HomeMy WebLinkAboutCity Commission Packet Materials Consent 2 Licenses and LoS Davis and Norton East Ranch7
MONTANA RAIL LINK, INC. (800) 241-5676
Real Estate Department (406) 523-1500
101 International Drive (406) 523-1462 fax
Post Office Box 16624 www.montanarail.com
Missoula, Montana
USA 59808
April 21, 2020
City of Bozeman
PO Box 1230
Bozeman, MT 59771
RE: Letter of Understanding – Train Delay Provisions for Agreement 602,268
Dear Licensee:
This letter will formalize and show acceptance of the additional terms required to grant the City of Bozeman (“Licensee”)
permission to construct, maintain, and operate the Pipeline as described in Pipeline License No. 602,268 dated September
1, 2020 (“License”).
All contracts between the Licensee and its contractor (the “Contractor”), for the construction of the pipeline facility within
Montana Rail Link. Inc. (“Licensor”) right-of-way, shall include language that specifies the Contractor is responsible to
Licensor, including its partner railroad companies, and its tenants for all damages for any unscheduled delay to a freight or
passenger train that is caused by the Contractor’s negligence, failure to comply with its requirements under this agreement,
failure to properly coordinate its work with the Licensor or any cause not attributable to the Licensor, but arising from the
contractor’s or its subcontractors’ activities that affect Licensor’s ability to fully utilize its equipment and to meet customer-
service obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of
equipment and train service employees, contractual loss of incentive pay and bonuses, and contractual penalties resulting
from train delays, caused by the Contractor, or its subcontractors’ performance of work under the project identified herein.
It is understood and agreed that this section includes any Licensor expenses for delays arising from Licensor’s work
necessitated by acts, omissions or negligence of the Contractor or its subcontractors.
For loss of use, Contractor will be billed the current freight train hour rate per train as determined from Licensor’s record.
Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
In addition to the above damages, passenger, U.S. mail trains, and certain other grain, intermodal, coal and freight trains
operate under incentive/penalty contracts between Licensor and its customer(s). Under these arrangements, if Licensor
does not meet its contract service commitment, Licensor may suffer loss of performance or incentive pay or be subject to a
penalty payment. Contractor shall be responsible for any train performance and incentive penalties or other contractual
economic losses actually incurred by Licensor which are attributable to a train delay caused by or related to this project.
The contractual relationship between Licensor and its customers is proprietary and confidential. In the event of a train delay
covered by this agreement, Licensor will share information relevant to any train delay to the maximum extent consistent
with Licensor confidentiality obligations. Damages for train delay for certain trains could be as high as $50,000.00 per
incident.
Montana Rail Link, Inc.
Joe Gentri
Manager Real Estate
Real Estate Department
Acknowledged and Accepted By:
City of Bozeman
By: Printed Name:
Title: Date:
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Fiber Optic License MRL Form 422 February 2015 Page 1 of 13
LICENSE FOR FIBER OPTIC LINE NO. 602,268
02BOZEMAN
THIS LICENSE (“License”), made as of the 1st day of September, 2020 (“Effective Date”) by and between
MONTANA RAIL LINK, INC., a Montana corporation (“Licensor”), whose mailing address is PO Box 16624, Missoula, MT
59808-6624 and physical address is 101 International Way, Missoula, MT 59808, and
City of Bozeman, (“Licensee”)
whose address is PO Box 1230
Bozeman, MT 59771
RECITALS
A. Licensor is in the railroad transportation business and leases a system of rail tracks (“Licensor’s
Track(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 limitations
provided herein.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third
parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon
the terms and conditions set forth below, to construct, maintain, and use in strict accordance with the drawings
and specifications approved by Licensor as part of Licensee’s application process (the “Drawings and
Specifications”), a fiber optic line containing a maximum of one (1) conductors, (“Fiber Optic Line”) across or
along the rail corridor of Licensor at or near the station of Bozeman, County of Gallatin, State of Montana, Mile
Post 144+0599, Survey Station 7609+19 as shown on the attached plat dated April 20, 2020, 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 lien
holders, if any, or interfere with the use of such improvements.
Licensee acknowledges that one or more other parties, including, but not limited to, various American nations,
may have, or may have claim to have, ownership rights in certain segments of certain of BNSF’s rail corridors,
and may claim that Licensee also must obtain rights from it (or them) in order to occupy, or access, the Premises,
and that, in some cases such claims may be valid. Licensee acknowledges that BNSF’s ownership interest in
many of its rail corridors is a determinable fee, a railroad right of way or a rail service easement, which shall
terminate when BNSF either: (i) ceases to use those rail corridors for railroad purposes; or (ii) uses such rail
corridors for purposes found to be inconsistent with use of the corridors for railroad purposes, and that in such
circumstances, BNSF’s right to license any such rail corridor, or rights under any license of any such rail corridor,
may be subject to termination as of the date the circumstances set forth in either (i) or (ii) above, first arise (unless
Licensee improves the quality of title to the Premises by obtaining a patent or deed from the federal government,
if appropriate, or acquiring additional property interests from third parties). Licensee also acknowledges that
BNSF’s ownership rights may terminate for other reasons, such as termination of franchise rights, and that certain
segments of BNSF’s rail corridors consist only of a trackage rights license to BNSF and enable BNSF to provide
rail service, or shared ownership with other railroads, and that BNSF may not have rights to include those
segments in any License to Licensee. Licensee further acknowledges that Licensee’s rights to enter into a
License on any BNSF rail corridor, and its rights under any License of any BNSF rail corridor, are subject and
subordinate to all outstanding and/or future rights and encumbrances on BNSF’s rail corridor (including liens,
security interests, and mortgages), and any and all easements, other leases, licenses, permits or agreements
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Fiber Optic License MRL Form 422 February 2015 Page 2 of 13
which now or in the future relate to BNSF’s rail corridor, except BNSF in the future shall not place any
encumbrance upon any BNSF rail corridor then subject to a License to Licensee or enter into any easement,
lease, license, permit or agreement, which would materially disrupt Licensee’s ability to exercise rights under this
License or to utilize the Fiber Optic Facilities covered by a License and Licensee acknowledges that its ability to
exercise rights under this License or to utilize such Fiber Optic Facilities would not be materially disrupted if
either: (a) Licensee is relocated to another location within the applicable BNSF rail corridor in accordance with the
terms of the License, or could be located elsewhere in the rail corridor; or (b) BNSF preserves fiber optic rights
and makes those rights available to Licensee at no charge payable by Licensee to the holder of the land interest
where such rights are located and changes following any conveyance by BNSF of its ownership interest in such a
parcel have not caused a significant physical limitation on constructing Fiber Optic Facilities through such parcel
(and Licensee agrees that any cost of enforcing such rights shall be the responsibility of Licensee). Licensor and
BNSF therefore convey to Licensee no more right, title and interest in any rail corridor than Licensor and BNSF
hold in such rail corridor at the time of conveyance, and Licensee hereby releases Licensor and BNSF from any
and all liability, cost, loss, damage or expense in connection with any claims that Licensor and BNSF lacked
sufficient legal title to convey the rights described herein.
3. Licensee shall use the Premises solely for construction and maintenance and use of a Fiber Optic Line. Licensee
shall not use the Premises for any other purpose. Licensee shall not use or store hazardous substances, as
defined by the Comprehensive Environmental Response, Compensation, and Liability Act, as amended
(“CERCLA”) or petroleum or oil as defined by applicable Environmental Laws on the Premises.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the
abandonment by Licensor or BNSF of the affected rail corridor, Licensor and BNSF shall not be liable to refund
Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance,
or for any damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the Fiber Optic Line or entering the Premises on behalf of
Licensee shall be deemed servants and agents of Licensee for purposes of this License.
6. This License is subject and subordinate to the Master Lease. BNSF hereby agrees by its signature below to
recognize Licensee’s rights under this License, if, prior to the termination of this License, or to the expiration of the
term of this License, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and
repossesses the Premises after a default by Licensor under the Master Lease. If BNSF succeeds to the rights of
Licensor as the “Licensor” under this License, Licensee agrees that (i) BNSF shall not be liable or responsible for
any breach of or default under this License arising prior to the date that BNSF succeeds to the rights of Licensee
as the “Licensor” under this License; (ii) BNSF shall not be required to cure or correct any breach or default under
this License arising prior to the date that BNSF succeeds to the rights of Licensor as the “Licensor” under this
License; and (iii) no breach of or default under this License arising prior to the date that BNSF succeeds to the
rights of Licensor as the “Licensor” under this License shall excuse, delay, release or relieve Licensee from the
payment and performance of all of Licensee’s duties and obligations under this License. The preceding sentence
is not intended and shall not be construed to affect any rights or remedies of Licensee against Licensor arising or
resulting from a breach of or default under this License by Licensor prior to the date that BNSF succeeds to the
rights 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 timely
tender payment and performance of Licensee’s duties and obligations under this License to BNSF as if BNSF
were named as “Licensor” in this License.
