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HomeMy WebLinkAboutCAG2001-0548 - Original - BNSF Railway Company - Easement License - 02/28/2001 • Form Approved by VP-Law 01-20679 LICENSE THIS LICENSE, made as of the 28th day of February, 2001, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation (hereinafter called "Licensor"), and The City of Kent , a Washington corporation, and its contractors and subcontractors (hereinafter collectively called "Licensee") WITNESSETH, That the parties hereto for the considerations hereinafter expressed covenant and agree as follows 1 Licensor hereby licenses Licensee, subject to the rights and easements hereinafter excepted and reserved and upon the terms and conditions hereinafter set forth, the land (hereinafter called "Premises") situated at or near Kent, County of King, State of Washington, as shown on print attached hereto, marked Exhibit "A" and made a part hereof, for a term beginning on February 28, 2001, and ending when this License shall be terminated as hereinafter provided If any of the Premises are subject to existing leases or licenses, Licensee shall, prior to entering upon the Premises, obtain the written consent of any existing Lessee or Licensee 2 Any contractors or subcontractors performing work on the Premises of Licensor, entering the Premises on behalf of Licensee, shall be deemed the agents of Licensee 3 (a) Licensee shall pay Licensor as compensation for the use of the Premises the sum of Five Hundred and No/100 Dollars ($ 500 00), payable in advance (b) Licensee additionally agrees to reimburse Licensor (within thirty (30) days after receipt of written advice from Licensor) for all cost and expense incurred by Licensor in connection with Licensee's work on the Premises, including but not limited to the furnishing of Flagman ($500.00 per eight hour day, $95 00 per hour thereafter), as Licensor deems necessary 4 In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, Licensor shall not be liable to Licensee for any damage of any nature whatsoever, or to refund any compensation paid hereunder This License is made expressly subject to any and all leases and licenses, which may affect the Premises, and Licensee shall not disturb in any manner any improvements of Licensor or Licensor's existing licenses or leases 5 (a) Licensee shall use Premises exclusively to conduct a Phase II Environmental Site Assessment . In the event Licensee shall use Premises for any other purpose whatsoever, Licensor may declare this License at an end and prevent Licensee from using or remaining upon Premises, with or without process of law Use or storage on the Premises of any hazardous materials is prohibited and a breach of this License Licensee shall not have possession of Premises to the exclusion of Licensor or any others who have obtained or may obtain permission or authority from Licensor to use Premises 1 of 6 (b) Prior to the commencement of any work, Licensee shall submit a workplan to Licensor for Licensor's review Such review shall not constitute the sufficiency or the effectiveness of any workplan (c) Should Licensee install its monitoring well(s), after the well(s) have been installed, Licensee shall provide Licensor the location of said well(s) relative to Licenser's nearest trackage, identifying Licenser's nearest Mile Post sign number 6 (a) Licensee shall notify Licensor's Roadmaster, Wayne Lonngren at Tacoma, WA, telephone (253) 591-2563 at least five (5) days in advance of entering upon Premises to enable scheduling Inspector and/or Flagman, if necessary Licensee shall give Licensor's Environmental Remediation Manager Bruce Sheppard, telephone (206) 625- 6035, advance notice prior to entering the Premises, which notice shall include the specific activities contemplated and the purpose thereof After completion of use of the Premises for the purpose identified in Section 5 herein, Licensee shall notify Licensor in writing that such use has been completed in accordance with Section 22 herein (b) In performing the work described in Section 5, Licensee and its contractors and subcontractors forces shall use only public roadways to cross from one side of Licensor's tracks to the other 7 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 unless approved by Licensor Prior to 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 (ee q , 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 Should Licensee request, thirty (30) working days in advance of requested entry, Licensor will provide Licensee any information that Licensor has in its possession concerning the existence and approximate location of underground utilities and pipelines on the Premises and, prior to any such boring, the Licensee will review all such material to preclude Licensee's fouling any existing pipelines or structures 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 