HomeMy WebLinkAbout16-141 - BNSF Railway Company - Temporary Occupancy Permit for Boeing Access Road Bridge RehabilitationCOPY
TEMPORARY OCCUPANCY PERMIT
16 -141
Council Approval N/A
Tracking #15 -52698
THIS TEMPORARY OCCUPANCY PERMIT ( "License "), is made to be effective , 2016, (the
"Effective Date ") by and between BNSF RAILWAY COMPANY, a Delaware corporation ( "Licensor ") and CITY OF
TUKWILA, a Washington corporation ( "Licensee ").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a non- exclusive license, subject to all rights, interests, and
estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to temporarily occupy, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications "), for the purposes specified in Section 4 below, Licensor's rail corridor at or
near Tukwila, County of King, State of Washington, Line Segment 0051, Mile Post 6.7 through 6.9 as shown
on the attached Drawing No. 63952A & 63952B, dated May 20, 2015, attached hereto as Exhibit "A ", and
incorporated herein by reference (the "Premises ").
2. Term. This License shall commence on the Effective Date and shall continue for a period of eighteen (18)
months, subject to prior termination as hereinafter described.
3. Existing Improvements. Licensee shall not disturb any improvements of Licensor or Licensor's existing
lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
4. Use. Licensee shall use Premises exclusively as a site for ground improvements and a construction staging
area and use of a 16' access road. Licensee shall not use the Premises for any other purpose.
5. Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises or
permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of One Thousand, Three
Hundred and No /100 Dollars ($1,300) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and 'expense" or "expenses" includes, but is not
limited to, actual labor and material costs including all assignable additives, and material and supply
costs at current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises, including but not
limited to the furnishing of Licensor's flaggers and any vehicle rental costs incurred. Licensee shall
bear the cost of flagger services and other safety measures provided by Licensor, when deemed
necessary by Licensor's representative. Flagging costs shall include, but not be limited to, the
following: pay for at least an eight (8) hour basic day with time and one -half or double time for overtime,
rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and
unemployment insurance; public liability and property damage insurance; health and welfare benefits;
transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase flagging
rates. Flagging rates in effect at the time of performance by the flaggers will be used to calculate the
flagging costs pursuant to this Section 7.
8. Payment Terms. All invoices are due thirty (30) clays after the date of invoice. If Licensee fails to pay any
monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such
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unpaid sum from the due date until paid at an annual rate equal to the lesser of (1) the prime rate last published
in The Wall Street Journal in the preceding December plus two and one -half percent (2°/2 %), or (ii) the
maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor accepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipe /lines /cables and appurtenances and other facilities or structures of like character upon, over,
under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional
facilities, structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided
Licensor uses all commercially reasonable efforts to avoid material interference with the use of the
Premises by Licensee for the purpose specified in Section 4 above.
LICENSEE'S OPERATIONS
10. Use of the Premises.
10.1 Licensee shall notify Licensor's Roadmaster, Daniel Baker at 2454 Occidental Ave S, Ste. 2D, Seattle,
WA 98134, telephone (206) 625 -6462, or email daniel.baker2 @bnsf.com at least ten (10) business
days prior to entering the Premises. In the event of emergency, Licensee shall notify Licensor of
Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall
promptly thereafter follow up with written notice of such entry.
10.2 Licensee's on -site supervisors shall retain /maintain a fully executed copy of this License at all times
while on the Premises.
10.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's
tracks to the other.
10.4 Any contractors or subcontractors performing work on the Premises, or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
10.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other
activity using mechanized equipment and /or machinery, or place or store any mechanized equipment,
tools or other materials, within twenty -five (25) feet of the centerline of any railroad track on the
Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its
sole cost and expense, perform all activities on and about the Premises in such a manner as not at
any time endanger or interfere with (i) the existence or use of present or future tracks, roadbeds or
property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the
rights or interests of third parties. If ordered to cease using the Premises at any time by Licensor's
personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor
Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's
responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure
by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by
this License.
LIABILITY AND INSURANCE
11. Liability and Indemnification.
11.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
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agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens,
causes of action, suits, demands, judgments, and expenses (including, without limitation, court costs,
reasonable attorneys' fees, costs of investigation, removal and remediation, and governmental
oversight costs) environmental or otherwise; and (c) "Licensee Parties" means Licensee or
Licensee's officers, agents, invitees, licensees, employees, or contractors, or any party directly or
indirectly employed by any of them, or any party they control or exercise control over.
11.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES
FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED
TO (IN WHOLE OR IN PART):
11.2.1 THIS LICENSE, INCLUDING, WITHOUTLIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
11.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
11.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
11.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
11.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
11.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES ANY
AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A
GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES
OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT, AS AMENDED ( "CERCLA ") OR OTHER ENVIRONMENTAL LAWS (DEFINED BELOW).
LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM ANY
AND ALL SUCH CLAIMS. NOTHING IN THIS LICENSE IS MEANT BY EITHER PARTY TO
CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS
LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS
LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY
LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS
BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES AS CONTEMPLATED BY
THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE
ENVIRONMENTAL CONDITION OF THE PREMISES.
11.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE
OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED
TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR
ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL
SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND
ANY SIMILAR STATE OR FEDERAL STATUTE.
11.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
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11.6 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 and expenses incident to such defense, including, but
not limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
12. Personal Property Risk of .Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF
LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT
THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE.
13. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License
the following insurance coverage:
13.1 Commercial General Liability. insurance. This insurance shall contain broad form contractual liability
with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000 but in no event less than the amount otherwise carried by Licensee. Coverage must
be purchased on a post 2004 ISO occurrence or equivalent and include coverage for, but not limited
to, the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other limitation for
any work being done within 50 feet of railroad property.
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, Inc.
• Separation of insureds.
• The policy shall be primary and non - contributing with respect to any insurance carried by Licensor.
It is agreed that the workers' compensation and employers' liability related exclusions in the
Commercial General Liability Insurance policy(s) required herein are intended to apply to employees
of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
13.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the certificate of
insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor.
• Separation of insureds.
• The policy shall be primary and non - contributing with respect to any insurance carried by Licensor.
13.3 Workers' Compensation and Employers' Liability Insurance. This insurance shall include coverage
for, but not limited to:
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• Licensee's statutory liability under the workers' compensation laws of the state(s) in which the
services are to be performed. If optional under state laws, the insurance must cover all employees
anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
13.4 Railroad Protective Liability Insurance. This insurance shall name only Licensor as the Insured with
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage
obtained under this policy shall only be effective during the initial installation and /or construction of the
ground improvements and construction staging area and use of a 16' access road. If further
maintenance of the ground improvements and construction staging area and use of a 16' access road
is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required.
The policy shall be issued on a standard ISO form CG 00 35 12 03 and include the following:
• Endorsed to include the Pollution Exclusion Amendment.
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to Licensor prior to performing any work or services under
this License.
Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all property in any
named insured's care, custody and control arising out of the acts or omissions of the contractor
named on the Declarations."
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective
Date, 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. The cost is
$80,500.
❑ I elect to participate in Licensor's Blanket Policy;
❑ I elect not to participate in Licensor's Blanket Policy.
13.5 Intentionally deleted.
13.6 Other Requirements:
13.6.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
13.6.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. In addition, Licensee's insurers, through the terms of the policy or a policy
endorsement, must waive their right of subrogation against Licensor for all claims and suits,
and the certificate of insurance must reflect the waiver of subrogation endorsement. Licensee
further waives its right of recovery, and its insurers must also waive their right of subrogation
against Licensor for loss of Licensee's owned or leased property, or property under Licensee's
care, custody, or control.
13.6.3 Licensee is not allowed to self - insure without the prior written consent of Licensor. If granted
by Licensor, any self - insured retention or other financial responsibility for claims shall be
covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would
otherwise, in accordance with the provisions of this License, be covered by Licensee's
insurance will be covered as if Licensee elected not to include a self - insured retention or other
financial responsibility for claims.
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13.6.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s)
of insurance including an original signature of the authorized representative evidencing the
required coverage, endorsements, and amendments. Licensee shall notify Licensor in writing
at least 30 days prior to any cancellation, non - renewal, substitution, or material alteration. In
the event of a claim or lawsuit involving Licensor arising out of this License, Licensee will make
available any required policy covering such claim or lawsuit.
13.6.5 Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to
do business in the state(s) in which the service is to be provided.
13.6.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain
coverage in force for a minimum of three years after expiration or termination of this License.
Annually, Licensee agrees to provide evidence of such coverage as required hereunder.
