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HomeMy WebLinkAboutContract 48023 CITY SECRETARY CONTRACT NO. LG�3 ROE 880702 �� Form Approved,AVP-Law AUDIT �/ ,E61VED Folder No. 02990-56 JUI:2 6 2016 CItYOFfORTWORtH ENVIRONMENTAL RIGHT OF ENTRY AGREEMENT cmrsEC�r,� THIS AGREEMENT is made and entered into as of May 26, 2016, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"), and CITY OF FORT WORTH - TRANSPORATION & PUBLIC WORKS DEPARTMENT, to be addressed at City Hall - Second Floor, 1000 Throckmorton St., Fort Worth, TX 76102 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. DEFINITION OF LICENSEE. For purposes of this Agreement, all references in this Agreement to the Licensee shall include the Licensee's contractors,subcontractors,officers,agents and employees, and others acting under its or their authority. Article 2. RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the Licensee the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the portion of Railroad's property in the vicinity of Mile Post 246.00 to 246.32, Dallas Subdivision, at or near Fort Worth, Texas, for the purpose of Environmental testing of soils and ballast on railroad right of way to include 2 soil borings and 9 ballast samples. Flagging is required as proposed in the plan of work submitted to Railroad. No storage of investigative derived waste (IDW) allowed on Union Pacific Railroad right of way. The right herein granted to Licensee is limited to those portions of the Railroad's property specifically described herein in the location shown on the print marked Exhibit A, attached hereto and hereby made a part hereof.. or designated by the Railroad Representative named in Article 4. For the purposes of Exhibit A, Licensee acknowledges that if it or its contractor provides to Railroad digital imagery, Licensee authorizes Railroad to use the Digital Imagery in preparing the print attached as an exhibit hereto. Licensee represents and warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Railroad to use the Digital Imagery in said manner. Article 3. TERMS AND CONDITIONS CONTAINED IN EXHIBITS B AND C. The terms and conditions contained in Exhibits B and C,hereto attached,are hereby made a part of this Agreement. Article 4. ALL EXPENSES TO BE BORNE BY LICENSEE; RAILROAD REPRESENTATIVE. The Licensee shall bear any and all costs and expenses associated with any work performed by the Licensee, or any costs or expenses incurred by the Railroad relating to this Agreement. All work performed by Licensee on Railroad's property shall be performed in a manner satisfactory to the EFT. L RECORD CRETARY Folder No.02990-56 RTH, TX ROE 880702 Form Approved,AVP-Law representative local Manager of Track Maintenance of the Railroad or his authorized representative (hereinafter the Railroad Representative): CODY B. MCDONALD LARRY H. SCOTT MGR TRACK MNTCE MGR SIGNAL MNTCE 3501 MOPAC Rd 5701 West Vickery Blvd FORT WORTH,TX 76107 Fort Worth, TX 76107 Work Phone: 817/8 353-7020 Work Phone: 817/8 307-5215 Cell Phone: 682 438-6086 Article 5. TERM; TERMINATION. A. The grant of right herein made to Licensee shall commence on the date of this Agreement, and continue until September 26, 2016 unless sooner terminated as herein provided, or at such time as Licensee has completed its work on Railroad's property, whichever is earlier. Licensee agrees to notify the Railroad Representative in writing when it has completed its work on Railroad property. B. This Agreement may be terminated by either party on ten (10)days written notice to the other party. Article 6. CERTIFICATE OF INSURANCE. A. Before commencing any work, the Licensee will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit C of this Agreement. B. Union Pacific should be listed as certificate holder and all insurance correspondence shall be directed to: Union Pacific Railroad Company, Director (Attn.: Daniel Peters - Folder No.02990-56), 1400 Douglas Street STOP 1690, Omaha, Nebraska 68179-1690. Article 7. PROTECTION OF FIBER OPTIC FABLE SYSTEMS. Fiber optic cable systems may be buried on Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Prior to beginning any work, the Licensee shall telephone the Railroad at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the property set forth herein. If it is, the Licensee shall also comply with and be subject to the provisions contained in Section 6 of Exhibit B. Article 8. ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM. This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of Nebraska. Litigation arising out of or connected with this Agreement may be instituted and maintained in the courts of the state of Nebraska and Texas only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts. Folder No.02990-56 ROE 880702 Form Approved,AVP-Law Article 9. LICENSE FEE. Licensee shall pay, and Railroad shall accept, upon the execution and return of this instrument, the nonrefundable sum of Five Thousand Dollars ($5,000.00) to cover Railroad's cost to prepare and administer this Agreement. Flagging charges are not included in the sum recited in the preceding paragraph,and will be billed separately, if incurred. Article 10. CONFIDENTIALITY. A. The Parties acknowledge that any data, samples, test results, laboratory analyses, or other information obtained or derived from any environmental investigation or other related work performed on Railroad's Property, and all documents, reports or other information that are developed which pertain to environmental conditions on Railroad's Property (hereinafter "the Environmental Report") are confidential in nature. The Parties agree that all such information, including the Environmental Report, shall be distributed only to those officers, directors and employees of Railroad and Licensee who are authorized by the Railroad to receive such information. B. Government agencies that are authorized by law to obtain the Environmental Report, including any data, samples, laboratory analyses, and/or other information relied upon to develop the Environmental Report, are authorized by the Railroad to receive the Environmental Report when requested pursuant to legally applicable federal, state or local mandate. Licensee agrees that the Railroad shall be notified of any request by a federal, state or local government agency for copies of the Environmental Report and/or related information. C. The Licensee agrees to take all reasonable measures to assure continuous confidentiality and protection of the Environmental Report, including keeping copies to a minimum. The parties understand that Texas law limits the ability of the Licensee to shield from public disclosure any information given to the Licensee. Accordingly, the parties agree to work together to avoid disclosures of the Environmental Report or other information which would result in economic loss or damage to Licensor because of mandatory disclosure requirements to third persons. The Licensee shall give Licensor reasonable notice of public records requests for the Environmental Report or other Licensor documents. D. Adequate instructions shall be issued by the Licensee to all affected officers, directors, employees and consultants of the Licensee as necessary to satisfy the confidentiality provisions of this Agreement. E. The Licensee's contractors, subcontractors, consultants, lenders, counsel and advisors, including legal counsel, that are hired to assist, conduct, prepare, act upon, and/or review the Environmental Report, shall not be provided a copy of the Environmental Report and/or related information until they agree in writing to adhere to all the provisions of this Article. F. Licensee agrees that the Environmental Report, and all associated data, samples, analyses, and other information, are and shall remain the personal property of the Railroad. Upon completion of its work, Licensee agrees to turn the Environmental Report and all associated data and other information, including all copies thereof, over to the Railroad. Folder No.02990-56 ROE 880702 Form Approved,AVP-Law G. In addition to any other remedy at law, the Parties agree that either Party shall have the right to enjoin the other Party, including the other Party's contractors, subcontractors, consultants, lenders, counsel, and/or advisors, in any court of competent jurisdiction for breach of the confidentiality provisions of this Agreement. H. All the terms contained in this Agreement shall survive completion of any work authorized by this Agreement, as well as any related discussions and/or negotiations. The Licensee and Railroad agree to be bound by the confidentiality provisions of this Agreement in perpetuity. Article 11. SPECIAL PROVISION — RAILROAD FLAGMAN; WHEN REQUIRED; FLAGGING CHARGES. A. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within 25 feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains, pursuant to the terms of the attached Exhibit `B'. All expenses connected with the furnishing of said flagman shall be at the sole cost and expense of the Licensee, who shall promptly pay to Railroad all charges connected therewith, within 30 days after presentation of a bill therefore. B. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays;two and one-half times current hourly rate for holidays. C. Wage rates are subject to change, at any time, by law or by agreement between the Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized Governmental Agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, the Licensee shall pay on the basis of the new rates and charges. D. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished, unless he can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other work. Reimbursement will also be required for any day not actually worked by said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad Company by assignment of such flagman to other work,even though the Licensee may not be working during such time. E. Arrangements for flagging are to be made at least Thirty (30) days in advance of commencing work, with the Railroad Manager of Track Maintenance Folder No.02990-56 ROF 880702 Form Approved,AVP-Law Article 12. LICENSEE SHALL FURNISH INFORMATION TO THE RAILROA;. Prior to entering Railroad's property, the Licensee shall also furnish to Railroad a copy of all correspondence (which shall remain a continuing obligation that includes all past and any future correspondence) with any regulatory agencies, or others, that may be involved in this project; a copy of a work plan and a location plan. Prior to the conclusion of this Agreement, the Licensee shall also furnish to the Railroad a copy of all boring logs, and all analytical results obtained hereunder; and advise the Railroad of any and all clean-up activities undertaken with respect to this project and the results and conclusion of same. All required information shall be directed to Union Pacific Railroad Company, c/o Mr. Joel Strafelda, 1400 Douglas Street, STOP 1030, Omaha, NE 68179-1030. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY CITY OF FORT WORTH- Federal Taxpayer LD. # t-6G013�3 TRANSPORATION& PUBLIC WORKS DEPARTMENT By:__4; Daniel Peters Asst. Manager-Contracts By: Title:_ i �}-. Le 'fit (Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a copy of which shall he attached to the Railroad's original counterpart of this document.) APPROVED AS TO FORM AND LEGALITY: A4 Aomt P-1).1 CITY ATTORNEY O� RrlL Wald P. Gonzales,AW. City LFT. CIAL RECORD SECRETARY Folder No.02990-56 WORTH, T X � r mss' 11 Al � 5 _ ,ei W In ul b ^� CD x a KN U J ~ WO • p u {�yy Y ~ 11 z cc mmm� aN � xW �NJ ` LL x < i r �y u W cam o vi a" i a' ��zy 0 v �`. O Fyw a-j W N � p i o� ,'Yti ti ,y Y o N y S O + h ` w V x 1p ' 4 t w z 6Y. 60 ROE 920316 Form Approved,AVP-Law EXHIBIT B Section 1 - NOTICE OF COMMENCEMENT OF WORK—FLAGGING. The Licensee agrees to notify the Railroad Representative at least Ten (10) days in advance of Licensee commencing its work and at least 24 hours in advance of proposed performance of any work by the Licensee in which any person or equipment will be within 25 feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within 25 feet of any track. Upon receipt of such notice, the Railroad Representative will determine and inform the Licensee whether a flagman need be present and whether the Licensee need implement any special protective or safety measures. If any flagmen or other special protective or safety measures are performed by the Railroad, such services will be provided at Licensee's expense with the understanding that if the Railroad provides any flagging or other services,the Licensee shall not be relieved of any of its responsibilities or liabilities set forth herein. Section 2 - LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. a. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of the Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Railroad without liability to the Licensee or to any other party for compensation or damages. b. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Railroad's property, and others) and the right of the Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3- NO INTERFERENCE WITH RAILROAD'S OPERATION. No work performed by Licensee shall cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railroad, its lessees, licensees or others, unless specifically permitted under this Agreement, or specifically authorized in advance by the Railroad Representative. Nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. When not in use, Licensee's machinery and materials shall be kept at least 50 feet from the centerline of Railroad's nearest track, and there shall be no crossings of Railroad's tracks except at existing open public crossings. Section 4- PERMITS. Prior to beginning any work, the Licensee, at its sole expense, shall obtain all necessary permits to perform any work contemplated by this Agreement. Section 5- MECHANIC'S LIENS. The Licensee shall pay in full all persons who perform labor or provide materials for the work to be performed by Licensee. The Licensee shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be enforced against any property of the Railroad for any such Exhibit B ROE 920316 Form Approved,AVP-Law work performed. The Licensee shall to the extent not prohibited by law, indemnify and hold harmless the Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. Section 6- FIBER OPTIC CABLE SYSTEMS. In addition to other indemnity provisions in this Agreement, the Licensee shall, to the extent not prohibited by law, indemnify and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of the Licensee, its contractor, agents and/or employees, that causes or contributes to(1) any damage to or destruction of any telecommunications system on Railroad's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Licensee shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 7 - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, the Licensee shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Licensee shall use only such methods as are consistent with safety, both as concerns the Licensee, the Licensee's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Licensee (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's property. If any failure by the Licensee to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the Licensee shall reimburse and indemnify the Railroad for any such fine, penalty, cost or charge, including without limitation attorneys' fees, court costs and expenses. The Licensee further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. Section 8- SAFETY INSTRUCTIONS. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work pursuant to this Agreement. As reinforcement and in furtherance of overall safety measures to be observed by the Licensee (and not by way of limitation), the following special safety rules shall be followed: a. The Licensee shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. The Licensee shall have proper first aid supplies available on the job site so that prompt first aid services can be provided to any person that may be injured on the job site. The Licensee shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries occurring to any person that may arise during the work performed on the job site. The Licensee shall have a non-delegable duty to control its employees, while they are on the job site or any other property of the Railroad to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage or illegally obtained drug, narcotic or other substance that may inhibit the safe performance of work by an employee. Exhibit B ROE 920316 Form Approved,AW-Law b. The employees of the Licensee shall be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing or free use of their hands or feet. Only waist length shirts with sleeves and trousers that cover the entire leg are to be worn. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. The employees should wear sturdy and protective footwear. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes or other shoes that have thin soles or heels that are higher than normal. In addition, the Licensee shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations or Railroad officials overlooking the work at the job site. In particular, the protective equipment to be warn shall be: (1) Protective head gear that meets American National Standard-Z89.I-latest revision. It is suggested that all hardhats be affixed with Licensee's or subcontractor's company logo or name. (2) Eye protection that meets American National Standard for occupational and educational eye and face protection, Z87.1-latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, burning, etc.; and (3) Hearing protection which affords enough attenuation to give protection from noise levels that will be occurring on the job site. c. All heavy equipment provided or leased by the Licensee shall be equipped with audible back- up warning devices. If in the opinion of the Railroad Representative any of Licensee's or any of its subcontractors' equipment is unsafe for use on the Railroad's right-of-way, the Licensee, at the request of the Railroad Representative, shall remove such equipment from the Railroad's right-of-way. Section 9- INDEMNITY. a. As used in this Section, "Railroad" includes other railroad companies using the Railroad's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (i) injury to or death of persons whomsoever (including the Railroad's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and (ii) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Railroad, or property in its care or custody). b. As a major inducement and in consideration of the license and permission herein granted,the Licensee, to the extent not prohibited by law, agrees to indemnify and hold harmless the Railroad from any Loss which is due to or arises from any cause and is associated in whole or in part with the work performed under this Agreement, a breach of the Agreement or the failure to observe the health and safety provisions herein, or any activity or omission arising out of performance or nonperformance of this Agreement; regardless of whether caused solely or contributed to in part by the negligence or fault of the Railroad. c. Any liability of either party hereunder to one of its employees under any Workers' Compensation Act or the Federal Employers' Liability Act shall not be questioned or in any way challenged by the other party, nor shall any jury or court findings, resulting from any employee's suit against either party pursuant to any such Act(s), be relied upon or used by either party in any attempt to assert common law liability against the other. Exhibit B ROE 920316 Form Approved,AVP-LaN% Section 10- RESTORATION OF PROPERTY. In the event the Railroad authorizes the Licensee to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Licensee, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall, to the extent not prohibited by law, indemnify and hold harmless the Railroad, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, arising from the taking down of any fence or the moving or disturbance of any other property of the Railroad. Section 11 - WAIVER OF BREACH. The waiver by the Railroad of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Railroad to avail itself of any remedy for any subsequent breach thereof. Section 12 - ASSIGNMENT—SUBCONTRACTING. The Licensee shall not assign, sublet or subcontract this Agreement, or any interest therein, without the written consent of the Railroad and any attempt to so assign, sublet or subcontract without the written consent of the Railroad shall be void. If the Railroad gives the Licensee permission to subcontract all or any portion of the work herein described, the Licensee is and shall remain responsible for all work of subcontractors and all work of subcontractors shall be governed by the terms of this Agreement. Exhibit B Rev 090506 EXHIBIT C Union Pacific Railroad Contract Insurance Requirements Right of Entry Agreement Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as otherwise provided in this Agreement)the following insurance coverage: A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage)showing"Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 O1 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property"as the Designated Job Site. • Motor Carrier Act Endorsement-Hazardous materials clean up(MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance. Coverage must include but not be limited to: Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement. Employers'Liability (Part B)with limits of at least$500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Licensee is self-insured,evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act,the Jones Act,and the Outer Continental Shelf Land Act,if applicable. D. Railroad Protective Liability insurance. Licensee must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured,with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess insurance. If Licensee utilizes umbrella or excess policies, these policies must"follow form"and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution Liability coverage must be included when the scope of the work as defined in the Agreement includes installation, temporary storage, or disposal of any "hazardous" material that is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury at any time. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute fonn providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of$10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non- hazardous materials from the job site, Licensee must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of$2,000,000. Other Requirements G. All policy(ies) required above (except business automobile, worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26, (or substitute form(s) providing equivalent coverage). The coverage provided to Railroad as additional insured shall not be limited by Licensee's liability under the indemnity provisions of this Agreement. BOTH LICENSEE AND RAILROAD EXPECT THAT UNION PACIFIC RAILROAD COMPANY WILL BE PROVIDED WITH THE BROADEST POSSIBLE COVERAGE AVAILABLE BY OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORM CG 20 26. H. Punitive damages exclusion, if any,must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this agreement, or(b) all punitive damages are prohibited by all states in which this agreement will be performed.. I. Licensee waives all rights against Railroad and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the workers compensation and employers liability or commercial umbrella or excess liability insurance obtained by Licensee required by this agreement. J. Prior to commencing the work, Licensee shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed. L. The fact that insurance is obtained by Licensee will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Licensee or any third party will not be limited by the amount of the required insurance coverage. M. Licensee is allowed to retain (self-insure) in whole or in part any insurance obligation under this Agreement. Any retention shall be for the account of Licensee. If Licensee elects to retain (self-insure) in whole or in part any insurance required by the Agreement Licensee agrees that it shall provide Railroad with the same coverage that would have been provided to it by the required commercial insurance forms had Licensee obtained commercial insurance. For all coverage not retained (not self-insured) Licensee shall furnish Railroad with certificates(s)of insurance,executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement.