APPROVED ENG BNSF BLD2022-1465+BNSF LICENSE+11.15.2023_12.34.44_PM+3902279RESUB
Nov 15 2023
J LL CITY M EDMONDS
(()0) SERVICES
DEVELOPMENT SERVICES
DEPARTMENT
November 13, 2023
BLD2022-1465
Steven D. Pacquer and Amber M. Pacquer
Attention: Mr. Steve Pacquer
18306 Olympic View Dr.
Edmonds, WA 98020
Dear Mr. Pacquer:
Jones Lang LaSalle Brokerage, Inc.
2650 Lou Menk Drive — MOB2
Fort Worth, Texas 76131
20-66166
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 atrvilsonconipaiiV.utility.ic((43vilsorrco.com or 816-556-3624 at least fifteen (15) days in advance of enti3?
and BEFORE YOU DIG, CALL (800) 713-3599 (option 1).
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 maybe contacted at i-vilsoncoinpany. iitili is a,ii,ilsonco.colii 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) 352-1035.
Sincerely,
I
Katie Robles -
Manager - Permits
Enclosure
cc: ivilsoncompniw.utilil � is o,i-vilsonco.com
BNSF. info c ,railpros. com
Nicholas Lucero - BNSF Roadmaster - Nicholas Lucero@bnsf.com
Elias Esparza - BNSF Engineer - Elias.Esparza@bnsf.com
Tracking No. 20-66166
STORMWATER DISCHARGE AND PIPELINE LICENSE
THIS STORMWATER DISCHARGE AND PIPELINE LICENSE ("License") is made to be effective
the 1711' day of November 2023 (the "Effective Date") by and between BNSF RAILWAY COMPANY, a
Delaware corporation ("Licensor") and STEVEN D. PACQUER and AMBER M. PACQUER, husband and
wife, as joint tenants ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
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 for the benefit of Licensee's prernises, 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, four inches (4") in diameter, made of high -density
polyethylene and related appurtenances (the "Pipeline"), across or along Licensor's rail corridor at
or near the address commonly known as 18306 Olympic View Dr., Edmonds, WA 98020, located
in the City of Edmonds, County of Snohomish, State of Washington, Line Segment 0050, Mile Post
19.47 as shown on the attached Drawing No. 79446, dated 10/13/2020, attached hereto as
Exhibit "A" and incorporated herein by reference (the "Premises"). This License is granted with
respect to and shall only be used for the benefit of Licensee's premises or that portion thereof as
is identified and legally described in the attached Exhibit "B" (the "Benefitted Property").
2. Term. This License shall commence on the Effective Date and shall continue in perpetuity (except
where held to be limited by law, and in such cases, the term shall be for a period of ninety-nine (99)
years (the "Term"), 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 (i) construction, maintenance, and
use of the Pipeline in accordance with the Drawings and Specifications, and (ii) drainage and
discharge of stormwater from the Benefitted Property through the Pipeline onto the Premises. The
Pipeline shall only carry stormwater discharged from the Benefitted Property, and Licensee shall
not use the Pipeline to carry any other material or 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.
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 the sum of Three Thousand Seven Hundred
and No/100 Dollars ($3,700.00) 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
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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
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.
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 surn 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
Reserved Rights 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
10. Right to Require 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 or its drainage onto the Premises, 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 unless accompanied by Licensor's representative,
the Scheduling Agent or its designee; provided further that Licensee shall not perform any
construction, maintenance or repair of the Pipeline located on the Premises. All
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
construction, maintenance and repair of the Pipeline located on the Premises must be
performed by a licensed contractor or subcontractor acceptable to Licensor in Licensor's
sole discretion.
11.1.1 Prior to any contractor or subcontractor entering the Premises to perform the initial
installation of, or any subsequent maintenance or repair to, the Pipeline, Licensee
must cause such contractor to enter into and comply with the terms and provisions
of Licensor's then -current standard Temporary Occupancy Permit ("TOP"). The
TOP current as of the Effective Date is attached hereto as Exhibit "D" and
incorporated herein by reference.
11.1.2 Without limitation to the foregoing, Licensee shall, or shall cause its contractor to, notify
Licensor's Roadmaster at Nicholas. Lucero@bnsf.com, telephone 901-433-7490, 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 an emergency, Licensee shall
notify Licensor of Licensee's contractor'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 and
drainage onto the Premises in such a manner and of such material that the Pipeline and
drainage onto the Premises 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
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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
terms and conditions of this License, 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 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
hereby grants Licensor a limited license to access and enter the Benefitted Property for
the inspection or maintenance of the Pipeline as described above. 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.
11.8 Licensee shall not seek, permit, allow, or otherwise cause an increase in the collection
area of or volume of discharge to, through, or from the Pipeline without Licensor's prior
written consent and approval. Licensee shall further notify Licensor in writing in advance
of any proposed change in the use or zoning of the Benefitted Property.
11.9 Continuing Obligations. THE TERMS AND CONDITIONS CONTAINED IN THIS
LICENSE, INCLUDING BUT NOT LIMITED TO LIMITATIONS ON THE USE AND
OPERATION OF THE PIPELINE AND ITS DISCHARGE, MAINTENANCE OF THE
PIPELINE, LEGAL AND ENVIRONMENTAL COMPLIANCE, AND LIABILITY AND
INSURANCE, SHALL BE CONTINUING OBLIGATIONS OF BOTH LICENSEE AND
SUCCESSOR OWNERS OF THE BENEFITTED PROPERTY PURSUANT TO SECTION
29 HEREIN. LICENSEE AGREES TO AND SHALL PROVIDE WRITTEN NOTICE TO
LICENSOR OF ANY CHANGES IN OWNERSHIP, IN WHOLE OR IN PART, OF THE
BENEFITTED PROPERTY AND SHALL REQUIRE ANY SUBSEQUENT OWNER OR
OTHER INTEREST HOLDER (EXCLUDING LIENHOLDERS, EXCEPT FOR
MORTGAGEES IN POSSESSION) TO ACCEPT AND AGREE TO BE BOUND BY THIS
LICENSE AS PART OF ANY TRANSFER OF OWNERSHIP. LICENSOR SHALL
APPROVE ANY ASSIGNMENT OF THIS LICENSE IN ACCORDANCE WITH SECTION
26. LICENSEE AGREES THAT THE TERMS AND CONDITIONS OF THIS LICENSE
SHALL INURE TO THE BENEFIT OF AND BECOME COVENANTS UPON THE
BENEFITTED PROPERTY AS PROVIDED BY SECTION 29 WHICH SHALL RUN WITH
THE BENEFITTED PROPERTY FOR THE TERM OF THIS LICENSE AND FOR SUCH
EXTENDED TERM AS ANY CONTINUING OBLIGATION MAY EXIST FOLLOWING
TERMINATION.
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
12. Borina 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 3111 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 Prerises
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 ten (10)
days, but must be properly disposed of by Licensee in accordance with applicable
Legal Requirements.
12.5 For any and all excavation permitted under this License, if removal of soils or other such
material as wastes is required, Licensee shall be deemed the generator of that waste. All
waste shall be appropriately managed and properly disposed of at an appropriately -
licensed facility in accordance with all applicable Legal Requirements, including
manifesting requirements.
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
12.6 All fill materials to be imported to Licensor's property shall be certified clean fill or from a
source specifically approved by Licensor, and supporting documentation shall be provided
to Licensor upon request.
LIABILITY AND INSURANCE
13. Liabil� 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, AGGRAVATED BY, OR CONTRIBUTED TO, IN WHOLE OR IN
PART, BY ANY LICENSEE PARTY, INCLUDING ANY OFF -SITE MIGRATION,
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.
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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,
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 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.
14. 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.
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. Homeowners Insurance. The policy must be written on a Homeowners 2 — Broad Form,
ISO form number HO 00 02 05 01 or equivalent. The insurance must contain contractual
liability with a combined single limit of $1,000,000. No other endorsements limiting
coverage may be included on the policy.
15.2 Business Automobile Insurance. This insurance shall contain a combined single limit of
at least $100,000 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
15.3 Umbrella Insurance. The Homeowners and Auto insurance may be provided on a
continuation of an umbrella insurance policy. Any such umbrella insurance policy shall
provide that the coverage "follows form" to the underlying insurance and that such policy
provides equivalent or broader coverage than that provided by such underlying insurance.
15.4 Other Requirements:
15.4.1 Licensee is not allowed to self -insure without the prior written consent of Licensor.
If granted by Licensor, any deductible, self -insured retention or other financial
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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 Agreement, be covered by Licensee's insurance will be covered
as if Licensee elected not to include a deductible, self -insured retention, or other
financial responsibility for claims.
15.4.2 Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
declarations page including an original signature of the authorized representative
evidencing the required coverage and referencing the contract audit/folder number
if available. The policy(ies) shall contain a provision that obligates the insurance
company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days
prior to any cancellation, non -renewal, substitution or material alteration. This
cancellation provision shall be indicated on the certificate of insurance. Upon
request from Licensor, a certified duplicate original of any required policy shall be
furnished.
15.4.3 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 VI or
better, and authorized to do business in the state(s) in which the service is to be
provided.
15.4.4 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 Agreement.
15.4.5 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.
15.4.6 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.
15.4.7 The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee
including, without limitation, liability under the indemnity provisions of this License.
Damages recoverable by Licensor shall not be limited by the amount of the
required insurance coverage.
15.4.8 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
16. Compliance with Laws Rules and Regulations.
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
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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. Licensor's consent to the use of the Premises
contemplated under this License shall not constitute an endorsement of the effectiveness
or sufficiency of any best management practices required under any environmental permit
issued to Licensee or cause Licensor to be subject to any terms or conditions of any such
Licensee permit.
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.
Further, Licensee covenants that the stormwater discharged onto Licensor's property shall
be free and clear of contamination and other pollutants. 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.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center
at (800) 832-5452 of any known release of Hazardous Materials on, from, or affecting the
Premises, and prompt notice by e-mail to EnvironmentalLeases(cDBNSF.com of any known
violation of Environmental Laws or inspection or inquiry by governmental authorities
charged with enforcing Environmental Laws with respect to Licensee's use of the
Premises. Licensee shall use its best efforts to immediately respond to any release on,
from, or affecting the Premises. Licensee also shall give Licensor prompt notice of all
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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 or its drainage 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 arising from or related to use or 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
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.
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Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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.
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 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.
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
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.
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Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
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 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 Licensor, at any time, by serving thirty (30) days' written notice of
termination upon Licensee. 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. Licensee may not terminate this License except upon such terms as
may be approved by Licensor in Licensor's sole discretion, which terms must include, but
are not limited to, Licensee's compliance with the Restoration Obligations defined and
described in Section 24 below (including without limitation the design, approval and
implementation of the Alternate Drainage Plan).
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 Unless consent for the Pipeline to remain on the Premises pursuant to Section
24.3 is granted 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;
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Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
24.1.2 report and restore any environmental noncompliance or damage to the Premises,
Licensor's other property, or any 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
24.1.4 leave the Premises in substantially the same condition, including environmental
conditions, which existed as of the Effective Date, or as otherwise agreed to by
Licensor.
