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HomeMy WebLinkAboutContract 56362 CSC No.56362 j.,14 3 03 y'�_7 Folder No.3257-32 PIPELINE AGREEMENT Mile Post: 248.14,Dallas Subdivision Location: Fort Worth,Tarrant County,Texas 1 This PIPELINE AGREEMENT ("Agreement") is made and entered into as of the -Z��day of 202/ ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at 1400 Douglas Street, MS 1690, Omaha, Nebraska 68179 ("Licensor"), and CITY OF FORT WORTH, a Texas municipal corporation, to be addressed at 200 Texas Street,Fort Worth,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 of 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 38.3 inch plastic pipeline encased in a 54 inch steel casing for transporting and conveying sewage only, including any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities") across Licensors real property, trackage, or other facilities located in Forth Worth, 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 Specifications dated August 10,2021, attached hereto as Exhibit A-1 &A-2 and made a part hereof. B. Licensee's Facilities will (i) only be used for transporting and conveying sewage 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 imagery 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 Ten Thousand Six Hundred Seventy Dollars($10,670.00). OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Article 4. LICENSEE'S COMPLIANCE WITH GENERAL 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 Agreement,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 Entry Agreement ("CROE"). Licensee acknowledges that: (i) the CROE attached hereto as Exhibit 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 contractors are allowed onto Railroad Property pursuant Licensee's notification requirements set forth in the "NOTICE OF COMMENCEMENT OF WORK;EMERGENCIES" Section of Exhibit B. Article 7. ATTORNEYS' FEES EXPENSES AND COSTS. If litigation or other court action or similar adjudicatory proceeding is undertaken by Licensee or Licensor to enforce its rights under this Agreement, 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 Party 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 Licensor of the breach of any condition, covenant or agreement herein contained to be kept,observed 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 assignment or attempted transfer 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; REMOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B. i B. Upon Licensoe'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 Coiporation 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: Union Pacific Railroad Company Attn:Analyst—Real Estate Utilities (Folder No.3257-32) 1400 Douglas Street,MS 1690 Omaha,Nebraska 68179 If to Licensee: City of Forth Worth 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.1Jtility0)railyrosfs.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 lla riwsr�,ra:j ssL By: Title. D;inDana Burghdorff Senior Manager- Real Estate Assistant City Manager Union Pacific Railroad Company OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX APPROVAL RECOMMENDED: C{uistopher rn�lor cnda.cti«a uau(wtt.,rnt ta,a mq By: Chris Harder, P.E. Director, Water Department 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. Leon Wilson, Jr., P.E. Project Manager APPROVED AS TO FORM AND LEGALITY By: Matt Murray Assistant City Attorney �,°� FORr 4 ° °O'A YA ATTEST: ~o or=Yd Form 1295 No.N/A �RGZ� pv o oy d ° °T °°°°°°°°° a Ronald P. Gonzales aa�rExASgap M&C No.: N/A Acting City Secretary nnad4O� M&C Date: N/A OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX r 1� 1 I M 0 '' G��S `- � � ill► � NOTE: BEFORE YOU BEGIN ANY WORK, SEE LEOENDs AGREEMENT FOR FIBER OPTIC PROVISIONS. EXHIBIT "A-1 " UNCASED 36"HDPEs PIPELINE CROSSING------ - - - - UNION PACIFIC RAILROAD COMPANY 54'STEEL CASINGs PIPELINE CROSSING------- - - - — FORT WORTH, TARRANT, TX M.P. 248. 14 — DALLAS SUB. UPRRCO.R/W OUTLINED---------------------- — — — — MP—TP — V-1 0 / S-1 A SCALE: 1 " = 1 00' CADD 0325732.dgn FILENAME OFFICE OF REAL ESTATE OMAHA, NEBRASKA DATE: 8/10/2021 SCAN X JDB FILE: 3257-32 FILENAME NON-FLAMMABLE LIQUID CROSSING❑ ENCROACHMENT PIPELINE ❑ BOTH B UPRR R.0.Wl. I--- 4559 FT. --._ ------Yi 721 FT. I a —FT. 126 FT. a L� w w of Y N , 54 DEG. f N a z I� ANGLE OF cc a- Z CROSSING - - - - - - — ---—-—-—-—-— Elo — -- - - - - - - - - - - - - — DESCRIBE " DESCRIBE i FIXED OBJECT `� I FIXED OBJECT CROSSING TRACK CROSSING TRACK University Drive CIL m NORTH (DOT:795018F) ---------------------------- -- q� UPRR R.0.W.————————————————————————— PLAN SCALE: NONE fk a16 OUTER rr OUTER 0_16 Ltd I TRACK TRACK Ltd 41 FT. _ I 40 FT. I I I I _FT. FT. 64 FT. —FT. VENT PIPE I 5 I I I TOTAL TRACKS ' NA FT. GROUND -- NA FT, I NA FT SURFACE DRAINAGE I DITCH I I 55 FT. —FT. � 23 FT. i I ---- -- -- -------I -------------------------I -:-4 CASING PIPE SECTION CARRIER PIPE SCALE: NONE LONGITUDINAL PIPE ENCROACHMENT NOTES:*The 170'of 54"steel casing extends as far northward as the southern 2 of 6 UP tracks.See Exhibit A-1 for additional details.' 1)ALL DIMENSIONS MEASURED PERPENDICULAR TO THE CENTERLINE OF TRACK 2)REFER TO AREMA VOLUME 1.CHAPTER 1.PART 5.SECTION 5.1 A) METHOD OF INSTALLATION HORIZONTAL DIRECTIONAL DRILL B) DIST.FROM CENTERLINE OF TRACK TO PIPE ENCROACHMENT BUILDING AMERICAO C) SIGNS PROVIDED? SIGNS WILL NOT BE PROVIDED D) CARRIER MATERIAL PLASTIC . IF RCP,CLASS V? NA COMMODITY TO BE CONVEYED SEWAGE EXHIBIT "A"2 OPERATIONAL PRESSURE 85 PSI. MAOP 85 PSI. WALL THICKNESS (INCH)/ SCHEDULE 13.5 DIAMETER 38.3 IN. SUBDIVISION:Dallas sub. CATHODIC/COATING PROTECTION NO TRACK TYPE:MAINLINE E) CASING MATERIAL STEEL - IF RCP,CLASS V? NA M.P.:248.14 LAT.: 32.73138889 TOTAL LENGTH CASING PIPE: 170 FT. E.S.M.: 13102+48t LONG.: -97.36166667 WALL THICKNESS 0.75 IN. DIAMETER 54 IN. CATHODIC/COATING PROTECTION NO NEAREST CITY: COUNTY: STATE: CASING PIPE IS OPEN AT THE ENDS. (casing to be grout filled) FORT WORTH TARRANT TX F) DISTANCE FROM CENTERLINE OF TRACK TO NEAR FACE OF APPLICANT: CITY OF FORT WORTH,TEXAS BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES 117 AND 1180 FILE NO.: 0325732 DATE: 8n0/2021 EXHIBIT B 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 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 wielines, 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 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 same, 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. ENGINEERING REQUIREMENTS; PERMITS. A. Licensee's Facilities will be designed, constructed, operated, maintained, repaired, renewed, 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 standards and specifications, including those for shoring 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 Engineering — Design or its authorized representative ("UP Engineering Representative"); (ii) such other additional safety standards as Licensor, in its sole discretion, elects to require, 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 perform any work on Licensee's Facilities. Section 3. NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES. A. Licensee and its contractors are strictly prohibited from commencing any work associated with Licensee's Facilities without Licensor's written approval that the work will be in strict compliance with 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 authorization 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 emergency arises involving Licensee's Facilities, Licensee or its contractor shall immediately contact Licensoe's Response Management Communications Center at (888)877-7267. Section 4. FLAGGING. A. Following Licensee's notice to Licensoe's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WORK; 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 Measures are required, no work of any kind may be performed by Licensee or its contractor(s) until arrangements 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 are 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 have 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 this 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. hi addition to the cost of such labor, 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 hourly 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 Licensor 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, 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 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 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 bargaining agreements, Licensee must provide Licensor 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, 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 Licensor. Section 5. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of any work on Railroad Property performed by Licensee or its contractor, and takes precedence over any work on Licensee's Facilities to be performed Licensee or its contractors. Licensee shall be responsible for initiating, maintaining and supervising all safety operations and programs 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 shall notify Licensor if it determines that any of Licensor's Safety Standards are contrary to good safety practices. Licensee and its contractor shall furnish copies of Licensor's Safety Standards to each of its employees before they enter Railroad Property. [http•/hvww up com/cs/groups/public/a]uprr/psuppliers/documents/up pdf nativedocs/pdf up supplier safety yrea pdf] B. Licensee shall keep the job site on Railroad Property free from safety and health hazards and ensure that their employees are competent and adequately trained in all safety and health aspects of the work. C. Licensee agrees that Licensee's Facilities and all pants 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 any 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 other person or entity for any such delays. Licensee must coordinate any work on Railroad Property 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 support, 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 must be appropriated. F. Licensee may use unmanned aircraft systems ("UAS") to inspect Licensee's Facilities only upon the prior authorization from 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 SYSTEMS. Fiber optic cable systems may be buried on Railroad 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. In addition to the notifications required 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 or other protection of the fiber optic cable, all at Licensee's expense, and will not commence 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 mated alman'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 charge 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 property upon property of Licensor as compared with the entire value of such property. C. As set forth in the "FLAGGING" Section of this Exhibit B, Licensor shall have the right, if it so elects, to provide any Safety Measures Licensor deems necessary 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 services. 