COMPENSATION
7. (a) Licensee shall pay Licensor, annually in advance for this License the sum of Four Hundred Twenty Five
Dollars ($425.00) for the first year and One Hundred Dollars ($100.00) each year thereafter as
compensation for the use of the Premises.
(b) Licensor reserves the right to review the rental rate of this License. Licensor may make any necessary
adjustments to the rate based on Licensor’s standard rate review policies in effect at the time of the
review. Licensor will provide Licensee written notice of any adjustment, within thirty (30) days of the
review. Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advance
does 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 costs
and expenses incurred by Licensor in connection with Licensee’s use of the Premises or the presence,
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Fiber Optic License MRL Form 422 February 2015 Page 3 of 13
construction, maintenance, and use of the Fiber Optic Line, including but not limited to the furnishing of
Licensor’s Flagman and any vehicle rental costs incurred. The cost of flagger services provided by
Licensor, when deemed necessary by the Licensor’s representative, will be borne by the Licensee. The
flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the
actual costs of flagging pursuant to this paragraph.
(d) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay
any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest
on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an
annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last
published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%),
and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in
the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the
maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants, restrictions, or decisions of any court of competent jurisdiction (“Legal Requirements”) relating
to the construction, maintenance, and use of the Fiber Optic Line and the use of the Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor’s
applicable safety rules and regulations.
DEFINITION OF COST AND EXPENSE
9. For the purpose of this License, “cost” or “costs” “expense” or “expenses” includes, but is not limited to, actual
labor and material costs including all assignable additives, and material and supply costs at current value where
used.
RIGHT OF LICENSOR TO USE
10. Licensor and BNSF except and reserve the right, to be exercised by Licensor and BNSF and any other parties
who may obtain written permission or authority from Licensor or BNSF:
(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines
and appurtenances and other facilities or structures of like character upon, over, under or across the Premises;
(b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or
structures upon, over, under or across the Premises; or
(c) to use the Premises in any manner as the Licensor or BNSF in each party’s respective sole discretion deems
appropriate, provided Licensor and BNSF use all commercially reasonable efforts to avoid material interference
with the use of the Premises by Licensee for the purpose specified in Section 3 above.
LICENSEE’S OPERATIONS
11. (a) Licensee shall notify Licensor’s Roadmaster at the number shown on Exhibit “A” at least five (5) business
days prior to installation of the Fiber Optic Line and prior to entering the Premises for any subsequent
maintenance thereon.
(b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one
side of Licensor’s tracks to the other.
12. Licensee shall, at its sole cost and expense, construct and at all times maintain the Fiber Optic Line in
accordance with the National Electric Code. The use of a rail mounted cable plow to install Licensee’s Fiber Optic
Line is strictly prohibited unless advance written approval is granted by Licensor. Unless otherwise specified, all
underground line shall be installed at least 48 inches below grade level.
13. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or
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Fiber Optic License MRL Form 422 February 2015 Page 4 of 13
other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless
Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense,
perform all activities on and about the Premises in such a manner as not at any time to be a source of
danger to or interference with the existence or use of present or future tracks, roadbed or property of
Licensor and BNSF, or the safe operation and activities of Licensor and BNSF. If ordered to cease using
the Premises at any time by Licensor’s personnel due to any hazardous condition, Licensee shall
immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor and
BNSF have no duty or obligation to monitor Licensee’s use of the Premises to determine the safe nature
thereof, it being solely Licensee’s responsibility to ensure that Licensee’s use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
(b) Licensee shall, at its sole cost and expense and subject to the supervision of Licensor’s Roadmaster,
locate, construct and maintain Fiber Optic Line in such a manner and of such material that it will not at
any time be a source of danger to or interference with the existence or use of present or future tracks,
roadbed or property of Licensor or BNSF, or the safe operation and activities of the railroad. Further, the
Fiber Optic Line shall be constructed, installed and maintained in conformity with the plans and
specifications shown on the print attached hereto as Exhibit A and made a part hereof (which, if present,
are to be deemed part of the Drawings and Specifications). Licensor may direct one of its field engineers
to observe or inspect the construction and/or maintenance of the Fiber Optic Line at any time for
compliance with the Drawings and Specifications. If ordered at any time to halt construction or
maintenance of the Fiber Optic Line by Licensor’s personnel due to non-compliance with the same or any
other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of
Licensor, the parties agree that Licensor and BNSF have no duty or obligation to observe or inspect, or to
halt work on, the Fiber Optic Line, it being solely Licensee’s responsibility to ensure that the Fiber Optic
Line is constructed in strict accordance with the Drawings and Specifications and in a safe and
workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor
to exercise any right granted by this Section will alter in any way the liability allocation provided by this
License. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations
under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the
safe operation of the railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill
shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to
perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage
occasioned thereby.
14. Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles and will
at all times keep the space around such poles free of such material, and if removal of such combustible material
shall not be attended to with fifteen (15) days after having been requested by Licensor to do so, Licensor shall
have the right itself to perform the work and Licensee hereby agrees to reimburse Licensor for the expense so
incurred.
15. During the construction and any subsequent maintenance performed on the Fiber Optic Line, Licensee shall
perform such work in a manner to preclude damage to the property of Licensor and BNSF, and preclude
interference with the operation of the railroad. The construction of the Fiber Optic Line shall be completed within
one (1) year of the Effective Date. Upon completion of the construction of the Fiber Optic Line and after
performing any subsequent maintenance thereon, Licensee shall, at Licensee’s own cost and expense, restore
the Premises to their former state as of the Effective Date of this License.
16. If at any time during the term of this License, Licensor or BNSF shall desire the use of the rail corridor in such a
manner as would, in Licensor’s or BNSF’s reasonable opinion, be interfered with by the Fiber Optic Line,
Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor or BNSF to
such effect, make such changes in the Fiber Optic Line as in the sole discretion of Licensor or BNSF, as
applicable, as may be necessary to avoid interference with the proposed use of the rail corridor, including, without
limitation, the relocation of the existing or the construction of a new Fiber Optic Line.
17. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall
explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the
surface of the ground to determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection
equipment or other generally accepted industry practice (e.g., consulting with the Underground Services
Association) to determine the existence or location of pipelines and other subsurface structures prior to
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Fiber Optic License MRL Form 422 February 2015 Page 5 of 13
drilling or excavating with mechanized equipment. Upon Licensee’s written request, which shall be made
thirty (30) business days in advance of Licensee’s requested construction of the Fiber Optic Line,
Licensor will provide Licensee any information that Licensor has in the possession of its Engineering
Department concerning the existence and approximate location of Licensor’s underground utilities and
pipelines at or near the vicinity of the proposed Fiber Optic Line. Prior to conducting any such boring
work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness
of information relating to subsurface conditions and Licensee’s operations will be subject at all times to
the liability provisions herein.
(b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation will need to be performed by the Licensee and reviewed by Licensor and BNSF prior to
construction. This study is to determine if granular material is present, and to prevent subsidence during
the installation process. If the investigation determines in Licensor’s and BNSF’s reasonable opinion that
granular material is present, Licensor and BNSF may select a new location for Licensee’s use, or may
require Licensee to furnish for Licensor’s and BNSF’s review and approval, in its sole discretion a
remedial plan to deal with the granular material. Once Licensor and BNSF have approved any such
remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in
accordance with all terms thereof and hereof.
18. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all
times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work,
all holes or borings constructed on the Premises by Licensee shall be:
(a) filled in to surrounding ground level with compacted bentonite grout; or
(b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor’s property for more than ten (10) days, but must be properly disposed
of by Licensee in accordance with applicable Legal Requirements.
19. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) remove all of its equipment from the Premises;
(b) remove the Fiber Optic Line and all appurtenances thereto at Licensor’s and BNSF’s sole discretion;
(c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee’s
use of the Premises;
(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.
20. Licensee’s on-site supervision shall retain/maintain a fully-executed copy of this License at all times while on the
Premises.
LIABILITY
21. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS
CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR, BNSF,
BURLINGTON NORTHERN SANTA FE LLC AND EACH OF THE AFOREMENTIONED PARTIES’
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
“INDEMNITEES”) FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES,
PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS’
FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL
OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY “LIABILITIES”) OF ANY
NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
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Fiber Optic License MRL Form 422 February 2015 Page 6 of 13
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
(iii) LICENSEE’S OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED BY LICENSEE, OR
(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE’S OFFICERS, AGENTS, INVITEES,
EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED
BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY NEGLIGENCE OF ANY
INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE’S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES (1) TO THE EXTENT
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN
INDEMNITEE OR (2) WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE
LIMITATION IN SECTION 21(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO
NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE
STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT AN INDEMNITEE IS AN “OWNER”,
“OPERATOR”, “ARRANGER”, OR “TRANSPORTER” WITH RESPECT TO THE FIBER OPTIC LINE
FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL
INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH
CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER
AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT
IN ANY WAY SUBJECT LICENSOR OR BNSF TO CLAIMS THAT LICENSOR OR BNSF IS OTHER
THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY
AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND
ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR OR BNSF BE RESPONSIBLE FOR THE
ENVIRONMENTAL CONDITION OF THE PREMISES.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL
CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES
AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED
BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS’ LIABILITY ACT
(“FELA”) WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR
OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS
BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER
INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d) Upon written notice from any Indemnitee, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against such Indemnitee by any entity, relating to any matter covered by this License
for which Licensee has an obligation to assume liability for and/or save and hold harmless such
Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys’
fees, investigators’ fees, litigation and appeal expenses, settlement payments, and amounts paid in
satisfaction of judgments.
PERSONAL PROPERTY WAIVER
22. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED
MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE
WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE
OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
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Fiber Optic License MRL Form 422 February 2015 Page 7 of 13
INSURANCE
23. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the following
insurance coverage:
A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a
combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least
$4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
¨ Bodily Injury and Property Damage.
¨ Personal Injury and Advertising Injury.
¨ Fire legal liability.
¨ Products and completed operations.
This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:
¨ The employee and workers compensation related exclusions in the above policy shall not apply with
respect to claims related to railroad employees.
¨ The definition of insured contract shall be amended to remove any exclusion or other limitation for
any work being done within 50 feet of railroad property.
¨ Any exclusions related to the explosion, collapse and underground hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
¨ Bodily injury and property damage.
¨ Any and all vehicles owned, used or hired.
C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but
not limited to:
¨ Licensee’s statutory liability under the worker’s compensation laws of the state(s) in which the work is
to be performed. If optional under State law, the insurance must cover all employees anyway.
¨ Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability Insurance. This insurance shall name only the Licensor and BNSF as the
Insureds with separate coverage limits for Licensor and BNSF, each in an amount not less than
$2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained under this policy
shall only be effective during the initial installation and/or construction of the Fiber Optic Line. THE
CONSTRUCTION OF THE FIBER OPTIC LINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF
THE EFFECTIVE DATE. If further maintenance of the Fiber Optic Line is needed at a later date, an
additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a
standard ISO form CG 00 35 12 04 and include the following:
¨ Endorsed to include separate limits for Licensor and BNSF as described above.
¨ 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.
¨ Endorsed to remove any exclusion for punitive damages.
¨ No other endorsements restricting coverage may be added.
¨ The original policy must be provided to the Licensor prior to performing any work or services under
this License.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive
damages and certificates of insurance shall reflect that no exclusion exists.
Licensee agrees to waive its right of recovery against Licensor and BNSF for all claims and suits against Licensor
and BNSF. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor
15
Fiber Optic License MRL Form 422 February 2015 Page 8 of 13
and 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 Licensor
and 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 shall
be primary and non-contributing with respect to any insurance carried by any Indemnitee. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall
include a severability of interest endorsement and shall name Licensor and BNSF as additional insureds with
respect to work performed under this License. Severability of interest and naming 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 by
Licensor and BNSF, any deductible, self-insured retention or other financial responsibility for claims shall be
covered directly by Licensee in lieu of insurance. Any and all Licensor and BNSF liabilities that would otherwise,
in accordance with the provisions of this License, be covered by Licensee’s insurance will be covered as if
Licensee elected not to include a 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 insurance
including an original signature of the authorized representative evidencing the required coverage, endorsements,
and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such
policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution or
material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a
claim or lawsuit involving Licensor or BNSF arising out of this License, Licensee will make available any required
policy covering such claim or lawsuit.
Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current
Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provided.
Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent(s)/broker(s),
who have been instructed by Licensee to procure the insurance coverage required by this License. Allocated Loss
Expense shall be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor and BNSF may reasonably modify the required
insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting
practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor
shall provide and maintain insurance coverages as set forth herein, naming Licensor and BNSF as additional
insureds, and shall require that the subcontractor shall release, defend and indemnify Licensor and BNSF to the
same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify
Licensor and BNSF herein.
Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this
License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a
waiver of Licensee’s obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed
to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions
of this License. Damages recoverable by Licensor and BNSF shall not be limited by the amount of the required
insurance 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.
16
Fiber Optic License MRL Form 422 February 2015 Page 9 of 13
ENVIRONMENTAL
24. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use
of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended
(RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA
(collectively referred to as the “Environmental Laws”). Licensee shall not maintain a treatment, storage,
transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the
Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by
Environmental Laws on or about the Premises.
(b) Licensee shall give Licensor immediate notice to Licensor’s Manager of Environmental Projects at (406)
523-1415 and to BNSF’s Resource Operations Center at (800) 832-5452 of any release of hazardous
substances 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 Environmental
Leases at (785) 435-2386 for any violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with respect to Licensee’s use of
the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the
Premises. Licensee also shall give Licensor’s Manager of Environmental Projects, Licensor’s Real Estate
Department, promptly, in writing, and BNSF’s Manager Environmental Leases immediate notice of all
measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such
release or violation and shall provide to Lessor’s Manager of Environmental Projects, Licensor’s Real
Estate Department, and BNSF’s Manager Environmental Leases copies of all reports and/or data
regarding 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 of
Environmental Laws arising in any way with respect to the Fiber Optic Line which occurred or may occur
during the 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
violation affecting the Premises or Licensor’s right-of-way.
(d) Licensee shall promptly report to Licensor and BNSF in writing any conditions or activities upon the
Premises known to Licensee which create a risk of harm to persons, property or the environment and
shall take whatever action is necessary to prevent injury to persons or property arising out of such
conditions or activities; provided, however, that Licensee’s reporting to Licensor and BNSF shall not
relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licensor’s and/or BNSF’s request for information regarding said conditions or activities.
ALTERATIONS
25. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any
buildings or other structures adjacent to the Premises without Licensor’s and BNSF’s prior written consent.
NO WARRANTIES
26. LICENSOR’S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE
FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN
THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF
LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
27. LICENSOR DOES NOT WARRANT ITS LICENSE INTEREST IN OR BNSF’S TITLE TO THE PREMISES NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
17
Fiber Optic License MRL Form 422 February 2015 Page 10 of 13
DEFAULT
28. (a) If default shall be made in any of the covenants or agreements of Licensee contained in this document, or
in case of any assignment or transfer of this License by operation of law, Licensor or BNSF may, at their
option, terminate this License by serving five (5) days’ notice in writing upon Licensee. Any waiver by
Licensor or BNSF of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor’s or
BNSF’s ability to enforce any Section of this License. The remedy set forth in this Section 28 shall be in
addition to, and not in limitation of, any other remedies that Licensor or BNSF may have at law or in
equity.
(b) In the event of a default by Licensee, Licensor shall be allowed to recover one hundred percent (100%) of
its costs or outstanding amounts owed, including any amount received by a collection agency in
connection with pursuing any unpaid portion of rent or other amounts due under this License on
Licensor’s behalf.
LIENS AND CHARGES
29. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs
done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any
notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall
not relieve Licensee of any obligation or liability under this Section 29 or any other Section of this License.
Licensee shall pay when due any taxes, assessments or other charges (collectively, “Taxes”) levied or assessed
upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed
against Licensor or the Premises that are attributable to the Improvements.
