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<br /> ARTICLE II—BNSF OBLIGATIONS
<br /> In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
<br /> agrees as follows:
<br /> 1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF
<br /> hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set
<br /> forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction
<br /> License") to construct the Structure across or upon the portion of BNSF's right-of-way described further
<br /> on Exhibit A, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or
<br /> may obtain, permission or authority from BNSF, to do the following:
<br /> (a) Operate, maintain, renew and/or relocate any and all existing ra'lr•ad tra •1tr9cks, wires,
<br /> pipelines and other facilities of like character upon, over.sr unde : e su ace o said right-of-
<br /> way;.
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<br /> (b) Construct, operate, maintain, renew and/or relocate upon said right-ol-way;wItho t limitation,
<br /> such facilities as the BNSF may from time to timetie�em`a pro Fate, provided such facilities
<br /> do not materially interfere with the Agency's use Oahe" Structti e;
<br /> (c) Otherwise use or operate the right-of-way as B may fromti e to time deem appropriate,
<br /> provided such use or operations does _ot mate Tally interfer- ith the Agency's use of the
<br /> Structure. `N _ .
<br /> (d) Require the Agency or its contra-tor to e,,eoute a . .- porary Construction Crossing
<br /> Agreement, for any tempora c in requested o -id in•heconstruction of this Project.
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<br /> Prior to commencing any wo• BNSF's ro erty or right-of-way, Agency must pay BNSF the
<br /> sum of and No/100 Dol ars $ a compensation for the Temporary Construction
<br /> • _. —License. The term of the Tempo a y Constr -ion Licen a egins on the Effective Date and ends on the
<br /> earlier of (i) substantial co 'Lens-
<br /> e ion o` 'he Strucf re, or(ii)twelve (12) months following the Effective Date.
<br /> The Temporary Constructio Licens-tid rela e 1 hts given by BNSF to Agency in this provision are .
<br /> without warranty of title of kind .' se or implied, and no covenant of warranty of title will be implied
<br /> from the .use Of any wor• or or•s hererni ontained. The Temporary Construction License is for
<br /> construction"of the Structure a II 'and s mall not be used by Agency for any other purpose. Agency
<br /> acknoyvlecdges and agrees tha A encj"hall not have the right, under the Temporary Construction
<br /> License, o use th Si:rdu�ct ire In the eynf Agency is evicted by anyone owning, or claiming title to or any
<br /> interest\i,sald ri ol-wa , 6 SF will not be liable to Agency for any damages, losses or any expenses
<br /> of any nattire4whatsoever. aT. e granting of similar rights to others, subsequent to the date of this
<br /> Agreement,will not impair ortn erfere with the rights granted to Agency herein.
<br /> Upon recce ving theipayment from Agency described in the subsequent sentence and provided
<br /> Agency is in complianee with the terms and conditions of this Agreement, BNSF will grant to Agency, its
<br /> successors and assigns, an easement (hereinafter called, the "Easement") to enter upon and use that
<br /> portion of BNSF's right-of-way as is necessary to use and maintain the Structure, substantially in the form
<br /> of Exhibit B attached to this Agreement. Agency must pay BNSF the sum of and
<br /> No/100 Dollars ($ ) as compensation for the Easement within thirty (30) days of issuing a Notice
<br /> to Proceed pursuant to Article III, Section 16 of this Agreement. If Agency fails to pay BNSF within the
<br /> thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until
<br /> full payment is received by BNSF.
<br /> 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the
<br /> construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit
<br /> D attached hereto and made a part hereof. In the event construction on the Project has not commenced
<br /> within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise
<br /> Form 0105 Rev.06/01/05
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