HomeMy WebLinkAboutContract 61652Tracking #23W-17276
PIPELINE LICENSE CSC No. 61652
THIS PIPELINE LICENSE ("License") is made to be effective November 10, 2023 (the
"Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor")
and CITY OF FORT WORTH, a Texas municipality ("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
construct and maintain, in strict accordance with the drawings and specifications approved by
Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1)
pipeline, 60 inches in diameter inside an existing 69 inch Concrete casing (collectively, the
"Pipeline"), across or along Licensor's rail corridor at or near the station of Fort Worth, County of
Tarrant, State of Texas, Line Segment 0485, Mile Post 348.05 as shown on the attached Drawing
No. 87599, dated April 28, 2023, 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 so long as the
Pipeline is used for a public purpose, 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,
repair, maintenance or replacement of such improvements.
4.Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and
use of the Pipeline in accordance with the Drawings and Specifications. The Pipeline shall carry
sanitary sewer, and Licensee shall not use the Pipeline to carry any other material or use the
Premises for any other purpose. Licensee is expressly prohibited from using or allowing any
telecommunication facilities or equipment within the Premises, or using or allowing the use of 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, a one-time payment (in lieu
of recurring periodic fixed license fees) in the amount of Seven Thousand Four Hundred and
No/100 Dollars ($7,400.00) 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
or the presence, construction and maintenance of the Pipeline, including but not limited to
the furnishing of Licensor's flaggers and any vehicle rental costs incurred, inspection
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coordination, safety, mobilization and/or other observation services described in this
License (collectively, the "Services"). Licensee shall bear the cost of the Services, 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.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Scheduling
Agent"), to perform and/or arrange for the performance of the Services.
8. Payment Terms. All invoices are due thirty (30) days 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 unpaid sum from the due date until paid at an annual rate equal to the lesser
of (i) the prime rate last published in The Wall Street Journal in the preceding December plus two
and one-half percent (2-1/2%), or (ii) the maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Riqhts of Use. Licensor excepts 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 (other than the Pipeline) 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.
10. Riqht to Reauire Relocation. If at any time during the term of this License, Licensor desires the use
of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the Pipeline, Licensee shall, at its sole expense, within thirty (30) days after receiving written
notice from Licensor to such effect, make such changes in the Pipeline as in the sole discretion of
Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor,
including, without limitation, the relocation of the Pipeline, or the construction of a new pipeline to
replace the Pipeline. Notwithstanding the foregoing, Licensee agrees to make all emergency
changes and minor adjustments, as determined by Licensor in its sole discretion, to the Pipeline
promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Pipeline.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by
Licensor's representative, the Scheduling Agent or its designee. Licensee shall notify
Licensor's Roadmaster, Randy Meneweather, at Randv.MeneweatherCc�bnsf.com,
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telephone 309-351-5690, at least ten (10) business days prior to installation of the Pipeline
and prior to entering the Premises for any subsequent maintenance thereon. 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.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at
all times while on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of
Licensor's tracks to the other.
11.4 Any contractors or subcontractors performing work on the Pipeline or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License.
11.5 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, including without limitation all construction and maintenance
of the Pipeline, in such a manner and of such materials as not at any time to 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.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Pipeline in such a
manner and of such material that the Pipeline will 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. The construction of the Pipeline shall be completed within one
(1) year of the Effective Date, and any subsequent maintenance shall be completed within
one (1) year of initiation. Within fifteen (15) days after completion of the construction of the
Pipeline or the performance of any subsequent maintenance thereon, Licensee shall, at
Licensee's own cost and expense, restore the Premises to substantially their state as of
the Effective Date, unless otherwise approved in advance by Licensor in writing. On or
before expiration or termination of this License for any reason, Licensee shall, at its sole
cost and expense, surrender the Premises to Licensor pursuant to the terms and conditions
set forth in Section 24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect
the construction and/or maintenance of the Pipeline at any time for compliance with the
Drawings and Specifications and Legal Requirements (defined below). Licensee shall
reimburse Licensor for the cost of such observation or inspection related services pursuant
to Section 8. If ordered at any time to halt construction or maintenance of the Pipeline by
Licensor's personnel due to non-compliance with the Drawings and Specifications or any
other hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Pipeline, it being solely Licensee's responsibility
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to ensure that the Pipeline is constructed and maintained in strict accordance with the
Drawings and Specifications and in a safe and workmanlike manner in compliance with all
terms hereof. Neither the exercise of, nor the failure by Licensor to exercise, any right
granted by this Section will alter in any way the liability allocation provided by this
License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly
perform its obligations under this Section 11, Licensor may, at its option and at Licensee's
sole expense, arrange for the performance of such work as it deems necessary for the
safety of its operations and activities. Licensee shall promptly reimburse Licensor for all
costs and expenses of such work, pursuant to the terms of Section 8. Licensor's failure to
perform any obligations of Licensee shall not alter the liability allocation hereunder.