TERMINATION
30. This License may be terminated by Licensor or BNSF, at any time, by serving thirty (30) days’ written notice of
termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor’s Mutual
Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and
all rights of Licensee shall absolutely cease.
31. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and
obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall
not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events
happening prior to the date of termination.
ASSIGNMENT
32. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent
assignee, shall assign or transfer this License or any interest herein, without the prior written consent and
approval of Licensor and BNSF, which may be withheld in Licensor’s and BNSF’s sole discretion.
NOTICES
33. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same
shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified,
return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to such other address as the
party to be notified may designate by giving the other party no less than thirty (30) days’ advance written notice of
such change in address.
If to Licensor, at the address shown above.
If to Licensee, at the address shown above.
18
Fiber Optic License MRL Form 422 February 2015 Page 11 of 13
If to BNSF: BNSF Railway Company
Jones Lange LaSalle Brokerage, Inc., Its Attorney in Fact
4200 Buckingham Road, Suite 110
Ft. Worth, TX 76155
SURVIVAL
34. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Fiber Optic Line and improvements are removed and the
Premises are restored to its condition as of the Effective Date.
RECORDATION
35. It is understood and agreed that this License shall not be placed on public record.
APPLICABLE LAW
36. All questions concerning the interpretation or application of provisions of this License shall be decided according
to the substantive laws of the State of Montana without regard to conflicts of law provisions.
SEVERABILITY
37. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be
invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
INTEGRATION
38. This License is the full and complete agreement between Licensor and Licensee with respect to all matters
relating to Licensee’s use of the Premises, and supersedes any and all other agreements between the parties
hereto relating to Licensee’s use of the Premises as described herein. However, nothing herein is intended to
terminate any surviving obligation of Licensee or Licensee’s obligation to defend and hold Licensor or BNSF
harmless in any prior written agreement between the parties.
MISCELLANEOUS
39. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein
contained shall be the joint and several covenants and agreements of such parties.
40. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of
Licensor to enforce that provision for any subsequent breach thereof.
[Signature page follows]
19
Fiber Optic License MRL Form 422 February 2015 Page 12 of 13
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day
and year first above written.
LICENSOR
Montana Rail Link, Inc., a Montana corporation
By:
Joe Gentri, Manager Real Estate
LICENSEE
City of Bozeman
By:
Printed Name:
Title:
BNSF’s execution in the space provided below evidences BNSF’s consent to this License. This License is not valid and
shall have no force and effect without BNSF’s signature.
BNSF
BNSF Railway Company
Jones Lange LaSalle Brokerage, Inc., Its Attorney in Fact
4200 Buckingham Road, Suite 110
Ft. Worth, TX 76155
By: _________________________________________
Shane Krueger, Vice President
20
200'HYDMAIN TRACK
Highway Easement
Highway Easement
RAILROAD RIGHT OF WAY
200'
76°
GALLATIN
CITY COUNTY STATE
APR. 20, 2020
DATE
SECOND
SUBDIVISION
MP 144 Bozeman Wireline ...
FILE
1" = 100'
SCALE
PLAT SHOWING FIBER OPTIC WIRELINE CROSSING
FOR: CITY OF BOZEMAN
ENGINEERING DEPARTMENT
BOZEMAN MONTANA
Verify scale!
on paper
one-inch (1")
This should be
U.S. SPRINT AT 1-800-521-0579.
CROSS IT MUST BE OBTAINED FROM
OF THIS CABLE AND AUTHORITY TO
RIGHT OF WAY IN THIS AREA. LOCATION
OPTIC CABLE ON MONTANA RAIL LINK
HAS INSTALLED AN UNDERGROUND FIBER
U.S. SPRINT COMMUNICATIONS COMPANY
UTILITY OCCUPATIONS.
CONFLICTS WITH THE EXISTING
RESPONSIBILITY TO RESOLVE ANY
AREA. IT IS THE PERMITTEE'S
THE RAILROAD RIGHT OF WAY IN THIS
HAVE UNDERGROUND FACILITIES WITHIN
NUMEROUS OTHER UTILITY COMPANIES
RIGHT OF WAY
THE RAILROAD
OUTSIDE
CONTINUES
WIRELINE
THE RAILROAD RIGHT OF WAY
WIRELINE CONTINUES OUTSIDE
RAILROAD RIGHT OF WAY
Highway Easement
100'
MP 144+0647'
STA 7609+67
MP 144+0599'
STA 7609+19
DEPICTED HEREON.
IN LENGTH, AS
CROSSING, 412 LF
OPTIC WIRELINE
A CASED FIBER
: DESCRIPTION
as depicted hereon
fiber carrier containing one fiber line, ±412 linear feet,
containing a 3-inch dia. casing pipe with a 7-way
Wireline crossing: 84-inch dia. steel casing pipe
sewer mains (Not a part)
Existing permitted water and 1447603+20EXHIBIT "A"
75'
Required.
Flagger At Permittee's Expense May Be
Railroad Right-Of-Way. A Railroad
Working Days Before Starting Work On
(406) 570-5993, At Least Five (5)
Notify Signal Supervisor Nathan Kluck,
Expense May Be Required.
Railroad Flagger At Permittee's
On Railroad Right-Of-Way. A
Working Days Before Starting Work
(406) 223-3237, At Least Five (5)
Notify Roadmaster Chris Seymour
JCT.
TO JONES
TO SANDPOINT JCT.
APPROVAL TO BE THERE
IS PRESENT AND HAS GIVEN
QUALIFIED RAILROAD FLAGGER
FEET OF TRACKS UNLESS A
NO PERSONNEL WITHIN 25
VOLTAGE:
NUMBER OF OTHER WIRES:
TYPE OF WIRELINE:
PIPE MATERIAL:
TYPE OF JOINT:
SPECIFICATION & GRADE:
WALL THICKNESS:
INSIDE DIAMETER:
COATING:
METHOD OF INSTALLATION:
BURY: GND TO TOP OF CASING:
BURY: TRACK DITCH TO TOP OF CASING:
BURY: BASE OF RAIL TO TOP OF CASING:
LENGTH ON RIGHT OF WAY:
PHASE:CYCLES:
ANGLE WITH TRACK AT XING POINT:
TOTAL LENGTH OF WIRE ON RIGHT OF WAY:
FIBER OPTIC
412'
STEEL
84" NOM.
> 0.983"
GRADE 36
N/A
AWWA C222
412'
MICROTUNNEL
15.2'
12' MIN.
12' MIN.
SIZE AND TYPE OF WIRE OR CABLE:
NUMBER OF CONDUCTORS:
WIRELINE DATA
CASING DATA
UNDERGROUND WIRELINE
WIRE LINE DATA FOR
N/A N/A N/A
FIBER OPTIC
1
0
21
MONTANA RAIL LINK, INC. (800) 241-5676
Real Estate Department (406) 523-1500
101 International Drive (406) 523-1462 fax
Post Office Box 16624 www.montanarail.com
Missoula, Montana
USA 59808
April 21, 2020
City of Bozeman
PO Box 1230
Bozeman, MT 59771
RE: Letter of Understanding – Train Delay Provisions for Agreement 602,258
Dear Licensee:
This letter will formalize and show acceptance of the additional terms required to grant the City of Bozeman (“Licensee”)
permission to construct, maintain, and operate the Pipeline as described in Pipeline License No. 602,258 dated September
1, 2020 (“License”).
All contracts between the Licensee and its contractor (the “Contractor”), for the construction of the pipeline facility within
Montana Rail Link. Inc. (“Licensor”) right-of-way, shall include language that specifies the Contractor is responsible to
Licensor, including its partner railroad companies, and its tenants for all damages for any unscheduled delay to a freight or
passenger train that is caused by the Contractor’s negligence, failure to comply with its requirements under this agreement,
failure to properly coordinate its work with the Licensor or any cause not attributable to the Licensor, but arising from the
contractor’s or its subcontractors’ activities that affect Licensor’s ability to fully utilize its equipment and to meet customer-
service obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of
equipment and train service employees, contractual loss of incentive pay and bonuses, and contractual penalties resulting
from train delays, caused by the Contractor, or its subcontractors’ performance of work under the project identified herein.
It is understood and agreed that this section includes any Licensor expenses for delays arising from Licensor’s work
necessitated by acts, omissions or negligence of the Contractor or its subcontractors.
For loss of use, Contractor will be billed the current freight train hour rate per train as determined from Licensor’s record.
Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
In addition to the above damages, passenger, U.S. mail trains, and certain other grain, intermodal, coal and freight trains
operate under incentive/penalty contracts between Licensor and its customer(s). Under these arrangements, if Licensor
does not meet its contract service commitment, Licensor may suffer loss of performance or incentive pay or be subject to a
penalty payment. Contractor shall be responsible for any train performance and incentive penalties or other contractual
economic losses actually incurred by Licensor which are attributable to a train delay caused by or related to this project.
The contractual relationship between Licensor and its customers is proprietary and confidential. In the event of a train delay
covered by this agreement, Licensor will share information relevant to any train delay to the maximum extent consistent
with Licensor confidentiality obligations. Damages for train delay for certain trains could be as high as $50,000.00 per
incident.
Montana Rail Link, Inc.
Joe Gentri
Manager Real Estate
Real Estate Department
Acknowledged and Accepted By:
City of Bozeman
By: Printed Name:
Title: Date:
22
Pipeline License MRL Form 424 20140801 Page 1 of 12
PIPELINE LICENSE NO. 602,258
02BOZEMAN
THIS PIPELINE LICENSE ("License") is made to be effective September 1, 2020 (the "Effective Date") by
and between MONTANA RAIL LINK, INC., a Montana corporation ("Licensor") whose mailing address is PO Box
16624, Missoula, MT 59808-6624 and physical address is 101 International Way, Missoula, MT 59808, and
City of Bozeman, (“Licensee”),
whose address is
PO Box 1230
Bozeman, MT, 59771
RECITALS
A. Licensor is in the railroad transportation business and leases a system of rail tracks (“Licensor’s
Track(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
limitations provided herein.
AGREEMENTS
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and
estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict
accordance with the drawings and specifications approved by Licensor as part of Licensee's application
process (the "Drawings and Specifications"), two (2) pipeline(s), sixteen point sixty seven and twenty
nine point twenty nine inches (16.67 and 29.29”) in diameter inside a(n) seventy two inch (72") steel casing
(collectively, the "Pipeline"), across or along Licensor's rail corridor at or near the station of Bozeman, County
of Gallatin, State of Montana, Mile Post 144+0599, Survey Station 7609+19, as shown on the attached plat,
dated April 20, 2020, attached hereto as Exhibit "A" and incorporated herein by reference (the "Premises").
2. Existing Improvements. Licensee shall not disturb any improvements of Licensor or BNSF or Licensor's or
BNSF’s existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use,
repair, maintenance or replacement of such improvements.
3. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the
Pipeline in accordance with the Drawings and Specifications. The Pipeline shall carry potable water and
sanitary sewage, and Licensee shall not use the Pipeline to carry any other material or use the Premises for
any other purpose.
4. Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises or
permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without
Licensor's and BNSF’s prior written consent.
23
Pipeline License MRL Form 424 20140801 Page 2 of 12
COMPENSATION
5. License Fee.
5.1 Licensee shall pay Licensor, annually in advance for this License the sum of Five Hundred and Twenty
Five Dollars ($525.00) for the first year and Two Hundred ($200.00) each year thereafter as
compensation for the use of the Premises.
5.2 Licensor reserves the right to review the rental rate of this License. Licensor may make any necessary
adjustments to the rate based on Licensor’s standard rate review policies in effect at the time of the
review. Licensor will provide Licensee written notice of any adjustment, within thirty (30) days of the
review. Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advance
does not imply nor will it serve to convert the License to a definite term.
5.3 Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs
and expenses incurred by Licensor in connection with Licensee’s use of the Premises or the presence,
construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor’s
Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Licensor,
when deemed necessary by Licensor’s representative, will be borne by the Licensee. The flagging
rate in effect at the time of performance by the Contractor hereunder will be used to calculate the
actual costs of flagging pursuant to this paragraph.
6. Costs and Expenses.
6.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but is not
limited to, actual labor and material costs including all assignable additives, and material and supply
costs at current value where used.
6.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 7 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Pipeline, including but not limited to the furnishing of Licensor's
flaggers and any vehicle rental costs incurred. Licensee shall bear the cost of flagger services and
other safety measures provided by Licensor, when deemed necessary by Licensor's representative.
Flagging costs shall include, but not be limited to, the following: pay for at least an eight (8) hour basic
day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation
allowance; paid holidays (as applicable); railway and unemployment insurance; public liability and
property damage insurance; health and welfare benefits; transportation; meals; lodging and
supervision. Negotiations for railway labor or collective bargaining agreements and rate changes
authorized by appropriate Federal authorities may increase flagging rates. Flagging rates in effect at
the time of performance by the flaggers will be used to calculate the flagging costs pursuant to this
Section 6.
7. Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee fails to pay any
monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such
unpaid sum from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published
in The Wall Street Journal in the preceding December plus two and one-half percent (2-1/2%), or (ii) the
maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
8. Reserved Rights of Use. Licensor and BNSF excepts and reserves the right, to be exercised by Licensor and
BNSF and any other parties who may obtain written permission or authority from Licensor:
8.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipe/lines/cables and appurtenances (other than the Pipeline) and other facilities or structures of like
character upon, over, under or across the Premises existing as of the Effective Date;
24
Pipeline License MRL Form 424 20140801 Page 3 of 12
8.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional
facilities, structures and related appurtenances upon, over, under or across the Premises; or
8.3 to use the Premises in any manner as Licensor or BNSF in each party’s respective sole discretion
deems appropriate, provided Licensor and BNSF use all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose specified in Section 3
above.
9. Right to Require Relocation. If at any time during the term of this License, Licensor or BNSF shall desire the
use of the rail corridor in such a manner as would, in Licensor's or BNSF’s reasonable opinion, be interfered
with by the Pipeline, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice
from Licensor or BNSF to such effect, make such changes in the Pipeline as in the sole discretion of Licensor
or BNSF may be necessary to avoid interference with the proposed use of the rail corridor, including, without
limitation, the relocation of the Pipeline, or the construction of a new pipeline to replace the Pipeline.
Notwithstanding the foregoing, Licensee agrees to make all emergency changes and minor adjustments, as
determined by Licensor or BNSF in their sole discretion, to the Pipeline promptly upon Licensor or BNSF
request.
LICENSEE'S OPERATIONS
10. Construction and Maintenance of the Pipeline.
10.1 Licensee shall notify Licensor’s Roadmaster at the number shown on Exhibit “A” at least ten (10)
business days prior to installation of the Pipeline and prior to entering the Premises for any subsequent
maintenance thereon. In the event of emergency, Licensee shall notify either Licensor’s Manager of
Train Operations or Chief Dispatcher of Licensee's entry onto the Premises at 1(800)498-4838 as soon
as practicable and shall promptly thereafter follow up with written notice of such entry.
10.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times
while on the Premises.
10.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's
tracks to the other.
10.4 Any contractors or subcontractors performing work on the Pipeline or entering the Premises on behalf
of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
10.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other
activity using mechanized equipment and/or machinery, or place or store any mechanized equipment,
tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the
Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole
cost and expense, perform all activities on and about the Premises in such a manner as not at any
time to endanger or interfere with (i) the existence or use of present or future tracks, roadbeds, or
property of Licensor and BNSF, (ii) the safe operation and activities of Licensor, BNSF, or existing
third parties, or (iii) the rights or interests of third parties. If ordered to cease using the Premises at any
time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor and BNSF have no
duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it
being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither
the exercise nor the failure by Licensor or BNSF to exercise any rights granted in this Section will alter
the liability allocation provided by this License.
10.6 Licensee shall, at its sole cost and expense, construct and maintain the Pipeline in such a manner and
of such material that the Pipeline will not at any time endanger or interfere with (i) the existence or use
of present or future tracks, roadbeds, or property of Licensor or BNSF, (ii) the safe operation and
activities of Licensor, BNSF, or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Pipeline shall be completed within one (1) year of the Effective Date, and any
subsequent maintenance shall be completed within one (1) year of initiation. Within fifteen (15) days
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Pipeline License MRL Form 424 20140801 Page 4 of 12
after completion of the construction of the Pipeline or the performance of any subsequent maintenance
thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to substantially
their state as of the Effective Date, unless otherwise approved in advance by Licensor in writing. On
or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
23 hereof.