13.6.7 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s) /broker(s), who have been instructed by Licensee to procure the insurance coverage
required by this License. Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
13.6.8 Not more frequently than once every 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.
13.6.9 If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that
the subcontractor shall provide and maintain insurance coverages as set forth herein, naming
Licensor as an additional insured, and shall require that the subcontractor shall release,
defend and indemnify Licensor to the same extent and under the same terms and conditions
as Licensee is required to release, defend and indemnify Licensor herein.
13.6.10 Failure to provide evidence as required by this Section 13 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.
13.6.11 The fact that insurance (including, without limitation, self - insurance) is obtained by Licensee
shall not be deemed to release or diminish the liability of Licensee, including, without limitation,
liability under the indemnity provisions of this License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
13.6.12 These Insurance provisions are intended to be a separate and distinct obligation on the part
of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be
bound thereby regardless of whether or not indemnity provisions are determined to be
enforceable.
13.6.13 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC ",
"BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
14. Compliance with Laws. Rules, and Regulations.
14.1 Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants, restrictions, or decisions of any court of competent jurisdiction ( "Legal Requirements ")
relating to Licensee's use of the Premises.
14.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program
at the website "www.BNSFcontractor.com" (the "Safety Orientation ") within one (1) year prior to
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entering upon the Premises. Additionally, Licensee must ensure that each and every employee of
Licensee, its contractors, agents and invitees possess a card certifying completion of the Safety
Orientation prior to entering upon the Premises. Licensee must renew the Safety Orientation annually.
15. Environmental.
15.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous
Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws ").
Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage
tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the
release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises.
15.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances ",
as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal,
state, or local governmental agency or body; through or on Licensor's property. Licensee agrees
periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with
the provisions of this Section 15.2.
15.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-
5452 of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation
of Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best
efforts to promptly respond to any release on, from, or affecting the Premises. Licensee also shall give
Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate,
respond to or otherwise cure such release or violation.
15.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws
arising in any way with respect to the site 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.
15.5 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, property, or the environment 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.
DISCALIMER OF WARRANTIES
16. No Warranties.
16.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES,
NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY
LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
16.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS
GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE SITE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
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INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF
ANY THIRD PARTY.
17. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
18. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming
any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not
be liable (i) to refund Licensee any compensation paid hereunder, except for the pro -rata part of any recurring
charge paid in advance, or (ii) for any damage Licensee sustains in connection with the eviction.
DEFAULT, TERMINATION. AND SURRENDER
19. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 13, the following events are also deemed
to be events of default pursuant to which Licensor has the right to terminate as set forth below;
19.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this
License and Licensee fails to cure said default within thirty (30) days after written notice is provided to
Licensee by Licensor, or in case of any assignment or transfer of this License in violation of Section
21 below, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing
upon Licensee. Notwithstanding the foregoing, Licensor shall have the right to terminate this License
immediately if Licensee fails to provide evidence of insurance as required in Section 13.
19.2 Should Licensee not comply fully with the obligations of Section 15 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in any
other provision of this License, Licensor may, at its option, terminate this License by serving five (5)
days' notice of termination upon Licensee.
19.3 Any waiver by Licensor 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 ability to enforce any Section of this License. The remedy set forth in this Section 19 shall
be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity.
19.4 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, this License may be terminated
by either party, at any time, by serving thirty (30) days' written notice of termination upon the other
party. Such termination shall not release either party hereto from any liability or obligation under the
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening
prior to the date of termination or thereafter in case by the terms of the License it is provided that
anything shall or may be done after termination hereof.
20. Surrender of the Premises.
20.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense:
20.1.1 remove all of its equipment from the Premises;
20.1.2 report and restore any damage to the Premises or Licensor's other property arising from,
growing out of, or connected with Licensee's use of the Premises;
20.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
20.1.4 leave the Premises in the condition which existed as of the Effective Date of this License.
20.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to
Licensor or if Licensee fails to complete its obligations under Section 20.1 above (the "Restoration
Obligations "), Licensee shall have a limited license to enter upon the Premises solely to the extent
necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of
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Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration
Obligations are completed. Neither termination nor expiration shall release Licensee from any liability
or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions
or events happening prior to the date of termination, or, if later, the date when Licensee surrenders
the Premises and all of the Restoration Obligations are completed.
20.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove any of the other
Improvements or otherwise restore the Premises, and in such event Licensee shall, within thirty (30)
days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold any of the other Improvements and personal property as its sole property,
without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's obligation to
restore and /or pursue any remedy at law or in equity against Licensee for failure to so restore. Further,
if Licensor has consented to any of the other Improvements remaining on the Premises following
termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form acceptable to
Licensor conveying any of the other Improvements to Licensor.
MISCELLANEOUS
21. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent
as if each such successor and assign was named a party to this License.
21. Assignment.
21.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent
of Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 21 shall be a breach of this License and, in
addition, shall be voidable by Licensor in its sole and absolute discretion.
21.2 For purposes of this Section 21, the word "assign" shall include without limitation (a) any sale of the
equity interests of Licensee following which the equity interest holders of Licensee immediately prior
to such sale own, directly or indirectly, less than 50% of the combined voting power of the outstanding
voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee
and (ii) to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c)
any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding the
foregoing, any reorganization, recapitalization, merger or consolidation following which the equity
interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or
consolidation own, directly or indirectly, at least fifty percent (50 %) of the combined voting power of
the outstanding voting equity interests of Licensee or any successor thereto or the entity resulting from
such reorganization, recapitalization, merger or consolidation shall not be deemed an assignment.
THIS LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT
OF LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
21.3 Notwithstanding the provisions of Section 21.1 above or anything contained in this License to the
contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contravention of the provisions of this License (a "Purported Assignment ") to another party (a
"Purported Transferee "), the Purported Transferee's enjoyment of the rights and privileges granted
under this License shall be deemed to be the Purported Transferee's agreement to be bound by all of
the terms and provisions of this License, including but not limited to the obligation to comply with the
provisions of Section 13 above concerning insurance requirements. In addition to and not in limitation
of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold
harmless Licensor for all Liabilities of any nature, kind or description of any person or entity directly or
indirectly arising out of, resulting from or related to (in whole or in part) a Purported Assignment.
21.4 The provisions of this Section 21 shall survive the expiration or earlier termination of this License.
Form 431; Rev. 20140801
- 9 -
Tracking #15 -52698
22. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the
other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i)
placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a
nationally recognized overnight delivery service, addressed to the party to be notified at the address for such
party specified below, or to such other address as the party to be notified may designate by giving the other
party no less than thirty (30) days' advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Brokerage, Inc.
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits /Licenses
with a copy to: BNSF Railway Company
2301 Lou Menk Dr. — GOB -3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
If to Licensee: City of Tukwila
6300 Southcenter Blvd
Suite 100
Tukwila, WA 98188
23. Survival. Neither termination nor expiration will release either party from any liability or obligation under this
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to
the date of termination or expiration, or, if later, the date when the Premises are restored to its condition as of
the Effective Date.
24. Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on
public record.
25. Applicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
26. Severability. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited
by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such
prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of
this License.
27. Integration. This License is the full and complete agreement between Licensor and Licensee with respect to
all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between
the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is
intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
28. Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
29. Waiver. 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.
30. Interpretation.
30.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship; both parties hereby agree that this License shall not be
subject to the principle that a contract would be construed against the party which drafted the same.
Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
convenience of reference only and are not intended to be a part or to affect the meaning or
interpretation hereof. The exhibit or exhibits referred to herein shall be construed with and as an
integral part of this License to the same extent as if they were set forth verbatim herein.
Form 431; Rev. 20140801
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Tracking #15 -52698
30.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing ", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a
visible form; references to any person are also to that person's successors and permitted assigns;
"hereof', "herein ", "hereunder" and comparable terms refer to the entirety hereof and not to any
particular article, section, or other subdivision hereof or attachment hereto; references to any gender
include references to the masculine or feminine as the context requires; references to the plural include
the singular and vice versa; and references to this License or other documents are as amended,
modified or supplemented from time to time.
32. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes,
be deemed an original but which together shall constitute one and the same instrument, and the signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed documents,
and counterparts of this License may also be exchanged via email or electronic facsimile machines and any
email or electronic facsimile of any party's signature shall be deemed to be an original signature for all
purposes.
33. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE — SIGNATURE PAGE FOLLOWS
Form 431; Rev. 20140801
Tracking #15 -52698
This License has been duly executed by the parties hereto as of the date below each party's signature; to
be effective, however, as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By: Jones Lang LaSalle Brokerage, Inc.,
4300 Amon Carter Blvd, Suite 100
Fort Worth, TX 76155
By:
Shane Krueger
Title: Vice President — Permits & Special Projects
Date:
LICENSEE:
CITY OF TUKWILA, a Washington corporation
By:
Title:
Date:
6300 Southcenter Blvd
Suite 100
Tukwila,
!: I I't vj
- 12 -
Form 431; Rev. 20140801
COORDINATE SYSTEM: WA N
EXHIBIT "A"
TRACKING NO. 15 -52698
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
SCALE: 1 IN.= 100 FT.
NORTHWEST DIV.
SEATTLE SUBDIV. L.S. 0051
SECTION: 3
TOWNSHIP: 23N
RANGE: 4E
MERIDIAN: WILLM
MP 6.7_',x''
122 °17'6.145 "W 47 °30'31:267" N
NOTE:
MAIN TRACK #1 SUBJECT TO EASEMENT
BY BNSF -03859-007 TO CENTRAL PUGET SOUND
REGIONAL TRANSIT AUTHORITY, DATE 07/27/2010
BETWEEM CENTERLINE OF KING ST IN SEATTLE, WA
AND MP 38.35X IN TACOMA, WA. EXCEPTIONS AS NOTED
. SEE ALSO EASEMENT BNSF - 3859 -009, DATE 07/27/2010
SEE ALSO EASEMENT BNSF- 3859 -010, DATE 07/02/2012
SEE ALSO EASEMENT BNSF - 3859-011, DATE 07/02/2013
® PREMISES
® ACCESS ROAD
1:1:1 RIGHT OF WAY LINE
— TRACK
Wq.-46V030 DC,
DESCRIPTION:
A PARCEL OF LAND CONTAINING ATOTAL OF 6,742 SQ FT.
(0.15A.C.) MORE OR LESS SHOWN HATCHED. TO BE USED
FOR GROUND IMPROVEMENTS AND CONSTRUCTION STAGING AREA
ANDA 16' ACCESS RD CONTAININGATOTALOF 12,141 SQ. FT.
(0.28 A.C.) MORE OR LESS SHOWN DOUBLE HATCHED.
DRAWING NO. 63952A
0
0
cv
N
W
0
2
COORDINATE SYSTEM: WA N
TRACKING NO. 15 -52698
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF TUKWILA
SCALE: 1 IN.= 100 FT.
NORTHWEST DIV.
SEATTLE SUBDIV. L.S. 0051
DATE 05/20/2015
NOTE:
MAIN TRACK #1 SUBJECT TO EASEMENT
BY BNSF -03859-007 TO CENTRAL PUGET SOUND
REGIONAL TRANSIT AUTHORITY, DATE 07/27/2010
BETWEEM CENTERLINE OF KING ST IN SEATTLE, WA
AND MP 38.35X IN TACOMA, WA. EXCEPTIONS AS NOTED
SEE ALSO EASEMENT BNSF - 3859-009, DATE 07127/2010
SEE ALSO EASEMENT BNSF - 3859-010, DATE 07/02/2012
SEE ALSO EASEMENT BNSF - 3859-011, DATE 07/02/2013
LEGEND:
MP,�6.9
122 °17'6.145"W
47°30'31:267 "N
® PREMISES
® ACCESS ROAD
E-.171 RIGHT OF WAY LINE
TRACK
AT TUKWILA
COUNTY OF KING
SECTION: 3
TOWNSHIP: 23N
RANGE: 4E
MERIDIAN: WILLM
(171,° 3 t� l�r'1i3-JI�ttn t =rCJ
�..L'11- aq,t71M1` "�I-3
085597G
t1
DESCRIPTION:
A PARCEL OF LAND CONTAINING A TOTAL OF 6,742 SQ FT.
(0.15A.C.) MORE OR LESS SHOWN HATCHED. TO BE USED
FOR GROUND IMPROVEMENTS AND CONSTRUCTION STAGING AREA
AND A 16'ACCESS RD CONTAINING A TOTAL OF 12,141 SQ. FT.
(0.28 A.C.) MORE OR LESS SHOWN DOUBLE HATCHED.
STATE OF WA AMM
DRAWING NO. 63952B
MAP REF. s62054