12. Borinq and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion
of the Premises, Licensee shall contact the applicable State's call-before-you-dig utility
location service to have 3�d parties mark the location of utilities. 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 hand-tool exploration, Licensee
shall have the right to use suitable detection equipment or other generally accepted
industry practice (e.g., consulting with the United States Infrastructure Corporation) to
determine the existence or location of pipelines and other subsurface structures prior to
drilling or excavating with mechanized equipment. Licensee shall request information from
Licensor concerning the existence and approximate location of Licensor's underground
lines, utilities, and pipelines at or near the vicinity of the proposed Pipeline by contacting
Licensor's Telecommunications Helpdesk, currently at 1-800-533-2891 (option1, then
option 7), at least ten (10) business days prior to installation of the Pipeline. Upon receiving
Licensee's timely request, Licensor will provide Licensee with the information Licensor has
in its possession regarding any existing underground lines, utilities, and pipelines at or near
the vicinity of the proposed Pipeline and, if applicable, identify the location of such lines on
the Premises pursuant to Licensor's standard procedures. Licensor does not warrant the
accuracy or completeness of information relating to subsurface conditions of the Premises
and Licensee's operations will be subject at all times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom
of rail, a soil investigation must be performed by Licensee and reviewed by Licensor prior
to construction. This study is to determine if granular material is present, and to prevent
subsidence during the installation process. If the investigation determines in Licensor's
reasonable opinion that granular material is present, Licensor may select a new location
for Licensee's use, or may require Licensee to furnish for Licensor's review and approval,
in Licensor's sole discretion, a remedial plan to deal with the granular material. Once
Licensor has approved any such remedial plan in writing, Licensee shall, at Licensee's sole
cost and expense, carry out the approved plan in accordance with all terms thereof and
hereof.
12.3 No wells shall be installed without prior written approval from Licensor.
12.4 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings constructed
on the Premises by Licensee shall be:
12.4.1 filled in to surrounding ground level with compacted bentonite grout; or
12.4.2 otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for more than
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ten (10) days, but must be properly disposed of by Licensee in accordance with applicable
Legal Requirements.
LIABILITY AND INSURANCE
13. Liabilitv and Indemnification.
13.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated
companies, partners, successors, assigns, legal representatives, officers, directors,
shareholders, employees, and 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 and 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.
13.2 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):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES
CAUSED BY OR CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER
WAIVES AND WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM 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). 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.
13.4 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,
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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.
13.5 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.
13.6 Intentionally deleted.
13.7 NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED SO AS TO REQUIRE
LICENSEE TO CREATE A SINKING FUND OR TO ASSESS, LEVY AND COLLECT ANY
TAX TO FUND ITS OBLIGATIONS UNDER THIS SECTION 13.
14. Personal Propertv 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.
15. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of
this License the following insurance coverage:
15.1 Commercial General Liabilitv "CGL" Insurance.
a. The policy will provide a minimum of $5,000,000 per occurrence and an
aggregate limit of at least $10,000,000 but in no event will the coverage be in an
amount less than the amount otherwise carried by Licensee. Coverage must be
purchased on a post 2004 ISO occurrence form 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
■ Contractual Liability for an "Insured Contract" consistent with the definition
under the standard ISO general liability policy form.
b. This policy will include the following endorsements or language, which
shall be indicated on or attached to the certificate of insurance:
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■ The definition of "Insured ContracY' will be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
Licensor's 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. to include coverage for ongoing and
completed operations;
■ Separation of insureds;
■ The policy shall be primary and non-contributing with respect to any
insurance carried by Licensor.
c. The parties agree that the workers' compensation and employers' liability
related exclusions in the CGL policy(s) are intended to apply to employees of the
policyholder and will not apply to Licensor's employees.
d. No other endorsements that limit coverage with respect to Licensee's
obligations under this agreement may be included on the policy.
15.2 Business Automobile Insurance.
a. The insurance will provide minimum coverage with a combined single limit
of at least $1,000,000 per accident, and include coverage for, but not limited to the
following:
■ Bodily injury and property damage.
■ Any and all vehicles owned, used or hired.
b. The policy will include the following endorsements or language, which will
be indicated on or attached to 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.
15.3 Workers' Compensation and Employers' Liabilitv Insurance.
a. The policy will provide coverage of all employees performing any part of
the installation or maintenance of the Pipeline including coverage for, but not
limited to:
■ Licensee's statutory liability under the workers' compensation laws of the
state(s) in which the work or services under this agreement are to be
performed. The policy will cover all of Licensee's employees, regardless of
whether such coverage is optional under the law of that state(s).
■ 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.
b. The policy will include contain the following endorsements or language,
which shall be indicated on or attached to the certificate of insurance:
■ Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv Insurance. The policy will name only Licensor as the Insured
and will provide coverage of at least $5,000,000 per occurrence and $10,000,000 in the
aggregate. The coverage obtained under this policy shall only be effective during the initial
installation and/or construction of the Pipeline. THE CONSTRUCTION OF THE PIPELINE
SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further
maintenance of the Pipeline is needed at a later date, an additional Railroad Protective
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Liability Insurance Policy shall be required. The policy will be issued on a standard ISO
form CG 00 35 12 04 and include the following:
■ Endorsed to include the Pollution Exclusion Amendment.
■ Endorsed to include the Limited Seepage and Pollution Endorsement.
■ Endorsed to remove any exclusion for punitive damages.
■ Endorsed to include Evacuation Expense Coverage Endorsement.
■ No other endorsements restricting coverage may be added.
■ The original policy must be provided to Licensor and Licensee shall not
perform any work or services of any kind under this agreement until Licensor has
reviewed and approved the policy.
■ The definition of "Physical Damage to Property" will 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
(including, but not limited to rolling stock and their contents, mechanical
construction equipment or motive power equipment, railroad tracks, roadbeds,
catenaries, signals, tunnels, bridges and buildings) arising out of the acts or
omissions of the contractor named on the Declarations."
15.5 Intentionally deleted.
15.6 Other Requirements:
15.6.1 Where allowable by law, no exclusion for punitive damages may be included in
any policy.
15.6.2 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 policy endorsement, waive their right of subrogation against Licensor for
all claims and suits. Licensee further waives its right of recovery, and its insurers
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.
15.6.3 Allocated Loss Expense, including but not limited to defense costs and expenses,
will be in addition to all policy limits for coverage under the insurance
requirements.
15.6.4 Licensee is allowed to self-insure. 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.
15.6.5 Prior to entering the Premises or commencing any work related to the installation
or subsequent maintenance of the Pipeline, Licensee shall furnish to Licensor an
acceptable certificate(s) of insurance from an authorized representative
evidencing the required coverage(s), endorsements, and amendments.
15.6.6 Licensee shall notify BNSF in writing at least 30 days prior to any cancellation,
non-renewal, substitution or material alteration of any insurance requirement.
15.6.7 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.
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15.6.8 If the coverage provided by any of the insurance policies required by this
agreement is purchased on a"claims made" basis, Licensee hereby agrees to
maintain coverage in force for a minimum of three years after expiration,
cancellation or termination of this agreement.
15.6.9 Licensee agrees to provide evidence to Licensor that it has the required coverage
in place at least annually or in the event of a renewal or material change of
coverage
15.6.10 Licensee represents that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), and that Licensee has instructed them to procure the
insurance coverage required by this License.
15.6.11 Not more frequently than once every five years, Licensor may, at its discretion,
reasonably modify the insurance requirements to reflect the then-current risk
management practices in the railroad industry and underwriting practices in the
insurance industry.
15.6.12 If Licensee will subcontract any portion of the operation, Licensee shall require that
the subcontractor provide and maintain insurance coverage(s) as set forth herein,
naming Licensor as an additional insured. In addition, Licensee shall require that
the subcontractor shall release, defend and indemnify Licensee to the same extent
and under the same terms and conditions as Licensee is required to release,
defend and indemnify Licensor under this agreement.
15.6.13 Failure to provide evidence as required by this section shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that
does not comply with this section shall not operate as a waiver of Licensee's
obligations hereunder.
15.6.14 The fact that Licensee obtains insurance (including, without limitation, self-
insurance) shall not release or diminish Licensee's liabilities or obligations
including, without limitation, the liabilities and obligations under the indemnity
provisions of the License. Damages recoverable by Licensor shall not be limited
by the amount of the required insurance coverage.
15.6.15 In the event of a claim or lawsuit involving BNSF arising out of this Agreement,
Licensee will make the policy covering such claims or lawsuits available to
BNSF.
15.6.16 If Licensee maintains broader coverage and/or higher limits than the minimum
requirements in this Agreement, BNSF requires and shall be entitled to the broader
coverage and/or the higher limits. Any available insurance proceeds in excess of
the specified minimum limits of insurance and coverage shall be available to
BNSF.
15.6.17 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 in the jurisdiction in which the work or services
are performed under this License.
15.6.18 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.
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COMPLIANCE WITH LAWS. REGULATIONS, AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Requlations.
16.1 Licensee shall observe and comply with any and all applicable federal, state, local, and
tribal laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions
of any court of competent jurisdiction ("Legal Requirements") relating to the construction,
maintenance, and use of the Pipeline and the use of the Premises.
16.2 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 year prior to 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 (and ensure that its contractors, agents or
invitees, as applicable, renew) the Safety Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and
all additional rights-of way, easements, licenses and other agreements relating to the grant
of rights and interests in and/or access to the Premises (collectively, the "Rights") and
such other rights, licenses, permits, authorizations, and approvals (including without
limitation, any necessary local, state, federal or tribal authorizations and environmental
permits) that are necessary in order to permit Licensee to construct, maintain, own and
operate the Pipeline and otherwise to perform its obligations hereunder in accordance with
the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period
that does not expire, in accordance with its ordinary terms, prior to the last day of the term
of this License or, if the initial stated term of any such Right expires in accordance with its
ordinary terms on a date earlier than the last day of the term of this License, Licensee shall,
at its cost, exercise any renewal rights thereunder, or otherwise acquire such extensions,
additions and/or replacements as may be necessary, in order to cause the stated term
thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to
own, operate or use the Pipeline in accordance with the terms and conditions of this
License, this License thereby shall automatically expire upon such expiration or termination
of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with Environmental Laws (as defined below). 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 Materials (as defined below) on or about the Premises.
17.2 Except as specifically set forth in Section 4 of this License, Licensee covenants that it will
not handle or transport Hazardous Materials through the Pipeline or on Licensor's
property. Upon request by Licensor, Licensee agrees to furnish Licensor with proof,
satisfactory to Licensor, that Licensee is in compliance with the provisions of this Section
17.2.
