HomeMy WebLinkAbout03- Montana Rail Link & BNSF; Private Railroad Crossing 601231 - Agreement
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AGREEMENT FOR PRIVATE CROSSING No. 601231
02BOZEMAN
DOT No. 912825B
THIS AGREEMENT ("Agreement"), made this 1st day of Auaust, 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 BXO 1230
BOZEMAN MT 59771
(hereinafter whether one or more persons or corporations called the "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") an at grade crossing, 20 feet wide ("Crossing"),across the rail corridor of Licensor and BNSF at or
near the City of Bozeman, County of Gallatin, State of Montana, at Milepost 04+0419.87, Survey Station
4+19.87 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") for the purposes specified in Section 3. For convenience, said Crossing, including
crossing surface and all appurtenances thereto between the ends of railroad ties, cattle guards, farm gates or
barriers, drainage facilities, traffic signs or devices, identification signs approved by Licensor, whistling posts, or
other appurtenances, if any, are hereinafter collectively referred to as the "Crossing".
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. It is expressly stipulated that the Crossing is to be a strictly private one, to be solely used for the purpose set forth
in Licensee's Application for Crossing attached hereto as Exhibit B and is not intended for and shall not be for
public use. The Licensee, without expense to Licensor and BNSF, will take any and all necessary action to
preserve the private character of the Crossing and prevent its use as a public road. In the event Licensor
determines that:
(a) The Crossing is being used for a purpose or in a manner not set forth in Exhibit B;
(b) There is a significant change in the volume or nature of traffic at the Crossing; or
(c) The Licensee has in any way breached the terms or conditions of this Agreement, Licensor shall have the
right to terminate this Agreement in accordance with Section 24.
4. In the case of eviction by Licensee by anyone owning or claiming title to or any interest in the Premises or the
Crossing, Licensor and BNSF shall not be liable to refund Licensee any compensation paid hereunder or for any
damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the Premises or the Crossing, or entering the Premises on
behalf of Licensee, shall be deemed agents of Licensee for purposes of this Agreement.
COMPENSATION
6. (a) Licensee shall pay Licensor, annually in advance for this Agreement the sum of Twentv Five Dollars
($25.00) as compensation for the use of the Premises.
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(b) Licensor reserves the right to review the rental rate of this Agreement. Licensor may make any necessary
adjustments to the rate based on Licensor's standard rate review policies in effect at the time of the review.
Licensor will provide Licensee written notice of any adjustment, within thirty (30) days of the review.
Specifying a rental rate on a monthly, quarterly or annual basis and payment thereof in advance does not
imply nor will it serve to convert the Agreement to a definite term.
7. Licensee agrees to pay to Licensor from time to time within thirty (30) days after bills are rendered therefor the
entire cost of maintaining the Crossing, including, but not limited to, the expense incurred by Licensor resulting
from the necessity to remove and replace the Crossing in connection with resurfacing or maintaining Licensor's
right of way and tracks and the expense of furnishing of Licensor's flagman.
8. Licensee agrees to pay to Licensor the entire cost of construction, installing, performing, maintaining, repairing,
renewing, and replacing any cattle guards, farm gates or barriers, track drainage facilities, traffic signs or devices,
whistle posts, stop signs or other appurtenances shown on Exhibit A. or any such appurtenances or warning signs
and devices that may subsequently be required to be upgraded by Licensor, by law, by change of volume and
nature of vehicular traffic, or by any public authority having jurisdiction. The Licensee is also responsible for
notifying Licensor in writing of any need for upgrading the vehicular traffic control devices or signs at or near the
Crossing, since the Licensee is most knowledgeable concerning the volume and nature of the vehicular traffic. In
addition, Licensee shall notify Licensor if any significant change in volume or nature of traffic at the crossing.
COMPLIANCE WITH LAWS
9. (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
Crossing 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
10. (a) For the purpose of this Agreement, "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.
(b) All invoices are due thirty (30) days after the date of invoice.
RIGHT OF LICENSOR TO USE
11. 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
12. Licensee, at its own expense, shall keep the rail flange ways of said Crossing clear of all snow, dirt, or any other
obstructions whatsoever, which may accumulate by virtue of vehicles, equipment, or from machinery crossing
thereover or otherwise, and shall remove and keep removed any vegetation along the rail corridor on each side of
the crossing so that the motorists' line of sight to approaching trains is not impaired or obstructed by vegetation.
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13. It is specifically understood that cables, pipelines, and other electric and/or fiber optic transmission lines may be
on, about, along, or under the Premises and Licensee agrees that under no circumstances will Licensee dig in or
disturb the surface of the Premises without the express written consent of Licensor.