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 LICENSEE'S FACILITIES. A. This grant is subject to Licensor's safe and efficient operation of its railroad, and continued use and improvement of Railroad Property (collectively, "Railroad's Use"). Accordingly, Licensee shall, at its sole cost and expense,modify, reconstruct, 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 reasonable 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 from any liability or other obligation of Licensee arising prior to and upon completion of any such Modifications to the Licensee's Facilities. Section 9. RESTORATION OF RAILROAD PROPERTY. In the event Licensee, in any manner moves or disturbs any property of Licensor in connection with the construction, maintenance, modification, reconstruction, repair, renewal, 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, directors, agents, and employees. 2. "Licensee" includes Licensee and its agents, contractors, subcontractors, sub-subcontractors, 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 exemplary 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. Licensee shall, to the extent allowed by law and the Texas Constitution, release, defend, indemnify, and hold harmless Licensor from and against any and all Loss, even if groundless, fraudulent, or false, that directly or indirectly arises out of or is related to Licensee's construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, removal, presence, use, or operation of Licensee's Facilities, including,but not limited to, any actual or alleged: 1. Bodily harm or personal injury (including any emotional injury 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 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 Licensee or Licensor, 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 Railroad's Use caused by Licensee'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 machinery in conjunction therewith; 5. Right(s)or interest(s)granted pursuant to this Agreement; 6. Contents escaping from Licensee's Facilities, including without limitation any actual or alleged pollution,contamination,breach,or environmental 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 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 AND THE TEXAS CONSTITUTION FOR THE BENEFIT OF LICENSOR, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND DIRECT NEGLIGENCE, GROSS NEGLIGENCE,OR WILLFUL MISCONDUCT 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 for a period of thirty (30) days after written notice from 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. Intentionally Deleted. C. Prior to the effective date of any termination described in this Section, Licensee shall submit an application to Licensor's online Utility Contracts System at https://www.uprr.com/rem/upsVjas/#/home for Licensee's removal, or if applicable, abandonment 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 from 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 completion of the Restoration Work, Licensee shall provide a written certification letter to Licensor at the address listed in the "NOTICES" Article of this Agreement which certifies 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 environmental 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 certification to Licensor at the address listed in the "NOTICES" Article 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 from Licensee. F. Termination of this Agreement for any reason will not affect any of rights or obligations of the parties which 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 Liability 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 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 01 10 01 (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 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. 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. Environmental Liability Insurance. Environmental Legal Liability Insurance (ELL) applicable to bodily injury, 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 from the insured's performance 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 insured 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. 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) years beginning from 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 Liability Insurance. Licensee must maintain for the duration 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 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, Licensee does not need Railroad Protective Liability Insurance after its initial construction work is complete and all excess materials have been removed from 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' compensation and employers' liability) must include Licensor as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute form(s) providing equivalent coverage). The 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 damages 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, officers, 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 provisions of this Agreement. Damages recoverable by Licensor from 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 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. Folder No.3257-32 EXHIBIT D CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Mile Post: 248.14, Dallas Subdivision Location: Fort Worth,Tarrant County, Texas This CONTRACTOR'S RIGHT OF ENTRY AGREEMENT ("Agreement") is made and entered into as of the day of , 202_ ("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 Forth Worth ("Licensee"), entered into that certain Pipeline Agreement dated , identified in Railroad's records as Folder No. 3257-32, including any amendments or supplements thereto ("Railroad Agreement"), covering Licensee's construction, maintenance, and operation of an underground 38.3 inch plastic pipeline encased in a 54 inch steel casing for transporting and conveying sewage only, including