HomeMy WebLinkAbout601,232 - City of Bozeman PIPELINE LICENSE NO. 601,232
02BOZEMAN
ref: 501,162
THIS LICENSE ("License"), made this 1st day of August, 2003 (the"Effective Date") by and between.MONTANA RAIL
LINK, INC., a Montana corporation ("Licensor"), whose address is Property Management Division, PO Box 16630, Missoula,
Montana 59808-6630, THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation
("BNSF")and:
CITY OF BOZEMAN
whose mailing address is PO BOX 1230
BOZEMAN, MT 59771
("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Licensor and BNSF hereby grant Licensee a non-exclusive license, subject to all rights, interests, and estates of
third parties including, without limitation, any leases, licenses, 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") one, W Pipeline(s), 12 inches in diameter ("Pipeline") across or along the rail corridor of
Licensor and BNSF at or near the City of Bozeman, County of Gallatin, State of Montana, at Milepost
0+0437.87, Survey Station 4+38.87 as shown on the plat dated June 16, 2003 a copy of which is attached
hereto as Exhibit"A"and made a part hereof("Premises").
2. Licensee shall not disturb any improvements of Licensor and BNSF or Licensor's and BNSF's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements.
3. Licensee shall use the Premises solely for construction, maintenance, and use of a Pipeline in accordance with
the Drawings and Specifications carrying water. Licensee shall not use the Pipeline to carry any other commodity
or use the Premises for any other purpose.
(a) 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 and BNSF's property. Licensee
f satisfactory Licensor,
agrees periodically to furnish Licensor with proof, ry to , that Licensee is in such
compliance. Should Licensee not comply fully with the above stated obligations of this Section,
notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate
this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee
shall remove the Pipeline and restore Licensor's property as herein elsewhere provided.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by
abandonment by Licensor and 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 Pipeline or entering the Premises on behalf of
Licensee, shall be deemed servants and agents of Licensee for purposes of this License.
COMPENSATION
6. (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.
Pipeline License Form 424 January 2003 Page 1 of 10
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 the bills therefor) for all
costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the
presence, construction, maintenance, and use of the Pipeline, including, but not limited to, the furnishing
of Licensor's Flagman.
(d) All invoices are due thirty(30) days after the date of invoice.
COMPLIANCE WITH LAWS
7. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants or restrictions ("Legal Requirements") relating to the construction, maintenance and use of the
Pipeline and the use of the Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's
applicable safety rules and regulations.
DEFINITION OF COST AND EXPENSE
8. 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
9. Licensor and BNSF except and reserve the right, to be exercised by Licensor, BNSF and any other parties who
may obtain written permission or authority from Licensor and 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 and BNSF in their sole discretion deem 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
10. (a) Licensee shall notify Licensor's Roadmaster at the number shown on the Exhibit "A" at least five (5)
business days prior to construction of the Pipeline 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 or BNSF's tracks to the other.
11. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or
other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless
Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense,
perform all activities on and about the Premises in such a manner as not at any time to be a source of
danger to or interference with the existence or use of present or future tracks, roadbed or property of
Licensor and BNSF, or the safe operation and activities of Licensor. If ordered to cease using the
Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall
immediately do so. Notwithstanding the foregoing right of Licensor and BNSF 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
Pipeline License Form 424 January 2003 Page 2 of 10
is safe. Neither the exercise nor the failure by Licensor and BNSF 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 the Pipeline in such a manner and of such material that it will not at any
time be a source of danger to or interfere with the existence or use of present or future tracks, roadbed or
property of Licensor and BNSF, or the safe operation and activities of the railroad. Licensor may direct
one 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. If ordered at any time to halt construction or
maintenance of the Pipeline by Licensor's personnel due to noncompliance 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 Pipeline, it being solely Licensee's responsibility to ensure that the Pipeline is constructed in strict
accordance with the Drawings and Specifications and in a safe an workmanlike manner in compliance
with all terms hereof. Neither the exercise nor the failure by Licensor or BNSF 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,
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, upon receipt of an invoice for the same. Licensor's
failure to perform any obligations of Licensee shall not alter the liability allocation hereunder.
12. During the construction and any subsequent maintenance performed on Pipeline, 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 Pipeline shall be completed within one (1) year of the Effective
Date. Upon completion of the construction of the Pipeline and after performing any subsequent maintenance
thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's and BNSF's premises to their
former state as of the Effective Date of this License.
13. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as
would, in Licensor's reasonable opinion, be interfered with by the Pipeline, Licensee shall, at its sole expense,
within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the
Pipeline as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of
Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of a new
Pipeline(s).
