HomeMy WebLinkAbout20- License for Fiber Optic Line - Montana Rail Link - Davis Lane Lift Station 602,268 DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
LICENSE FOR FIBER OPTIC LINE NO. 602,268
02BOZEMAN
THIS LICENSE ("License"), made as of the 1" day of June, 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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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. j
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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 Twenjy 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 C
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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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. i
(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 i
published in The Wag Street Journal in the preceding December plus two and one-half percent(2 1/2%), j
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
B. (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 specked 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 i
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.
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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 I
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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, i
are to be deemed part of the Drawings and Specifications). Licensor may direct one of its field engineers I
to observe or inspect the construction and/or maintenance of the Fiber Optic Line at any time for i
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 i
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 j
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 j
occasioned thereby.
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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.
16. 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 I!
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.q_, consulting with the Underground Services
Association) to determine the existence or location of pipelines and other subsurface structures prior to
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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 Licensors 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 Licensors 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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(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. II
(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 j
("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR j
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 I
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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INSURANCE
23. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the following
insurance coverage:
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A. Commercial General Liability Insurance.This insurance shall contain broad form contractual liability with a i
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 i
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coverage for, but not limited to,the following: i
♦ 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
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DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
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, setf-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 i
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 I
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 j
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.
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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)lbroker(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.
Fiber Optic License MRL Form 422 February 2016 Page 8 of 13
DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
ENVIRONMENTAL
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24. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use 1
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. '
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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.
Fiber Optic License MRL Form 422 February 2015 Page 9 of 13
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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 i
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 I
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.
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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 specked 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 I
happening prior to the date of termination.
ASSIGNMENT
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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
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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. j
If to Licensee,at the address shown above.
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Fiber Optic License MRL Form 422 February 2015 Page 10 or 13
DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
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 conceming the interpretation or application of provisions of this License shall be decided according I
to the substantive laws of the State of Montana without regard to conflicts of law provisions.
SEVERABILITY
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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.
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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, j
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(MISCELLANEOUS '
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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.
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[Signature page follows]
Fiber Optic License MRL Form 422 February 2015 Page 11 of 13
DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
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
Mon 7*N°@9 Inc.,a Montana corporation
By:
r7f- [-c�
oe Gentri, Manager Real Estate
LICENSEE
City of Bo z n •
By: }.-� V
Printed Name: '�r`r r a'
Tile:
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,Vic resident
Fiber Optic License MRL Forth 422 February 2015 Page 12 of 13
DocuSign Envelope ID:44C327C7-4181-45A4-BB22-653188BB78CD
Notify Signal Supervisor Nathan Kluck, WIRELINE CONTINUES OUTSIDE
(406) 570-5993, At Least Five (5) �V, THE RAILROAD RIGHT OF WAY
Working Days Before Starting Work On f
Railroad Right—Of—Way. A Railroad
Flogger At Permittee's Expense May Be $ I/
Required.
— - - - - - y — — - - —
RAILROA— D RIGHT OF WAY Hi
9 h=wa basemen- t— - - - -
Notify Roadmoster Chris Seymour I
(406) 223-3237, At Least Five (5) I/
Working Days Before Starting Work SPA 9
MP 144+05
On Railroad Right—Of—Way. A
4+0599'
200' Railroad Flogger At Permittee's
Expense May Be Required. Highway Easement
Wireline crossing: 84—inch dia. steel casing pipe
containing a 3—inch dia. casing pipe with a 7—way //
fiber carrier containing one fiber line, ±412 linear feet, 75
as depicted hereon
MAIN TRACK _
NO PERSONNEL WITHIN 25VWIRELINE
FEET OF TRACKS UNLESS A100' QUALIFIED RAILROAD FLAGGERIS PRESENT AND HAS GIVENAPPROVAL TO BE THERE200' Highway Easement STA 7609+67MP 144+0647' JONES
--TO_SANDPOINT JCT. RAILROAD RIGHT OF WAY _ _ JCP—
NUMEROUS OTHER UTILITY COMPANIES U.S. SPRINT COMMUNICATIONS COMPANY
HAVE UNDERGROUND FACILITIES WITHIN HAS INSTALLED AN UNDERGROUND FIBER CONTINUES
THE RAILROAD RIGHT OF WAY IN THIS OPTIC CABLE ON MONTANA RAIL LINK OUTSIDE
AREA. IT IS THE PERMITTEE'S RIGHT OF WAY IN THIS AREA. LOCATION THE RAILROAD
RESPONSIBILITY TO RESOLVE ANY OF THIS CABLE AND AUTHORITY TO RIGHT OF WAY
CONFLICTS WITH THE EXISTING CROSS IT MUST BE OBTAINED FROM
UTILITY OCCUPATIONS. U.S. SPRINT AT 1-800-521-0579.
WIRE LINE DATA FOR
UNDERGROUND WIRELINE
WIRELINE DATA
DESCRIPTION: Verify scale!
TYPE OF WIRELINE: FIBER OPTIC A CASED FIBER
VOLTAGE: N/A PHASE: N/A CYCLES: N/A OPTIC WIRELINE This should be
SIZE AND TYPE OF WIRE OR CABLE: FIBER OPTIC CROSSING, 412 LF one—inch (1")
NUMBER OF CONDUCTORS: 1 IN LENGTH, AS on paper
NUMBER OF OTHER WIRES: 0 DEPICTED HEREON.
TOTAL LENGTH OF WIRE ON RIGHT OF WAY: 412' EXHIBIT "A"
ANGLE WITH TRACK AT XING POINT: 76`
CASING DATA Montana Rail Link
PIPE MATERIAL: STEEL 0
INSIDE DIAMETER: 84" NOM. ENGINEERING DEPARTMENT
WALL THICKNESS: > 0.983"
SPECIFICATION & GRADE: GRADE A 36 PLAT SHOWING FIBER OPTIC WIRELINE CROSSING
TYPE OF JOINT: FOR: CITY OF BOZEMAN
COATING: AWWA C222
LENGTH ON RIGHT OF WAY: 412'
MICROTUNNEL BOZEMAN GALLATIN MONTANA
METHOD OF INSTALLATION: CITY COUNTY STATE
BURY: BASE OF RAIL TO TOP OF CASING: 15.2 SECOND 1" = 100'
BURY: TRACK DITCH TO TOP OF CASING: 12' MIN. SUBDIVISION SCALE
BURY: GND TO TOP OF CASING: 12' MIN. APR. 20, 2020 MP 144 Bozeman Wire[ine ..
DATE FILE