10.7 Licensor may direct one or more of its field engineers to observe or inspect the construction and/or
maintenance of the Pipeline at any time for compliance with the Drawings and Specifications and Legal
Requirements (defined below). If ordered at any time to halt construction or maintenance of the
Pipeline by Licensor's personnel due to non-compliance with the Drawings and Specifications or any
other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of
Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work
on, the Pipeline, it being solely Licensee's responsibility to ensure that the Pipeline is constructed and
maintained in strict accordance with the Drawings and Specifications and in a safe and workmanlike
manner in compliance with all terms hereof. Neither the exercise of, nor the failure by Licensor to
exercise, any right granted by this Section will alter in any way the liability allocation provided by this
License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its
obligations under this Section 10, Licensor may, at its option and at Licensee's sole expense, arrange
for the performance of such work as it deems necessary for the safety of its operations and activities.
Licensee shall promptly reimburse Licensor for all costs and expenses of such work, pursuant to the
terms of Section 6. Licensor's failure to perform any obligations of Licensee shall not alter the liability
allocation hereunder.
11. Boring and Excavation.
11.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at
least three (3) feet below the surface of the ground to determine whether pipelines or other structures
exist below the surface, provided, however, that in lieu of the foregoing, Licensee shall have the right
to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with
the Underground Services Association) to determine the existence or location of pipelines and other
subsurface structures prior to drilling or excavating with mechanized equipment. Licensee may request
information from Licensor concerning the existence and approximate location of Licensor's
underground lines, utilities, and pipelines at or near the vicinity of the proposed Pipeline by contacting
Licensor in writing at least thirty (30) business days prior to installation of the Pipeline. Upon receiving
Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its
possession regarding any existing underground lines, utilities, and pipelines at or near the vicinity of
the proposed Pipeline and, if applicable, identify the location of such lines on the Premises pursuant
to Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of
information relating to subsurface conditions of the Premises and Licensee's operations will be subject
at all times to the liability provisions herein.
11.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a
soil investigation must be performed by Licensee and reviewed by Licensor and BNSF prior to
construction. This study is to determine if granular material is present, and to prevent subsidence
during the installation process. If the investigation determines in Licensor's or BNSF’s reasonable
opinion that granular material is present, Licensor or BNSF may select a new location for Licensee's
use, or may require Licensee to furnish for Licensor's and BNSF’s review and approval, in its sole
discretion, a remedial plan to deal with the granular material. Once Licensor and BNSF have approved
any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry out the
approved plan in accordance with all terms thereof and hereof.
11.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and
secured at all times when Licensee is not working in the actual vicinity thereof. Following completion
of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be:
11.3.1 filled in to surrounding ground level with compacted bentonite grout; or
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Pipeline License MRL Form 424 20140801 Page 5 of 12
11.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No
excavated materials may remain on Licensor's property for more than ten (10) days, but must
be properly disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
12. Liability and Indemnification.
12.1 For purposes of this License: (a) "Indemnitees" means Licensor, BNSF, Burlington Northern Santa
Fe LLC, and their affiliated companies, partners, successors, assigns, legal representatives, officers,
directors, shareholders, employees, and agents; (b) "Liabilities" means all claims, liabilities, fines,
penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and expenses
(including, without limitation, court costs, reasonable attorneys' fees, costs of investigation, removal
and remediation, and governmental oversight costs) environmental or otherwise; and (c) "Licensee
Parties" means Licensee or Licensee's officers, agents, invitees, licensees, employees, or
contractors, or any party directly or indirectly employed by any of them, or any party they control or
exercise control over.
12.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES
FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED
TO (IN WHOLE OR IN PART):
12.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
12.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
12.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
12.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
12.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
12.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES ANY
AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, THAT AN INDEMNITEE
IS A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE
PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS (DEFINED
BELOW). LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS
FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS LICENSE IS MEANT BY EITHER PARTY
TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS
LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS
LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY
LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS
BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES AS CONTEMPLATED BY
THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE
ENVIRONMENTAL CONDITION OF THE PREMISES.
12.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE
OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED
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Pipeline License MRL Form 424 20140801 Page 6 of 12
TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR
ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL
SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND
ANY SIMILAR STATE OR FEDERAL STATUTE.
12.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
12.6 Upon written notice from any Indemnitee, Licensee agrees to assume the defense of any lawsuit or
other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold harmless
any Indemnitee. Licensee shall pay all costs and expenses incident to such defense, including, but not
limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
13. Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF
LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT
THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE.
14. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the
following insurance coverage:
14.1 Commercial General Liability Insurance. This insurance shall contain broad form contractual liability
with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at
least $10,000,000 but in no event less than the amount otherwise carried by Licensee. Coverage must
be purchased on a post 2004 ISO occurrence or equivalent and include coverage for, but not limited
to, the following:
Bodily Injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
The definition of insured contract shall be amended to remove any exclusion or other limitation for
any work being done within 50 feet of railroad property.
Waiver of subrogation in favor of and acceptable to Licensor.
Additional insured endorsement in favor of and acceptable to Licensor and BNSF.
Separation of insureds.
The policy shall be primary and non-contributing with respect to any insurance carried by Licensor
and BNSF.
It is agreed that the workers' compensation and employers' liability related exclusions in the
Commercial General Liability Insurance policy(s) required herein are intended to apply to employees
of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
14.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
Bodily injury and property damage.
Any and all vehicles owned, used or hired.
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Pipeline License MRL Form 424 20140801 Page 7 of 12
This policy shall also contain the following endorsements, which shall be indicated on the certificate of
insurance:
Waiver of subrogation in favor of and acceptable to Licensor.
Additional insured endorsement in favor of and acceptable to Licensor and BNSF.
Separation of insureds.
The policy shall be primary and non-contributing with respect to any insurance carried by Licensor
and BNSF.
14.3 Workers' Compensation and Employers' Liability Insurance. This insurance shall include coverage
for, but not limited to:
Licensee's statutory liability under the workers' compensation laws of the state(s) in which the
services are to be performed. If optional under state laws, the insurance must cover all employees
anyway.
Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
Waiver of subrogation in favor of and acceptable to Licensor and BNSF.
14.4 Railroad Protective Liability Insurance. This insurance shall name only Licensor and BNSF as the
Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The
coverage obtained under this policy shall only be effective during the initial installation and/or
construction of the Pipeline. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED
WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the Pipeline is needed
at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy
shall be issued on a standard ISO form CG 00 35 12 03 and include the following:
Endorsed to include the Pollution Exclusion Amendment.
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
The original policy must be provided to Licensor prior to performing any work or services under
this License.
Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all property in any
named insured's care, custody and control arising out of the acts or omissions of the contractor
named on the Declarations."
14.5 Intentionally deleted.
14.6 Other Requirements:
14.6.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
14.6.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor and BNSF. In addition, Licensee's insurers, through the terms of the policy or a policy
endorsement, must waive their right of subrogation against Licensor and BNSF for all claims
and suits, and the certificate of insurance must reflect the waiver of subrogation endorsement.
Licensee further waives its right of recovery, and its insurers must also waive their right of
subrogation against Licensor and BNSF for loss of Licensee's owned or leased property, or
property under Licensee's care, custody, or control.
14.6.3 Licensee is not allowed to self-insure without the prior written consent of Licensor and BNSF.
If granted by Licensor and BNSF, any self-insured retention or other financial responsibility for
claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor and
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Pipeline License MRL Form 424 20140801 Page 8 of 12
BNSF liabilities that would otherwise, in accordance with the provisions of this License, be
covered by Licensee's insurance will be covered as if Licensee elected not to include a self-
insured retention or other financial responsibility for claims.
14.6.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s)
of insurance including an original signature of the authorized representative evidencing the
required coverage, endorsements, and amendments. Licensee shall notify Licensor in writing
at least 30 days prior to any cancellation, non-renewal, substitution, or material alteration. In
the event of a claim or lawsuit involving Licensor arising out of this License, Licensee will make
available any required policy covering such claim or lawsuit.
14.6.5 Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to
do business in the state(s) in which the service is to be provided.
14.6.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain
coverage in force for a minimum of three years after expiration or termination of this License.
Annually, Licensee agrees to provide evidence of such coverage as required hereunder.
14.6.7 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage
required by this License. Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
14.6.8 Not more frequently than once every five years, Licensor and BNSF may reasonably modify
the required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
14.6.9 If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that
the subcontractor shall provide and maintain insurance coverages as set forth herein, naming
Licensor and BNSF as additional insureds, and shall require that the subcontractor shall
release, defend and indemnify Licensor and BNSF to the same extent and under the same
terms and conditions as Licensee is required to release, defend and indemnify Licensor and
BNSF herein.