14. (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
drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made
thirty (30) business in advance of Licensee's requested construction of the Pipeline, Licensor will provide
. Licensee any information that Licensor's Engineering Department has in its possession concerning the
existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity
of the proposed Pipeline. Prior to conducting any such boring work, the Licensee will review all such
material. Licensor does not warrant the accuracy 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 20-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 prior to construction.
This study is to determine if granular material is present, and to prevent subsidence during the installation
process. If the investigation determines in Licensor's reasonable opinion that granular material is present,
Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's
review and approval, in its sole discretion a remedial plan to deal with the granular material. Once
Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense,
carry out the approved plan in accordance with all terms thereof and hereof.
Pipeline License Form 424 January 2003 Page 3 of 10
15. 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 shall remain on Licensor's property for more than ten (10) days and shall be properly disposed
of by Licensee in accordance with Legal Requirements.
16. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) Remove the Pipeline and all appurtenances thereto, or, at the sole discretion of Licensor, fill and cap or
otherwise appropriately decommission the Pipeline with a method satisfactory to Licensor;
(b) Report and restore any damage to the Premises arising from, growing out of, or connected with
Licensee's use of the Premises;
(c) Remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
(d) Leave the Premises in the condition which existed as of the Effective Date of this License.
17. Licensee's on site supervision shall retain/maintain a fully executed copy of this License at all times while on the
Premises.
LIABILITY
18. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND BNSF AND LICENSOR'S AND BNSF'S
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS,
DEMANDS, JUDGMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES,
j AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS)
ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY
PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR
IN PART):
(I) THIS LICENSE, INCLUDING,WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
(III) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(Iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY
LICENSEE, OR
(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR
CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY
CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY
INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE
INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 18(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 LICENSOR OR
BNSF IS AN "OWNER", "OPERATOR", "ARRANGER", OR"TRANSPORTER" .WITH RESPECT TO THE PIPELINE FOR
THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD
THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE
INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS
LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON
CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD
THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR OR BNSF BE
RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
Pipeline License Form 424 January 2003 Page 4 of 10
(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, 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 RECOVER ACT AND ANY
SIMILAR STATE OR FEDERAL STATUTE.
(d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License
for which Licensee has an obligation to assume liability for and/or save and hold harmless any
Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys'
fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in
satisfaction of judgments.
PERSONAL PROPERTY WAIVER
19. ALL PERSONAL PROPERTY OF LICENSEE, 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.
INSURANCE
20. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following
insurance coverage:
(a) Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a
combined single limit of a minimum of $5,000,000 each occurrence and an aggregate of at least
equivalent and occurrence form or O a
$10,000,000. Coverage must be purchased on a post 1998 ISO q
include coverage for, but not limited to, the following:
♦ Boldly 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:
♦ It is agreed that any workers' compensation exclusion does not apply to Licensor's payments
related to the Federal Employees Liability Act or a Licensor Wage Continuation program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
♦ 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 g for, but
not limited to:
Pipeline License Form 424 January 2003 Page 5 of 10
♦ 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 Licensor and BNSF as the
Insureds 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 3510 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93).
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Licensor prior to performing any work or services
under this Agreement.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket
Railroad Protective Liability Insurance Policy available to Licensee or its contractor.The limits of coverage
are the same as above.
(e) Contractor's Pollution Legal Liability (CPL) Insurance. This insurance shall be in an amount of at lease
$5,000,000 per occurrence and $10,000,000 in the aggregate including, but not limited to, coverage for
the following:
♦ Bodily injury, sickness, disease, mental anguish or shock sustained by any person, including
death;
♦ Property damage including physical injury to or destruction of tangible property including the
resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has not
been physically injured or destroyed;
♦ Defense costs including costs, charges and expenses incurred in the investigation, adjustment or
defense of claims for such compensatory damages.
♦ Coverage shall apply to sudden and non-sudden pollution conditions including the discharge,
dispersal, release or escape of smoke, vapors, soot,fumes, acids, alkalis,toxic chemicals, liquids
or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the
atmosphere or any watercourse or body of water, which results in BODILY INJURY, PROPERTY
DAMAGE, or Remediation Expense.
♦ 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, cancellation, or termination of this license.
Annually contractor agrees to provide evidence of such coverage as required hereunder.
♦ Delete any bodily injury exclusions resulting from lead or asbestos.
♦ Amend the Contractual Liability exclusions and employer liability exclusion to provide coverage
for liability assumed under contract.
♦ Amend the definition of Property Damage to provide coverage for natural resource damage.
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
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.