14. Licensee shall construct and maintain, at its own expense, a roadway (to end of railroad ties) and related roadway
drainage in a manner acceptable to Licensor, and safe for use by any vehicles or equipment. Prior to such
construction or maintenance, five (5) days advance notice must be given to Licensor's Roadmaster at the
telephone number shown on Exhibit A.
15. Licensee agrees to keep any Crossing gates, farm gates or barriers (consisting of a bar, cable, gate or chain
between posts on both sides of Lessor's and BNSF's rail corridor and straddling the roadway), closed and
securely fastened, except when being opened to allow access upon said rail corridor.
16. While this Agreement is personal to Licensee, it is recognized that there is a possibility of the Crossing being used
by unauthorized persons, and said Licensee agrees that for the purposes of this Agreement all persons using the
Crossing shall be deemed the agents or invitees of the Licensee.
17. Licensee shall, at its sole cost and expense, perform all activities on and about the Crossing 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 Crossing at any time by Licensor's personnel due to any hazardous condition, Licensee shall
immediately do so. Not withstanding the foregoing right of Licensor, the parties agree that Licensor and BNSF
have no duty or obligation to monitor Licensee's use of the Crossing to determine the safe nature thereof, it being
solely Licensee's responsibility to ensure that Licensee's use of the Crossing is in a safe manner. 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 Agreement.
18. If at any time during the term of this Agreement, 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 Crossing, Licensee shall, at its sole expense,
within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the
Crossing 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 Crossing or the construction of a
new Crossing
19. Upon termination of this Agreement, Licensor may remove the Crossing and restore the rail corridor to the
condition as of the Effective Date of this Agreement at Licensee's sole cost and expense and without incurring
any liability to the Licensee. Licensee shall, within twenty (20) days after bill is rendered therefor, reimburse
Licensor for all costs and expenses, which Licensor may incur in connection therewith.
LIABILITY
20. (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,
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):
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
(I) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT,
(II) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(iii) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY, AGGRAVATED BY, OR
CONTRIBUTED IN WHOLE OR IN PART, BY LICENSEE, OR
(iv) 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
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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 20(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 PREMISES 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
AGREEMENT 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.
(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
Agreement 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
21. 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
22. 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
$10,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
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
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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 including 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 naming only Licensor and BNSF as the Insureds with coverage of
at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a
standard ISO form CG 00 35 10 93 and include the following:
. Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 311093).
. 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) All risks property insurance covering all of Licensee's property including property in the care, custody or
control of Licensee. Coverage shall include the following:
. Issued on a replacement cost basis
. Shall provide that in respect of the interest of Licensor and BNSF the insurance shall not be
invalidated by any action or inaction of Licensee or any other person and shall insure the
respective interests of Licensor and BNSF as they appear, regardless of any breach or violation
of any warranty, declaration or condition contained in such policies by Licensee or any other
person.
. Include a standard loss payable endorsement naming Licensor and BNSF as the loss payee as
their interests may appear.
Other Requirements:
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.ln 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.
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.
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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, Inc.
as additional insureds with respect to work performed under this agreement. Severability of interest and naming
Licensor, BNSF and Staubach Global Services, Inc. as additional insureds shall be indicated on the certificate of
insurance.
If Licensee elects to include any deductible, self-insured retention or other financial responsibility for claims,
Licensee shall itself directly cover, in lieu of insurance, any and all Licensor's and BNSF's liabilities that would
otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance 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 audiUfolder 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 Agreement has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this
Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
Not more frequently than once 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 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 herein.
Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this
Agreement 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 Agreement. 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
23. (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
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
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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 on the Premises 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 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 Agreement. Licensee shall promptly respond to Licensor's request for information regarding said
conditions or activities.
DEFAULT
24. 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 Agreement by operation of Law, Licensor and BNSF may, at their option,
terminate this Agreement 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 Agreement 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 Agreement. 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.
TERMINATION
25. This Agreement may be terminated by Licensor and BNSF, at any time, by serving thirty (3D) days' written notice
of termination upon Licensee. This Agreement 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
Agreement and all rights of Licensee shall absolutely cease.
26. If Licensee fails to surrender to Licensor the Premises, upon any termination of this Agreement, 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
27. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent
assignee, shall assign or transfer this Agreement 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
28. 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 (3D) 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
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If to BNSF: Staubach Global Services, 5650 N. Riverside Drive, Suite 101, Ft. Worth, TX 76137, AUn:
Licenses/Permits. With a copy to The Burlington Northern and Santa Fe Railway Company, 2500 Lou Menk Dr.-
AOB3, Ft. Worth, TX 76131, AUn: Director Real Estate.
SURVIVAL
29. Neither termination nor expiration will release either party from any liability or obligation under this Agreement,
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 Premises are restored to its condition as of the Effective
Date.
RECORDATION
30. It is understood and agreed that this Agreement shall not be placed on public record.
APPLICABLE LAW
31. All questions concerning the interpretation or application of provisions of this Agreement shall be decided
according to the laws of the State of Montana.
