Loading...
HomeMy WebLinkAboutContract 55415PIPELINE AGREEMENT Mile Post: 602.19, Duncan Subdivision Location: Saginaw, Tarrant County, Texas AUDIT )._ q � 5 \ 7Folder No. 3069-41 This PIPELINE AGREEMENT ("Agreement") is made and entered into as of the� day of �•·{\ , 2019 ("Effective Date"), by and between UNION PACIFIC RAILROAD CO�NY, a Delaware corporation, to be addressed at 1400 Douglas Street, MS 1690, Omaha, Nebraska 68179 ("Licensor"), and CITY OF FORT WORTH, to be addressed at 200 Texas Street, Fort Wotth, Texas 76102 ("Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. A.In consideration of the license fee to be paid by Licensee set forth below and in further consideration 6f the covenants and agreements to be performed by Licensee, Licensor hereby grants to Licensee the right to construct and thereafter, during the term hereof, maintain and operate a 36 inch encased plastic waste water pipeline only, including any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities") across Licensor's real property, trackage, or other facilities located in Saginaw, Tarrant County, State of Texas ("Railroad Prope1ty"). The specific specifications and limited purpose for Licensee's Facilities on, along, across and under Railroad Prope1ty are described in and shown on the Print and Specifications dated January 31, 2018, attached hereto as Exhibit A and made a part hereof. B.Licensee's Facilities will (i) only be used for transporting and conveying water, and waste water, and (ii) not be used to convey any other substance, any fiber optic cable, or for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. ' C.Licensee acknowledges that if it or its contractor provides Licensor with digital image1y depicting Licensee's Facilities ("Digital Imagery"), Licensee authorizes Licensor to use the Digital Imagery in preparing Exhibit A. Licensee, through a license or otherwise, has the right to use the Digital Imagery and to permit Licensor to use the Digital Imagery in said manner. Article 2. TERM. This Pipeline Agreement shall take effect as of the Effective Date first herein written and shall continue in full"force and effect. Article 3. LICENSEE FEE. Upon execution of this Agreement, Licensee shall pay to Licensor a one-time license fee of Five Thousand Dollars ($5,000.00). CSC No. 55415 Article 4. LIC�NSEE'5 COMPLIANCE WITH GEN�RAL TERMS. All work on Licensee's Facilities performed by Licensee or its contractors will strictly comply with all terms and conditions set forth herein, including the General Terms and Conditions, .attached hereto as Exhibit B and made a part hereof. Article 5. INSURANCE. A. During the term of this Agreement, Licensee shall fully comply or cause its contractor(s) to fully comply with the insurance requirements described in Exhibit C, attached hereto and made a part hereof. Licensee shall send copies of all insurance documentation (e.g., certificates, endorsements, etc.) to Licensor at the address listed in the "NOTICES" Section of this Agreement. B. If Licensee is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurance in compliance with Exhibit C of this Agceement, those statutes shall apply. Article 6. IF WORK IS PERFORMED BY CONTRACTOR. If a contractor is hired by Licensee to perform any work on Licensee's Facilities, then Licensee shall. require its contractor(s) to execute Licensor's then-current form of Contractor's Right of Entiy Agreement ("CROE"). Licensee acknowledges that: (i) the CROE attached hereto as Exliibit D and made a part hereof is the most current form available as of the Effective Date; and (ii) the terms and conditions of the CROE are subject to change by Licensor, such changes to be made at Licensor's sole discretion. Licensee shall require its contractors to execute the CROE before any contcactors are allowed onto Railroad Property .pursuant Licensee's notification requirements set foi�th in the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of Exhibit B. Article 7. ATTORN�YS' FEES, �XPENSES, AND COSTS. If litigation or other court action or similar adjudicatoiy proceeding is undertaken by Licensee or Licensor to enforce its rights under this Agceement, all fees, costs, and expenses, including, without limitation, reasonable attorneys' fees and court costs, of the prevailing Party in such action, suit, or proceeding shall be reimbursed or paid by the Pai�ty against whose interest the judgment or decision is rendered. The provisions of this Article shall survive the termination of this Agreement. Article 8. WAIVER OF BREACH. The waiver by Licensoi• of the breach of any condition, covenant or agreement herein contained to be kept, obsei•ved and performed by Licensee shall in no way impair the right of Licensor to avail itself of any remedy for any subsequent breach thereof. Article 9. ASSIGNMENT. A. Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of Licensor; which must be requested in writing by Licensee. Any assigrunent or attempted transfec of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without Licensor's written consent, will be absolutely void and may result in Licensor's termination of this Agreement pursuant to the °TERMINATION; REIVIOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B. B.Upon Licensor's written consent to any assignment, this Agreement will be binding upon and inure to the benefit of the parties thereto, successors, heirs, and assigns, executors, and administrators. Article 10. SEVERABILITY. Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this Agreement. Article 11. NOTICES. Except Licensee's commencement of work notice(s) required under Exhibit B, all other notices required by this Agreement must be in writing, and (i) personally served upon the business address listed below ("Notice Address"), (ii) sent overnight via express delivery by a nationally recognized overnight delivery service such as Federal Express Corporation or United Parcel Service to the Notice Address, or (iii)by certified mail, return receipt requested to the Notice Address. Overnight express delivery notices will be deemed to be given upon receipt. Certified mail notices will be deemed to be given three (3) days after deposit with the United States Postal Service. If to Licensor: If to Licensee: Union Pacific Railroad Company Attn: Analyst-Real Estate Utilities (Folder No. 3069-41) 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179 City of Forth Wmth Attn: Leon Wilson 200 Texas Street Forth Worth, TX 76102 Article 12. SPECIAL PROVISION -ONSITE OBSERVATION/INSPECTION. Licensor requires licensee to provide monitoring of tracks and on-site observation and/or inspection through Licensor approved inspector named below during all construction and installation work. Licensee is to directly coordinate services with the named inspector. Railpros Field Services Email: RP.Utility@railprosfs.com Phone (682)223-5271 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. UNION PACIFIC RAILROAD COMPANY, CITY OF FORT WORTH, a Delaware corporation a Texas municipal corporation By: _ ___,_.....,_ __ ���---Title:_���-"'-'f-'c='�ff�_-�g,f��--- ._.....:.r""'".::� .... ,,···� f0 r o-r .............. , -\... ,....·· ·• ..... I,:· \ .,..._, . '\ 0/ 1'," ', • <:Ji&··"····/ , ..... �, Approved as to Form and Legality: �-/JessicaSan�yang Y ..., . · Senior Assistdnt City attorney Form 1295: NIA Ma J.Kayser City Secretary M&C: J/1 ttr'Date: ______ _ CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. NON-FLAMMABLE LIQUID PIPELINE B UPRR R. 0. W. ------------------------------�----------- n I ioz5 FT. � _ FT. — a W J N Y �� U � Q � � a � -------- ---- � � DESCRIBE FIXED 08JECT CROSSINC TRACK NORTH 0 CROSSING � ENCROACHMENT f� BOTH 4255 FT. 2n5o F T. � es DEG. z I c� ANGLE OF � Z CROSSING � — - - W I �, - ------ n_ o a �¢ c.