8 Any open hole, boring or well constructed upon Premises by Licensee shall be safely covered and secured at all times when Licensee is not physically working in the actual vicinity thereof All monitoring wells shall be completed at or below the surface of the ground surrounding the well Following completion of that portion of the work, all holes, borings or wells 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 as required by federal, state or local law or regulation, or by any governmental agency having jurisdiction over the Premises All excavated materials shall be properly disposed of by Licensee and shall not be left on the Premises for more than ten (10) days 2of6 9 Any activities performed by Licensee shall be in accordance with prudent standards of professional environmental practices exercised by the environmental engineering profession 10 Upon completion of each portion of its work on the Premises as set forth in this License, Licensee shall (1) remove all of its equipment from the Premises, (2) restore any damage to the Premises caused by Licensee, (3) remedy any unsafe conditions on the Premises created by Licensee, and (4) leave the Premises in as functional and safe a condition as that which existed at the time of the initial entry by Licensee pursuant to this License 11 Licensee's on-site supervision shall retain/maintain a fully executed copy of this License at all times while on the Premises 12 In using the Premises, Licensee shall comply with any and all requirements imposed by federal or state statutes, or by ordinances, orders, or regulations of any governmental body having jurisdiction thereover 13 (a) Licensee agrees, regardless of any negligence or alleged negligence of Licensor, to indemnify and hold harmless Licensor and its affiliated companies against and shall, at Licensor's discretion and, with counsel acceptable to Licensor, assume the defense of, any claims, suits, awards, demands, cleanup costs, disposal costs, expenses (including attorney's fees), fines, penalties or judgments brought against Licensor or its affiliated companies for injury or death to all persons including Licensee or any of its employees, subcontractors, agents or invitees and Licensor's officers and employees, for loss or damage, including but not limited to environmental damages, to property belonging to any person, arising from the Licensee's acts or omissions or failure to perform any obligation hereunder including but not limited to breach of this License or any federal, state and local law, rule, regulation, order, decision and ordinance concerning "hazardous material", "petroleum", "hazardous waste", "hazardous substances" and "nonhazardous waste" as those terms are defined therein. THE LIABILITY ASSUMED BY LICENSEE SHALL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF LICENSOR, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF LICENSOR. (b) LICENSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF LICENSOR, TO INDEMNIFY AND HOLD HARMLESS LICENSOR AND ITS AFFILIATED COMPANIES AGAINST AND SHALL ASSUME THE DEFENSE OF, ANY CLAIMS, SUITS, AWARDS, DEMANDS EXPENSES (INCLUDING ATTORNEYS' FEES), FINES, PENALTIES OR JUDGMENTS BROUGHT AGAINST LICENSOR OR ITS AFFILIATED COMPANIES UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT (FELA) WHENEVER EMPLOYEES OF THE LICENSEE OR ANY OF ITS SUBCONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF LICENSOR OR ITS AFFILIATED COMPANIES 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 REGULATION, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, 3of6 THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. 14 (a) Licensee shall, at its expense, procure and maintain throughout the term of this License, and thereafter until all property of Licensee is removed from the Premises, a comprehensive general form of insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate Such insurance shall contain no exclusion with respect to property of Licensor in the care, custody or control of Licensee Licensee shall also, at its expense, procure and maintain throughout the term of this License an automobile liability policy with limits of One Million and No/100 Dollars ($1,000,000) covering "any auto" LICENSOR AND STAUBACH GLOBAL SERVICES SHALL BE NAMED AS AN ADDITIONAL INSUREDS (b) All risk insurance on the property of Licensee, or in Licensee's care, custody and control, shall contain a waiver of subrogation of claims against Licensor Licensee shall maintain Workers Compensation insurance which shall contain a waiver of subrogation against Licensor (c) All insurance shall be placed with insurance companies licensed to do business in the State in which the Premises are located, with a current Best's Insurance Guide Rating of A- and Class VII, or better Licensee shall provide, and thereafter maintain in effect, a current Certificate of