Pipeline License Form 424 January 2003 Page 6 of 10
Licensee's insurance policies through policy endorsement, must include wording which states that the policy shall
be primary and non-contributing with respect to any insurance carried by Licensor and BNSF. 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, BNSF and Staubach Global Services -
RR, Inc. as additional insureds with respect to work performed under this agreement. Severability of interest and
naming Licensor, BNSF and Staubach Global Services - RR, Inc. as additional insureds shall be indicated on the
certificate of insurance.
Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any
deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee
in lieu of insurance. Any and all of Licensor's and BNSF's liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to
include a deductible, self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance
including an original signature of the authorized representative evidencing the required coverage, endorsements,
and amendments and referencing the contract audit/folder number if available. 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. Upon request from licensor, a certified duplicate original of any required
policy shall be furnished.
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 WARRANTS 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
i
Agreement.Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
Not more frequently than once very five years, Licensor may reasonably modify the required insurance coverage
to reflect then current risk management practices in the railroad industry and underwriting practices in the
insurance industry.
If an portion of the operation is to be subcontracted b Licensee, Licensee shall require that the subcontractor
any p Y q
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 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 the purposes of this section BNSF shall mean "Burlington Northern Santa Fe corporation", "The Burlington
Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
ENVIRONMENTAL
21. (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 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
Pipeline License Form 424 January 2003 Page 7 of 10
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 Property Management Division at (406) 523-
1300 or (800) 241-5676, and to Licensor's Manager of Environmental Projects at (406) 523-1415 of any
release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection
or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to
Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on
or from the Premises. Licensee also shall give Licensor's Property Management Division immediate
notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or
otherwise cure such release or violation.
(c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental
Laws arising in any way with respect to the Pipeline which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right of way.
(d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons or property arising out of such conditions or activities;
provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation
whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request for
information regarding said conditions or activities.
ALTERATIONS
22. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any
buildings or other structures adjacent to the Premises without Licensor's prior written consent.
NO WARRANTIES
23. 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 OR BNSF OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES 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
24. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE
POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
DEFAULT
25. 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 and BNSF may, at their option,
terminate this License by serving five(5) days' notice in writing upon Licensee.Any waiver by Licensor and 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 and BNSF's ability to enforce any
Section of this License. The remedy set forth in this Section shall be in addition to, and not in limitation of, any
other remedies that Licensor and BNSF may have at law or in equity.
LIENS
26. 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 and BNSF are 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 and BNSF to
Pipeline License Form 424 January 2003 Page 8 of 10
take any such action shall not relieve Licensee of any obligation or liability under this Section or any other Section
of this License.
TERMINATION
27. This License may be terminated by Licensor and 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.
28. 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
29. 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
30. 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 above or 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 first shown above
If to Licensee, at the address first shown above
If to BNSF: Staubach Global Services— RR, Inc., 5650 N. Riverside Drive, Suite 101, Ft. Worth, TX 76137, Attn:
Licenses/Permits.With a copy to The Burlington Northern and Santa Fe Railway Company, 2500 Lou Menk Dr. —
A0B3, Ft.Worth,TX 76131, Attn: Director Real Estate.
SURVIVAL
31. 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 improvements are removed and the Premises
are restored to its condition as of the Effective Date.
RECORDATION
32. It is understood and agreed that this License shall not be placed on public record.
APPLICABLE LAW
33. 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
34. 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.
Pipeline License Form 424 January 2003 Page 9 of 10
m_
INTEGRATION
35. This License is the full and complete agreement between Licensor, BNSF 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.
MISCELLANEOUS
36 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.
37. The waiver by Licensor and BNSF of the breach of any provision herein by Licensee shall in no way impair the
right of Licensor and BNSF to enforce that provision for any subsequent breach thereof.
IN WITNESS WHEREOF, this License has been duly executed by the parties hereto as of the day and year first above
written.
BNSF
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
By
Name Blaine Bilderback
Title Director Development&Acquisitions
Date
LICENSOR
MONTANA RAIL LINK, INC.
By
Name John H. Crowley
Title Director of Real Estate
Date
LICENSEE
CITY OF BOZEMAN
By
Name
Title
Date
Pipeline License Form 424 January 2003 Page 10 of 10
NOTIFY SIGNAL SUPERVISOR GARY LOEFFLER, LIVINGSTON
1 ! (406) 222-4325, AT LEAST 5,WORKING DAYS BEFORE
STARTING WORK ON RAILROAD;RIGHT OF WAY. A FLAGMAN
AT PERMITTE'S EXPENSE MAY 9E REQUIRED.
�TO MAIN
O I NOTIFY ROADMASTER BILL CORNISH, HELENA (406) 447-2335,
AT LEAST 5,WORKING DAYS BEFORE STARTING WORK ON
RAILROAD RIGHT OF WAY. A FLAGMAN AT PERMITTE'S EXPENSE
MAYBE REQUIRED.
4
06 L _ �.
1 STA. 4+37.87 i
MP.-=--0-fD437
\ �•� GTH
x
TO END OF TRACK--�
1 CU ERTS\
1 4
PTOWN SPUR
( PiPEUNE DATA B.. CARRIER PIPE CASING PIPE
CONTENTS: i_—WATER
1 -WORKING PRESSURE . - t, -.-1 A
3RPS1 EXHIBIT
INSIDE DIAMETER 1—L1 R 2��---
56q L ' WALL,THICKNESS �_.3L—L .375 _
1 1 PIPE MATERIAL: JSIILEJRlZN_1 STEEL
/ SPECIFICATION & GRADE: _S/�Z],5IL9j_ - MOM L/N/�
rAMA
If
TYPE OF JOINT: �_NQNE — NONE-:._
,
' COATING: 4 NONE NONE. �RA/L
1 tNUMBER-oF'VENTs - NaNE--- ENGINEERING DEPARTMENT
CATHODIC PROTECTION.,,..
LENGTH ON RIGHT OF WAY: :y__,.25 / PLAT SHOWING PIPELINE CROSSING
f� LENGTH OF EASING: --�Q--- FOR:
METHOD OF INSTALIATIONi JACK AND, BORE' CITY OF BOZEMAN
z1 BURY: BASE-OF RAIL.-TO TOP OF PIPE:
BURY: TRACK DITCH TO TOP OF PIPE:
` IB AT:
RY; GROUND TO TOP OF PIPE: BOZEMAN GAI TIN MONTANA urr coUNr. S7n7C
THE-END OF
THE CASING IS SEALED SECOND(U°TOWN SPUR) I'=100'
1 1 � I ' SUBDIVISION SCA'_E
L3�JA KING PITS TO BE A MINIMUM OF?30 FROM CENTERLINE JUNE 16, 2003 03-039
OF THE CLOSEST TRACK,,MEASURED';PERPENDICULAR TO THE TRACK. DATE Eae
Christopher J.Danos
Assistant Vice President Montana nail Link
Economic Development&Real Estate
2E'0 Lou 41C.4.13riee Montana Rail Link,Inc.
ror;1'lorh TX 76',1 101 International Drive 1406)523-1500
Post Office Box 16390 (406)523-1493 fax
a87-835'S r`f.Y? Missoula,Montana v.-ow monianarail com
Christopher vanos@.5NSF con, USA 59 03
November 23, 2023 Via Certified Mail
City of Bozeman-Permits
PO Box 1230
Bozeman,MT 59771
Re: Agreement 601232 dated effective as of 8/l/2003 (together with any subsequent
supplements or amendments,the "Agreement") between Montana Rail Link, Inc.,
a Montana corporation("MRL") and City of Bozeman-Permits,regarding certain
property located at or near Bozeman, Gallatin County, Montana; Notice of
Assignment.
To Whom It May Concern:
This letter concerns the Agreement referenced above. In accordance with the Agreement,
MRL hereby notifies City of Bozeman-Permits that the land subject to the Agreement has either
transferred or reverted to BNSF Railway Company, a Delaware corporation ("BNSF'). In
connection therewith, MRL has assigned all of its rights, interests, and obligations under the
Agreement to BNSF. BNSF,in turn,has assumed all of MRL's obligations under the Agreement.
The assignment and assumption between MRL and BNSF will become effective on January 1,
2024 (the "Assignment Effective Date"). As of the Assignment Effective Date, BNSF's notice
address is as follows:
BNSF Railway Company
2650 Lou Menk Drive,MOB-2
Fort Worth, Texas 76131
Attn.: CRED
with a copy to: Jones Lang LaSalle Brokerage,Inc.
2650 Lou Menk Drive,MOB-2
Fort Worth, Texas 76131
Attn.: Lease Administration
If you make payments related to the Agreement, please be advised that the invoice for
December 2023 will be sent to you by MRL in November 2023 and should be paid to MRL. The
invoice for January 2024 will be sent you by BNSF's agent, Jones Lang LaSalle Brokerage, Inc.,
in December 2023 and should be paid to BNSF Railway Company.
Thank you for your cooperation.
Ly
11.122
Very truly yours,
BNSF Railway Company,
a Delaware corporation
1
f ��
By: �
Name: Christopher Danos
Title: Assistant Vice President
Montana Rail Link,Inc.,
a Montana corporation
By: /W
Name: Joe Racicot
Title:President