� `�' I I A� DESCRIBE FIXED OBJECT CROSSING TRACK S. Boswell Rd. C/L (ES:16235+68) . ---------�-- UPRR R. 0. W. -------------- PLAN SCAIE: NONE �I3 KID a �� i � � � � OUTER I TRACK 5o FL r� OUTER TRACK � 5o FT. iss_s2 FT. VENT PIPE � GROUND SURFACE — I I I. 165 FT, �-- CASING PIPE CARRIER PIPE 17_35 FT. SECTION SCALE: NONE NOTES: 1) ALL DIMENSIONS MEASURED PERPENDICULAR TO THE CENTERLINE OF TRACK 21 REFER TO AREMA VOLUME 1. CHAPTER 1. PART 5. SECTION 5.1 A) METHOD OF INSTALLATION BOREDANDJACKED B) DIST.FROM CENTERLINE OF TRACK TO PIPE ENCROACHMENT C) SIGNS PROVIDED? AT MINIjv1UM SIGNS WILL BE PROVIDED AS STATED ABOVE O) CARRIER MATERIAL PLASTIC . IF RCP, CLASS V7 NA COMMODITY TO BE CONVEYED WASTEWATER , OPERATIONAL PRESSURE �� PSI. MAOP �o PS1. WALL THICKNESS (INCH)/ SCHEDULE 40 . DIAMETER 36 1N. CATHODIC/COATING PROTECTION YEs E) CAS[NG MATERIAL STEELPIPE . IF RCP, CLASS V? TOTAL LENGTH CASING P1PE: 320.55 FT.. WALL THICKNESS o.��s IN. DIAMETER 54 IN. CATHODIC/COATING PROTECTION ves CASING PIPE IS SEALED AT THE ENDS. F) DISTANCE FROM CENTERLINE OF TRACK TO NEAR FACE OF BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES iss AND 145 , � Q T .: 32.88588874161 E.S.M.: �sz»+�e I LONG.: .g7.38605394959 NEAREST CITY: COUNTY: STATE: SAGINAW TARRANT TX APPLICANT: CITY OF FORT WORTH FILE NO.: osossa� pATE: v3vzo�a � I � I TOTAL TRACKS L 175 FT: I I3.FT. rDRAINAGE � I � I DITCH � 1 320_55 F T. i � o FT. 15o.ssFT. � I _ FT. a�s FT. i � ---------- � � LONGITUDINAL PIPE ENCFOACHMENT BUILDING AMERICA° EXHIBIT "A" S�JBp�V�S�Q�J: DuncanSub. TRACK TYPE: MAINLINE � .- ~ � � 0 a. W N J � f � � Q � � � � �13 �IO a �id � NA .I M.P.: so2.�s EXHIBIT B GEN�RAL T�RMS AND CONDITIONS Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. A. The foregoing gcant is subject and subocdinate to the prior and continuing right and obligation of Licensor to use and maintain its entire property including the right and power of Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, 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 fi•eely done at any time or times by Licensor without liability to 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 Railroad Property) and the right of Licensor to renew and extend the sa�ne, and is made without covenant of title or for quiet enjoyment. It shall be Licensee's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights. Section 2. �NGINEERING REQUIREMENTS; PERMITS. A. Licensee's Facilities will be designed, constructed, operated, maintained, repaired, i•enewed, modified, reconstructed, removed, or abandoned in place on Railroad Property by Licensee or its contractor to Licensor's satisfaction and in strict conformity with: (i) Licensor's current engineering standacds and specifications, including those for shoi•ing and cribbing to protect Licensor's railroad operations and facilities ("UP Specifications"), except for variances approved in advance in writing by Licensor's Assistant Vice President Engineei•ing — Design or its authorized representative ("UP Engineering Representative"); (ii) such other additional safety standards as Licensor, in its sole discretion, elects to reyuire, including, without limitation, American Railway Engineering and Maintenance-of-Way Association ("AREMA") standards and guidelines (collectively, °UP Additional Requirements ); and (iii) all applicable laws, rules, and regulations, including any applicable Federal Railroad Administration and Federal Energy Regulatory Commission regulations and enactments (collectively, °Laws"). If there is any conflict between UP Specifications, UP Additional Requirements, and Laws, the most restrictive will apply. B. Licensee shall keep the soil over Licensee's Facilities thoroughly compacted, and maintain the grade over and around Licensee's Facilities even with the surface of the adjacent ground. C. If needed, Licensee shall secure, at Licensee's sole cost and expense, any and all necessary permits required to perforin any work on Licensee's Facilities. Section 3. NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES. A. Licensee and its contractois are strictly prohibited from coinmencing any work associated with Licensee's Facilities without Licensor's written approval that the work will be in strict compliance witli the "ENGINEERING REQUIREMENTS; PERMITS Section of this Exhibit B. Upon Licensor's approval, Licensee shall contact both of Licensor's field representatives ("Licensor's Field Representatives") at least ten (10) days before commencement of any work on Licensee's Facilities. B. Licensee shall not commence any work until: (1) Licensor has determined whether flagging or other special protective or safety measures ("Safety Measures") are required for performance of the work pursuant to the "FLAGGING"� Section of this Exhibit B and provided Licensee written authoi•ization to commence work; and (2) Licensee has complied with the "PROTECTION OF FIBER OPTIC CABLE SYSTEMS" Section of this Exhibit B. C. If, at any time, an eme�gency arises involving Licensee's Facilities, Licensee or contractor shall immediately contact Licensor's Response Management Communications Center (888) 877-7267. , Section 4. FLAGGING. its at A. Following Licensee's notice to Licensor's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WO�IC; EMERGENCIES" Section of this Exhibit B, Licensor shall inform Licensee if Safety Measures are required for performance of the work by Licensee or its contractor on Railroad Property. If Safety Measutes are required, no work of any kind may be perforcned by Licensee or its contractor(s) until acrangements for the Safety Measures have been made and scheduled. If no Safety Measures are required, Licensor will give Licensee written authorization to commence work. B. If any Safety Measures ace performed or provided by Licensor, including but not limited to flagging, Licensor shall bill Licensee for such expenses incurred by Licensor, unless Licensor and a federal, state, or local governmental entity ha�e agreed that Licensor is to bill such expenses to the federal, state, or local governmental entity. Additional information regarding the submission of such expenses by Licensor and payment thereof by Licensee can be found in the "LICENSEE'S PAYMENT OF EXPENSES" Section of tl�is Exhibit B. If Licensor performs any Safety Measures, Licensee agrees that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreement. C. For flagging, the rate of pay per hour for each flagger will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such laboi•, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage, and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current houcly rate is paid for overtime, Saturdays and Sundays, and two and one- half times current hourly rate for holidays. Wage rates ace subject to change, at any time, by law or by agreement between Licensor and its employees, and may be retroactive as a result of negotiations or a iuling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. D. Reimbursement to Licensor will be required covering the full eight-hour day during which any flagger is furnished, unless the flagger can be assigned to other railroad work during a portion of such day, in which event reimbursement will not be requii•ed foi• the portion of the day during which the flagger is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flaggers following the flaggers' assignment to work on the project for which Licensor is required to pay the flaggers and which could not reasonably be avoided by Licensor by assignment of such flaggers to other work, even though Licensee may not be working during such time. When it becomes necessary for Licensor to bulletin and assign an employee to a flagging position in compliance with union collective bargaiiiing agreements, Licensee must provide Licensor a minimum of �ve (5) days notice prior to the cessation of the need for a flagger. If five (5) days notice of cessation is not given, Licensee will still be required to pay flagging charges for the days the flagger was scheduled, even though.flagging is no longer required for that period. An additional ten (10) days notice must then be given to Licensor if flagging services are needed again after such five day cessation notice has been given to Licensoi•. Section 5. SAFETY. A. Safety of peisonnel, property, rail operations and the public is of paratnount impoi•tance in the prosecutiori of any work on Raih�oad Property perforined by Licensee or its contractor, and takes precedence over any work on Licensee's Facilities to be performed Licensee or its contractois. Licensee shall be responsible for initiating, maintaining and supervising all safety operations and progcams in connection with any work on Licensee's Facilities. Licensee and its contractor shall, at a minimum comply, with Licensor's then current safety standards located at the below web address ("Licensor's Safety Standards") to ensure .uniformity with the safety standards followed by Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee sl�all notify Licensor if it determines that any of Licensor's Safety Standards are contrary to good safety practices. Licensee and its contractoi• shall furnish copies of Licensor's Safety Standards to each of its employees before they enter Railroad Property. fhttp //www ua com/csl�ioups/public/ a uprr/���sup�liers/documents/up qdf n�tivedocs/pdf up supplier safetv rea adfl B. Licensee shall keep the job site on Railroad Property free from safety and health hazards and ensuce that their employees ace competent and adequately trained in all safety and health aspects of the work. C. Licensee agrees that Licensee's Facilities and all parts thereof within and outside of the limits of Railroad Property will not interfere whatsoever with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of Licensor, and nothing shall be done or suffered to be done by Licensee at any time that would in auy manner impair the safety thereof. D, Licensor's operations and work performed by Licensor's personnel may cause delays in Licensee's or its contractor's work on Licensee's Facilities. Licensee accepts this risk and agrees that Licensor shall have no liabiliTy to Licensee or any otller person or entity for any such delays. Licensee must coordinate any work on Railroad Propei�ty by Licensee or any third party with Licensor's Field Representatives in strict compliance with the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B. E. Licensor shall have the right, if it so elects, to provide any support it deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, repair, renewal, modification, relocation, reconstruction; or removal of Licensee's Facilities. In the event Licensor provides such suppoi�t, Licensor shall invoice Licensee, and Licensee shall pay Licensor as set forth in the "LICENSEE'S PAYMENT OF EXPENSES" Section of this Exhibit B. Licensor will give as much notice as is feasible recognizing such costs must by authorized by Licensee's City Council and funds tnust be appropriated. F: Licensee may use unmanned aircraft systems ("UAS") to inspect Licensee's Facilities only upon the prior authorization fi•om and under the direction of Licensor's Field Representatives. Licensee agrees that its use of UAS on Railroad Property will comply with Licensor's then-current Unmanned Aerial Systems Policy and all applicable laws, rules and regulations, including any applicable Federal Aviation Administration regulations and enactments pertaining to UAS. Section 6. PROTECTION OF FIBER OPTIC CABLE SYST�MS. Fiber optic cable systems may be buried on Railroad Property. Pcotection 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. In addition to the notifcations rec�uired under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Licensee shall telephone Licensor during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad Property to be used by Licensee. If it is, Licensee shall telephone the telecommunications company(ies) involved, and arrange for a cable locator, make arrangements for relocation o►• other protection of the fiber optic cable, all at Licensee's expense, and will not coinmence any work on Railroad Property until all such protection or relocation has been completed. Section 7. LICENSEE'S PAYMENT OF EXPENSES. A. Licensee shall bear the entire cost and expense of the design, construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities. B. Licensee shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of Licensee. Licensee shall promptly pay or discharge all taxes, charges, and assessments levied upon, in respect to, or on account of Licensee's Facilities, to prevent the same from becoming a chacge or lien upon any property of Licensor, and so that the taxes, charges, and assessments levied upon or in respect to such property shall not be increased because of the location, construction, or maintenance of Licensee's Facilities or any improvement, appliance, or fixture connected therewith placed upon such property, or on account of Licensee's interest therein. Where such tax, charge, or assessment may not be separately made or assessed to Licensee but shall be included in the assessment of the property of Licensor, then Licensee shall pay to Licensor an equitable proportion of such taxes determined by the value of Licensee's propei•ty upon property of Licensor as compared with the entii�e value of such property. C. As set foi�th in the "FLAGGING" Section of this Exhibit B, Licensor shall have the right, if it so elects, to provide any Safety Measures Licensoi• deems necessaiy for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, including, but not limited to supervision, inspection, and flagging seivices. In the event Licensor provides such Safety Measures, Licensor shall submit an itemized invoice to Licensee's notice recipient listed in the "NOTICES" Article of this Agreement. Licensee shall pay to Licensor the total amount listed on such invoice within thirty (30) days of Licensee's receipt of such invoice. Licensor will give as much notice as is feasible recognizing such costs must by authorized by Licensee's City Council and funds must be appropriated. Section 8. MODIFICATIONS TO LICENS�E'S FACILITIE5. A. This grant is subject to Licensor's safe and efficient operation of its railroad, and contiimed use and improvement of Railroad Property (collectively, "Railroad's Use"). Accordingly, Licensee shall, at its sole cost and expense, modify, reconstcuct, repair, renew, revise, relocate, or remove (individually, "Modification", or collectively, "Modifications") all or any portion of Licensee's Facilities as Licensor may designate or identify, in its sole discretion, in the furtherance of Railroad's Use. B. Upon any Modification of all or any portion of Licensee's Facilities to another location on Railroad Property, .Licensor and Licensee shall execute a Supplemental Agreement to this Pipeline Agreement to document the Modification(s) to Licensee's Facilities on Railroad Property. If the Modifications result in Licensee's Facilities moving off of Railroad Property, this Agreement will terminate upon Licensee's completion of such Modification(s) and all requirements contained within the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of this Exhibit B. Any such Modification(s) off of Railroad Property will not release Licensee fi�om any liability or other obligation of Licevsee arising prior to and upon completion of any such Modifcations to the Licensee's Facilities. Section 9. RESTORATION OF RAILROAD PROPERTY. In the event Licensee, in any manner moves or distucbs any propei�ty of Licensor in connection with the construction, maintenance, modification, reconstruction, repair, i•enewal, revision, relocation, or removal of Licensee's Facilities, then, Licensee shall, as soon as possible and at Licensee's sole cost and expense, restore Licensor's property to the same condition as the same were before such property was moved or disturbed. Section 10. INDEMNITY. A. Definitions. As used in this Section: 1. "Licensor" includes Licensor, its affiliates, its and their officers; directors, agents and employees, and other railroad companies using Railroad Property at or near the location of Licensee's installation and their officers, directoi•s, agents, and employees. 