in diameter inside a 1.5 inch PVC casing ("PIPELINE"), across or along the railcorridor of Licensor at or near the station of Bozeman, County of Gallatin, State of Montana, Mile Post 143+1148,Survey Station 7561+88, as shown on the attached plat, dated July 5, 2019, attached hereto as Exhibit "A" andmade a part hereof ("Premises").2. Licensee shall not disturb any improvements of Licensor or BNSF or interfere with the use of such improvements.Licensee shall not disturb Licensor's or BNSF's existing lessees, licensees, easement beneficiaries or lienholders, if any, or interfere with the use of such improvements.3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with theDrawings and Specifications carrying sanitary sewage. Licensee shall not use the PIPELINE to carry any othercommodity or use the Premises for any other purpose.Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agreesperiodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance.Should Licensee not comply fully with the above-stated obligations of this Section, notwithstandinganything contained in any other provision hereof, Licensor may, at its option, terminate this License byserving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove thePIPELINE and restore Licensor's property as herein elsewhere provided.4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by theabandonment by Licensor or BNSF of the affected rail corridor, Licensor and BNSF shall not be liable to refundLicensee 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.Pipeline LicenseMRL Form 424 February 2015Page 1 of 12216
5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf ofLicensee shall be deemed servants and agents of Licensee for purposes of this License.6. This License is subject and subordinate to the Master Lease. BNSF hereby agrees by its signature below torecognize Licensee's rights under this License, if, prior to the termination of this License, or to the expiration of theterm of this License, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters andrepossesses the Premises after a default by Licensor under the Master Lease. If BNSF succeeds to the rights ofLicensor as the "Licensor" under this License, Licensee agrees that (i) BNSF shall not be liable or responsible forany breach of or default under this License arising prior to the date that BNSF succeeds to the rights of Licenseeas the "Licensor" under this License; (ii) BNSF shall not be required to cure or correct any breach or default underthis License arising prior to the date that BNSF succeeds to the rights of Licensor as the "Licensor" under thisLicense; and (iii) no breach of or default under this License arising prior to the date that BNSF succeeds to therights of Licensor as the "Licensor" under this License shall excuse, delay, release or relieve Licensee from thepayment and performance of all of Licensee's duties and obligations under this License. The preceding sentenceis not intended and shall not be construed to affect any rights or remedies of Licensee against Licensor arising orresulting from a breach of or default under this License by Licensor prior to the date that BNSF succeeds to therights of Licensor as the "Licensor" under this License. If BNSF succeeds to the rights of Licensor as the"Licensor" under this License, Licensee agrees to recognize BNSF as the "Licensor" under this License and timelytender payment and performance of Licensee's duties and obligations under this License to BNSF as if BNSFwere named as "Licensor" in this License.COMPENSATION7. (a) Licensee shall pay Licensor, annually in advance for this License the sum of Eight Hundred and TenDollars ($810.00) for the first year and Four Hundred Eighty Five Dollars ($485.00) each year thereafteras compensation for the use of the Premises.(b) Licensor reserves the right to review the rental rate of this License. Licensor may make any necessaryadjustments to the rate based on Licensor's standard rate review policies in effect at the time of thereview. Licensor will provide Licensee written notice of any adjustment, within thirty (30) days of thereview. Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advancedoes not imply nor will it serve to convert the License to a definite term.(c) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costsand expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor'sFlagman and any vehicle rental costs incurred. The cost of flagger services provided by the Licensor,when deemed necessary by Licensor's representative, will be borne by the Licensee. The flagging rate ineffect at the time of performance by the Contractor hereunder will be used to calculate the actual costs offlagging pursuant to this paragraph.(d) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to payany monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay intereston such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at anannual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate lastpublished in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%),and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal inthe preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) themaximum rate permitted by law, whichever is less.COMPLIANCE WITH LAWS8. (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") relatingto the construction, maintenance, and use of the PIPELINE and the use of the Premises.(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor'sapplicable safety rules and regulations.Pipeline LicenseMRL Form 424 February 2015Page 2 of 12217
DEFINITION OF COST AND EXPENSE9. For the purpose of this License, "cost" or "costs" "expense" or "expenses" includes, but is not limited to, actuallabor and material costs including all assignable additives, and material and supply costs at current value whereused.RIGHT OF LICENSOR TO USE10. Licensor and BNSF except and reserve the right, to be exercised by Licensor and BNSF and any other partieswho may obtain written permission or authority from Licensor or BNSF:(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communicationlines and appurtenances and other facilities or structures of like character upon, over, under or across thePremises;(b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilitiesor structures upon, over, under or across the Premises; or(c) to use the Premises in any manner as the Licensor or BNSF in each party's respective sole discretiondeems appropriate, provided Licensor and BNSF use all commercially reasonable efforts to avoidmaterial interference with the use of the Premises by Licensee for the purpose specified in Section 3above.LICENSEE'S OPERATIONS11. (a) Licensee shall notify Licensor's Roadmaster at the number shown on Exhibit "A" at least five (5) businessdays prior to installation of the PIPELINE and prior to entering the Premises for any subsequentmaintenance thereon.(b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from oneside of Licensor's tracks to the other.12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activityusing mechanized equipment and/or machinery, or place or store any mechanized equipment, tools orother materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unlessLicensee 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 ofdanger to or interference with the existence or use of present or future tracks, roadbed or property ofLicensor and BNSF, or the safe operation and activities of Licensor and BNSF. If ordered to cease usingthe Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shallimmediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor andBNSF have no duty or obligation to monitor Licensee's use of the Premises to determine the safe naturethereof, 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 theliability allocation provided by this License.(b) Licensee shall, at its sole cost and expense construct and maintain the PIPELINE in such a manner andof such material that it will not at any time be a source of danger to or interference with the existence oruse of present or future tracks, roadbed or property of Licensor or BNSF, or the safe operation andactivities of Licensor and BNSF. Licensor may direct one of its field engineers to observe or inspect theconstruction and/or maintenance of the PIPELINE at any time for compliance with the Drawings andSpecifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor'spersonnel due to non-compliance with the same or any other hazardous condition, Licensee shallimmediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor andBNSF have no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solelyLicensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with theDrawings 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 inany way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgmentof Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and atLicensee's sole expense, arrange for the performance of such work as it deems necessary for the safetyPipeline LicenseMRL Form 424 February 2015Page 3 of 12218
of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses ofsuch work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations ofLicensee shall not alter the liability allocation hereunder.13. During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall performsuch work in a manner to preclude damage to the property of Licensor and BNSF, and preclude interference withthe operation of the railroad. The construction of the PIPELINE shall be completed within one (1) year of theEffective Date. Upon completion of the construction of the PIPELINE and after performing any subsequentmaintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to their formerstate as of the Effective Date of this License.14. If at any time during the term of this License, Licensor or BNSF shall desire the use of the rail corridor in such amanner as would, in Licensor's or BNSF's reasonable opinion, be interfered with by the PIPELINE, Licenseeshall, at its sole expense, within thirty (30) days after receiving written notice from Licensor or BNSF to sucheffect, make such changes in the PIPELINE as in the sole discretion of Licensor or BNSF, as applicable, as maybe necessary to avoid interference with the proposed use of the rail corridor, including, without limitation, therelocation of the existing or the construction of a new PIPELINE(s).15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shallexplore the proposed location for such work with hand tools to a depth of at least three (3) feet below thesurface 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 detectionequipment or other generally accepted industry practice (e.g., consulting with the Underground ServicesAssociation) to determine the existence or location of pipelines and other subsurface structures prior todrilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be madethirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor willprovide Licensee any information that Licensor has in the possession of its Engineering Departmentconcerning the existence and approximate location of Licensor's underground utilities and pipelines at ornear the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee willreview all such material. Licensor does not warrant the accuracy or completeness of information relatingto subsurface conditions and Licensee's operations will be subject at all times to the liability provisionsherein.(b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soilinvestigation will need to be performed by the Licensee and reviewed by Licensor and BNSF prior toconstruction. This study is to determine if granular material is present, and to prevent subsidence duringthe installation process. If the investigation determines in Licensor's and BNSF's reasonable opinion thatgranular material is present, Licensor and BNSF may select a new location for Licensee's use, or mayrequire Licensee to furnish for Licensor's and BNSF's review and approval, in its sole discretion aremedial plan to deal with the granular material. Once Licensor and BNSF have approved any suchremedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan inaccordance with all terms thereof and hereof.16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at alltimes 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 excavatedmaterials may remain on Licensor's property for more than ten (10) days, but must be properly disposedof by Licensee in accordance with applicable Legal Requirements.17. Upon termination of this License, Licensee shall, at its sole cost and expense:(a) remove all of its equipment from the Premises;(b) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor and BNSF,fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensorand BNSF;Pipeline LicenseMRL Form 424 February 2015Page 4 of 12219
18.(c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee'suse of the Premises;(d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and(e) leave the Premises in the condition which existed as of the Effective Date of this License.Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on thePremises.LIABILITY19. (a)(b)TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITSCONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR, BNSF,BURLINGTON NORTHERN SANTA FE LLC AND EACH OF THE AFOREMENTIONED PARTIES'AFFILIATED COMPANIES, AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS,LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES ANDAGENTS (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, COURTCOSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATIONAND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITYDIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLEOR 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 ORCONTRIBUTED BY LICENSEE, OR(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES,EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYEDBY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY NEGLIGENCE OF ANYINDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TOINDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES (1) TO THE EXTENTPROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANINDEMNITEE OR (2) WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE.FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THELIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TONOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THESTRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT AN INDEMNITEE IS AN "OWNER","OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PIPELINE FOR THEPURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY,DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMSREGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREESTHAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANYWAY SUBJECT LICENSOR OR BNSF TO CLAIMS THAT LICENSOR OR BNSF IS OTHER THAN ACOMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TOINDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCHCLAIMS. IN NO EVENT SHALL LICENSOR OR BNSF BE RESPONSIBLE FOR THEENVIRONMENTAL CONDITION OF THE PREMISES.Pipeline LicenseMRL Form 424 February 2015Page 5 of 12220
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, [AND SHALLCAUSE ITS CONTRACTOR TO AGREE] REGARDLESS OF ANY NEGLIGENCE OR ALLEGEDNEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEESAGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFEREDBY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, ORCONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OROTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMSBASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS ORREGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILERINSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCECONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.(d) Upon written notice from any Indemnitee, Licensee agrees to assume the defense of any lawsuit or otherproceeding brought against such Indemnitee by any entity, relating to any matter covered by this Licensefor which Licensee has an obligation to assume liability for and/or save and hold harmless suchIndemnitee. 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 insatisfaction of judgments.PERSONAL PROPERTY WAIVER20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATEDMATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEEWILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLEOR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.INSURANCE21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the followinginsurance coverage:A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with acombined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least$10,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and includecoverage 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 withrespect to claims related to railroad employees.• The definition of insured contract shall be amended to remove any exclusion or other limitation forany 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 hiredC. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, butnot limited to:• Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work isto 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 diseasepolicy limit, $500,000 by disease each employee.Pipeline LicenseMRL Form 424 February 2015Page 6 of 12221
D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor and BNSF as theInsureds with separate coverage limits for Licensor and BNSF, each in an amount not less than$5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage obtained under this policyshall only be effective during the initial installation and/or construction of the PIPELINE. THECONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THEEFFECTIVE DATE. If further maintenance of the PIPELINE is needed at a later date, an additionalRailroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standardISO form CG 00 35 10 93 and include the following:• Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93).• Endorsed to include the Limited Seepage and Pollution Endorsement.• Endorsed to include Evacuation Expense Coverage Endorsement.• No other endorsements restricting coverage may be added.• The original policy must be provided to the Licensor prior to performing any work or services underthis License.Other Requirements:Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitivedamages and certificates of insurance shall reflect that no exclusion exists.Licensee agrees to waive its right of recovery against Licensor and BNSF for all claims and suits against Licensorand BNSF. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensorand BNSF 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 Licensorand BNSF 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 shallbe primary and non-contributing with respect to any insurance carried by any Indemnitee. The ceri:ificate ofinsurance must reflect that the above wording is included in evidenced policies.All policy(ies) required above (excluding Workers Compensation, Licensee's Pollution Legal Liability and ifapplicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor andBNSF as additional insureds with respect to work performed under this License. Severability of interest andnaming Licensor and BNSF 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 and BNSF. If granted byLicensor and BNSF, any deductible, self-insured retention or other financial responsibility for claims shall becovered directly by Licensee in lieu of insurance. Any and all Licensor and BNSF liabilities that would otherwise,in accordance with the provisions of this License, be covered by Licensee's insurance will be covered as ifLicensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims.Prior to commencing any work, Licensee shall furnish to Licensor an acceptable certificate(s) of insuranceincluding 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 suchpolicy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution ormaterial alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of aclaim or lawsuit involving Licensor or BNSF arising out of this License, Licensee will make available any requiredpolicy covering such claim or lawsuit.Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a currentBest's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which theservice 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 License. Allocated LossExpense shall be in addition to all policy limits for coverages referenced above.Pipeline LicenseMRL Form 424 February 2015Page 7 of 12222
Not more frequently than once every five years, Licensor and BNSF may reasonably modify the requiredinsurance coverage to reflect then-current risk management practices in the railroad industry and underwritingpractices in the insurance industry.If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractorshall provide and maintain insurance coverages as set forth herein, naming Licensor and BNSF as additionalinsureds, and shall require that the subcontractor shall release, defend and indemnify Licensor and BNSF to thesame extent and under the same terms and conditions as Licensee is required to release, defend and indemnifyLicensor and BNSF herein.Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate thisLicense immediately. Acceptance of a certificate that does not comply with this section shall not operate as awaiver of Licensee's obligations hereunder.The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemedto release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisionsof this License. Damages recoverable by Licensor and BNSF shall not be limited by the amount of the requiredinsurance coverage.For purposes of this section, BNSF shall mean "Burlington Northern Santa Fe LLC", "BNSF Railway Company"and the subsidiaries, successors, assigns and affiliates of each.ENVIRONMENTAL22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its useof 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 thePremises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined byEnvironmental Laws on or about the Premises.(b) Licensee shall give Licensor immediate notice to Licensor's Manager of Environmental Projects at (406)523-1415 and to BNSF's Resource Operations Center at (800) 832-5452 of any release of hazardoussubstances on or from the Premises and to Licensor's Manager of Environmental Projects at (406) 523-1415, Licensor's Real Estate Department, promptly, in writing, and to BNSF's Manager EnvironmentalLeases at (785) 435-2386 for any violation of Environmental Laws, or inspection or inquiry bygovernmental authorities charged with enforcing Environmental Laws with respect to Licensee's use ofthe Premises. Licensee shall use the best efforts to promptly respond to any release on or from thePremises. Licensee also shall give Licensor's Manager of Environmental Projects, Licensor's Real EstateDepartment, promptly, in writing, and BNSF's Manager Environmental Leases immediate notice of allmeasures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure suchrelease or violation and shall provide to Lessor's Manager of Environmental Projects, Licensor's RealEstate Department, and BNSF's Manager Environmental Leases copies of all reports and/or dataregarding any investigations or remediations of the Premises.(c) In the event that Licensor and/or BNSF have notice from Licensee or otherwise of a release or violation ofEnvironmental Laws arising in any way with respect to the PIPELINE which occurred or may occur duringthe term of this License, Licensor and BNSF 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 violationaffecting the Premises or Licensor's right-of-way.(d) Licensee shall promptly report to Licensor and BNSF in writing any conditions or activities upon thePremises known to Licensee which create a risk of harm to persons, property or the environment andshall take whatever action is necessary to prevent injury to persons or property arising out of suchconditions or activities; provided, however, that Licensee's reporting to Licensor and BNSF shall notrelieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptlyrespond to Licensor's and/or BNSF's request for information regarding said conditions or activities.Pipeline LicenseMRL Form 424 February 2015Page 8 of 12223
ALTERATIONS23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or anybuildings or other structures adjacent to the Premises without Licensor's and BNSF's prior written consent.NO WARRANTIES24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THISLICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THEFUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THANTHOSE 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 OFLAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.QUIET ENJOYMENT25. LICENSOR DOES NOT WARRANT ITS LICENSE INTEREST IN OR BNSF'S TITLE TO THE PREMISES NORUNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NOCOVENANT OF QUIET ENJOYMENT IS MADE.DEFAULT26. (a)(b)If default shall be made in any of the covenants or agreements of Licensee contained in this document, orin case of any assignment or transfer of this License by operation of law, Licensor or BNSF may, at theiroption, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver byLicensor or BNSF of any default or defaults shall not constitute a waiver of the right to terminate thisLicense for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's orBNSF's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be inaddition to, and not in limitation of, any other remedies that Licensor or BNSF may have at law or inequity.In the event of a default by Licensee, Licensor shall be allowed to recover one hundred percent (100%) ofits costs or outstanding amounts owed, including any amount received by a collection agency inconnection with pursuing any unpaid portion of rent or other amounts due under this License onLicensor's behalf.LIENS AND CHARGES27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairsdone, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post anynotices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent theattachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shallnot relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License.Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessedupon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessedagainst Licensor or the Premises that are attributable to the Improvements.TERMINATION28. This License may be terminated by Licensor or BNSF, at any time, by serving thirty (30) days' written notice oftermination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's MutualTermination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License andall rights of Licensee shall absolutely cease.29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities andobligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shallnot release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any eventshappening prior to the date of termination.ASSIGNMENTPipeline LicenseMRL Form 424 February 2015Page 9 of 12224
30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequentassignee, shall assign or transfer this License or any interest herein, without the prior written consent and approvalof Licensor and BNSF, which may be withheld in Licensor's and BNSF's sole discretion.NOTICES31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the sameshall 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 theparty to be notified may designate by giving the other party no less than thirty (30) days' advance written notice ofsuch change in address.If to Licensor, at the address shown above.If to Licensee, at the address shown above.If to BNSF: BNSF Railway CompanyJones Lange LaSalle Brokerage, Inc., Its Attorney in Fact4200 Buckingham Road, Suite 110Ft. Worth, TX 76155SURVIVAL32. 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 oftermination or expiration, or, if later, the date when the PIPELINE and improvements are removed and thePremises are restored to its condition as of the Effective Date.RECORDATION33. It is understood and agreed that this License shall not be placed on public record.APPLICABLE LAW34. All questions concerning the interpretation or application of provisions of this License shall be decided according tothe substantive laws of the State of Montana without regard to conflicts of law provisions.SEVERABILITY35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to beeffective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to beinvalid 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.INTEGRATION36. This License is the full and complete agreement between Licensor and Licensee with respect to all mattersrelating to Licensee's use of the Premises, and supersedes any and all other agreements between the partieshereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended toterminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor or BNSFharmless in any prior written agreement between the parties.MISCELLANEOUS37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee hereincontained shall be the joint and several covenants and agreements of such parties.Pipeline LicenseMRL Form 424 February 2015Page 10 of 12225
38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right ofLicensor to enforce that provision for any subsequent breach thereof.IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the dayand year first above written.LICENSORMontana Rail Link, Inc., a Montana corporationBy:Joe Gentri, Manager Real Estate AdministrationLICENSEECity of BozemanBy:Printed Name:Title:BNSF's execution in the space provided below evidences BNSF's consent to this License. This License is not valid andshall have no force and effect without BNSF's signature.BNSFBNSF Railway CompanyJones Lange LaSalle Brokerage, Inc., Its Attorney in Fact4200 Buckingham Road, Suite 110Ft. Worth, TX 76155By:Shane Krueger, Vice PresidentPipeline LicenseMRL Form 424 February 2015Page 11 of 12226
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TEMPORARY AGREEMENT COVERING ADVANCERIGHT OF ENTRY AND OCCUPANCY NO. 602,229OF MONTANA RAIL LINK, INC. PROPERPT02BOZEMANMONTANA RAIL LINK, INC. whose mailing address is Real Estate Department, PO Box 16624, Missoula, Montana 59808-6624 (hereinafter called "Railroad"), hereby grants permission toCity of Bozeman, hereinafter called "Permittee",whose mailing address is: PO Box 1230Bozeman, MT 59771to enter upon its property for the purpose of an existing 4,848' longitudinal 1.5" PVC pipeline carrying sanitary sewageat the City of Bozeman, County of Gallatin, State of Montana at Milepost 143+1148, Survey Station 7561+88 as shown onthe plat dated July 15. 2019 a copy of which is attached hereto as Exhibit "A" and made a part hereof.As a material consideration of this Agreement, without which it would not be granted, Permittee agrees, to the fullest extentprovided by law, to release Railroad and to defend, indemnify and hold Railroad harmless from and against any liability,claim, cost or damage on account of personal injury to or death of any persons whomsoever, or damage to or destruction ofproperty to whomsoever belonging, without regard to whether it was caused by defective trackage, equipment, or trackstructures. Nothing herein obligates Permittee to indemnify Railroad for Railroad's negligent acts or willful misconduct.This Agreement shall be and remain in full force and effect until a formal lease, permit or license is entered into by andbetween the parties hereto covering occupancy of the property. Railroad reserves the right to cancel this agreement withoutcause upon ten (10) days' written notice by Railroad.Permittee acknowledges that as a condition of this Agreement, without which it would not be granted, Permittee shall enterinto a formal lease, permit or license within thirty (30) days of presentation to Permittee by Railroad. If Permittee fails toexecute said Agreement then Railroad reserves the right to cancel this Temporary Advance Right of Entry, hlowever,cancellation thereof shall not operate to release Permittee of any liability assumed and/or incurred by Permittee hereunder.Failure to execute this agreement within sixty (60) days of the effective date shall terminate any rights Permittee may haveunder this agreement, hlowever, such failure shall not operate to relieve Permittee of any liabilities assumed hereunder.There is a Three Hundred Fifty Dollar ( $350.00 ]_ fee for this Agreement. Permittee shall have a copy of this Agreement atthe job site.Permittee shall provide Railroad's Roadmaster five (5) business days advance notice before entering upon Railroad'sproperty. Permittee shall conduct the work authorized by this Agreement in such a manner as not to interfere with themaintenance and operation of Railroad's operations. Permittee shall, at its own expense, restore any facilities on theRailroad's property which are in any way disturbed by Permittee's work as authorized under this Agreement. A Flagman maybe required at Permittee's expense and it shall be in Railroad's sole discretion as to whether flagging services are necessary.If Railroad determines that a Flagman is required, Permittee shall provide an advance deposit for the anticipated cost(s) ofthe flagging and shall reimburse Railroad for any remaining cost(s) within twenty (20) days after invoices are tendered. IfPermittee requires any or all of the following work: removal and/or replacement of track or bridging; protection of track orother railway facilities by flagging; or engineering and/or supervision, such work is to be performed by Railroad employees orRailroad-authorized contractors and the cost shall be borne by Permittee.In the event of a default by Permittee, Railroad shall be allowed to recover one hundred percent (100%) of its costs oroutstanding amounts owed, including any amount received by a collection agency in connection with pursuing any unpaidportion of rent or other amounts due under this Permit on Railroad's behalf.MRL TARE MunicipalityNovember 2012Page 1 of 2231
INSURANCE COVERAGE must be provided as follows:Permittee agrees to obtain and to keep in force and effect during the entire term of this Agreement, at Permittee's ownexpense, the following insurance coverage:a. Commercial General Liability Insurance with limits as provided for under Montana Law Section 2-9-108,MCA.b. Automobile Liability Insurance with limits as provided for under Montana Law Section 2-9-108, MCA.c. Worker's Compensation Insurance for those of its employees who are concerned in any way withPermittee's performance under this Agreement.d. Railroad Protective Liability Insurance naming only the Railroad as the Insured with coverage of at leastthe following:• Railroad shall be named as the insured on such policyCoverage limits shall be not less than $2,000,000 per occurrence and $6,000,000 aggregatePermittee will remove any exclusion in its commercial general liability policy which excludes coverageof construction or demolition activities within 50 feet of a rail line.e. Permittee, as an option to the above referenced insurance coverages, excluding Railroad ProtectiveLiability Insurance, may provide Railroad with a letter from Permittee's Risk Management Division, or itsrespective Insurance Department, evidencing the necessary insurance coverages satisfactory to Railroad. IfPermittee is a qualified self insurer, Permittee agrees to treat Railroad as an additional insured as if therewas insurance and to be responsible for payment of any self insured retention or deductible.f. Railroad may require Permittee to obtain a surety bond guaranteeing all or part of the Agreement. Thesurety bond shall be issued by a surety licensed to do business in the state where the property is locatedand in a form and amount acceptable to Railroad. The surety shall also hold Certificates of Authority as anAcceptable Surety listed in the US Department of Treasury's Federal Register.g. Any Party performing any work related to this Agreement shall have a copy of the Agreement at thedesignated job site.Other requirements: All of the above except for Workers Compensation Liability Insurance shall contain thefollowing endorsements, 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 workbeing done within 50 feet of railroad property;• Shall release Railroad as to the payment of any earned premium;The furnishing of insurance required by this Agreement shall in no way limit or diminish the liability or responsibility ofPermittee as provided under any section of the Agreement. The insurance certificate provided by Permittee must besatisfactory to the Railroad as to insurance carriers covering the risk.The parties have executed this Agreement in duplicate this 15th dav of August, 2019Montana Rail Link, Inc., a Montana corporationBy:Joe Gentri, Manager Real Estate AdministrationCITY OF BOZEMANBy:Printed Name:Title:MRL TARE MunicipalityNovember 2012Page 2 of 2232