14.6.10 Failure to provide evidence as required by this Section 14 shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this Section shall not operate as a waiver of Licensee's obligations hereunder.
14.6.11 The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee
shall not be deemed to release or diminish the liability of Licensee, including, without limitation,
liability under the indemnity provisions of this License. Damages recoverable by Licensor and
BNSF shall not be limited by the amount of the required insurance coverage.
14.6.12 These insurance provisions are intended to be a separate and distinct obligation on the part
of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound
thereby regardless of whether or not indemnity provisions are determined to be enforceable.
14.6.13 For purposes of this Section 14, Licensor shall mean "Burlington Northern Santa Fe, LLC",
"BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
15. Compliance with Laws, Rules, and Regulations.
15.1 Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements")
relating to the construction, maintenance, and use of the Pipeline and the use of the Premises.
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Pipeline License MRL Form 424 20140801 Page 9 of 12
15.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licensor's applicable safety rules and regulations.
15.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all
additional rights-of way, easements, licenses and other agreements relating to the grant of rights and
interests in and/or access to the Premises (collectively, the "Rights") and such other rights, licenses,
permits, authorizations, and approvals (including without limitation, any necessary local, state, federal
or tribal authorizations and environmental permits) that are necessary in order to permit Licensee to
construct, maintain, own and operate the Pipeline and otherwise to perform its obligations hereunder
in accordance with the terms and conditions hereof.
15.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does
not expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if
the initial stated term of any such Right expires in accordance with its ordinary terms on a date earlier
than the last day of the term of this License, Licensee shall, at its cost, exercise any renewal rights
thereunder, or otherwise acquire such extensions, additions and/or replacements as may be
necessary, in order to cause the stated term thereof to be continued until a date that is not earlier than
the last day of the term of this License.
15.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate
or use the Pipeline in accordance with the terms and conditions of this License, this License thereby
shall automatically expire upon such expiration or termination of the Right.
16. Environmental.
16.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous
Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws").
Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage
tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the
release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises.
16.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances",
as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal,
state, or local governmental agency or body through the Pipeline on Licensor's property. Licensee
agrees periodically to furnish Licensor and BNSF with proof, satisfactory to Licensor and BNSF that
Licensee is in compliance with the provisions of this Section 16.2.
16.3 Licensee shall give Licensor immediate notice to Licensor's Manager of Train Operations or the Chief
Dispatcher at 1 (800) 498-4838 of any known (i) release of hazardous substances on, from, or affecting
the Premises, (ii) violation of Environmental Laws, or (iii) inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises.
Licensee shall use the best efforts to promptly respond to any release on, from, or affecting the
Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or violation.
16.4 If Licensor or BNSF has notice from Licensee or otherwise of a release or violation of Environmental
Laws arising in any way with respect to the Pipeline which occurred or may occur during the term of
this License, Licensor or 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 violation
affecting the Premises or Licensor's and BNSF’s right-of-way.
16.5 Licensee shall promptly report to Licensor and BNSF in writing any conditions or activities upon the
Premises known to Licensee which create a risk of harm to persons, property or the environment and
shall take whatever action is necessary to prevent injury to persons, property, or the environment
arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor
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Pipeline License MRL Form 424 20140801 Page 10 of 12
and BNSF shall not relieve Licensee of any obligation whatsoever imposed on it by this License.
Licensee shall promptly respond to Licensor's and BNSF’s requests for information regarding said
conditions or activities
DISCLAIMER OF WARRANTIES
17. No Warranties.
17.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES,
NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY
LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
17.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS
GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE PIPELINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF
ANY THIRD PARTY.
18. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
19. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming
any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not
be liable (i) to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring
charge paid in advance, or (ii) for any damage Licensee sustains in connection with the eviction.
LIENS AND TAXES
20. Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby
authorized to post any notices or take any other action upon or with respect to Premises that is or may be
permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 20
or any other Section of this License.
21. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or
assessed by any governmental or quasi-governmental body upon the Pipeline or any other improvements
constructed or installed on the Premises by or for Licensee (collectively, the "Improvements") or any Taxes
levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT, TERMINATION, AND SURRENDER
22. Default and Termination. In addition to and not in limitation of Licensor’s and BNSF’s rights to terminate for
failure to provide evidence of insurance as required pursuant to the terms of Section 14, the following events
are also deemed to be events of default pursuant to which Licensor has the right to terminate as set forth
below:
22.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this
License and Licensee fails to cure said default within thirty (30) days after written notice is provided to
Licensee by Licensor or BNSF, or in case of any assignment or transfer of this License in violation of
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Pipeline License MRL Form 424 20140801 Page 11 of 12
Section 25 below, Licensor or BNSF may, at its option, terminate this License by serving five (5) days'
notice in writing upon Licensee. Notwithstanding the foregoing, Licensor or BNSF shall have the right
to terminate this License immediately if Licensee fails to provide evidence of insurance as required in
Section 14.
22.2 In the event of a default by Licensee, Licensor shall be allowed to recover one hundred percent (100%)
of its costs or outstanding amounts owed, including any amount received by a collection agency in
connection with pursuing any unpaid portion of rent or other amounts due under this License on
Licensor’s behalf.
22.3 Should Licensee not comply fully with the obligations of Section 16 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in any
other provision of this License, Licensor or BNSF may, at its option, terminate this License by serving
five (5) days' notice of termination upon Licensee.
22.4 Any waiver by Licensor or BNSF of any default or defaults shall not constitute a waiver of the right to
terminate this License for any subsequent default or defaults, nor shall any such waiver in any way
affect Licensor's or BNSF’s ability to enforce any Section of this License. The remedy set forth in this
Section 22 shall be in addition to, and not in limitation of, any other remedies that Licensor or BNSF
may have at law or in equity.
22.5 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, this License may be terminated
by either party, at any time, by serving thirty (30) days' written notice of termination upon the other
party. Such termination shall not release either party hereto from any liability or obligation under the
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening
prior to the date of termination or thereafter in case by the terms of the License it is provided that
anything shall or may be done after termination hereof.
23. Surrender of the Premises.
23.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense:
23.1.1 if so directed by Licensor or BNSF in writing, remove the Improvements, the Pipeline and all
appurtenances thereto, or, at the sole discretion of Licensor or BNSF, fill and cap or otherwise
appropriately decommission the Pipeline with a method satisfactory to Licensor;
23.1.2 report and restore any damage to the Premises, Licensor's, or BNSF’s other property arising
from, growing out of, or connected with Licensee's use of the Premises;
23.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
23.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
23.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to
Licensor or if Licensee fails to complete its obligations under Section 23.1 above (the "Restoration
Obligations"), Licensee shall have a limited license to enter upon the Premises solely to the extent
necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of
Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration
Obligations are completed. Neither termination nor expiration shall release Licensee from any liability
or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions
or events happening prior to the date of termination, or, if later, the date when Licensee surrenders
the Premises and all of the Restoration Obligations are completed.
23.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor or BNSF may, at its election, either: (i) remove the Pipeline
and the other Improvements or otherwise restore the Premises, and in such event Licensee shall,
33
Pipeline License MRL Form 424 20140801 Page 12 of 12
within thirty (30) days after receipt of bill therefor, reimburse Licensor or BNSF for cost incurred, (ii)
upon written notice to Licensee, take and hold the Pipeline and the other Improvements and personal
property as its sole property, without payment or obligation to Licensee therefor, or (iii) specifically
enforce Licensee's obligation to restore and/or pursue any remedy at law or in equity against Licensee
for failure to so restore. Further, if Licensor or BNSF has consented to the Pipeline and the other
Improvements remaining on the Premises following termination, Licensee shall, upon request by
Licensor or BNSF, provide a bill of sale in a form acceptable to Licensor or BNSF conveying the
Pipeline and the other Improvements to Licensor or BNSF for no additional consideration.
MISCELLANEOUS
24. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and assigns of Licensor, BNSF, and Licensee to the same
extent as if each such successor and assign was named a party to this License.
25. Assignment.
25.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent
of Licensor and BNSF, which consent may not be unreasonably withheld or delayed by Licensor or
BNSF. Any attempted assignment by Licensee in violation of this Section 25 shall be a breach of this
License and, in addition, shall be voidable by Licensor or BNSF in its sole and absolute discretion.