In accordance with the removal or decommissioning of the Pipeline as required by this
section, Licensee shall no longer be permitted in any respect to discharge stormwater or
other drainage from or through the Benefitted Property onto the Premises or other property
of Licensor except as expressly approved by Licensor in writing. Licensee shall seek
approval and shall implement a drainage plan in accordance with applicable Legal
Requirements (including local ordinances) that provides for the management and
discharge of stormwater from the Benefitted Property in a manner other than onto, over, or
through the Premises or otherwise impacting Licensor's property and right of way (the
"Alternate Drainage Plan").
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 and Benefitted Property 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. Maintenance of the Pipeline and compliance with the Restoration Obligations
shall be continuing obligations of Licensee and its successors and assigns, secured by the
covenants provided in Section 29.
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: (i) remove the
Pipeline and the other Improvements or otherwise restore the Premises and complete any
portion of the Restoration Obligations which remain incomplete, and in such event
Licensee shall, within thirty (30) days after receipt of bill therefor, reimburse Licensor for all
costs 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 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
13
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
License, provided that, no successor or assign of Licensee may seek to enforce this License until
and unless such assignment has been approved by Licensor as provided in Section 26.
26, Assignment.
26.2
26.1 This License shall be construed as running with the lands burdened and benefited
thereby; however, the license rights granted herein are neither exclusive nor a dedication
of the Premises to Licensee. This License and all of the terms, covenants and provisions
hereof shall inure to the benefit of and be binding upon Licensor and Licensee's respective
legal representatives, successors and assigns; provided, however, Licensee and its
successors and assigns shall, within 30 days after each such successor or assign
succeeds to the interest of Licensee, notify Licensor in writing and provide Licensor with
updated contact information and insurance certificates for such successor or assignee. In
addition to and not in limitation of Licensor's rights in the event of breach, 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 failure to comply with the
provisions of this Section 26.1.
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.
26.3 The provisions of this Section 26 shall survive the expiration or earlier termination of this
License.
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 Drive — MOB2
Fort Worth, TX 76131
Attn: Permits/Licenses
with a copy to: BNSF Railway Company
2650 Lou Menk Dr., MOB-2
Fort Worth, TX 76131-2830
Attn: Senior Manager Real Estate
If to Licensee: Steven D. Pacquer and Amber M. Pacquer
18306 Olympic View Dr.
Edmonds, WA 98020
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.
14
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
29. Covenants Running with Land Recordation. THIS LICENSE SHALL BE CONSTRUED AS
RUNNING WITH THE LANDS BENEFITTED HEREBY, INCLUDING WITHOUT LIMITATION
THE BENEFITTED PROPERTY DESCRIBED ON EXHIBIT "B" ATTACHED HERETO;
HOWEVER, THE RIGHTS GRANTED HEREIN ARE NEITHER EXCLUSIVE NOR A
DEDICATION OF THE PREMISES TO LICENSEE. THIS LICENSE AND ALL OF THE TERMS,
COVENANTS AND PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF AND BE
FULLY BINDING ON LICENSEE, LICENSOR, AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (INCLUDING ALL PERSONS OR ENTITIES ACQUIRING ALL OR ANY PORTION OF
THE BENEFITTED PROPERTY OR THE PREMISES). It is understood and agreed that this
License shall not be placed or allowed to be placed on public record, provided that Licensor and
Licensee shall execute the Declaration of Restrictive Covenants in the form attached hereto as
Exhibit "C" ("Declaration"), subject only to changes, if any, required to conform such form to local
recording requirements. The Declaration shall be recorded against the Benefitted Property within
thirty days of execution of this License in the real estate records of the county or counties in which
the Benefitted Property is located.
30. 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.
31. 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.
32. 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.
33. 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.
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
15
Form 424T(Resid), Rev. 20210809
Tracking No. 20-66166
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 supplernented 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
16
Form 424T(Resid); Rev. 20210809
Tracking No. 20-66166
This License has been duly executed by the parties hereto as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By:
By; Cary Hutchings
Director — Corporate Real Estate
LICENSEE:
Name: Steven%D. er
Name: Amber M. Pa uer
17
Form 424T(Resid); Rev. 20210809
COORDINATE SYSTEM: WA N
TRACKING NO. 20-66166
EXHIBIT "A" N
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
STEVE D. PACQUER AND AMBER M. PACQUER
SCALE:1 IN = 50 FT SECTION: 13
NORTHWEST DIV. TOWNSHIP & RANGE:
SCENIC SUBDIV. 27N 3E
L.S. 0050 MP: 19.47 MERIDIAN: WILLM
DATE: 10/13/2020
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i
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER CASING CARRIER CASING
PIPE PIPE PIPE PIPE
SIZE:
4"
LENGTH ON R/W: 44'
CONTENTS:
STORM WATER
WORKING PRESSURE: -
PIPE MATERIAL:
HDPE
BURY: BASE/RAIL TO TOP
SPECIFICATIONS / GRADE: PE3408, 3,500 PSI
OF CASING
WALL THICKNESS:
0.5"
BURY: NATURAL GROUND
COATING:
BURY: ROADWAY DITCHES
CATHODIC PROTECTION
VENTS: NUMBER -
SIZE - HEIGHT OF VENT ABOVE
GROUND
NOTE: TO BE INSTALLED AT GRADE
EDMONDS
COUNTY OF
SNOHOMISH
STATE OF WA
:J
REVISION 1 DRAWING NO. 79446
Tracking No. 20-66166
EXHIBIT "B"
Description of Benefitted Property
LOT 11 IN BLOCK 2 OF PLAT OF SEAHURST, AS PER PLAT RECORDED IN VOLUME 9 OF PLATS,
PAGE 90 IN SNOHOMISH COUNTY, RECORDS OF SNOHOMISH COUNTY AUDITOR;
SITUATE IN THE CITY OF EDMONDS, COUNTY OF SNOHOMISH, STATE OF WASHINGTON.
Exhibit "B"
Description of Benefitted Property
EXHIBIT "C"
Form of Restrictive Covenants
[see attached]
Exhibit "C"
Declaration of Restrictive Covenants
AFTER RECORDING, RETURN TO:
BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2830
Attn: Corporate Real Estate Department
Document Title: Declaration of Restrictive Covenants
Licensee: Steven D. Pacquer and Amber M. Pacquer
Licensor: BNSF Railway Company
Abbr. Legal Descr.: LOT 11, BILK 2, PLAT OF SEAHURST, SNOHOMISH COUNTY, WA
See Exhibit "A" attached hereto and made a part hereof
Tax Parcel No.: 005656-002-011-00
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS ("Declaration") is made to be effective as
of the 17"' day of November, 2023 (the "Effective Date"), STEVEN D. PACQUER and AMBER M.
PACQUER, husband and wife (collectively, "Licensee") pursuant to that certain license agreement with
BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor").
RECITALS
A. Licensee owns certain real property located in or near the City of Edmonds, County of
Snohomish, State of Washington, legally described on Exhibit "A" attached hereto (the "Benefitted
Property").
B. Licensor owns certain real property located in or near the City of Edmonds, County of
Snohomish, State of Washington, as depicted or described on Exhibit "B" attached hereto (the
"Premises").
C. Licensor and Licensee have entered into a Stormwater Discharge and Pipeline License,
dated November 171', 2023 (the "License"), which sets forth the terms and conditions of a license granted
by Licensor to Licensee over and across the Premises. The License provides for. (i) the construction,
location, maintenance, and operation of certain drainage improvements on the Benefitted Property and the
Premises as described in the License (collectively, the "Pipeline") and (ii) the discharge/drainage of storm
water from the Benefitted Property through the Pipeline onto the Premises. The License also set forth
certain obligations of the Licensee, as of the owner of the Benefitted Property, in connection with Licensee's
use of the Premises as set forth above.
D. The construction, maintenance and operation of the Pipeline and the resulting
discharge/drainage of storm water from the Benefitted Properly through the Pipeline onto the Premises will
enhance the safety and use of the Benefitted Property by preventing or reducing possible erosion and other
issues that could arise from uncontrolled drainage of storm water from the Benefitted Property. Accordingly,
as a material condition of the grant of the License to Licensee, Licensee agrees to place restrictive
covenants on the Benefitted Property to provide for the continuing obligations under the License for the
mutual benefit of Licensor, Licensee and their respective successors and assigns.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby covenant and agree as follows:
1. License Terms and Conditions. All of the terms, conditions, provisions, covenants and
obligations contained in the License are incorporated herein by this reference for all purposes as though
written out at length herein, and both the License and this Declaration shall be deemed to constitute a single
instrument or document. This Declaration is not intended to amend, modify, supplement, or supersede any
of the provisions of the License and, to the extent there may be any conflict or inconsistency between the
License or this Declaration, the License shall control. Interested third parties may inquire about the License
by contacting either Licensor or Licensee at the address specified below.
2. Specific Covenants and Obligations of Licensee. Without limitation to the entirety of the
terms, conditions, covenants and obligations contained in the License, Licensee expressly acknowledges
herein the following covenants and obligations of Licensee and the Benefitted Property (collectively, the
"Specific Licensee Obligations"), all of which together with the remaining terms, conditions, covenants
and obligations contained in the License shall run with and burden the Benefitted Property:
(a) Licensee's operational and use restrictions in Section 11 of the License;
(b) Licensee's indemnification obligations in Section 13 of the License;
(c) Licensee's insurance obligations in Section 15 of the License;
(d) Licensee's environmental and remediation obligations in Section 17 of the License; and
(e) Licensee's obligation to surrender and restore the Premises upon the expiration or
termination of the License, as described in Section 24 of the License.
3. Applicability: Remedies. The terms and conditions of this Declaration shall apply in
perpetuity and shall touch, concern and run with and burden the Benefitted Property and shall inure to the
benefit of and be enforceable by Licensor and its successors and assigns, regardless of whether Licensor
owns, operates or leases any adjacent properties at the time of the breach of this Declaration. The burden
placed on the Benefitted Property by the terms and conditions of this Declaration is for the mutual benefit
of Licensor, Licensee and their respective successors and assigns. Without limitation to the foregoing, all
owners, tenants and other occupants of the Benefitted Property or any portion thereof, by their acceptance
of their respective deeds, leases, or occupancy of the Benefitted Property, agree that the Benefitted
Property and each portion thereof is subject to this Declaration. Each owner, tenant and occupant of the
Benefitted Property or any portion thereof agrees to comply with this Declaration and the underlying License
and agrees that failure to comply is subject to enforcement and all remedies available at law and in equity.
4. No Waiver. No delay in enforcing the provisions of the terms and conditions of this
Declaration with respect to any breach or violation thereof shall impair, damage, or waive the right of any
party entitled to enforce the same to obtain relief against or recover for the continuation or repetition of such
breach or violation or any similar breach or violation thereof at any later time or times.
5. Transfers. Each contract for sale, deed, deed of trust, lease or other instrument which may
hereafter be executed with respect to any property situated within the Benefitted Property shall be deemed
to have been executed, delivered, and accepted subject to all of the provisions contained herein and all
such provisions shall, without further action, be incorporated by reference therein, regardless of whether
any such instrument specifically refers to or recites all or any part of the terms and conditions of this
Declaration. The parties further agree to execute such further documents and take such further actions as
may be reasonably necessary or desirable to carry out the parties' intentions under this Declaration.
6. Incorporation. The Recitals at the beginning of this Declaration and the Exhibits attached
to this Declaration are incorporated herein by reference and are made a part of this Declaration.
7. Recording. This Declaration shall be recorded in the real property records of the County of
Snohomish, State of Washington, and shall run with the land and be binding upon and inure to the benefit
of the successors and assigns of the respective parties.
8. Severability. To the maximum extent possible, each provision of this Declaration shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision of this
Declaration 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 Declaration.
EXECUTED as of the date below each party's signature; to be effective, however, as of the Effective Date
set forth above.
(Signature pages and exhibits follow)
Licensee Signature Page
LICENSEE:
Name: Ste en D. Pacquer
Date: ! , z
Name: Amber M. P cquer C)4-4
Date:( Zz ZZJ 3
Licensee's Address:
Steven D. and Amber M. PACQvER-
18306 Olympic View Dr.
Edmonds, WA 98020
STATE OF W//�
COUNTY OF _r
This instrument was acknowledged before_me on G % 2c, ") (date) by
(name) as ( L c I —' (title) of �'� =C I' c
(name of party).
C)iR
. \C" F+o
;°C�O:A'�%'c�n:
PUBLIC
No. 2200515� _
Notary Public
(Seal)
My appointment expires: C�
Licensor Signature Page
LICENSOR:
BNSF Railway Company,
a
By:
Nai
Titli
Dat
Licensor's Address:
BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2830
Attention: Corporate Real Estate Department
STATE OF TEXAS
COUNTY OF TARRANT
l G5W-e
T is instrument was acknowl god before eon 0(�) by
name) as itle F Railway Company, a Delaware
orporation.
Notary Public
KELLY J. SChRONK
My Notary ID # 961935
Expires December 29, 2026
(Exhibit "A" (legal description/depiction of Benefitted Property) and Exhibit "B" (depiction of Premises) to
be attached prior to execution]
EXHIBIT "D"
Form of Temporary Occupancy Permit
[see attached]
Exhibit "D"
Temporary Occupancy Permit
((d�,)JLL
November 13, 2023
Seattle Foundation Repair LLC
Attention: Mr. Sergey Derkachev
12843 NE 14th PI
Bellevue, WA 98005-2207
Dear Mr. Derkachev:
Jones Lang LaSalle Americas, Inc.
2650 Lou Menk Drive — MOB2
Fort Worth, TX 76131
Tracking #23 W-18607
Enclosed please find one (1) fully executed agreement for this permit for your files. A copy of the
executed Agreement must be available upon request at the job sites allowing authorization to do the work.
Please contact local BNSF Roadmaster at 901-43-7490 or by e-mail (below) in advance of entry for each
location and BEFORE YOU DIG, CALL 1-800-533-2891. PLEASE BE ADVISED WHEN
CALLING THE DIG # PROVIDED, THAT YOU MUST SELECT OPTIONS 7 AND REQUEST
TO CONNECT WITH THE SIGNAL OPERATION CENTER.
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.
If you need additional information, please contact me at (817) 352-1035.
Sincerely,
Katie Robles
Permit Manager
Enclosure
Nicholas Lucero — BNSF Roadmaster — Nicholas.Lucero@bnsf.com
Kyle Leatham — BNSF Engineer — Kyle.Leatham@bnsf.com
Tracking #23W-18607
TEMPORARY OCCUPANCY PERMIT
THIS TEMPORARY OCCUPANCY PERMIT ("Permit"), is made to be effective November 171i',
2023 (the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Licensor") and SEATTLE FOUNDATION REPAIR LLC, a Washington limited liability company
("Contractor").
RECITALS
A. Licensor operates a freight transportation system by rail with operations throughout the
United States and Canada.
B. Pursuant to that certain Stormwater Discharge and Pipeline License dated November 17"',
2023 at or near the City of Edmonds, County of Snohomish, State of Washington ("License"), Licensor has
granted a non-exclusive license to STEVEN D. PACQUER and AMBER M. PACQUER ("Licensee") for the
construction and maintenance of a pipeline and related appurtenances (collectively, the "Pipeline").
C. Licensee desires Contractor to perform certain construction and/or maintenance services
in connection with the Pipeline upon the Premises, and Contractor is willing to perform such services.
AGREEMENTS
NOW, THEREFORE, in consideration of Licensor entering this Permit with Contractor and
granting Contractor permission to enter upon the Premises, Contractor agrees with Railroad as follows:
GENERAL
Grant of Permit; Incorporation of License.
1.1 Licensor hereby grants Contractor 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 Edmonds,
County of Snohomish, State of Washington, Line Segment 0050, Mile Post 19.47 as shown
on the attached Drawing No.88773, dated October 11, 2023, attached hereto as Exhibit
"A", and incorporated herein by reference (the "Premises").
1.2 Contractor hereby acknowledges and agrees that, except for Sections 2 (Term); 6 (License
Fee); 11.9 (Continuing Obligations; Covenants Running with the Land); 13 (Liability and
Indemnification); 15 (Insurance), 22 (Taxes); 26 (Assignment); and 27 (Notices), the terms
and conditions of the License are incorporated into this Permit as if set forth in full herein.
2. Term. This Permit shall commence on the Effective Date and shall continue for a period of Three
(3) months, subject to prior termination as hereinafter described.
Existing Improvements. Contractor shall not disturb any improvements of Licensor or Licensor's
existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use
Of such improvements.
Use. Contractor shall use Premises exclusively as a site for construction of pipeline. Contractor
shall not use the Premises for any other purpose.
Tracking #23 W-18607
Alterations. Except as set forth in this Permit, Contractor 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
Permit Fee. Contractor shall pay Licensor, prior to the Effective Date, the sum of Zero and No/100
Dollars ($00.00) as compensation for the use of the Premises.
Costs and Expenses.
7.1 For the purpose of this Permit, "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 Contractor agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all
costs and expenses incurred by Licensor in connection with Contractor's use of the
Premises, including but not limited to the furnishing of Licensor's flaggers and any vehicle
rental costs incurred. Contractor 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.
Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Contractor fails
to pay any monies due to Licensor within thirty (30) days after the invoice date, then Contractor
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'/z%), or (ii) the maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
Reserved Rights 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 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 Contractor for the purpose specified in Section 4 above.
Tracking N23W-18607
CONTRACTOR'S OPERATIONS
10. Use of the Premises.
10.1 Contractor shall notify Licensor's Roadmaster, Nicholas Lucero at
Nicholas.Lucero@bnsf.com, telephone 901-433-7490, at least ten (10) business days prior
to entering the Premises. In the event of emergency, Contractor shall notify Licensor of
Contractor'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 Contractor's on -site supervisors shall retain/maintain a fully executed copy of this Permit
at all times while on the Premises.
10.3 While on the Premises, Contractor 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 Contractor shall be deemed servants and agents of Contractor for
purposes of this Permit.
10.5 Under no conditions shall Contractor 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 Contractor has obtained prior
written approval from Licensor. Contractor 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, Contractor shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty
or obligation to monitor Contractor's use of the Premises to determine the safe nature
thereof, it being solely Contractor's responsibility to ensure that Contractor'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 Permit.
LIABILITY AND INSURANCE
11. Liability and Indemnification.
11.1 For purposes of this Permit: (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) "Contractor Parties" means Contractor or Contractor'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, CONTRACTOR 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):
Tracking #23W-18607
11.2.1 THIS PERMIT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
11.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS PERMIT,
11.2.3 CONTRACTOR'S OCCUPATION AND USE OF THE PREMISES,
11.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES
CAUSED BY OR CONTRIBUTED TO BY CONTRACTOR, OR
11.2.5 ANY ACT OR OMISSION OF ANY CONTRACTOR PARTY.
11.3 TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR NOW AND
FOREVER WAIVES ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO
THIS PERMIT, 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).
CONTRACTOR WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS PERMIT IS
MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS PERMIT SHOULD NOT BE SO
CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS PERMIT TO BE A
WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, CONTRACTOR
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY
LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS PERMIT. IN NO EVENT
AS BETWEEN LICENSOR AND CONTRACTOR AS TO USE OF THE PREMISES AS
CONTEMPLATED BY THIS PERMIT SHALL LICENSOR BE RESPONSIBLE TO
CONTRACTOR FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
11.4 IF ANY EMPLOYEE OF ANY CONTRACTOR PARTY ASSERTS THAT HE OR SHE IS
AN EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY
LAW, CONTRACTOR SHALL, AND SHALL CAUSE ITS CONTRACTORTO, RELEASE,
INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND
AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE OR IN
PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY
PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE
SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE
OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION
AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
11.5 THE FOREGOING OBLIGATIONS OF CONTRACTOR 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, Contractor 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 Permit for which Contractor has an obligation to assume liability for and/or
save and hold harmless any Indemnitee. Contractor 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.
Tracking 423W-18607
12. 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 CONTRACTOR 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. Contractor shall, at its sole cost and expense, procure and maintain during the life of
this Pen -nit the following insurance coverage:
13.1 Commercial General Liability Insurance. This insurance shall contain broad form
contractual liability with a combined single lirnit 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 Contractor. Coverage must be purchased on a post 2004
ISO occurrence or equivalent and include coverage for, but not limited to, the following:
■ Bodily Injury and Property Damage
■ Personal Injury and Advertising Injury
■ Fire legal liability
■ Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated on
the certificate of insurance:
■ The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
■ Waiver of subrogation in favor of and acceptable to Licensor.
■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang
LaSalle Brokerage, Inc.
■ Separation of insureds.
■ The policy shall be primary and non-contributing with respect to any insurance carried
by Licensor.
It is agreed that the workers' compensation and employers' liability related exclusions in
the Commercial General Liability Insurance policy(s) required herein are intended to apply
to employees of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
13.2 Business Automobile Insurance. This insurance shall contain a combined single
limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
■ Bodily injury and property damage.
■ Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the
certificate of insurance:
■ Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor.
■ Separation of insureds.
■ The policy shall be primary and non-contributing with respect to any insurance carried
by Licensor.
13.3 Workers' Compensation and Employers' Liability Insurance. This insurance shall
include coverage for, but not limited to:
Tracking #23W-18607
■ Contractor's statutory liability under the workers' compensation laws of the state(s) in which
the services are to be performed. If optional under state laws, the insurance must cover
all employees anyway.
■ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000
by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
■ Waiver of subrogation in favor of and acceptable to Licensor.
13.4 Railroad Protective Liability Insurance. This insurance shall name only Contractor
as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the
aggregate. The coverage obtained under this policy shall only be effective during the initial
installation and/or construction of the Pipeline. If further maintenance of the Pipeline is
needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be
required. The policy shall be issued on a standard ISO form CG 00 35 12 03 and include
the following:
■ Endorsed to include the Pollution Exclusion Amendment.
■ Endorsed to include the Limited Seepage and Pollution Endorsement.
■ Endorsed to include Evacuation Expense Coverage Endorsement.
■ No other endorsements restricting coverage may be added.
■ The original policy must be provided to Licensor prior to performing any work or services
under this Permit.
• Definition of "Physical Damage to Property" shall be endorsed to read: "means direct
and accidental loss of or damage to all property owned by any named insured and all
property in any named insured's care, custody and control arising out of the acts or
omissions of the contractor named on the Declarations."
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from
the Effective Date, Contractor may participate in Licensor's Blanket Railroad Protective
Liability Insurance Policy available to Contractor or its contractor. The limits of coverage
are the same as above. The cost is $633.00.
I elect to participate in Licensor's Blanket Policy;
u I elect not to participate in Licensor's Blanket Policy.
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 Contractor agrees to waive its right of recovery against Licensor for all claims and
suits against Licensor. In addition, Contractor'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. Contractor further waives its right of recovery,
and its insurers must also waive their right of subrogation against Licensor for loss
of Contractor's owned or leased property, or property under Contractor's care,
custody, or control.
13.6.3 Contractor 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 Contractor in lieu of insurance.
Any and all Licensor liabilities that would otherwise, in accordance with the
provisions of this Permit, be covered by Contractor's insurance will be covered as
Tracking #23W-18607
if Contractor elected not to include a self -insured retention or other financial
responsibility for claims.
13.6.4 Prior to entering the Premises, Contractor 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. Contractor 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 Permit, Contractor will make
available any required policy covering such claim or lawsuit.
13.6.5 Any insurance policy shall be written by a reputable insurance company
acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII or
better, and authorized to do business in the state(s) in which the service is to be
provided.
13.6.6 If coverage is purchased on a "clairns made" basis, Contractor hereby agrees to
maintain coverage in force for a minimum of three years after expiration or
termination of this Permit. Annually, Contractor agrees to provide evidence of such
coverage as required hereunder.
13.6.7 Contractor represents that this Permit has been thoroughly reviewed by
Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor
to procure the insurance coverage required by this Permit. 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 Contractor, Contractor
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 Contractor 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 Permit immediately. Acceptance of a certificate
that does not comply with this Section shall not operate as a waiver of Contractor's
obligations hereunder.
13.6.11 The fact that insurance (including, without limitation, self-insurance) is obtained by
Contractor shall not be deemed to release or diminish the liability of Contractor,
including, without limitation, liability under the indemnity provisions of this Permit.
Damages recoverable by Licensor shall not be limited by the amount of the
required insurance coverage.
13.6.12 These insurance provisions are intended to be a separate and distinct obligation
on the part of the Contractor. Therefore, these provisions shall be enforceable and
Contractor shall be bound thereby regardless of whether or not indemnity
provisions are determined to be enforceable.
13.6.13 For purposes of this Section 13, 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
14. Compliance with Laws, Rules and Regulations.
14.1 Contractor 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 Contractor's use of the Premises.
14.2 Prior to entering the Premises, Contractor shall and shall cause its contractor(s) to comply
with all of Licensor's applicable safety rules and regulations. Contractor 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,
Contractor must ensure that each and every employee of Contractor, its contractors,
agents and invitees possess a card certifying completion of the Safety Orientation prior to
entering upon the Premises. Contractor must renew the Safety Orientation annually.
15. Environmental.
15.1 Contractor 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"). Contractor shall not maintain a treatment,
storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Contractor shall not release or suffer the release of
oil or hazardous substances, as defined by Environmental Laws on or about the Premises.
15.2 Contractor 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 the Pipeline
on Licensor's property. Contractor agrees periodically to furnish Licensor with proof,
satisfactory to Licensor that Contractor is in compliance with the provisions of this Section
15.2.
15.3 Contractor 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
Contractor's use of the Premises. Contractor shall use the best efforts to promptly respond
to any release on, from, or affecting the Premises. Contractor also shall give Licensor
immediate notice of all measures undertaken on behalf of Contractor to investigate,
remediate, respond to or otherwise cure such release or violation.
15.4 If Licensor has notice from Contractor 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 Permit, Licensor may require Contractor, at Contractor'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 Contractor shall promptly report to Licensor in writing any conditions or activities upon the
Premises known to Contractor 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 Contractor's reporting to Licensor shall not relieve Contractor of any obligation
Tracking #23W-18607
whatsoever imposed on it by this Permit. Contractor 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 PERMIT 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 PERMIT. CONTRACTOR 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 PERMIT OR
OTHER RIGHTS GRANTED HEREUNDER TO CONTRACTOR OR (B) WHETHER OR
NOT CONTRACTOR'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.
17. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO
THE PREMISES NOR UNDERTAKE TO DEFEND CONTRACTOR IN THE PEACEABLE
POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
18. Eviction at Risk of Contractor. In case of the eviction of Contractor 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 Contractor any compensation paid hereunder,
except for the pro-rata part of any recurring charge paid in advance, or (ii) for any damage
Contractor sustains in connection with the eviction.
DEFAULT, TERMINATION, AND SURRENDER
19. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure
to provide evidence of insurance as required pursuant to the terms of Section 13, the following
events are also deemed to be events of default pursuant to which Licensor has the right to terminate
as set forth below:
19.1 If default shall be made in any of Contractor's covenants, agreements, or obligations
contained in this Permit and Contractor fails to cure said default within thirty (30) days after
written notice is provided to Contractor by Licensor, or in case of any assignment or transfer
of this Permit in violation of Section 21 below, Licensor may, at its option, terminate this
Permit by serving five (5) days' notice in writing upon Contractor. Notwithstanding the
foregoing, Licensor shall have the right to terminate this Permit immediately if Contractor
fails to provide evidence of insurance as required in Section 13.
19.2 Should Contractor 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 Permit, Licensor may, at its option,
terminate this Permit by serving five (5) days' notice of termination upon Contractor.
Tracking H23 W-18607
19.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right
to terminate this Permit for any subsequent default or defaults, nor shall any such waiver
in any way affect Licensor's ability to enforce any Section of this Permit. 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 Permit for failure to
provide evidence of insurance or occurrence of defaults as described above, this Permit
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 Permit, 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 Permit 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 Permit for any reason, Contractor 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 Contractor's use of the Premises;
20.1.3 remedy any unsafe conditions on the Premises created or aggravated by
Contractor; and
20.1.4 leave the Premises in the condition which existed as of the Effective Date of this
Permit.