10 Form 424; Rev. 20200605
Tracking #23W-17276
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center
at (800) 832-5452 of any known (i) release of Hazardous Materials 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 its best efforts to immediately respond
to any release on, from, or affecting the Premises. Licensee also shall give Licensor prompt
notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond
to or otherwise cure such release or violation.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental
Laws arising in any way with respect to the Pipeline which occurred or may occur during
the term of this License, Licensor may require Licensee, at Licensee's sole risk and
expense, to take timely measures to investigate, remediate, respond to or otherwise cure
such release or violation affecting the Premises or Licensor's right-of-way.
17.5 Licensee shall immediately report to Licensor's Resource Operations Center at (800) 832-
5452 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 all reasonable actions
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.
17.6 During the term of this License, Licensor may, at Licensor's option, require Licensee to
conduct an environmental audit, including but not limited to sampling, of the Premises
through an environmental consulting engineer acceptable to Licensor, at Licensee's sole
cost and expense, to determine if any noncompliance or environmental damage to the
Premises has occurred during occupancy thereof by Licensee. The audit shall be
conducted to Licensor's satisfaction and a copy of the audit report shall promptly be
provided to Licensor for its review. Licensee shall pay all expenses for any remedial or
corrective action that may be required as a result of said audit to correct any noncompliance
or environmental damage, and Licensee shall diligently pursue and complete all necessary
work prior to termination of this License. Licensee's obligations under this Section 17.6
shall survive termination of this License.
17.7 Notwithstanding anything in this Section 17, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine Licensee's compliance
with Environmental Laws, it being solely Licensee's responsibility to ensure that Licensee's
use of the Premises is compliant. 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.
17.8 "Environmental Law(s)" shall mean any federal, state, local, or tribal law, statute,
ordinance, code, rule, regulation, policy, common law, license, authorization, decision,
order, or injunction which pertains to health, safety, any Hazardous Material, or the
environment (including but not limited to ground, air, water, or noise pollution or
contamination, and underground or above-ground tanks) and shall include, without
limitation, CERCLA 42 U.S.C. §9601 et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. §6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §5101
et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq.; the Clean Air
Act, 42 U.S.C. §7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. §2601 et seq.;
the Safe Drinking Water Act, 42 U.S.C. §300f et seq.; the Emergency Planning and
Community Right-to-Know Act, 42 U.S.C. 11001 et seq.; the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. 136 to 136y; the Oil Pollution Act, 33 U.S.C. 2701 et seq.;
and the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.; all as have been
11 Form 424; Rev. 20200605
Tracking #23W-17276
amended from time to time, and any other federal, state, local, or tribal environmental
requirements, together with all rules, regulations, orders, and decrees now or hereafter
promulgated under any of the foregoing, as any of the foregoing now exist or may be
changed or amended or come into effect in the future.
17.9 "Hazardous Material(s)" shall include but shall not be limited to any substance, material,
or waste that is regulated by any Environmental Law or otherwise regulated by any federal,
state, local, or tribal governmental authority because of toxic, flammable, explosive,
corrosive, reactive, radioactive or other properties that may be hazardous to human health
or the environment, including without limitation asbestos and asbestos-containing
materials, radon, petroleum and petroleum products, urea formaldehyde foam insulation,
methane, lead-based paint, polychlorinated biphenyl compounds, hydrocarbons or like
substances and their additives or constituents, pesticides, agricultural chemicals, and any
other special, toxic, or hazardous (i) substances, (ii) materials, or (iii) wastes of any kind,
including without limitation those now or hereafter defined, determined, or identified as
"hazardous chemicals", "hazardous substances," "hazardous materials," "toxic
substances," or "hazardous wastes" in any Environmental Law.
17.10 In addition to and not in limitation of the provisions of Sections 17.3 and 17.5 above, any
monitoring observations, data or results indicative of potential harm to persons, property
or the environment shall be reported by Licensee to Licensor in writing no later than forty-
eight (48) hours of the development of such observations, data or results, and Licensee
shall timely update Licensor as to Licensee's subsequent investigation. Licensee shall
promptly provide Licensor with copies of any submissions or correspondence to or from
federal, state, local, or tribal government agencies related to any matters covered by
Sections 17.3, 17.5, or 17.9.
17.11 Licensee shall, as minimum standards that may be exceeded, design, construct and
operate the Pipeline in accordance with all Legal Requirements and with the most current
standards set forth by industry groups and/or associations such as the American Society
of Mechanical Engineers (ASME), the American National Standards Institute (ANSI) and
the American Petroleum Institute (API) ("Standards"). In addition to meeting or exceeding
the minimum Standards and Legal Requirements referenced in this Section 17.11, the
Pipeline meet all Legal Requirements for rupture prevention and detection. Licensee shall
conduct routine and condition-based monitoring consistent with Licensee's Environmental
Compliance Plan, as described in Section 17.12 below.
17.12 Licensee shall comply with its Environmental Compliance Plan ("ECP"), which ECP shall
be prepared by Licensee in connection with Licensee's operation and maintenance of the
Pipeline on the Premises. The ECP shall meet or exceed Legal Requirements and
Standards for the safe operation of the Pipeline and shall be updated at least annually and
more frequently as necessary to ensure and demonstrate ECP compliance with such Legal
Requirements and Standards. Each update to the ECP shall be promptly submitted to
Licensor and thereby become a part of this License. Licensor may review any ECP or any
update thereof, and provide further requirements or comments in connection therewith, all
provided that, notwithstanding Licensor's review and/or acceptance of any ECP or update
thereof, Licensee shall remain solely responsible for the safe operation of the Pipeline on
the Premises at all times, and the liability of Licensee hereunder shall not be altered or
affected in any way. In addition to the foregoing requirements, the ECP shall:
17.12.1 identify measures to be implemented by Licensee to identify, prevent and mitigate
incidents which may potentially create a risk of harm to persons, property or the
environment during construction, operation and removal of the Pipeline, and during
restoration of the Premises and any impacted property upon termination of the
License;
12 Form 424; Rev. 20200605
Tracking #23W-17276
17.12.2 identify routine and condition-based monitoring to be conducted by Licensee which
will ensure that the integrity and functionality of the Pipeline is maintained and that
the risk for potential harm to persons, property and the environment is mitigated;
17.12.3 identify remedial actions to be undertaken upon the development of observations,
data or results indicative of potential harm to persons, property, or the
environment;
17.12.4 specify Licensee's plans to make the Pipeline and ancillary structures free of any
materials and products and flushed clean;
17.12.5 specify Licensee's plans to abandon or remove the Pipeline and all ancillary
structures and to restore the Premises upon termination of the License; and
17.11.6 specify Licensee's plans to investigate, confirm, and, if necessary, remediate
impacts to surface or subsurface soil associated with Licensee's Pipeline, which
investigation and remediation shall be in full compliance with Legal Requirements
and Environmental Laws.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 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.
18.2 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 PIPELINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS
AND ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY
LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enjovment. 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.
20. 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 damages or costs
Licensee sustains in connection with the eviction.
LIENS AND TAXES
21. Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee on the
13 Form 424; Rev. 20200605
Tracking #23W-17276
Premises. Licensor is hereby authorized to post any notices or take any other action upon or with
respect to the Premises that is or may be permitted by law to prevent the attachment of any such
liens to the Premises; provided, however, that failure of Licensor to take any such action shall not
relieve Licensee of any obligation or liability under this Section 21 or any other Section of this
License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively,
"Taxes") levied or assessed by any governmental or quasi-governmental body upon the Pipeline
or any other improvements constructed or installed on the Premises by or for Licensee (collectively,
the "Improvements") or any Taxes levied or assessed against Licensor or the Premises that are
attributable to the Improvements.
DEFAULT. TERMINATION. AND SURRENDER
23. 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 15, the following
events are also deemed to be events of default pursuant to which Licensor has the right to terminate
as set forth below:
23.1 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 26 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 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling
or transporting of Hazardous Materials, notwithstanding anything contained in any other
provision of this License, Licensor may, at its option, terminate this License by serving five
(5) days' notice in writing upon Licensee.
23.3 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 remedies
set forth in this Section 23 shall be in addition to, and not in limitation of, any other
remedies that Licensor may have at law or in equity.
23.4 Intentionally Deleted.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its
sole cost and expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Pipeline and
all appurtenances thereto, or, at the sole discretion of Licensor, fill and cap or
otherwise appropriately decommission the Pipeline with a method satisfactory to
Licensor;
24.1.2 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;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee;
and
14 Form 424; Rev. 20200605
Tracking #23W-17276
24.1.4 leave the Premises in substantially the condition which existed as of the Effective
Date, or as otherwise agreed to by Licensor.
24.2 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 24.1
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 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.
24.3 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
the Pipeline and 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 the Pipeline and 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 the Pipeline and 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 the Pipeline and the other
Improvements to Licensor for no additional consideration.
MISCELLANEOUS
25. Successors and Assiqns. 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.
26. Assi , n�.
26.1 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 26
shall be a breach of this License and, in addition, shall be voidable by Licensor in its sole
and absolute discretion.
26.2 For purposes of this Section 26, 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 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
15 Form 424; Rev. 20200605
Tracking #23W-17276
WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR,
SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 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 15 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. The provisions of this Section 26.3 shall survive the expiration
or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or in part, all of its rights and
obligations under this License, and upon any such transfer or assignment, Licensor shall
be released from any further obligations hereunder, and Licensee agrees to look solely to
the successor in interest of Licensor for the performance of such obligations.
27. 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.
2650 Lou Menk Dr., MOB-2
Fort Worth, TX 76131
Attn: Permits/Licenses
with a copy to: BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
If to Licensee: City of Fort Worth
200 Texas Street
Fort Worth, TX 76102
28. 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 Pipeline and
the other Improvements are removed and the Restoration Obligations are completed in accordance
with the terms hereof.
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be
placed on public record.
30. A�plicable 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.
16 Form 424; Rev. 20200605
Tracking #23W-17276
31. Severabilitv. 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.
32. Intearation. 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.
33. Joint and Several Liabilitv. 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.
34. 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.
35. Interpretation.
35.1 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.
35.2 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.
36. 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
electronically and any electronic version of any party's signature shall be deemed to be an original
signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for
BNSF Railway Company.
END OF PAGE — SIGNATURE PAGE FOLLOWS
17 Form 424; Rev. 20200605
Tracking #23W-17276
This License has been duly executed by the parties hereto as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By:
By:
Jones Lang LaSalle Brokerage, Inc. 4200 Buckingham Road, Suite 110 Fort Worth,r 76155 -�As$ Cary Hutchings Director, Corporate Real Estate
LICENSEE:
City of Fort Worth, a Texas municipality
By: Dana Bu�hdoff Dana Burghdoff (Sep �3 12:32 CDT)
Title: Assistant City Manager
Approved as to Form and Legality:
By:
Title: Assistant City Attorney Attest: r1� Jannette S. Goodall City Secretary 18 Form424; Rev.20200605
COORDINATE SYSTEM: TX NC
TRACKING NO. 23W-172
EXHIBIT "A"
SCALE:1 IN = 100 FT
RED RIVER DIV.
FT WORTH SUBDIV.
L.S. 0485 MP: 348.05
DATE: 4/28/2023
N
MP 348.05
32.7790987,-97.3332022
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Source: Esri, Maxar, Earthstar Geogra�p; s, and the\ IS User
Community
NOTE:
EXISTING CASING UNDER DESCRIPTION OF PIPELINE
AGREEMENT GC-34364 PIPELINE SHOWN BOLD
CARRIER CASING CARRIER CASING
PIPE PIPE PIPE PIPE
SIZE: 60" 69" LENGTH ON RM/: 187' 187'
CONTENTS: SANITARY SEWER WORKING PRESSURE: 100 PSI
PIPE MATERIAL: FIBERGLASS CONCRETE BURY: BASE/RAILTO TOP
SPECIFICATIONS / GRADE: SN72 - OF CASING 20'
WALL THICKNESS: 127" 8.5" BURY: NATURAL GROUND 5.5'
COATING: - - BURY: ROADWAY DITCHES 5.5'
CATHODIC PROTECTION NO
VENTS: NUMBER 0 SIZE - HEIGHT OF VENTABOVE GROUND -
NOTE: PIPE TO BE INSTALLED BY TRENCHLESS METHOD INSIDE EXISTING CASING
FORT WORTH
COUNTY OF TARRANT STATE OF TX
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DRAWING NO. 87599
Environmental
Compliance Plan for
BNSF Railway
Crossing
City of Fort Worth —
Marine Creek Sanitary
Sewer Parallel
Interceptor M-279 & M-
245B — Part 1
Tracking No. 23W-17276
Prepared by
City of Fort Worth
Prepared for
BNSF Railway Company
05/25/2023
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
TABLE OF CONTENTS
1.0 INTRODUCTION ................................................................................................ 2
1.1 Overview of the Project ...................................................................................... 2
1.2 Objective of the Environmental Compliance Plan ............................................... 4
2.0 COMMITMENT TO ENVIRONMENTAL PROTECTION .................................4
2.1 Roles and Responsibilities ................................................................................. 4
3.0 ENVIRONMENTAL COMPLIANCE TIMELINE ............................................... 5
3.1 Pre-Construction Compliance ............................................................................. 5
3.2 Pipeline Construction ......................................................................................... 6
3.3 Post-Construction and Routine Pipeline Operations ........................................... 6
3.4 Abandonment / Removal Process ...................................................................... 6
4.0 REPORTING AND NOTIFICATIONS ............................................................... 7
4.1 Reporting of Environmental Non-Compliance .................................................... 7
5.0 ENVIRONMENTAL RESPONSE AND REMEDIATION .................................. 7
5.1 Environmental Emergency Response ................................................................ 7
LIST OF EXHIBITS
1 �Page
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
1.0 Introduction
1.1 Overview of the Project
City of Fort Worth (Company) has prepared this Environmental Compliance Plan (ECP)
for the Burlington Northern and Santa Fe Railway (BNSF) in order to comply with the
requirements of the Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B -
Part 1 (Project)
This Project involves the installation of approximately 187 linear feet of 60"
fiberglass sanitary sewer lining through an existing 69" sanitary sewer line
south of Northside Drive in Fort Worth, TX. Construction materials will
include proposed fiberglass sanitary sewer lining and grout to fill annular
space of lining and existing 69" pipe. Project is a gravity sanitary sewer
system and therefore will not be under pressure. Proposed lining can
withstand up to a 100 psi working pressure.
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2�Page
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
The Pipeline crosses BNSF property at approximately 232 feet north of marker 348 and
approximately 97 feet south of the Northside Drive centerline, which is depicted below.
In order to minimize potential impacts to the railways and adhere to BNSF requirements,
the crossing south of Northside Drive will be lined through an existing sanitary
sewer line approximately 20' below BNSF rail line, and will extend past the
limits of the BNSF Property. Since the project is a trenchless construction method there
will be no ground disturbance inside of BNSF right of way. The Engineered drawings are
included in Appendix A for reference.
SCALE:1 IN = 100 FT
RED RIVER DIV.
FT WORTH SUBDIV.
L.S. 0485 MP: 348.05
DATE. 4,`28.+2023
MP 348.05
32.7790967, -97.3332022
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Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
1.2
Objective of the Environmental Compliance Plan
The objective of this Environmental Compliance Plan is to demonstrate and ensure
commitment to environmental integrity and responsibility with all federal, state and local
laws during all phases of the Project. Environmental compliance will be carried out through
compliance training, tracking, inspection, and maintenance during the pre-construction,
construction and operation phases of the Project.
The purpose of an environmental compliance plan is to:
• Establish clear Project expectations;
• Clearly define the roles and responsibilities of Project personnel;
• Outline, recognize and understand the importance of proper construction and
inspection practices to prevent negative environmental impact;
• Affirm environmental commitment to all inspectors, supervisors and managers in
order to meet and exceed the requirements and standards for safe operation;
• Permit efficient implementation of legislative requirements and permit conditions
• Enable cooperation between engineering, construction and environmental
2.0 Commitment to Environmental Protection
City of Fort Worth is committed to constructing the pipeline and valve sites in
compliance with all environmental legislation, applicable permit conditions,
regulatory requirements and specifications, while minimizing environmental
impact.
2.1 Roles and Responsibilities
The construction and commissioning of the Project is the responsibility of City of Fort
Worth Construction Manager.
Project Manager's responsibilities:
• Ensure Contractors understands the Environmental Protection Plan
during the construction
• Resolve any conflicts between the construction management and
environmental considerations
• Review environmental compliance reports and incident reports
• Develop corrective and follow-up actions proceeding incidents
The Construction Contractor's Environmental Compliance Manager is
responsible to:
4�Page
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
• Report to the Project Manager on anything related to environmental compliance
• Implement the Environmental Compliance Plan
• Ensure Contractor's environmental policies are adopted and practiced
• Conduct site visits to ensure inspection and compliance programs are in effect
• Coordinate and facilitate environmental compliance audits
• Accompany government authority responsibilities on field inspections when
required and address environmental issues raised by government authorities
• Report any non-compliance to BNSF
3.0 Environmental Compliance Timeline
3.1 Pre-Construction Compliance
The Construction Contractor will initiate the environmental compliance process prior to
construction by working with federal, state, and local agencies to obtain the necessary
permits required for Project construction. [Environmental Consulting company — not
under contract for sanitary sewer rehabilitation project] are employed to complete a full
environmental analysis is completed for the Project to identify any areas of concern
pertaining to cultural resources, threatened and endangered species, wetlands and
waterways, FEMA floodplains, and sediment and erosion control methods. The
appropriate agencies will be consulted to avoid, minimize, and mitigate impacts for any
environmental concerns identified.
City of Fort Worth is responsibility for compliance as follows:
a. City of Fort Worth will obtain all governmental permits, approval and other
authorizations required by applicable law to construct the pipeline through the
[property].
b. The Pipeline will be constructed, operated and maintained in accordance
with all applicable federal, state and local requirements primarily including but not
limited to:
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v. TCEQ 217: Design Criteria for pomestic Wastewater Systems
5�rage
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
3.2 Pipeline Construction
The design, construction and operation of the facilities will be in accordance with City of
Fort Worth Design Criteria. The design will also comply with other federal and state
codes and regulations where applicable.
[Describe site applicable regulatory standards and reference publications/standards]. The
materials and equipment will meet all required applicable standards, specifications and
codes for the relevant jurisdiction.
Pipeline is a liner that will be installed inside an existing sanitary sewer pipeline. Once
liner is installed the annular space will be grouted and all voids will be filled.
In addition, a post construction CCTV (closed-circuit television) inspection will be
performed to ensure pipeline integrity prior to commissioning the pipeline.
3.3 Post-Construction and Routine Pipeline Operations
Measures will be taken to ensure that the pipeline Operator will implement the following
processes to prevent and mitigate incidents, which may potentially create a risk of harm
to people, property and/or the environment during normal operation and maintenance.
• Damage prevention: Project is to install a liner inside an existing sanitary sewer
pipe.
• Leak detection: After liner installation the annular space of the sanitary sewer
line will be grouted therefore leaks should not be present.
• Operational monitorinq: [Insert description].
• Overpressure protection: Sanitary sewer line will be a gravity system and not
be under operational pressure.
• Inteqrity Manaqement: Operator will implement the following:
o Risk assessment of potential threats
o Assessment of the identified potential threats
o Preventive and mitigation process of the assessment
o Project is a sanitary sewer line rehabilitation.
BE SPECIFC WITH REGARDS TO ACTIONS TAKEN ON ABOVE
ISSUES — DO NOT JUST REFERNCE AN INTERNAL STANDARD O�
THE CFR/REGULATION
3.4 Abandonment / Removal Process
Upon termination of the License, this portion of the pipeline will be purged, flushed and
cleaned of all materials and products, at which point the pipeline will be properly taken
out of service and abandoned in place. — This project is a sanitary sewer line
6�Page
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
rehabilitation of an existing pipeline for the City of Fort Worth.
4.0 Reporting and Notifications
The following documents will be used to document and track environmental compliance:
Project is installation of a liner within an existing sanitary sewer line.
• Construction Communication Plan:
• Permit Binder: 4.1 Reporting of Environmental Non-Compliance
The Construction Contractor and Operation's Environmental Compliance Manger will
manage all environmental non-compliances through reporting and follow-up during pre-
construction, construction and operation. BNSF will be notified immediately and in
accordance with State and Federal Regulations. An incident investigation form will be
filled out and signed by the Construction Project Manager within 24 hours of an event.
City of Fort Worth will take ownership of the issue and corrective measures will be
developed. A follow-up report will state all the corrective actions that were taken.
5.0 Environmental Response and Remediation
5.1 Environmental Emergency Response
The goal is to conduct an efficient and safe emergency response in the event of an
incident to help reduce potential environmental impacts. API Recommended Practices
(RP) 1174 (Onshore Hazardous Liquid Pipeline Emergency Preparedness & Response)
provides the framework for an effective emergency response. It is intended to align
industry, government and emergency response organizations' expectation practices and
competencies.
Immediate verbal and follow-up written notice will be given in the following cases:
• Release of hazardous liquids affecting BNSF territory
• Violation of environmental laws
• Any conditions that may potentially cause harm to people, property
and/or the environment
• All measures taken to investigate, remediate or respond to a hazardous liquid
release and/or an environmental violation as per local, state and federal
regulations
If a leak occurs, the following steps shall be taken:
• Immediately leave the area and avoid making contact with the escaping liquids or
7�Page
Environmental Compliance Plan for BNSF Railway Crossing
City of Fort Worth — Marine Creek Sanitary Sewer Parallel Interceptor M-279 & M-245B — Part 1
vapors
• Avoid potential ignition sources and abandon all equipment being used in the area
• Do not try to operate any pipeline valves
• Do not use a cell phone in the emergency area
• From a distance, call City of Fort Worth Emergency Line listed below or 911
• Call BNSF Service Interruption Desk at 817-352-2832 (North) or 817-352-2833
(South) and report the incident.
Pre-Construction and Construction Contact Information:
Liam Conlon — Project Manager
200 Texas Street
Fort Worth, TX 76102
817-392-6824
Resource Operations Center Contact Information (Post Construction):
Liam Conlon — Project Manager
200 Texas Street
Fort Worth, TX 76102
817-392-6824
8�Page
Exhibit A: Permit
Drawings
COORDINATE SYSTEM: TX NC
TRACKING NO. 23W-1727E
EXHIBIT "A"
SCALE:1 IN = 100 FT
RED RIVER DIV.
FT WORTH SUBDIV.
L.S. 0485 MP: 348.05
DATE: 4/28/2023
N
MP 348.05
32.7790987,-97.3332022
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Community
NOTE:
EXISTING CASING UNDER DESCRIPTION OF PIPELINE
AGREEMENT GC-34364 PIPELINE SHOWN BOLD
CARRIER CASING CARRIER
PIPE PIPE PIPE
SIZE: 60" 69" LENGTH ON RM/: 187'
CONTENTS: SANITARY SEWER WORKING PRESSURE: 100 PSI
PIPE MATERIAL: FIBERGLASS CONCRETE BURY: BASE/RAILTO TOP
SPECIFICATIONS / GRADE: SN72 - OF CASING
WALL THICKNESS: 127" 8.5" BURY: NATURAL GROUND
COATING: - - BURY: ROADWAY DITCHES
CATHODIC PROTECTION
VENTS: NUMBER 0 SIZE - HEIGHT OF VENTABOVE GROUND -
NOTE: PIPE TO BE INSTALLED BY TRENCHLESS METHOD INSIDE EXISTING CASING
FORT WORTH
COUNTY OF TARRANT STATE OF TX
SU RVEY:
MULLIKEN, F G
.,, Ot
GIS User
CASING
PIPE
187'
20'
5.5'
5.5'
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DRAWING NO. 87599
JLL
November 10, 2023
City of Fort Worth
Attention: Mr. Liam Conlon
200 Texas Street
Fort Worth, TX 76102
Dear Mr. Conlon:
23W-17276
Enclosed please find one (1) fully executed Pipeline License Agreement. A copy of the executed agreement must
be available upon request at the job site as authorization to do the work. Please contact BNSF's Scheduling
Agent at wilsoncoinpernv. utilitv. ic(c�;wilsonco. com or 816-556-3624 at least fifteen (I S) days in advance of entty
and BEFORE YOUDIG, CALL (800) 533-2891 (option 7).
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 prior to entering upon the
premises. The certification is good for one year, and each person entering the premises must possess the card
certifying completion.
No encroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agent to arrange for those services. The
scheduling agent may be contacted at wilsoncompanv. utililv. ic cr,wilsonco. com or 816-556-3624. The installation
contractor must comply with all applicable sections of this agreement, including the requirements of section 16
regarding safety requirements prior to encroaching on BNSF Right-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that a copy of the eXecuted agreement must be available upon request at job site(s) allowing
authorization to do the work.
If you need additional information, please contact me at (817) 230-1038.
Sincerely,
9� Sc�vtanP�
Kelly Schronk
Manager - Permits
Enclosure
Jones Lang LaSalle Brokerage, Inc.
2650 Lou Menk Drive, M0B1
Fort Worth, Texas 76131
tel +1 817-352-1038
cc: wilsoncornpanv.utililv.ic(a�wilsonco.com
BNSF. info(a�railpros. com
Randy Meneweather - BNSF Roadmaster — Randv.Meneweather(c�bnsf.com