any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities"), across Railroad's real property, trackage, or other facilities located in Fort Worth, 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 Specifications dated August 10, 2021, attached hereto as Exhibit A and made a part hereof. B. Contractor has been hired by Licensee to perform install an underground 38.3 inch plastic pipeline encased in a 54 inch steel casing for transporting and conveying sewage only on Licensee's Facilities located on Railroad Property("Work"). C. Railroad is willing to permit Contractor 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 Agreement to Contractor will include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or 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 strictly limited to the Work described in this Agreement, or as designated by Railroad's Field Representatives. Article 3. TERM; TERMINATION. A. This Agreement will commence on the Effective Date and will continue for one (1) year from the Effective Date, or until such time as Contractor completes the Work, whichever is earlier ("Term"). Contractor 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 the other party. Article 4. CONTRACTOR'S COMPLIANCE WITH GENERAL TERMS. Contractor represents and warrants that Contractor 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 PERFORMANCE OF THE WORK. Contractor shall bear 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 insurance in compliance with Exhibit 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 this Agreement, 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 Party against whose interest the judgment or decision is rendered. The provisions of this Article shall survive the termination of this Agreement. Article 8. DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor may remove from Railroad Property any employee of Contractor who fails to conform to the instructions of Railroad's Field Representatives in connection with the Work,and any right of Contractor shall be suspended until such removal has occurred. i t i 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 temporary 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 BREACH. I The waiver by Contractor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail 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 voluntary, by operation of law, or otherwise, without Railroad's written consent, will be absolutely void and may result in Railroad's termination of this Agreement pursuant to the "TERM; TERMINATION" Section of this Agreement B. Upon Railroad'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 13. 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 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 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 Railroad: Union Pacific Railroad Company Attn: Analyst—Real Estate Utilities(Folder No. 3257-32) 1400 Douglas Street,MS 1690 Omaha,Nebraska 68179 3 3 3 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: EXHIBIT B TO THE CONTRACTORS RIGHT OF ENTRY 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 construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wielines, 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 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 Railroad Property) 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 COMMENCEMENT OF WORK; EMERGENCIES. A. Contractor is strictly prohibited from commencing any Work on Licensee's Facilities without Railroad's written approval that the work will be in strict compliance with (i) the "ENGINEERING 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 any 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 complied with the "PROTECTION OF FIBER OPTIC CABLE SYSTEMS" Section of this Exhibit B. C. 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 Contractor 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 have been made and scheduled. If no Safety Measures are required, Railroad 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 federal, state, or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state, or local governmental entity. Additional information regarding the submission of such i expenses by Railroad and payment thereof by Contractor can be found in the "CONTRACTOR'S PAYMENT OF EXPENSES" Section of this Exhibit B. If Railroad performs any Safety Measures, Contractor agrees that Contractor 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 labor, 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 hourly 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. i 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 during 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 project for which r 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 necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide 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,Contractor 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 services 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 Property performed by Contractor, and takes precedence over any Work on Licensee's Facilities to be performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety operations and programs in connection with 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 part of Contractor's safety responsibilities, Contractor shall notify Railroad if it determines that any of Railroad's Safety Standards are contrary to good safety practices. Contractor shall furnish copies of Railroad's Safety Standards to each of its employees before they enter Railroad Property. [htip'//www up com/cs/groups/public/ uprr/a suppliers/documents/up pdf nativedocs/pdf up supplier