2. "Licensee" includes Licensee and its agents, contractors, subcontractors, sub-subcontractors, employees, officers, and directors, oi• any other person or entity acting on its behalf or under its control. 3, "Loss" includes claims, suits, taxes, loss, damages (including punitive damages, statutory damages, and exemplaty damages), costs, chatges, assessments, judgments, settlements, liens, demands, actions, causes of action, fines, penalties, interest, and expenses of any nature, including court costs, reasonable attorneys' fees and expenses, investigation costs, and appeal expenses. B. Licensee shall; to the extent allowed by law and the TeYas Constitution, release, defend, indemnify, and hold harmless Licensor fi�om and against any and all Loss, even if groundless, fi•audulent, or false, that directly or indirectly ai•ises out of or is related to Licensee's construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, removal, presence, use, oi• operation of Licensee's Facilities, including, but not limited to, any actual or alleged: 1. Bodily harm or personal inju�y (including any emotional injuiy or disease) to, or the death of, any person(s), including, but not limited to, Licensee, Licensor, any telecommunications company, or the agents, contractors, subcontractors, sub-subcontractors, or employees of the foregoing; 2. Damage to oi• the disturbance, loss, movement, or destruction of Railroad Property, including loss of use and diminution in value, including, but not limited to, any telecommunications system(s) or fiber optic cable(s) on or near Railroad Property, any property of Licensee or Lic.ensor; or any property in the care, custody, or control of Licensee or Licensor; 3. Removal of person(s) from Railroad Property; 4. Any delays or interference with track or Railcoad's Use caused by Licensee's activity(ies) on Railroad Property; including without limitatiou the construction, inaintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities or any part thereof, any activities, labor, materials, equipment, or machinery in conjunction therewith ; 5. Right(s) or interest(s) granted pursuant to this Agreement; 6. Contents escaping fi•om Licensee's Facilities, including without limitation any actual or alleged pollution, contamination, breach; or enviromnental Loss; 7. Licensee's breach of this Agreement or failure to comply with its provisions, including, but not limited to, any violation or breach by Licensee of any representations and warranties Licensee has made in this Agreement; and 8. Violation by Licensee of any law, statute, ordinance, governmental ad.ministrative order, rule, or regulation, including without limitation all applicable Federal Railroad Administration regulations. C. THE FOREGOING OBLIGATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW FOR THE BENEFIT OF LICENSOR, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND DIRECT NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL NIISCONDUCT OF LICENSOR AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION. Section 11. TERMINATION: REMOVAL OF LICENSEE'S FACILITIES. A. If Licensee does not use the right herein granted on Licensee's Facilities for one (1) year, or if Licensee continues in default in the performance of any provision of this Agreement foi• a period of thirty (30) days after written notice fi•om Licensor to Licensee specifying such default, Licensor may, at its sole discretion, terminate this Agreement by written notice to Licensee at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below. B. Intentioually Deleted. C. Prior to the effective date of any termination described in this Section, Licensee shall submit an application to Licensoi's online Utility Conh�acts System at htt�s•//www u rr com/rem/ucs�as/#/home for Licensee's reinoval, or if applicable, abandotunent in place of Licensee's Facilities located on Railroad Property ("Removal/Abandonment Work"). Upon the UP Engineering Representative's approval of Licensee's application for the Removal/Abandonment Work, Licensor and Licensee shall execute a separate consent document that will govern Licensee's performance of the Removal/Abandonment Work fi•om those portions of Railroad Property not occupied by roadbed and/or trackage ("Consent Document"). Licensor shall then restore the impacted Railroad Property to the same or reasonably similar condition as it was prior to Licensee's installation of Licensee's Facilities. For purposes of this Section, Licensee's (i) performance of the Removal/Abandonment Work, and (ii) restoration work will hereinafter be collectively referred to as the "Restoration Work°. D. Following Licensee's coinpletion of the Restoration Work, Licensee shall provide a written certification letter to �,icensor at the address listed in the "NOTICES" Article of this Agreeinent which certifes that the Restoration Work has been completed in accordance with the Consent Document. Licensee shall report to governmental authorities, as required by law, and notify Licensor immediately if any envirorunental contamination is discovered during Licensee's performance of the Restoration Work. Upon discovery, the Licensee shall initiate any and all removal, remedial and restoration actions that are necessary to restore the property to its original, uncontaminated condition. Licensee shall provide written cei�tification to Licensor at the address. listed in the "NOTICES" Ai�ticle of this Agreement that environmental contamination has been remediated and the property has been restored in accordance with Licensor's requirements. Upon Licensor's receipt of Licensee's restoration completion certifications, this Agreement will terminate. E. In the event that Licensee fails to complete any of the Restoration Work, Licensor may, but is not obligated, to perform the Restoration Work and seek reimbursement fi•om Licensee. F. Termination of this Agreement for any reason will not affect any of rights or obligations of the parties wl�ich may have accrued, or liabilities or Loss (defined in the "INDEMNITY" Section of this Exhibit B), accrued or otherwise, which may have arisen prior to such termination. EXHIBIT C INSURANCE REQUIREMENTS In accordance with Article 5 of this Agreement, Licensee shall (1) procure and maintain at its sole cost and expense, or (2) require its contractors and subcontractors to procure and maintain, at their sole cost and expense, the following insurance coverage: A. Commercial General Liabilitv Insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be written on ISO occurrence form CG 00 O1 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 Covera�e Insurance. Business auto coverage written on ISO form CA 00 O1 10 O1 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including owned, hired, and non-owned autos). The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: • "Coverage Foc Cei�tain Operations In Connection With Railroads° ISO form CA 20 70 10 O1 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. C. Worlcers' Comnensation and Emnlovers' Liabilitv 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 pi•ovided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workeis' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. D. Environmental Liabilitv Insurance. Environmental Legal Liability Insurance (ELL) applicable to bodily injuty, property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims, or compliance with statute, all in connection with any loss arising fi•om the insured's performance under this Agceement. Except with respect to the limits of insurance, and any i•ights or duties specifically assigned to the first named insured, this insurance must apply as if each named insured were the only na►ned insured; and separately to the additional insured against which claim is made or suit is brought. Coverage shall be inaintained in an amount of at least $2,000,000 per loss, with an annual aggregate of at least $4,000,000. Any retroactive date applicable to ELL insurance coverage under the policy must be the same as or precedes the Effective Date of this Agreement, and continuous coverage must be maintained for a period of five (5) yeats beginning fi•om the time the work under this Agreement is completed or if coverage is cancelled for any reason the policies extended discovery period, if any, will be exercised for the maximum time allowed. E. Railroad Protective Liabilitv Insurance. Licensee must maintain for the dui•ation of work "Railroad Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor only as named insured, with a limit of not less tl�an $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall desci•ibe all WORK or OPERATIONS performed under this Agreement. Notwithstanding the foregoing, Licensee does not need Railroad Protective Liability Insurance after its initial constcuction work is complete and all excess materials have been removed fi�om Licensor's property; PROVIDED, however, that Licensee shall procure such coverage for any subsequent maintenance, repair, renewal, modification, reconstruction, or removal work on Licensee's Facilities. F. Umbrella or Excess Insurance. If Licensee utilizes umbrella or excess policies, and these policies must "follow form" and afford no less coverage than the primary policy. . Other Requirements G. All policy(ies) required above (except business automobile, workers' coinpensation and einployers' liability) must include Licensor as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute form(s) providing equivalent coverage). Tl�e coverage provided to Licensor as additional insured shall not be limited by Licensee's liability under the indemnity provisions of this Agreement. BOTH LICENSOR AND LICENSEE EXPECT THAT LICENSOR 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 datnages are prohibited by all states in which this Agreement will be performed. I. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Licensor and its agents, offcers, directors and employees for damages covered by the workers' compensation and employers' liability or commercial umbrella or excess liability obtained by Licensee required in this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance. J. All insurance policies must be written by a reputable insurance company acceptable to Licensor 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. K. 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 pi•ovisions of this Agreement. Damages recoverable by Licensor fi•om Licensee or any third party will not be limited by the amount of the required insurance coverage. L. 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 pi•ovided to it by the required commercial insurance forms had Licensee obtained commercial insurance. For all coverage not retained (not self- insur•ed) Licensee shall furnish Railroad with cei�tificates(s) of insurance, executed by a duly authorized representative of each insucer, showing compliance with the insurance requirements in this Agreement. Exhibit D Folder No. 3069-41 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Mile Post 602.19, Duncan Subdivision Location: Saginaw, Tarrant County, Texas This CONTRACTOR'S RIGHT OF ENTRY AGREEMENT ("Agreement") is made and entered into as of the day of , 201_ ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at 1400 Douglas Street, MS 1690, Omaha, Nebraska 68179 ("Railroad"), and , to be addressed at ("Contractor"). RECITALS: A. Railroad and City of Fort Worth (°Licensee"), entered into that certain Pipeline Agreement dated , identified in Railroad's records as Folder No. 3069-41, including any amendments or supplements tliereto ("Railroad Agreement"), covering Licensee's construction, maintenance, and operation of a 36 inch encased plastic waste water pipeline only, including any appurtenances required for the operation of said pipeline (collectively; "Licensee's Facilities"), across Railroad's real property, h•ackage, oi• other facilities located in Saginaw, Tarrant County, State of Texas ("Railroad Property"). The specific specifications and limited purpose for Licensee's Facilities on, along, across and under Railroad Property are described in and shown on the Print and Specifcations dated January 31, 2018, attached hereto as Exhibit A and made a part hereof. B. Contractor has been hired by Licensee to perform on Licensee's Facilities located on Railroad Property ("Work"). C. Railroad is willing to permit Contcactor to perform the Work subject to the terms and conditions of this Agreement. IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this Agceeinent to Contractor .will include Conri•actor's contractors, subcontractors, ofiicers, agents and employees, and others acting under its oi• their authority. Article 2. RAILROAD GRANTS RIGHT. Railroad hereby grants to Contractor during the Term (defined below), and subject to the terms and conditions of this Agreement, to enter upon and have ingress to and egress from Railroad Property for the sole purpose of performing the Work. Contractor acknowledges and agrees that Contractor's performance of the Work is stcictly limited to the Work described in this Agreement, or as designated by Railroad's Field Representatives. Article 3. T�RM: TERMINATION. A. This Agreement will commence on the Effective Date and will continue for one (1) year fi•om the Effective Date, or until such time as Contractor completes the Work, whichever is earlier ("Term"). Contcactor agrees to notify the Railroad's Field Representatives in writing when it has completed the Work. B. Notwithstanding the foregoing, this Agreement may be terminated by either party on ten (10) days written notice to tl�e other pai•ty. Article 4. CONTRACTOR'S COMPLIANCE WITH GENERAL TERMS. Contractor represents and warrants that Contcactor will strictly comply with all terms and conditions set forth herein, including the General Terms and Conditions, attached hereto as Exhibit B and made a part hereof, in its performance of the Work. Article 5. CONTRACTOR'S COSTS FOR P�RFORMANC� OF THE WORK. Cantractor shall beac the entire cost and expense of performing the Work, including reimbursement of any costs set forth in the "CONTRACTOR'S PAYMENT OF EXPENSES" Section of Exhibit B of this Agreement. Article 6. INSURANCE. A. During the Term of this Agreement, Contractor shall fully comply or cause its contractor(s) to fully comply with the insurance requirements described in Exhibit C, attached hereto and made a part hereof. Contractor shall send copies of all insurance documentation (e.g., certificates, endorsements, etc:) to Railroad at the address listed in the "NOTICES" Section of this Agreement. B. If Contractor is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurauce in compliance with �xhibit C of this Agreement, those statutes shall apply. Article 7. ATTORNEYS' FEES, EXPENSES. AND COSTS. If litigation or other court action or similar adjudicatory proceeding is undertaken by Contractor or Railroad to enforce its rights under t(iis Agreement, all fees, costs, and expenses, including, without limitation, reasonable attorneys' fees and court costs, of the prevailing Pai�ty in such'action, suit, or proceeding shall be reimbursed or paid by the Party against whose interest the judgment or decision is rendei•ed. The provisions of this Article shall su�vive the termination of this Agreement. Article 8. DISMISSAL OF CONTRACTOR'S �MPLOY��. At the request of Railroad, Contractor may remove fi•om Railroad Property auy employee of Contractor who fails to conform to the instructions of Railroad's Field Representatives in connection with the Work, and any right of Contractoi•. shall be suspended until such removal has occurred. Article 9. ADMINISTRATIVE FEE. Upon execution of this Agreement, Contractor shall pay to Railroad a one-time administrative fee of One Thousand Dollars ($1,000.00), as reimbursement for Railroad's administrative processing of this Agreement. Article 10. NO ADDITIONAL CROSSINGS GRANTED. No additional vehicular crossings (including temporaiy haul roads) or pedestrian crossings over Railroad Property will be installed by or used by Contractor without the prior written approval of Railroad. Article 11. WAIVER OF BR�ACH. The waiver by Contractor of the breach of any condition, covenant or agceement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to a�ail itself of any remedy for any subsequent breach thereof. Article 12. ASSIGNMENT. A. Contractor shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of Railroad, which must be requested in writing by Contractor. Any assignment or attempted transfer of this Agreement or any of the rights herein granted, whether voluntaiy, by operation of law, or otherwise, without Railroad's written consent, will be absolutely void and may result in Raih•oad's termination of this Agreement pursuant to the "TERM; TERMINATION" Section of this Agreement B. Upon Railroad's written consent to any assignment, tliis Agreement will be binding upon and inure to the benefit of the parties.thereto, successors, heirs, and assigns, executors, and administrators. Article 13. 5EVERABILITY. Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this Agreeinent. Article 14. NOTICES. Except Contractor's commencement of work notice(s) required under Exhibit B, all other notices required by this Agreement must be in writing, and (i) personally served upon the business address listed below ("Notice Address"), (ii) sent overnight via express delivery by a nationally recognized overnight delivery seivice such as Federal Express Corporation or United Parcel Seivice to the Notice Address, or (iii) by certified mail, return receipt requested to the Notice Address. Overnight express delivery notices will be deemed to be given upon receipt. Certifed mail notices will be deemed to be given three (3) days after deposit with the United States Postal Service. If to Railroad: Union Pacific Railroad Company Attn: Analyst — Real Estate Utilities (Folder No. 3069-41) 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179 . If to Contractor: Legal Entity Name Attn: IN•WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation LEGAL ENTITY NAME By: By' — Title: Title: NON-FLAMMABLE LIQUID PIPELINE —FT. — �ID B UPRR R. 0. W. _ ------------- --------------�--------------------------------- - � --- I � 1025 FT. U � � � � DESCRIBE FIXED OBJECT CROSSING TRACK ___ NORTH____________ I PLAN SCALE: NONE ��3 ��o a �� i �— i � iss_sz FT. VENT PIPE 0 UNION PAUFIC IIIIII � CASING PIPE CARRIER PIPE — 320_55 F L i � � j-+— o FT. � 15o.63FT. � � I I TOTAL TRACKS ; 175 FT. � � DRAINAGE DITCH 17.35 FT, I� CROSSING L ENCROACHMENT CI BOTH� 4255 FT. 2450 F T. � es DEG. z � c� ANGLE OF � z CROSSING � — - W I ,� - ----------------- - a � a I u DESCRIBE `�'� FIXED OBJECT CROSSING TRACK _ � S. Boswell Rd. C/L (ES:16235+68) q� UPRR R. 0. W. ----------------- SECT[ON SCALE: NONE NOTES: 1) ALL DIMENSIONS MEASURED PERPENDICULAR TO THE CENTERLINE OF TRACK 2) REFER TO AREMA VOLUME 1. CHAPTER 1. PART 5. SECTION 5.1 � A) METH00 OF INSTALLATION BOREDANDJACKED B) DIST.FROM CENTERLINE OF TRACK TO PIPE ENCROACHMENT C) SIGNS PROVIDED? ATMINI�v1UMSIGNSWILLBEPROVIDEDASSTATEDABOVE D) CARRIER MATERIAL P�Asric . IF RCP, CLASS V7 NA COMMODITY TO BE CONVEYED WASTEWATER , OPERATIONAL PRESSURE �o PS[. MAOP �o PSI. WALL THICKNESS lINCH)/ SCHEDULE 40 . DIAMETER 36 IN. CATHODIC/COATING PROTECTION ves FT. GROUND SURFACE � � � � _FT. I s.15 FT. � I -------- O O LONGITUDINAI PIPE ENCROACHMENT BUILDING AMERICA� EXHIBIT "A" SUBDIVISION: ouncan sub. TRACK TYPE: MAINLINE �- � � � 0 a. w � J � E � � � a — ---- -- � �I --------�-- E) CASING MATERIAL STEEI PIPE . IF RCP, CLASS V7 N�.I M.P.: so2.�s TOTAL LENGTH CASING PIPE: 320.55 FT. WALL THICKNESS o.?�s IN. DIAMETER 54 IN. CATHODIC/COATING PROTECTION�— CASING PIPE IS SEALED pT THE ENDS. DISTANCE FROM CENTERLINE OF TRACK TO NEAR FACE OF BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES tss AND 145 , � Q T.: 32.88588874161 E.$.iV�.: 16217+�g I L ONG.: _97.38605394959 NEAREST CITY: COUNTY: STATE: SAGINAW TARRANT TX APPLICANT: CITYOF FORT WORTH FILE NO.: o3ossa� DATE: v3vzo�a �13 r� OUTER � OUTER o�..�o I TRACK i TRACK ��� 50 FT. � 50 F T. ---I � � 165 FT. EXHIBIT B TO THE CONTRACTORS RIGHT OF �NTRY GENERAL TERMS AND CONDITIONS Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. A. The foregoing grant is subject and subordinate to the prior and continuing right and obligation of Railroad to use and maintain its entire property including the right and power of Railroad to consh�uct, maintain, repair, renew, use, operate, change, modify or relocate railroad ri�acks, signal, communication, fber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of wl�ich may be fi•eely done at any time or times by Railroad without liability to Contractor 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 Raili•oad Propei•ty) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. It shall be Contractor's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights. Section 2. NOTICE OF COMMENCEM�NT OF WORK; EMERGENCIES. A. Cont►•actor is strictly prohibited fi•om commencing any Work on Licensee's Facilities without Railroad's written approval that the work will be in strict compliance with (i) the 'BNGINEERING REQUIREMENTS; PERMITS" Section of the Railroad Agreement, and (ii) this Exhibit B. Upon Railroad's approval, Contractor shall contact Railroad's Field Representatives at least ten (10) days before commencement of auy Work on Licensee's Facilities. B. Contractor shall not commence any work until: (1) Railroad has determined whether flagging or other special protective or safety measures ("Safety Measures") are required for performance of the Work pursuant to the "FLAGGING" Section of this Exhibit B and provided Contractor written authorization to commence the Work; and (2) Contractor has coinplied with the "PROTECTION OF FIBER OPTIC CABLE SYSTEMS" Section of this Exhibit B. G. If, at any time, an emergency arises involving Licensee's Facilities, Contractor shall immediately contact Railroad's Response Management Communications Center at (888) 877-7267. Section 3. FLAGGING. A. Following Contractor's notice to Railroad's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Railroad shall inform Contractoi• if Safety Measures are required for performance of the Work. If Safety Measures are required; no work of any kind may be performed by Contractor or its contractor(s) until arrangements for the Safety Measures ha�e been made and scheduled. If no Safety Measures are required, Raili•oad will give Contractor written authorization to commence the Work. B. If any Safety Measures are performed or provided by Railroad, including but not limited to flagging, Railroad shall bill Contractor for such expenses incurred by Railroad, unless Railroad and a federa(, state, or local governmental entity have agi•eed that Railroad is to bill such expenses to the federal, state, or local governmental entity. Additional information regarding the submission of such expenses by Railroad and payment thereof by Contcactor can be found in the "CONTRACTOR'S 1'AYMENT OF EXPENSES" Section of this Exhibit B. If Railroad performs any Safety Measures, Conh•actor ag►•ees that Contractor is not relieved of any of responsibilities or liabilities set foi�th in this Agreement. C. For flagging, the rate of pay perhour for each flagger will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemploytnent compensation, supplemental pension, Employees Liabili_ty and Property Damage, and Adininistration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed: One and one-half times the current houcly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between 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, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. D. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagger is furnished, unless the flagger can be assigned to other railroad work dui•ing a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagger is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flaggers following the flaggers' assignment to work on the pi•oject for which Railroad is required to pay the flaggers and which could not reasonably be avoided by Railroad by assignment of such flaggers to other work, even though Contractor may not be working during such time. When it becomes necessaiy for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must pi•ovide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagger. If five (5) days notice of cessation is not given, Contractoi• will still be required to pay flagging charges for the days the flagger was scheduled, even though flagging is no longer required for that period. An additional ten (10) days notice must then be given to Railroad if flagging seivices are needed again after such five day cessation notice has been given to Railroad. Section 4. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of any work on Railroad Pi•operty performed by Contractor, and takes precedence over any Work on Licensee's Facilities to be performed by Contractor. Contractoi• shall be responsible for initiating, maintaining and supervising all safety operations and programs in connection wit6 any Work on Licensee's Facilities. Contractor and its contractor shall, at a minimum comply, with Railroad's then current safety standards located at the below web address ("Railroad's Safety Standards") to ensure uniformity with the safety standards followed by Railroad's own forces. As a pai�t of Contractor's safety responsibilities, Conh�actor shall notify Railroad if it determines that any of Railroad's Safety Standards are contrary to good safety practices. Conh•actor shall furnish copies of Railroad's Safety Standards to each of its employees before they enter Railroad Propei�ty. �Illfp /IW1Y\V Up C0111/CSIR.f04�)U�IIC/[f U!f/(! SUDDIIC�S�(IOCUIl1C0[SIUp odf nativedocs/pdf up supplier safetv rea adfJ B. Contcactor shall keep the job site on Railroad Property fi•ee from safety and health hazacds and ensure that their .employees are competent and adequately tcained in all safety and health aspects of the Work. C. Contcactor represents and wacrants that all parts of Licensee's Facilities within and outside of the limits of Railroad Pcoperty will not interfere whatsoever with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of Railroad, and nothing shall be done or suffered to be done by Contractor at any time that would in any manner impair the safety thereof. D. Railroad's operations and work performed by Railroad's pe�•sonnel may cause delays in Contractor's or its contractor's Work on Licensee's Facilities. Contractor accepts this risk and agrees that Railroad shall have no liability to Contractor or any other person or entity for any such delays. Contractor must coordinate any work on Railroad Property by Conti•actor or any third party with Railroad's Field Representatives in strict compliarice with the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B. E. Railroad shall ha�e the right, if it so elects, to provide any support it deems necessaiy for the safety of Railroad's operations and trackage during Contractor's performance of the Work on Licevsee's Facilities. In the event Railroad provides such support, Railroad shall invoice Contractot; and Contractor shall pay Railroad as set forth in the "CONTRACTOR'S PAYMENT OF EXPENSES" Section of this �xhibit B. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. Fiber optic cable systems may be bucied on Railroad Property. Protection of the fiber optic cable systems is of extreme impoi�tance since any break could disrupt service to users cesulting in business interruption and loss of revenue and profits. In addition to the notifications required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exl�ibit B, Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad Property to be used by Contractor. If it is, Contractor shall telephone the telecommunications company(ies) involved, and arrange for a cable locator, make arrangements for relocation or other protection of the fibec optic cable, all at Contractor's expense, and will not commence any work on Railroad Property until all such protection or relocation has been completed. Section 6. CONTRACTOR'S PAYMENT OF EXPENSES. A. Contractor shall bear the entire cost aud expense of performing the Work on Licensee's Facilities, including reimbursement of any costs set forth in this �xhibit B. B. Contractor shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the Work on Licerisee's Facilities, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or inaterials furnished thereon at the instance or request or on behalf of Contractor. Contractor shall promptly pay or discharge all taxes, chaiges, and assessments levied upon, in respect to, or on account of Licensee's Facilities, to prevent the same fi•om becoming a charge or lien upon any property of Railroad, and so that the taxes, charges, and assessments levied upon or in respect to such propeity shall not be increased because of tlie location, construction, or maintenance of Licensee's Facilities or any improvement, appliance, or fixture connected therewith placed upon such property, or on account of Contractor's interest therein. Where such tax, charge; or assessment may not be separately made or assessed to Contractor but shall be included in the assessment of the property of Railroad, then Contractor shall pay to Railroad an equitable proportion of such taxes determined by the value of Contractor's property upon property of Railroad as compared with the entire value of such property. C. As set forth in the "FLAGGING" Section of this Exhibit B, Contractor shall have the right, if it so elects, to provide any Safety Measures _Raili•oad deems necessary for the safety of Railroad's operations and trackage during Contractor's or its contractor's performance of the Work on Licensee's Facilities, including, but not limited to supervision, inspection, and flagging services. In the event Railroad provides such Safety Measures, Railroad shall submit an itemized invoice to Conti•actor's notice recipient listed in the "NOTICES" Article of this Agreement. Conti•actor shall pay to Railroad the total amount listed on such invoice within thirty (30) days of Contractor's receipt of such invoice. Section 7. RESTORATION OF RAILROAD'S PROPERTY. In the event Contractor, in any manner moves or disturbs any property of Railroad in connection with perfoi•mance of the Work on Licensee's Facilities, then, Contractor s(iall, as soon as possible and at Contractor's sole cost and expense, restore Railroad's property to the same condition as the same were before such property was moved or disturbed. Section S. INDEMNITY. A. Definitions. As used in this Section: 1. "Railroad" includes Railroad, its affiliates, its and their officers, directors, agents and employees, and other railroad.companies using Railroad Property at or near the location(s) of Licensee's Facilities and their officers, directocs, agents, and employees. 2. "Contractor" includes Contractor and its agents, contractors, subcontractoi•s, sub-subconti•acto�s, employees, officers, and directors, or any. other person or entity acting on its behalf or under its controL 3. "Loss" includes claims, suits, taxes, loss, damages (including punitive damages, statutory damages, and exemplaty damages), costs, charges, assessments, judgments, settlements, liens, demands, actions, causes of action, fines, penalties, interest, and expenses of any nature, including court costs, reasonable attorneys' fees and expenses, investigation costs, and appeal expenses. B. Contractor shall i•elease, defend, indemnify, and hold harmless Railroad fi•om and against any and all Loss, even if groundless, fi•audulent, or false, that directly or indicectly arises out of or is i•elated to Contractor's performance of the Work on Licensee's Facilities, including, but not limited to, any actual or alleged: 1. Bodily harm or pe�sonal injuiy (including any emotional injuiy or disease) to, or the death of, any person(s), including, but not limited to, Contractor, Railroad, any telecommunications company, or the agents, contractors, subcontractois, sub-subcontractors, or eniployees of tlie foregoing; 2. Damage to or the disturbance, loss, movement, or destruction of Railroad Property, including loss of use and diminution in value, including, but not limited to, any telecommunications system(s) or fiber optic cable(s) on or near Railroad Property, any property of Contractor or Railroad, or any property in the care, custody, oi• control of Contractor or Railroad; 3. Removal of person(s) from Railroad Property; 4. Any delays or interference with tcack or Railroad's railroad operations caused by Contractor's activity(ies) on Railroad Property, including without limitation the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities or any part thereof, any activities, labor, materials, equipment, or machineiy in conjunction therewith ; 5. Right(s) or interest(s) gcanted pursuant to this Agreement; 6. Contents escaping from Licensee's Facilities, including without limitation any actual or alleged pollution, conta►nination, breach, or environmental Loss; 7. Conri•actor's breach of this Agceement or failure to comply with its provisions, including, but not limited to, any violation or breach by Contractor of any representations and warranties Contractor has made in this Agreement; and 8. Violation by Contractor of any law, statute, ordinance, govermnental administrative order, rule, or regulation, including without limitation all applicable Federal Railroad Administration regulations. C. THE FOREGOING OBLIGATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW FOR THE BENEFIT OF RAILROAD TO LOSSES CAUSED BY, ARISING FROM, RELATING TO, OR RESULTING FROM, IN WHOLE OR IN PART, THE NEGLIGENCE OF RAILROAD, AND SUCH NEGLIGENCE OF RAILROAD SHALL NOT LIMIT, DIMINISH, OR PRECLUDE CONTRACTOR'S OBLIGATIONS TO RAILROAD IN ANY RESPECT. NOTWITHSTANDING THE FOREGOING, SUCH OBLIGATION TO INDEMNIFY SHALL NOT APPLY TO THE EXTENT THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND DIRECT NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF RAILROAD AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION. EXHIBIT C TO THE CONTRACTORS RIGHT OF ENTRY INSURANCE REQUIREMENTS In accordance with Article 6 of this Agceement, Contractor shall (1) procure and maintain at its sole cost and expense, or (2) require its contractors and subcontractors to procure and maintain, at their sole cost and e:cpense, the following insurance coverage: A. Commercial General Liabilitv Insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be written on ISO occurrence form CG 00 O1 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorseuient, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: • Contc•actual Liability Railroads ISO form CG 24 17 10 O1 (or a substitute form providing equivalent covet�age) showing "Union Pacific Railroad Coinpany Property" as the Designated Job Site. B. Business Automobile Coveraee Insuran�ce. Business auto coverage written on ISO form CA 00 O 1 10 O1 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage musf include liability arising out of any auto (including owned, hii•ed, and non-owned autos). 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 O1 (or a substitute form providing equivalent coverage) showing °Union Pacific Railroad Company Property" as the Designated Job Site. C. Worlcers' Compensation and Emplovers' Liabilitv Insurance. Coverage must include but not be limited to: • Contractor'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 einployee. If Contractor 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. Environmental Liabilitv Insurauce. Enviromnental Legal Liability Insurance (ELL) applicable to bodily injury, propei�ty damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims, or compliance with statute, all in connection with any loss acising fi•om the insured's perfoi•mance under this Agreement. Except with respect to the limits of insurance, and any rights or duties specifically assigned to the first named insured, this insurance must apply as if each named insured were the only named insured; and separately to the additional insuced against which claim is made or suit is brought. Coverage shall be maintained in an amount of at least $2,000,000 per loss, with an annual aggregate of at least $4,000,000. Contcactor warrants that any retroactive date applicable to ELL insurance coverage under the policy is the same as or precedes the Effective Date of this Agreement, and that continuous coverage will be maintained for a period of five (5) years beginning fi•om the time the Work under this Agreement is completed or if coverage is cancelled for any reason the policies extended discoveiy period, if any, will be exercised for the maximum time allowed. E. Railroad Protective Liabilitv Insurance. Contractoc must maintain for the duration of work "Railroad Protective Liabi(ity" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad only as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB LOCATION° and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this Agreement. Notwithstanding the foregoing, Conti•actor does not need Railroad Protective Liability Insurance after its initial constcuction work is complete and all eYcess materials have been removed fi•om Railroad Property; PROVIDED, however, that Contcactor shall procure such coverage for any subsequent maintenance, repair, renewal, modification, reconstruction, or removal work on Licensee's Facilities. F. Umbrella or �xcess Insurance. If Contractor utilizes umbrella or excess policies, and these policies must °follow form" and afford no less coverage than the primary policy. Other Repuirements G. All policy(ies) required above (except business automobile, workers' 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 Contractor's liability under the indemnity provisions of this Agreement. BOTH RAILROAD AND CONTRACTOR EXPECT THAT RAILROAD 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. Contractor waives all rights of recovery, and its insucers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees for damages covered by the workers' compensation and employers' liability or commercial umbrella or excess liability obtained by Contractor required in this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance. J. All insurauce policies must be wi•itten 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 wliich the Wock is to be performed. o . � K. The fact that insurance is obtained by Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agceement. Damages recoverable by Railroad fi•om Contractor or any third party will not be limited by the amount of the required insurance coverage.