SEVERABILITY
32. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement 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 Agreement.
INTEGRATION
33. This Agreement is the full and complete agreement between Licensor, BNSF and Licensee with respect to all
matters relating to Licensee's use of the Crossing, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Crossing 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
34. 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.
35. 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.
36. In the event Licensee conveys, transfers, leases or otherwise grants a right of access and/or use of any interest in
all or a portion of Licensee's property which is accessed by the Crossing, Licensee shall notify Licensor in writing
of the same within thirty (30) days prior to the date of such conveyance, transfer, lease or grant of access and/or
use, and Licensee shall cause any receiver or subsequent holder(s) of such an interest or right ("Holder") to:
(i) File an application with Licensor's Property Management Division, for use of the Crossing, which
application may be granted or denied in Licensor's sole discretion; and
(ii) Upon Licensor's approval of Holder's application, Licensee shall cause Holder to execute Licensor's
standard License Agreement then in effect for the use of the Crossing. Licensee may not assign or
otherwise transfer, or permit the use of this Agreement or the Crossing by Holder without Licensor's prior
written approval for the same and any attempt to do so is a material breach of this Agreement and shall
render it null and void.
Road Crossing Form 432 April 2002 Page 8 of 9
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IN WITNESS WHEREOF, this Agreement 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 ~~ \M...- .1t~
~I~~e Sh::phell M. I(uzma
Date Mlillli\;lttl - Ll:Illd Rtlvellul:t Mallagelllent
LICENSOR
M~'NK.INC. ~
By "" ~
Name ohn H. Crowlev
Title Director of Real Estate
Date
LICENSEE
:~TY~_ ~
By
Date 23 / C)~(t') ~
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Road Crossing Form 432 April 2002 Page 9 of9
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.-'.. Exhibit B
" ~ /VID/VTAlVA Application for Private Crossing or Supplement to
Existing Permit No. 03-038
RAIL LII\IIC Page 1 of 2
Submit three copies of application and all attachments
Name of Permit Holder: Phone No:
Municipal Ownership: Business Address:
Corporation: State in which incorporated:
Billing Address and Phone
Number:
If not a corporation, name(s)
of owners or partners:
Applicant Reference No.:
Application For . Road Crossing o Roadway Parallel to Track o Both
Location The Intersection of Front Street With Spur Line Runfiing south to Mendenhall
Distance from nearest town or siding on railroad: I aMI County I Gallatin T State I Montana
Distance and direction from nearest Railroad milepost:, ,
Quarter Section, Section, Township, Range: NE 1 /4 Section 7 r T. 28. r R. 6E.
Distance in feet measured along the track from the point rqadway
crosses the track (main track or more than one track) to known 1 r 700 feet, North of the intersecti :In
point on Railroad (centerline of road crossing, center of railroad
culvert, east or west end of a railroad bridge, points of a railroad of Broadway'& ~~enhall streets
switch ):
Width of crossing requested: 20 Feet with crates on both sides
Width of parallel road requested:
Angle crossing will make with the track at the point of crossing Approximately 80 Degrees
(900 preferred): ,
Distance from center of proposed parallel roadway to nearest
tra ck:
Total length of road on Railroad' right of way: 100 Feet
What use will be made of crossing: Emergen cv Access Onl v. Gated on Both Sides
Does applicant have another private crossing in vicinity? NO
If so, give distance and direction from proposed crossing:
Is land owned or leased on either side of the track at the proposed Crossing will be in front street right of
crossing? If so, describe: way to Access land to east.
If application' is approved, Applicant onderstands that they will be required to sign a regular crossing -Agreement, which will
provide that Applicant will: (1) perform all grading of approach roads and install culverts and gates to meet Railroad
engineering standards, (2) reimburse Railroad for construction and maintaining the crossing, erecting required signs, altering
pole line if required, and removing the crossing and approach grades if the crossing is temporary or if the agreement is later
cancelled, and (3) furnish liability insurance as requested by Railroad.
Applicant will be responsible for keeping gates closed, rail flangeways free of obstruction, and vegetation cut in all four
quadrants. Applicant will attach location sketch showing pertinent details and North arrow.
Continued
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Application for Private Crossing or Supplement to
Existing Permit No.
Page 2 of 2
"^^ \J.J. ~ ~ CD 0. V ~Y--'t" Ct ~.
Signature of Applicant Title
M.1lf;;1 .2~^ 2003
Date l '
If this application is being prepared by a consultant or other third party, please fill out the following:
Name of individual preparing
application: Brian Bollen
Name of firm: ' rR,H 'Rngi nppri ng R, Sl1l"VPyi ng Tric-'
Business Address of preparer: 205 Edeleweiss Drive Bozeman, MT 59718
Telephone Number: (406) 587-1115
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