20.2 Upon any expiration or termination of this Permit, if Contractor fails to surrender the
Premises to Licensor or if Contractor fails to complete its obligations under Section 20.1
above (the "Restoration Obligations"), Contractor shall have a limited license to enter
upon the Premises solely to the extent necessary for Contractor to complete the
Restoration Obligations, and all liabilities and obligations of Contractor hereunder shall
continue in effect until the Premises are surrendered and the Restoration Obligations are
completed. Neither termination nor expiration shall release Contractor from any liability or
obligation under this Permit, 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
Contractor surrenders the Premises and all of the Restoration Obligations are completed.
20.3 If Contractor 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 Contractor shall, within thirty (30) days after receipt of bill therefor, reimburse
Licensor for cost incurred, (ii) upon written notice to Contractor, take and hold the Pipeline
and the other Improvements and personal property as its sole property, without payment
or obligation to Contractor therefor, or (iii) specifically enforce Contractor's obligation to
restore and/or pursue any remedy at law or in equity against Contractor for failure to so
restore. Further, if Licensor has consented to the Pipeline and the other Improvements
remaining on the Premises following termination, Contractor 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.
HE
Tracking #23W-18607
MISCELLANEOUS
21. Successors and Assigns. All provisions contained in this Permit shall be binding upon, inure to the
benefit of, and be enforceable by the respective successors and assigns of Licensor and Contractor
to the same extent as if each such successor and assign was named a party to this Permit.
21, Assignment.
21.1 Contractor may not sell, assign, transfer, or hypothecate this Permit 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 Contractor in violation of this
Section 21 shall be a breach of this Permit 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 Contractor following which the equity interest holders of
Contractor immediately prior to such sale own, directly or indirectly, less than 50% of the
combined voting power of the outstanding voting equity interests of Contractor, (b) any sale
of all or substantially all of the assets of (i) Contractor and (ii) to the extent such entities
exist, Contractor's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Contractor. Notwithstanding the
foregoing, any reorganization, recapitalization, merger or consolidation following which the
equity interest holders of Contractor 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 Contractor
or any successor thereto or the entity resulting from such reorganization, recapitalization,
merger or consolidation shall not be deemed an assignment. THIS PERMIT 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 Permit
to the contrary, if Contractor sells, assigns, transfers, or hypothecates this Permit or any
interest herein in contravention of the provisions of this Permit (a "Purported
Assignment") to another party (a "Purported Transferee"), the Purported Transferee's
enjoyment of the rights and privileges granted under this Permit shall be deemed to be the
Purported Transferee's agreement to be bound by all of the terms and provisions of this
Permit, 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, Contractor, 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
Permit.
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.
11
Tracking 923 W-18607
If to Licensor: Jones Lang LaSalle Brokerage, Inc.
2650 Lou Menk Drive — MOB2
Fort Worth, TX 76155
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 Contractor: Seattle Foundation Repair LLC
12843 NE 141" PI
Bellevue, WA 98005-2207
23. Survival. Neither termination nor expiration will release either party from any liability or obligation
under this Permit, 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 Permit 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
Permit 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 Permit shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this Permit
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 Permit.
27. Integration. This Permit is the full and complete agreement between Licensor and Contractor with
respect to all matters relating to Contractor's use of the Premises, and supersedes any and all other
agreements between the parties hereto relating to Contractor's use of the Premises as described
herein. However, nothing herein is intended to terminate any surviving obligation of Contractor or
Contractor's obligation to defend and hold Licensor harmless in any prior written agreement
between the parties.
28. Joint and Several Liability. If Contractor consists of two or more parties, all the covenants and
agreements of Contractor herein contained shall be the joint and several covenants and
agreements of such parties.
29. Waiver. The waiver by Licensor of the breach of any provision herein by Contractor shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
30. Interpretation.
30.1 This Permit 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
Permit 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
12
Tracking #23 W-18607
exhibits referred to herein shall be construed with and as an integral part of this Permit 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 Permit or other documents are as amended,
modified or supplemented from time to time.
32. Counterparts. This Permit 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 Permit 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
13
DocuSign Envelope ID: 116576137-D436-49E8-A879-04069A1817132
Tracking #23W-18607
This Permit 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.
2650 Lou Menk Drive, MOB2
Fort Worth, TX 76131
By:
Name: L4 VC1 � VI! S
Title:
Date:
CONTRACTOR:
Seattle Foundation Repair LLC, a Washington limited liability company
oosiaoea nr
By.
Name: Bergey Derkachev
Title:
Principal
Date: 11/6/2023
14
DocuSign Envelope ID: 11 B57687-D43649E8-A87"4069A1817B2 TRACKING NO. 23W-18607
I
EXHIBIT "A"
---- TRIM
--- ----- - - - - - - - - - - - - - - - - - - -
SCALE:1 IN = 50 FT
SECTION: 13
NORTHWEST DIV.
TOWNSHIP & RANGE:
SCENIC SUBDIV. L.S. 0050
27N 3E
DATE: 10/11/2023
MERIDIAN: WILLM
2
-
MP 19.47
TO: SEATTLE
47.833205,-122.360491
6 -
4j
in
M
16` TO: MLWdLTEO
LEGEND:
DESCRIPTION:
Q PREMISES
A PARCEL(S) OF LAND CONTAINING ATOTAL OF 571 SOFT. _
Q RIGHT OF WAY LINE
(0.01 A.C.) MORE OR LESS SHOWN HATCHED. TO BE USED -
- TRACK
FOR CONTRACTOR TO INSTALL PIN PILES ON STORM WATER
DRAINAGE PIPE, SEE DRAWING NO. 79446.
EDMONDS
Olympic V1e1m
COUNTY OF SNOHOMISH
STATE OF WA Source: Esri,Mazar,EarthstarGeographies, and the GisUs'enC'ommuMry
REVISION 1 DRAWN BY:NRH DRAWING NO. 88773