Approving a permit with BNSF Railway Company for Highway 603 Stabilization Project BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF LEWIS COUNTY, WASHINGTON
In the Matter of: }
Approving a permit between BNSF Railway Company }
and Lewis County for temporary work area during }
the Highway 603 Stabilization project and } Resolution No. 1 l� " 2 2--t
authorizing signatures thereon }
WHEREAS, Resolution 14-066, passed by the Board of County Commissioners on February 24, 2014,
instructed the County Engineer to acquire right of way for the Highway 603 Stabilization project; and
WHEREAS, the County made application to BNSF Railway Company (BNSF) for a temporary permit to
use a portion of the railroad right of way during the Highway 603 Stabilization project; and
WHEREAS, BNSF responded with a proposed temporary permit with compensation set at $14,819.00;
and
WHEREAS, the $14,819.00 amount exceeded the County's estimate of cost for the permit; and
WHEREAS, BNSF uses a fee schedule for permits based partially on use and after further explanation of
the County's intended use of the property, the permit cost was reduced to $9,354.00; and
WHEREAS, although the permit cost exceeds the County's estimated cost, it is unlikely that further
discussion will result in a lower cost; and
WHEREAS, the temporary work area provided by the permit is critical to the road stabilization project and
it appears to be in the best public interest to accept BNSF's permit amount of$9,354.00;
NOW THEREFORE, BE IT HEREBY RESOLVED that the Permit between BNSF and Lewis County is
hereby approved and pursuant to Resolution 14-066, the County Engineer is authorized to sign the same.
DONE IN OPEN SESSION this 27th day of July, 2015.
APPROVED AS TO FORM:
Jonathan L. Meyer, Prosecuting Attorney BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY,,WASHINGTON
WAS
Gle► . -r a� sO . Edna J. - -d, h: /1111/.1 De• y Prosecutint ,orr
ATTEyf: zT I�gg� /'o P. . Schulte, Vice Chair —411111
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Karri Muir, CMC, Clerk of the;Lewis -® Gary St�mper, Corn issioner
County Board of County Commissioners
Jones Lang LaSalle Americas, Inc.
JONES LANG 4300 Amon Carter Blvd.,Suite 100
LASALLEa Fort Worth,Texas 76155
tel+1 817-230-2600 fax+1 817 306-8265
June 25, 2015
Lewis County 15-52287
Attention: Kelly Albert
2025 NE Kresky Avenue
Chehalis,WA 98532
Dear Kelly Albert:
Attached please find a copy of the requested contract for execution by an official authorized to execute contract
agreements on behalf of your company. Please print two (2)copies execute and return both copies with original
signature for completion on part of BNSF Railway Company ("BNSF") to this office, along with the following
requirements:
• A check in the amount of$9,354.00 payable to BNSF Railway Company which covers$8,604.00 for
the contract fee and$750.00 for the revision fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. If there are
any issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of Insurance as required in the agreement.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee for
the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle the
funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you
and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be returned for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications necessary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty(60)days, the processing fee
will increase to$1500.00.
Sincerely,
CXatnna Q\alazar
Katrina Salazar
Associate Manager Permits
Attachment
Law Department Approved Tracking#15-52287
TEMPORARY OCCUPANCY PERMIT
THIS TEMPORARY OCCUPANCY PERMIT ("License") is made to be effective 1 i' , 2015,
(the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and
LEWIS COUNTY("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 Winlock, County of Lewis, State of WA, Line Segment 0052, Mile Post 69.13 to
69.78 as shown on the attached Drawing No. 63451A, 63451B & 63451 C, dated April 24, 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 two (2)years
and seven (7)months, subject to prior termination as hereinafter described.
3. Existing Improvements. Licensee shall not disturb any improvements of Licensor or Licenser'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 clearing and grubbing to provide area for
construction activities and silt fence. 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 Eight Thousand, Six
Hundred Four and No/100 Dollars($8,604)as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, cosy 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.
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8. Payment Terms. All invoices are due thirty(30)days after me 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(21/2%), or
(ii)the maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor excepts and reserves me 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 Division Engineer, Mike Schram at 1313 W 11th Street,
Vancouver, WA 98660, telephone (360)418-6415 or email mike.schram @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.
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LIABILITY AND INSURANCE
11. Liability and Indemnification.
11.1 For purposes of this License: (a) "Inaemnitees" 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 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
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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.
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.
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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:
▪ 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 (Pan`. 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. Intentionally deleted, not needed for this permit.
13.5 Pollution Legal Liability(PLL) Insurance. Intentionally deleted, not needed for this permit.
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.
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.
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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
cove rage.
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 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.
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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
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PARTIES, 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 or 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.
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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 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
remaining equipment or materials and any 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
remaining equipment or materials 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 clearing and grubbing to provide an area for
construction activities and silt fence and any 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 remaining equipment or materials and 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
Form 431; Rev. 20140801
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Law Department Approved Tracking#15-52287
granted under this License shall be deemed to be the Purported I ransteree'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.
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: Lewis County
2025 NE Kresky Avenue
Chehalis,WA 98532
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.
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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.
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
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Law Department Approved Tracking#15-52287
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:
Ed Darter
Title: Sr.Vice President-National Accounts
Date:
LICENSEE:
LEWIS COUNTY
By: 2025 NE Kresky Avenue
Chehalis, WA 98532
The: --17
Date:
Form 431; Rev. 20140801
-12
Executive Summary
BOCC Meeting Date:
2015-07-27
Contact:
Tim Elsea
Department:
Public Works
Wording
Approving a permit between BNSF Railway Company and Lewis County for temporary work area
during the Highway 603 Stabilization project and authorizing signatures thereon
Description
Resolution 14-066, passed by the Board of County Commissioners on February 24, 2014, instructed
the County Engineer to acquire right of way for the Highway 603 Stabilization project. The County
made application to BNSF Railway Company (BNSF) for a temporary permit to use a portion of the
railroad right of way during the Highway 603 Stabilization project. BNSF responded with a proposed
temporary permit with compensation set at $14,819.00 which exceeded the County's estimate of cost
for the permit. BNSF uses a fee schedule for permits based partially on use and after further
explanation of the County's intended use of the property, the permit cost was reduced to $9,354.00.
Although the permit cost exceeds the County's estimated cost, it is unlikely that further discussion will
result in a lower cost. The temporary work area provided by the permit is critical to the road
stabilization project and it appears to be in the best public interest to accept BNSF's permit amount of
$9,354.00. This resolution would approve the permit and authorize the County Engineer to sign.
Recommendation
Pass resolution authorizing County Engineer to sign permit with BNSF.
Other
BOCC AGENDA ITEM SUMMARY
Resolution #: l j - 2Z` BOCC Meeting Date: Jul 27, 2015
Suggested Wording for Agenda Item: Agenda Type: Consent
Approving a permit between BNSF Railway Company and Lewis County for temporary work area during the
Highway 603 Stabilization project and authorizing signatures thereon
Brief Reason for BOCC Action:
This resolution authorizes the County Engineer to sign a permit from BNSF for additional work area during the
Highway 603 stabilization project.
Submitted By: Unzelman, Larry Phone: 1183
Date Submitted: Jul 13, 2015
Contact Person Who Will Attend BOCC Meeting: Tim Elsea
Action Needed: Approve Resolution
Publication Requirements:
Hearing Date:
Publications:
Publication Dates:
Approvals:
User Group Status
Amrine, Kim Public Works Pending
Elsea, Tim Public Works . Pending
7t17............. ........:
Additional Copies
Larry Unzelman
Kim Amrine