safety rep odfJ B. Contractor shall keep the job site on Railroad Property free from safety and health hazards and ensure that their employees are competent and adequately trained in all safety and health aspects of the Work. C. Contractor represents and warrants that all parts of Licensee's Facilities within and outside of the limits of Railroad Property will not interfere whatsoever with the constant, continuous, and uninterrupted use of the hacks, 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 personnel 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 Contractor or any third party with Railroad's Field Representatives in strict compliance with the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B. E. Railroad shall have the right, if it so elects,to provide any support it deems necessary for the safety of Railroad's operations and trackage during Contractor's performance of the Work on Licensee's Facilities. In the event Railroad provides such support, Railroad shall invoice Contractor, and Contractor shall pay Railroad as set forth in the "CONTRACTOR'S PAYMENT OF EXPENSES" Section of this Exhibit B. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. Fiber optic cable systems may be buried on Railroad 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. In addition to the notifications required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit 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 fiber 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 and expense of performing the Work on Licensee's Facilities, including reimbursement of any costs set forth in this Exhibit B. B. Contractor shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the Work on 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 Contractor. Contractor 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 charge or lien upon any property of Railroad, 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 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 Railroad 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 Contractor's notice recipient listed in the "NOTICES" Article of this Agreement. Contractor 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 performance of the Work on Licensee's Facilities, then, Contractor shall, 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 8. 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, directors, agents, and employees. 2. "Contractor" includes Contractor and its agents, contractors, subcontractors, sub-subcontractors, 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 exemplary 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 release, defend, indemnify, and hold harmless Railroad from and against any and all Loss, even if groundless, fraudulent, or false, that directly or indirectly arises out of or is related to Contractor's performance of the Work on Licensee's Facilities, including, but not limited to, any actual or alleged: I. Bodily harm or personal injury (including any emotional injury or disease) to, or the death of, any person(s), including, but not limited to, Contractor, Railroad, any telecommunications company, or the agents, contractors, subcontractors, sub-subcontractors, or employees of the 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, or control of Contractor or Railroad; 3. Removal of person(s)from Railroad Property; 4. Any delays or interference with track 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 machinery in conjunction therewith ; 5. Right(s) or interest(s)granted pursuant to this Agreement; 6. Contents escaping from Licensee's Facilities, including without limitation any actual or alleged pollution,contamination,breach, or environmental Loss; 7. Contractor's breach of this Agreement 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, governmental 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 Agreement, 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 expense,the following insurance coverage: A. Commercial General Liability 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 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 01 10 01 (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 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. C. Workers' Compensation and Employers' Liability 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 employee. 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 Liability Insurance. Environmental Legal Liability Insurance (ELL) applicable to bodily injury, 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 from the insured's performance 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 insured 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. Contractor 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 from 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 Liability Insurance. Contractor must maintain for the duration 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 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, Contractor does not need Railroad Protective Liability Insurance after its initial construction work is complete and all excess materials have been removed from Railroad Property; PROVIDED,however,that Contractor 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 Contractor 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' 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. 1. Contractor waives all rights of recovery, and its insurers 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 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. 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 Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage.