HomeMy WebLinkAbout4.C.1. Authorize the Appropriate City Officials to Execute a Pipeline Crossing Agreement with Union Pacific Railroad Company �.� Consent Business 4. C. 1.
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TO: Mayor and City Council
Mark McNeill, City Administrator
FROM: Bruce Loney, Public Works Director
DATE: 08/20/2013
SUBJECT: Authorize the Appropriate City Officials to Execute a Pipeline Crossing Agreement
with Union Pacific Railroad Company (D)
Action Sought
Authorize the Appropriate City Officials to execute a Pipeline Crossing Agreement with Union
Pacific Railroad Company.
Background
City Council approved the preparation of plans and approved plans on July 16, 2013 for Valley
Park Business Center, Project No. 2013-6. Included in these plans, is a storm sewer necessary for
drainage and to go under the Union Pacific railroad tracks.
Attached is the Pipeline Crossing Agreement that the Union Pacific Railroad requires for any
pipeline crossing. This agreement has been reviewed by our insurance carrier and City attorney.
The agreement is necessary for the City and its contractors to construct the storm sewer.
Recommendation
Staff recommends approval of the agreement in order to construct the storm water improvements
under the Union Pacific Railroad for the Valley Park Business Center.
Budget Impact
The storm sewer pipe will be paid out of the Trunk Storm Drainage fund as it is off site
improvements and will serve the existing developed Conklin buildings site as well.
Relationship to Vision
Goal D: Maintain improve and create strong partnerships with other public and private sector
entities.
Requested Action
Authorize the Appropriate City Officials to execute a Pipeline Crossing Agreement with Union
Pacific Railroad Company.
Attachments: PIPELINE AGREEMENT
DRAWING OF STORM WATER IMPROVEMENTS
Pipalin�Cr��;sin�0308UQ Fold�r Vu.2317-7-1
Last Muditied:03 29 10
Furni Appro�ed.AVP-La�+
PIPELINE CROSSING
AGREEMEIYT
Mile Post: 24.U8, Mankato SubdivisiorvBranch
C,ocation: Shakopee, Scott County, Minnesota
'I'HIS AGREEVIENT ("Agreement") is made and entered into as of August U6, 2013,
("Effective Date") by and between [;NION PACIFIC RA[LROAD COVIPANY, a Delaware
corporation, ("Licensor") and CIT�' OF SHAKOPEE, a Minnesota municipal corporation to be
addressed at 500-Gonnan Street, Shakopee,Minnesota 5�379("Licensee").
IT IS NiUTUALLY AGREED BY AvD BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICEVSOR GRA1�T5 RIGH"T.
In consideration of the license fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and performed, the
Licensor hereby grants to the Licensee the right to construct and thereafter, during the tenn hereof, to
maintain and operate
one 33.5 inch encased pipeline for transporting and conveying storm water only
across Licensor's track(s) and property (the "Pipeline") in the location shown and in conformity with the
dimensions and specifications indicated on the print dated August O5, 2013 and marked Exhibit A,
attached hereto and hereby made a part hereoE Under no circumstances shall I_icensee modify the use of
the Pipeline for a purpose other than transporting and conveyin;storm water,and the Pipeline shall 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.
For the purposes of Exhibit A, Licensee acknowledges that if it or its contractor provides to
Railroad digital imagery depicting the Pipeline crossing, Licensee authorizes Railroad to use the DiDital
Imagery in preparing the print attached as an exhibit hereto. Licensee represents and warrants that
through a license or otherwise, it has the right to use the Digital Imagery and to permit Raiiroad to use the
Digital Imagery in said manner.
Article 2. LtCENSE FEE.
Upon execution of this Agreement,the Licensee shall pay to the Licensor a one-time License [=ee
ofTwo Thousand One Hundred Dollars($2,100.00).
Article 3. CO�STRUCTION. �IAINTEVr�vCE AND OPERAT[ON.
The grant of right herein made to the Licensee is subject to each and all of the tenns, provisions,
conditions, limitations and covenants set forth herein and in Exhibit B, attached hereto and hereby made
a part hereof.
Article 4. DEFINITlO� OF LICEVSEE.
For purposes of this Agreement, all references in this Agreement to die Licensee shall iuclude the
Licensee's contractors, subcontractors,officers, agents and employees, and others acting under its or their
authority. If' a contractor is hired by the Licensee for any work perfonned on the Pipeline (includin��
initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall
provide a copy of this Agreement ro its contractor and require its contracror to comply with a(1 the tenns
and provisions hereof relating to the work to be perfonned. Any contractor or subcontractor shall be
deemed an agent of Licensee for the purpose of this Agreement, and Licensee shall recluire such
contractor or subcontractor to release, defend and indemnify Licensor to the same extent and under the
same terms and conditions as Licensee is required to release,defend and indemnify Licensor herein.
Article 5. INSURAVCE.
A. During the life of the Lease, Licensee shall fully comply with the insurance requirements
described in Exhibit C.
B. Failure to maintain insurance as required shall entitle, but not require, Licensor to ter�ninate
this License iinmediately.
C. If[he 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 license, those statutes shall apply.
D. Licensee hereby acknowledges that is has revie�ved the requirements of Exhibit C, including
without limitation the requirement for Railroad Protective Liabi(ity (nsurance during construction,
maintenance, insta(lation,repair or removal of the pipeline which is the subject of this Agreement.
Article 6. TER�I.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in
full force and effect until terminated as herein provided.
I� WTTNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UrIOV PACIFIC RAILROAD CO�IPANY CITY OF SHAKOPEE
By: BY�
Asst. Manager-Contracts
Name Printed:
Title:
t �Z i ti
r_ACE ARROW iNDICAT[NG NORTH �NC���D N�N����ioii�i�i➢�E REV'10f 22,2007�
DIRECT'[DN RELATIVE TO CROSSING
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Fonn:\ppmv�d.:\�'P Law
EXHIBIT B
Section 1. LI�IITATIOr A�D SUBORDIrATION UF RIGIITS GRAN'1'ED.
A. The foregoing grant of right is subject and subordinate to the prior and continuing ri�ht and
obligation of the Licensor to use and maintain its entire property including the right and power of
the 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 freely
done at any time or tiines by the Licensor without liability to the Licensee or to any other party
for compensation or damages.
B. The foregoina grant is also subject to all outstandin; superior rights (including those in favor of
licensees and lessees of the Licensor's property, and others)and the right of the Licensor to renew
and ertend the same,and is made without covenant of title or for quiet enjoyment.
Section 2. CONSTRUCTION,vtAINTENAiVCE ArD OPERAT[O�I.
A. The Pipeline shall be designed, constructed, operated, maintained, repaired, renewed, modified
and/ar reconstructed by the Licensee in strict confonnity with(i) Licensor's current standards and
specifications ("UP Specifications"), except for variances approved in advance in writing by the
Licensor's Assistant Vice President Engineering — Design, or his authorized representative; (ii)
such other additional safety standards as the Licensor, in its sole discretion, etects to require,
including, without limitation, American Rai(way Engineering and Maintenance-of-Way
Association(`AREMA") standards and guidelines(collectively,"UP Additional Requireinents"),
and (iii) all applicable laws, ruIes and regulations ("Laws"). If there is any conflict between the
requirements of any Law and the UP Specifications or the UP Additional Requirements, the most
restrictive will apply.
B. All work performed on property of the Licensor in connection with the design, construction,
maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the
satisfaction of the Licensor.
C. Prior to the cotnmencement of any work in connection with the design, construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline
from Licensor's property, the Licensee shall submit to the Licensor plans setting out the method
and manner of handling the work, inciuding the shoring and cribbing, if any, required to protect
the Licensor's operations, and shall not proceed with the work until such plans have been
approved by the Licensor's Assistant Vice President Engineering Design, or his authorized
representative,and then the work shall be done to the satisfaction of the Licensor's Assis[ant Vice
President Engineering Design or his autl�orized representative. The Licensor shall have the right,
if it so elects,to provide such support as it may cieem necessary for the safety of its track or tracks
during the time of construction, tnaintenance, repair, renewal, tnoditication, relocation,
reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support,
the Licensee shall pay to the Licensor,within fifteen(l5)days after bills shall have been rendered
therefore, all expenses incurred by the Licensor in connection therewith, which expenses shall
include all assignable costs.
D. The Licensee shall keep and maintain che soil over the Pipeline thoroughly compacted and the
grade even with the adjacent surface of the ground.
E. In the prosecution of any work covered by this Agreement, Licensee shall secure any and all
necessary pennits and shall comply with all applicable federal, state and local la�vs, regulations
and enactments affecting the work including, without limitation, all applicable t�ederal Railroad
Adcninistration regulations.
Section 3. NOTICE OF COVi�[ENCEMErT OF WORI{/ LICE�SOR REPRESENTATIVE
/SUPERVISIO�i/FLAGGING/SAFETY.
A. If an emer�ency should arise rcquiring immediate attention, the Licensee shall provide as much
no[ice as practicable to Licensor before commencing any work. In all other situations, the
Licensee shall notify the Licensor at least ten(10) days (or such other time as the Licensor may
allo�v) in advance of the commencement of any work upon property of the Licensor in connection
with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or
removal of the Pipeline. All such work shall be prosecuted diligendy to completion. The
Licensee will coordinate its initial, and any subseyuent work with the fotlowing employee of
Licensor or his or her duly authorized representative (hereinafter "Licensor Representative" or
"Railroad Representative"):
DAVID R. KNAPP
MGR TRACK MNTCE
206 Eaton St.
St. Paul, MN 55107
Work Phone: 651-552-3943
Cell Phone: 402-889-7064
B. Licensee,at its own expense,shall adequately police and supervise all work to be perfonned. The
responsibility of Licensee for safe conduct and adequate policing and supervision of work shall
not be lessened or otherwise affected by Licensor's approval of plans and specifications involving
the work, or by Licensor's collaboration in performance of any work, or by the presence at the
work site of a Licensor Representative, or by compliance by Licensee with any requests or
recommendations made by the Licensor Representative.
C. At the request of Licensor, Licensee shall remove from Licensor's property any employee who
fails to confonn to the instructions of the Licensor Representative in connection with the work on
Licensor's property. Licensee shall indemnify Licensor against any claims arising from the
removal of any such employee from Licensor's property.
D. Lieensee shall notify the Licensor Representative at least ten (10) working days in advance of
proposed perfonnance of any work in which any person or equiptnent will be within twenty-five
(25) feet of any track, or will be near enough to any track Chat any equipment extension (such as,
but not limited to,a crane boom) will reach to within twenty-five(25) feet of any track. No work
of any kind shall be perfonned, and no person, equipment, machinery, tool(s), material(s),
vehicle(s), or thing(s) shall be located, operated, ptaced, or stored within twenty-five (25) feet of
any of Licensor's track(s) at any time, for any rcason, unless and until a railroad flagman is
provided to watch for trains. Upon receipt of such ten (10) day notice, the Licensor
Representative ���ill detennine and inform Licensee whether a flagman need be present and
whether any special protective or safety measures need to be implemented. If flagbing or other
special protective or safety measures are perfonned by Licensor, Licensor will bill [,icensee for
such expenses incurred by Licensor, unless Licensor anci a federal, state or local governmental
entity have a�reed that I,icensor is to bill such expenses to the federal, state or local governmental
entity. [f Licensor will be sending the bifls ro Licensee, Licensee shall pay such bills within thirty
(30) days of receipt of billina. If Licensor performs any flagging, or other special protective or
safety measures are perforn�ed by Licensor, Licensee agrees that Licensee is not relieved of any
of responsibilities or liabilities set forth in this Agreement.
E. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-
hour day for the class of f(a�nen used during regularly assigned hours and overtiine in
accordance with Labor Agreements and Scliedules in effect at the time the work is performed. In
addition to the cost of such labor, a composite charge for vacation, hotiday, health and welfare,
supplemental sickness, Railroad Retireuient and unemployment compensation, supplemental
pension, Employees Liability and Property Damage and Administration will be included,
computed on actual payroll. The composite charge wili be the prevailing composite charge in
effect at the time the work is perfonned. One and one-half times the current hourly rate is paid
for overtime, Saturdays and Sundays, and two and one-half titnes 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 m1y be retroactive as a result of negociations or a ruling of an authorized
governinental aaency. 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.
F. Reimbursement to Licensor will be required covering the full eight-hour day during which any
flagman is furnished, unless the fla�nan can be assiened to other railroad work durina a portion
of such day, in which event reimbursement will not be required for the portion of the day during
which the flagman is en�aged in other railroad work. Reimbursement will also be required for
any day not actually worked by the flagman following the fla�man's assignment to work on the
project for which Licensor is required to pay the flagman and which could not reasonably be
avoided by Licensor by assignment of such flagman to other work,even though Licensee may not
be working durina such time. When it becomes necessary for Licensor to bulletin and assign an
employee to a flagaing position in compliance with union collective bargaining agreements,
Licensee must provide Licensor a minimum of five (�) days notice prior to the cessation of the
need for a flagman. lf five(5)days notice of cessation is not given,Licensee will still be required
to pay flagging charges for the five(5)day notice period required by union agreement to be given
to thc employee, even though tlagging is not required for that period. An additional ten(10)days
no[ice must then be given to Licensor if flagging services are needed again after such five day
cessation notice has been given to Licensor.
G. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work perforrned by Licensee or its contractor. Licensee shall be responsible
for initiating, maintaining and supervising all safety, operations and programs in connection with
the work. Licensee and its contractor shall at a minimum comply with Licensor's safety standards
listed in Gxhibit D, hereto attached, to ensure unifonnity with the safety standards followed by
Licensor's own forces. As a part of Licensee's safety responsibilities, I.icensee 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 Exhibit D to each of its employees
before they enter the job site.
H. Without limitation of the provisions of paragraph G above, Licensee shall keep the job site free
from safery and health hacards and ensure that their employees are competent and adequately
trained in all safety and health aspects of thejob.
L Licensee sliall have proper tirst aid supplies available on the job site so that prompt tirst aid
services may be provided to any person injured on the job site. Prompt notification shall be �iven
to Licensor of any U.S. Occupational Safety and Health Administration reportable injuries.
Licensee shall have a non-delegable duty to control its employees while they are on the job site or
any other property of Licensor, and ro be certain they do not use, be under the influence of, or
have in their possession any alcoholie beverage, drug or other substance diat may inhibit the safe
perfonnance of any work.
J. [f and when requested by Licensor, Licensee shall d�liver to Licensor a copy of its safety plan for
conducting the work(the "Safety Plan"). Licensor shall have the right, but not the obligation, to
require Licensee to correct any deficiencies in the Safety Plan. The tenns of this Agreement shall
control if there are any inconsistencies between this Agreement and d�e Safety Plan.
Section 4. LICENSEE TO BEAR EvTIRE CYPENSE.
The Licensee shall bear the entire cost and expense incuned in connection with the desi�n,
construction,tnaintenance, repair anci retiewal and any and all modification, revision, relocation, removal
or reconstruction of the Pipeline, including any and all expense which may be incuned by the Licensor in
connection therewith for supervision, inspection, flagging,or otherwise.
Section 5. REIrFORCE�IE�1', KELOCATION OR REV[OVAL OF PIPELINE.
A. The license herein�n-anted is subject to the needs and requirements of the Licensor in the safe and
efficient operation of its railroad and in the improvement and use of its property. The Licensee
shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move a(1
or any portion of the Pipeline to such new location, or remove the Pipeline from the Licensor's
property, as the Licensor may designate, whenever, in the furtherance of its needs and
requirements,the Licensor,at its sole election, Einds such action necessary or desirable.
B. All the tenns, conditions and stipulations herein expressed with reference to the Pipeline on
property of the Licensor in the location hereinbefore described shall, so far as the Pipeline
remains on the property, apply to the Pipeline as modified, changed or relocated within the
contemptation of this section.
Section 6. NO IVTERFERErCE WITH LICE�SOR'S OPERATIOr.
A. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor
shall be designed, constructed and, at all times, maintained, repaired, renewed and operated in
such manner as to cause no interference whatsoever with the constant, continuous and
unintemzpted use of the tracks, property and facilities of the Licensor and nothing shall be done
or suffered to be done by the Licensee at any time that would in any manner impair the safety
thereof.
B. Explosives or other highly ftammable substances shall not be stored on Licensor's property
without the prior written approval of Licensor.
C. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Licensor's trackage shall be installed or used by Gicensor or its contractors without the prior
written permission of Licensor.
D. When not in use, any machinery and materials of Licensee or its contractors shall be kept at least
fifty(50) feet from the centerline of Licensor's nearest track.
E. Operations of Licensor and work perfonned by Licensor's personnel may cause delays in the
work to be perfonned by Licensee. 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 shall
coordinate its activities with those of Licensor and third parties so as to avoid interference w�idl
railroad operations. The safe operation of Licensor's train moveinents and other activities by
Licensor take precedence over any work to be performed by Licensee.
Section 7. PROTECTIOV OF FIBEI2 OPTIC CABLE SYSTE�IS.
A. Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic
cable systems is of ertretne importance since any break could disrupt service to users resulting in
business interruption and loss of revenue and profits. Licensee shall telephone the Licensor
during nonnal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday,
except for holidays) 1t 1-800-336-9193 (also a 2�4-hour, 7-day number for emergency calls) to
detennine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the
Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved,
arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic
cable, all at Licensee's expense, and will commence no work on the Licensor's property until all
such protection or relocation has been accomplished. Licensee shall indemnify and hold the
Licensor hannless from and against all costs,liability and expense whatsoever(including, without
limitation, attorneys' fees, court costs and expenses) arising out of or caused in any w�ay by
Licensee's failure to compiy with the provisions of this parabraph.
B. I\ ADDtTION TO OTHER IvDENINITY PROVISIONS IN THIS AGREEMENT, THE
LICENSEE SHALL, AND SHALL CAtiSE ITS C0�1TRf1CTOR TO, RELEASE,
I\UEM�IFY, DEFErD AtiD HOLD THE LICENSOR FI�R�ILESS FRO�I AVD
AGA[�iST ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (I`CLLDI�G,
WTTHOUT LI�'IITATIO�i, ATTORNEYS' FEES, COtiRT COSTS r+►:�iD EXPENSES)
CAtiSED BY THE tiEGL[GENCE OF THE LICENSEE, ITS CONTRACTORS, AGEtiTS
AVD/OR ENIPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTR(ICTION
OF ANY TELF.COVIViliYICATIONS SYSTEM OV LICENSOR'S PROPERTY,AND/OR
(2) ANY INJURY TO OI2 DEATH OF ANY PERSON E�IPLOYED BY OR O� BEftALF
OF A�Y 1'ELECO�iNtti�`ICATIONS CO�[PA�Y, AND/OR ITS COrTRACTOR,
AC�ENTS AND/OR EiVIPLOYEES, Ov LICErSOR'S PROPERTY, EXCEPT IF SUCH
COSTS, LIABILITY OR EXPErSES ARE CAUSED SOLELY BY TIIE DIRECT
ACT[VE NEGLIGENCE OE THE LICErSOR. L[CENSEE FURTIIER AGREES THA"I'
IT SHALL NOT �IAVE OR SEEK RECOURSE AGAINST LICENSOR FOR ANY
CLAIivI OR CAUSE OF ACT[O�i F'OR ALLEGED LOSS OF PROFITS OR RF.VENUE
OR LOSS OF SERVICE OR OTHER COtiSEQtiENTIAL DA�IAGE 1'O A
TELECOVtvItiNICATlOr CO�[PANY USING LICENSOR'S PROPER'CY OR A
Ci�STONiER OR USER OF SERVICES OF THE E[BER OPTIC CABLE ON
LICENSOR'S PROPERTY.
Section 8. CLAI�IS ArU LIENS FOR LABOR AND NIATERIAL;T�►.�CES.
A. The Licensee shall fully pay for all materials joined or aftixed to and labor perfonned upon
property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Pipeline, and shall not pennit or suff'er any mechanic's or
materialman's lien of any kind or nature to be enforced against the property for any �vork done or
materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee
shall indemnify and hold hamlless the Licensor against and from any and all liens, claims,
demands, costs and e;cpenses of whatsoever nature in any way connected with or growing out of
such work done, labor perfonned,or materials furnished.
B. The [.icensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in
respect to,or on account of the Pipeline, to prevent the same from becoming a charge or lien upon
property of the 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 the
Pipeline or any improvement, appliance or fixture connected therewith placed upon such
property, or on account of the Licensee's interest therein. Where such tax, charge or assessment
may not be separately made or assessed to the Licensee but shall be included in the assessment of
the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion
of such taxes detennined by the value of the Licensee's property upon property of the Licensor as
coinpared�vith the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the event the Licensee in any manner moves or disturbs any of the property of the Licensor in
connection with the construction,maintenance, repair,renewal,modification,reconstruction,relocation or
removal of the Pipeline, then in that event [he Licensee shall, as soon as possible and at Licensee's sole
expense,restore such property to the same condition as the same were before such property was moved or
disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, a�ents and
employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of
whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of
persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury,
death, damage, loss or destruction grows out of or arises from the moving or disturbance of any other
property of the C.icensor.
Section 10. I�iDE�IVI"1'Y.
A. As used in this Section, "Licensor" includes other railroad companies usin� the Licensor's
property at or near the location of the Licensee's installation and their officers, agents, and
employees; °Loss" includes loss, damage, claims, demands, actions, causes of action, penalties,
costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may
result from: (a) injury to or death of persons whomsozver (including the Licensor's ot�ticers,
agents, and employees, the Licensee's officers, agents, and employees, as well as any other
person); and/ar(b)damage to or loss or destruction of property whatsoever (including Licensee's
property,damage to the roadbed, tracks,equipment,or other property of the Licensor, or property
in its care or custody).
B. AS A MAJOR I�;DUCEMENT AND Ir CONS[DER�TI�r UF THE LICErSE A�U
PERM[SSIO\ HERE[v GRANTED, TO TEIE FULLEST EXTENT PER�IITTED BY
LAW', THE LICE\SEE SHALL, A�;D SHALL CAUSF, ITS CON"f1Z�CTOR "CO,
RELEASE, INDEViNIFY, DF.FEND AND HOLD HAR�iLESS 'I'HE L[CENSOR FRONI
A�Y LOSS OF ANY KIND, NATURE OR DESCRIPTIO� ARISING OUT OF,
RESULTING FRO��I OR RELATED TO(IV�VHOLE OR IN PAR"I'):
1. THE PROSECUTION OF ANY WORti CO�i'1'E�'IPLATED BY THIS AGREENIEYT
I�CLtiDING THE INSTALLAT[ON, CO�S"I'RC%CT10\, �IAI�TF.�AI�CE, REPAIR,
RENEWAL, �[UDIFICA"TION, RECO�S1'RliCTION, RF,LOCATIOV, OR REMOVAL
OF THE PIPELINE OR ANY PART THEREOF;
2. ANY RIGHTS OR INTERESTS GRr+►NTED PliRSUANT TO THIS LICENSE;
3. TIIE PRESENCE, OPERAT[ON, OR liSE OF THE PIPELIrE OR COrTENTS
ESCAPING THEREFRO�[;
4. THE EtiVIROtivIEiV'TAL STATtiS OF THF, PROPERTY Cr1USED BY OR
CO�TRIB[,�TED TO BY LICE�iSEE;
5. A�Y ACT OR O�IISSIO\ OF LICErSEE OR L[CErSEE'S OFFICERS, AGENTS,
I\VITEES, ENIPLOYEES, OR CONTRAC'I'ORS OR ArYONE DIRF.CTLY OR
I�DIRECTLY E�IPLOYED BY ANY OF THEM, OR ANYONE THEY CO�tTROL OR
EXERCISE CONTROL OVER; OR
6. LICENSEE'S BREACFI OF TfIIS AGREEVIENT,
E�CCEPT `VHERE THE I.,OSS IS CAUSED BY THE SOLE DIRECT AND ACTIVE
�iEGLIGENCE OF THE LICENSOR, AS DETER:ti1[VED IV A FIrAL JtiDGVIENT BY A
COLRT OF CO�IPETENT JURISDICTIO�, IT BEING THE IvTE�"I'[O� OF T�IE
PARTIES THAT THE ABOVE IvDEMN[TY �VILL OTHER�VISE APPLY TO LOSSES
CAUSED BY OR ARISING FRO�I, I� `��IOLE OR IN PAR1', LICENSOR'S
rEGL1GENCE.
C. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit of
proceeding brought against any indemnitee by any entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold
hannless any indemnitee. Licensee shall pay all costs incident to such defense,including,but not
limited to, reasonable attorney's fees, investigators' fees, litigation and appeal expenses,
settlement payments and amounts paid in satisfaction of judgments.
Section I 1. RE�(OVAL OF PIPELIrE UPOV TERi�IINATtOV OF AGftEE�IENT.
Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensec's sole
expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track
or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such po�rtions of such
property to as good a condition as they were in at the time of the construction of the Pipeline. If the
Licensee fails to do the foregoing, the Licensor may, but is not obligated, to perform such work of
removal and restoration at the cost and expense of the Licensee. In the event of the retnoval by the
Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein
provided, the Licensor shall in no manner be liable to the Licensee for any dainage sustained by the
Licensee Por or on account thereof, and such removal and restoration shall in no manner prejudice or
impair any right of action for damages,or otherwise,that the Licensoc may have a�ainst the Licensee.
Section 12. �VAIVER UF BREACH.
The waiver by the Licensor of the breach of any condition, covenant or agreement herein
containzd to be kept, observed and perfornled by the Licensee sl�all in no way impair the right of the
Licensor to avail itself of any remedy for any subsequent breach thereof.
Section 13. TE1Z�[I�ATIOV.
A. [f the Licensee does not use the ri�ht herein granted or the Pipeline for one (1) year, or if the
Licensee continues in default in the perfonnance of any covenant or agreement herein cantained
for a period of thirty (30) days after writien notice from the Licensor to the Licensee specifyina
such default, the Licensor may, at its option, forthwith immediately tenninate this Agreement by
written notice.
B. In addition to the provisions of subparagraph (a) above, this Agreement may be tenninated by
written notice given by either party hereto to the other on any date in such notice stated, not less,
however,than thirty(30)days subsequent to the date upon�vhich such notice shall be given.
C. Notice of default and notice of tennination may be served personally upon the Licensee or by
mailing to the tast known address of the Licensee. Tennination of this Agreement for any reason
shall not affect any of the rights or obligations of the parties hereto �vhich may have accrued, or
liabilities,accrued or othenvise,which may have arisen prior thereto.
Section 14. AGREE�IENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted,
without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted
transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by
operation of law, or otherwise,without such consent in writing,sha(l be absolutely void and,at the option
of the Licensor,shall tenninate this Agreement.
Section 15. SUCCESSORS A:VD ASSIGNS.
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to
the benefit of the parties hereto,their heirs,executors,administrators,successors and assigns.
Section 16. SEVERABILITY.
Any provision of this Agreement which is detennined by a court of competent jurisdiction to be
invalid or unenforceable shall be invalid or unenforceable only to the extent of such detennination, which
shall not invalidate or otherwise render ineffective any other provision of this Agreement.
Approved:Insurence Group
Created:9/23/OS
last Modified:03/29/30
Form Approved,AVP-Law
Ex�iisiT c
C;nion Pacific Railroad Companv
Contract Insurance Requirements
Licensee shall, at ics sole cost and expense, procure and maintain during the life of this Agreement
(except as otherwise provided in this Agreement)the following insurance coverage:
A. Commercial General Liabilitv insurance. Commercial general liability (CGL) with a limit of
not less than �?,000,000 each occunence and an aagreeate limit of not less than ��,000,000. CGL
insurance must be written on ISO occurrence foilnrCG 00 Ol l2 04 (or a substitute fotm providing
equivalent coverabe).
The policy 111USI also contain the foilowing endorsement, WHICH MUST BE ST'ATED ON THE
CERTIFICATE OF INSURANCE: "Contractual Liability Railroads" ISO form CG 24 17 l0 Ol (or a
substitute form providing equivalent coverage) showing"Union Pacific Railroad Company Property" as
the Designated Job Site.
B. Business Automobile Coverase insurance. Business auto coverage written on ISO fonn CA 00
01 10 01 (or a substitute fonn providing equivalent liability coverage) with a liinit 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, WH[CH MUST BE STATED ON THE
CERTIF[CATE OF INSURANCE: "Coverage For Certain Operations In Connection With Railroads"
ISO fonn CA 20 70 10 01 (or a substitute fonn providing equivalent coverage) showing"Union Pacific
Property"as the Designated Job Site.
C. Workers Comoensation and Emalor•ers 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
$�00,000 each employee.
[f 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. Ruilroad Protective I.iability insurance. Licensee must maintain'`Railroad Protective Liability"
insurance written on ISO occurrence form CG 00 35 l� 04 (or a substitute fonn providing equivalent
coverage) on behalf of Railroad only as named insured, with a limit of not less than $2,000,000 per
occurcence and an agb egate of�6,000,000.
I�Il� C���llll[1011 Ut ��JOB L.00ATION" and "WORIC" on the declaration pa�e of the policy shall refer ro
this A�reement and shall describe all WORK or OPERATIONS performed under this a�reement
E. Umbrella or Escess 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
F. All policy(ies) required above (except worker's compensation and employers liability) must
include Railroad as"tldditional Insured" using ISO Additional [nsured Endorsements CG 20 26, and CA
20 48 (or substitute fonns providin� equivalent coverage). The coverage provided to Railroad as
additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26,
and CA 20 48 provide coverage for Railroad's negligence�vhether sole or partial, active or passive, and
shall not be limited by Licensee's liability under the indemnity provisions of this Agreement.
G. Punitive damages exclusion, if any, must be deleted (and the de(etion indicated on the certificate
of insurance), unless (a) insurance coveraae may not tawfully be obtained for any punitive damages that
may arise under this agreement, or (b) all punitive damaaes are prohibited by all states in which this
agreement will be perfonned. y
H. Licensee 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 dainages covered by the
workers compensation and employers liability or commercial umbrella or excess liability obtained by
I.icensee required in this a�eement, where pennitted by law This waiver must be stated on the certificate
ofinsurance.
I. All insurance policies must be written by a reputable insurance company acceptable to Railroad
or with a current Best's Insurance Guide Ratin� of A- and Class VII or better, and authorized to do
business in the state(s)in which the work is to be perfonned.
J. The fact that insurance is obtained by Licensee or by Railroad on behalf of L.icensee will not be
deemed to release or diminish the liability af Licensee, including, without limitation, liability under the
indemnity pro�isions oF this Agreement. DainaDes recoverable by Railroad from Licensee or any third
party will not be timited by the amount of the required insurance coverage.
Pi{xiine C�rossing 07 20�OY
Pomi:\ppm�eci.:\�'P-La�c
EXH113fC D
SAFETY STA�DARDS
�II�I�IU�i SAFETY REQUIRENIENTS
The tenn "employees" as used herein refer to all employees of Licensee or its contractors,subcontractors,
or a�ents,as well as any subcontractor or agent of'any Licensee.
L Clothing
A. All employees of Licensee�vill be suitably dressed to perfonn their duties safely and in a
manner that will not interfere with their vision,hearing,or free use of their hands or feet.
Specifical(y,Licensee's employees must wear:
(i) Waist-length shirts with sleeves.
(ii) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser
bottoms must be tied ro prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees working on
bridges are required to wear safety-toed footwear that confonns to the American
National Standards Institute(ANSI)and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or
other shoes that have thin soles or heels that are higher than normal.
C. Employees must not wear loose or rag�ed clothing, neckties, finger rings, or other loose
jewelry while operating or working on machinery.
II. Personal Protective Equipment
Licensee shall require its employee to wear personal protective ec�uipment as specified by
Railroad rules, regulations,or recommended or requested by the Railroad Representative.
(i) Hard hat that meets the American National Standard (ANSI) L89.1 — latest revision.
Hard hats should be affixed with Licensee's coinpany logo or name.
(ii) Eye protection that meets American National Standard (ANSI) for occupational and
educational eye and face protection, Z87.1 — latest revision. Additional eye protection
must be provided to meet specific job situations such as welding,grinding,etc.
(iii) Hearing protection, which affords enough attenuation to�;ive protection from noise levels
that will be occurring on the job site. Hearing protection, in the fonn of plugs or muffs,
must be worn when employees are within:
■ 100 feet oE�a locomotive or roadway!work equipment
■ 15 feet of power operated tools
■ 150 f'eet of jet blowers or pile drivers
■ 1 i0 feet of retarders in use (when within 10 teet, employees must wear dual ear
protection —plugs and muffs)
(iv) Other types of personal protective eyuipment, such as respirators, fall protectiou
equipment, and face shields, must be worn as recommended or requested by the Railroad
Representative.
IIL On Track Safetv
Licensee and its contractor are responsible for compliance with the Pederal Railroad
Administration's Roadway Worker Protection regulations—49CFR214, Subpart C and Railroad's
On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the
trainins of their employees on such regulations. In addition to the instructions contained in
Roadway Worker Protecxion regulations,all employees must:
(i) Maintain a miniinum distance of at least twenty-five (25) feet to any track unless the
Railroad Representative is present to authorize movements.
(ii) Wear an orange, retlectorized work wear approved by the Railroad Representative.
(iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of
work being perfonned. Licensee must take special note of limits of track authority,which
tracks may or may not be fouled, and clearing the track. Licensee will also receive
special instructions relating to the work zone around machines and minimum distances
between machines while working or traveling.
IV. Equipment
A. [t is the responsibility of Licensee to ensure that all equipment is in a safe condition to
operate. If, in the opinion of the Railroad Representative, any of I_icensee's equipment is
unsafe for use, Licensee shall remove such equipment from Railroad's property. In
addition, Licensee must ensure that the operators of all equipment are properiy trained
and competent in the safe operation of the equipment. [n addition,operators must be:
• Familiar and comply with Railroad's rules on lockoudtagout of equipment.
■ Trained in and cotnply with the applicable operating rules if operating any hy-rail
equipment on-track.
■ Trained in and comply with the appticabl� air brake rules if operating any
equipment that moves rail cars or any other rail bound equipment.
B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher,and
audible back-up warning device.
C. Unless other�vise authoriied by the Railroad Representative, all equipment must be
parked a minimum of twenty-five (2�) feet from any track. Before leaving any
equipment unattended, the operaror must stop the engine and property secure the
equipment against movement.
D. Cranes must be equipped with three orange cones that will be used ro mark the working
area of the crane and the minimum clearances to overhead po�veriines.
V. General Safety Requirements
A. Licensee shall ensure that all waste is properly disposed of in accordance with applicable
federal and state re�xulations.
B. Licensee shall ensure that all employees participate in and comply �vith a job briefing
conducted by the Railroad Re�resentative, if applicable. During this briefins, the
Railroad Representative will specify safe work procedures, (includin� On-Track Safety)
and the potential hazards of the job. If any employee has any questions or concerns about
the work, the employee must voice them during the job briefing. Additional job brietings
will be conducted during the work as conditions, work procedures,or personnel change.
C. All track work perfonned by Licensee meets the minimum saEety requirements
established by the Federal Railroad Administration's Track Safety Stattdards 49CFR?l3.
D. All employees comply with the fo(lowing safety procedures when working around any
railroad track:
(i) Always be on the alert for moving equiprnent. Employees must always expect
movement on any track,at any time, in either direction.
(ii) Do not step or walk on the top of the rail, fro�, switches, guard rails, or other
track components.
(iii) In passing around the ends of standing cars, engines, roadway machines or work
equipment, leave at least 20 feet between yourself and the end of the equipment.
Do not go between pieces of equipinent of the openinb is less than one car length
(50 feet).
(iv) Avoid walking or standing on a track unless so authorized by the employee in
charge.
(v) Before stepping over or crossing tracks,look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the
perfonnance of your duties and only when track and equipment have been
protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace
safety.
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