25.2 For purposes of this Section 25, the word "assign" shall include without limitation (a) any sale of the
equity interests of Licensee following which the equity interest holders of Licensee immediately prior
to such sale own, directly or indirectly, less than 50% of the combined voting power of the outstanding
voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee
and (ii) to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c)
any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding the
foregoing, any reorganization, recapitalization, merger or consolidation following which the equity
interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or
consolidation own, directly or indirectly, at least 50% of the combined voting power of the outstanding
voting equity interests of Licensee or any successor thereto or the entity resulting from such
reorganization, recapitalization, merger or consolidation shall not be deemed an assignment. THIS
LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF
LICENSOR AND BNSF, SUCH CONSENT TO BE IN LICENSOR AND BNSF’S SOLE DISCRETION.
25.3 Notwithstanding the provisions of Section 25.1 above or anything contained in this License to the
contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contravention of the provisions of this License (a "Purported Assignment") to another party (a
"Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges granted
under this License shall be deemed to be the Purported Transferee's agreement to be bound by all of
the terms and provisions of this License, including but not limited to the obligation to comply with the
provisions of Section 14 above concerning insurance requirements. In addition to and not in limitation
of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold
harmless Licensor and BSNF for all Liabilities of any nature, kind or description of any person or entity
directly or indirectly arising out of, resulting from or related to (in whole or in part) a Purported
Assignment.
25.4 The provisions of this Section 25 shall survive the expiration or earlier termination of this License.
26. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the
other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i)
placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a
nationally recognized overnight delivery service, addressed to the party to be notified at the address for such
party specified below, or to such other address as the party to be notified may designate by giving the other
party no less than thirty (30) days' advance written notice of such change in address.
34
Pipeline License MRL Form 424 20140801 Page 13 of 12
If to Licensor at the address shown above.
If to Licensee at the address shown above.
If to BNSF: BNSF Railway Company
Jones Lang LaSalle Brokerage, Inc., Its Attorney in Fact
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
27. Survival. Neither termination nor expiration will release either party from any liability or obligation under this
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to
the date of termination or expiration, or, if later, the date when the Pipeline and the other Improvements are
removed and the Premises are restored to its condition as of the Effective Date.
28. Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
29. Applicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
30. Severability. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited
by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such
prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of
this License.
31. Integration. This License is the full and complete agreement between Licensor and Licensee with respect to
all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between
the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is
intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
and BNSF harmless in any prior written agreement between the parties.
32. Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
33. Waiver. The waiver by Licensor or BNSF of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor or BNSF to enforce that provision for any subsequent breach thereof.
34. Interpretation.
34.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship; both parties hereby agree that this License shall not be
subject to the principle that a contract would be construed against the party which drafted the same.
Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
convenience of reference only and are not intended to be a part or to affect the meaning or
interpretation hereof. The exhibit or exhibits referred to herein shall be construed with and as an
integral part of this License to the same extent as if they were set forth verbatim herein.
34.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a
visible form; references to any person are also to that person's successors and permitted assigns;
"hereof", "herein", "hereunder" and comparable terms refer to the entirety hereof and not to any
particular article, section, or other subdivision hereof or attachment hereto; references to any gender
include references to the masculine or feminine as the context requires; references to the plural include
the singular and vice versa; and references to this License or other documents are as amended,
modified or supplemented from time to time.
35
Pipeline License MRL Form 424 20140801 Page 14 of 12
35. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages
from any counterpart may be appended to any other counterpart to assemble fully executed documents, and
counterparts of this License may also be exchanged via email or electronic facsimile machines and any email
or electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes.
36. BNSF’s Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE – SIGNATURE PAGE FOLLOWS
36
Pipeline License MRL Form 424 20140801 Page 15 of 12
This License has been duly executed by the parties hereto as of the date below each party's signature; to be
effective, however, as of the Effective Date.
LICENSOR
Montana Rail Link, Inc., a Montana corporation
By:
Joe Gentri, Manager Real Estate
LICENSEE
City of Bozeman
By:
Printed Name:
Title:
BNSF’s execution in the space provided below evidences BNSF’s consent to this License. This License is not valid
and shall have no force and effect without BNSF’s signature.
BNSF
BNSF Railway Company
Jones Lange LaSalle Brokerage, Inc., Its Attorney in Fact
4200 Buckingham Road, Suite 110
Ft. Worth, TX 76155
By: _________________________________________
Shane Krueger, Vice President
37
200'HYDMAIN TRACK
Highway Easement
Highway Easement
RAILROAD RIGHT OF WAY
200'
76°
GALLATIN
CITY COUNTY STATE
Apr. 20, 2020
DATE
SECOND
SUBDIVISION
MP 144 Bozeman Pipeline ...
FILE
1" = 100'
SCALE
PLAT SHOWING PIPELINE CROSSING
FOR: CITY OF BOZEMAN
ENGINEERING DEPARTMENT
BOZEMAN MONTANA
Verify scale!
on paper
one-inch (1")
This should be
U.S. SPRINT AT 1-800-521-0579.
CROSS IT MUST BE OBTAINED FROM
OF THIS CABLE AND AUTHORITY TO
RIGHT OF WAY IN THIS AREA. LOCATION
OPTIC CABLE ON MONTANA RAIL LINK
HAS INSTALLED AN UNDERGROUND FIBER
U.S. SPRINT COMMUNICATIONS COMPANY
UTILITY OCCUPATIONS.
CONFLICTS WITH THE EXISTING
RESPONSIBILITY TO RESOLVE ANY
AREA. IT IS THE PERMITTEE'S
THE RAILROAD RIGHT OF WAY IN THIS
HAVE UNDERGROUND FACILITIES WITHIN
NUMEROUS OTHER UTILITY COMPANIES
CASING PIPE
RESTRAINEDTYPE OF JOINT:
BURY: BASE OF RAIL TO TOP OF CASING:
BURY: TRACK DITCH TO TOP OF CASING:
CATHODIC PROTECTION:
BURY: GROUND TO TOP OF CASING:
LENGTH ON RIGHT OF WAY:
METHOD OF INSTALLATION:
NUMBER OF VENTS:
COATING:
IN CASING
TWO (2)
NONE
INSIDE DIAMETER:
WALL THICKNESS:
PIPELINE DATA
WORKING PRESSURE:
CONTENTS:
SPECIFICATION & GRADE:
PIPE MATERIAL:
CARRIER PIPE
0.37"
16.67"84" NOM.
> 0.983"
STEEL
>= 35 KSI YIELD
N/A
AWWA C222
YES
412'
MICROTUNNEL
15.2'
12' MIN.
12' MIN.
POTABLE H2O
135 PSI
DUCTILE IRON
CL 51, AWWA C151
N/A
412'
FUSED
IN CASING
NONE
CARRIER PIPE
1.28"
29.29"
SAN. SEWER
0 PSI (GRAVITY)
PVC
DR 25, C-905
N/A
412'
RIGHT OF WAY
THE RAILROAD
OUTSIDE
CONTINUES
PIPELINE
THE RAILROAD RIGHT OF WAY
PIPELINE CONTINUES OUTSIDE
RAILROAD RIGHT OF WAY
Highway Easement
100'
MP 144+0647'
STA 7609+67
MP 144+0599'
STA 7609+19
DEPICTED HEREON.
IN LENGTH, AS
CROSSING, 412 LF
A CASED PIPELINE
: DESCRIPTION
as depicted hereon
and a 16.7-inch potable water pipeline, ±412 linear feet,
containing a 30-inch dia. sanitary sewer pipeline
Pipeline crossing: 84-inch dia. steel casing pipe
sewer mains (Not a part)
Existing permitted water and 1447603+20EXHIBIT "A"
75'
Required.
Flagger At Permittee's Expense May Be
Railroad Right-Of-Way. A Railroad
Working Days Before Starting Work On
(406) 570-5993, At Least Five (5)
Notify Signal Supervisor Nathan Kluck,
Expense May Be Required.
Railroad Flagger At Permittee's
On Railroad Right-Of-Way. A
Working Days Before Starting Work
(406) 223-3237, At Least Five (5)
Notify Roadmaster Chris Seymour
JCT.
TO JONES
TO SANDPOINT JCT.
APPROVAL TO BE THERE.
IS PRESENT AND HAS GIVEN
QUALIFIED RAILROAD FLAGGER
FEET OF TRACKS UNLESS A
NO PERSONNEL WITHIN 25
38