Insurance evidencing such insurance When any portion of or all of the Premises are located within 50 feet of a railroad track, insurance must provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted Each policy shall provide that it shall not be canceled or materially changed unless at least thirty (30) days' prior written notice of cancellation or change shall have been mailed by the insurance company to Licensor at the address designated herein (d) A Railroad Protective Liability insurance policy issued in the name of BNSF with limits of $2,000,000 for bodily injury and property damage per occurrence with an aggregate of $6,000,000 must be provided when work will be performed within 50 feet of BNSF's tracks The policy must be provided prior to BNSF signing this agreement (e) In lieu of providing a Railroad Protective Liability Insurance policy, Grantee may participate in Grantor's Blanket Railroad Protective Liability Insurance Policy available to Grantee or its contractor The limits of coverage are the same as above The cost is $t00.00 ❑ 1 elect to participate in Grantor's Blanket Policy, �] I elect not to participate in Grantor's Blanket Policy (f) The furnishing of insurance required by this Section 14 shall in no way limit or diminish the liability or responsibility of Licensee as provided under any Section of this License 15 Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, addressed to either party, at the addresses and department shown beneath signature of the parties 4 of 6 • 16 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 17 It is understood and agreed that this License shall not be recorded 18 All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State in which the Premises are located 19 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 20 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 21 (a) This License may be terminated at any time by either party upon five (5) days' notice in writing to be served upon the other party, stating therein the date that such termination shall take place, and upon the expiration of the time specified in such notice this License and all rights of Licensee hereunder shall absolutely cease and determine (b) Upon termination, should Licensee have installed its monitoring well(s) on the Premises, once Licensee's well(s) are retired, Licensee shall provide Licensor a copy of the closure documents 22 Upon the termination of this License in any manner herein provided, Licensee shall forthwith surrender to Licensor the possession of the Premises and shall restore the Premises in accordance with Section 10, and in case Licensee shall fail within thirty (30) days after the date of such termination to make such restoration, then Licensor may contract to restore the Premises for the account of Licensee, and in such event Licensee shall within thirty (30) days after the rendition of written advice therefor reimburse Licensor for the cost so incurred 23 If Licensee fails to surrender to Licensor the Premises, upon termination of this License, all the liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered, and no termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or the date, if later, when the Premises have been restored as provided in Section 10 hereof 24 Licensee will promptly transmit to Licensor copies of all reports data boring logs, well completion and other information obtained from all operations on the Premises Licensor shall have the option to obtain split samples and otherwise have reasonable access to the groundwater monitoring well(s) subject to this License for the purpose of obtaining samples or other information from the monitoring well(s) Licensee shall also advise Licensor of any applicable health and safety plans or other similar programs in effect with respect to operations on the Premises 5of6 25 It is understood and agreed that nothing contained herein shall be construed as a commitment to grant Licensee or any principal of Licensee a lease, conveyance or any other interest in any part of the Premises 26 This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to use of the Premises, and supersedes any and all other agreements between the parties hereto relating to use of the Premises Staubach Global Services is acting as agent for The Burlington Northern And Santa Fe Railway Company IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY PO Box 961050 Fort Worth, TX 76161-0050 AMANByTitle CITY OF KENT By Title f'Y1 6of6 D--j Vl m orc m rocs . o p mn o.o.asee��aesionm�q'me saga ro axe co roo.osomma... .no r,00�eaosar mo o�airr acar�r e..wa or�s. ms ceianc m O 11 5.0 oS CD i D V jmz Smith St (D I O W N =A f,, f Z N 1 p ii I„ t ��- 1' I I ` q ° 3 y r 9 To: main Trk. sseaw- r I �� �Toi Eq� f� ,7 o0 o n m p N o 1 .. 0 rt n. y / m mm n a P + ro NN i �ZCd•<- NO a-y 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