HomeMy WebLinkAbout15.C.4. Pipeline Crossing Agreement with Union Pacific Railroad for Project 1993-3-Res. No. 6049
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CITY OF SHAKOPEE
Memorandum
TO: Mayor & City Council COf~SENT
Mark McNeill, City Administrator
FROM: Bruce Loney, Public Works Director
SUBJECT: Consider Approval of Pipe Line Crossing
Agreement between the Union Pacific Railroad Co. and the
City of Shakopee for the 2003 Street Reconstruction Proj ect
DATE: April 20, 2004
INTRODUCTION:
Attached is a pipe line crossing agreement, as prepared by the Union Pacific Railroad
Company, in regard to the installation of an underground 36 inch storm sewer pipe line
crossing that was included in the 2003 Street Reconstruction Project. Also attached is a
resolution, as prepared by the Union Pacific Railroad Company, in regard to this
proposed agreement.
BACKGROUND:
With the 2003 Street Reconstruction Project, a storm sewer crossing has been designed to
provide a storm sewer drainage system in this area, which previously did not exist. For
the installation for this underground storm sewer pipe, an agreement between the Union
Pacific Railroad Company and the City of Shakopee, is required by the railroad. In this
agreement there are six articles, which are as follows:
Article 1- License Fee, which is in the amount of$1,839.00.
Article 2 - Licensor Grants Right, which is Union Pacific Railroad granting the right
for the City to construct, maintain and operate a storm sewer line in their right-of-way.
Article 3 - Construction Maintenance and Operation, which is the right to the City
and set forth as Exhibit B, which is a standard list of requirements by the Union Pacific
Railroad for pipe lines in their right-of-way.
Article 4 -If Work is to be Performed by Contractor, states that a Contractor must
execute a railroad form of Contractor's right-of-entry agreement. The Contractor, S.M.
Hengtes & Sons, Inc., has executed an agreement and its requirements would be
submitted as part of this pipe line agreement.
Article 5 - Insurance, the City of Shakopee at its expense shall obtain the insurance
described in Exhibit B-1. Our insurance carrier, the League of Minnesota Cities, is
working on the Certificate of Insurance which would name the Union Pacific Railroad
Company an additional insured with respect to the work being performed.
Article 6 - Term of Agreement, which will take place and continue in full force until
terminated.
The City of Shakopee needs to complete this agreement in order to have a storm sewer
system to handle the storm water for the Sarazin Street and other properties in this area.
Staff recommends that this agreement be entered into so that the work can continue in the
Union Pacific Railroad right-of-way. With this agreement, the Union Pacific Railroad is
granting a license to operate in their right-of-way as they do not grant easements.
ALTERNATIVES:
1. Offer Resolution No. 6049, A Resolution Authorizing the Execution of a Pipeline
Crossing Agreement between the Union Pacific Railroad Company and the City
of Shakopee for the 2003 Street Reconstruction, Project No. 2003-3, and move its
adoption.
2. Do not execute the Pipe Line Crossing Agreement.
3. Table for additional information.
RECOMMENDATION:
Staff would recommend Alternative No.1.
ACTION REQUESTED:
Offer Resolution No. 6049, A Resolution Authorizing the Execution of a Pipeline
Crossing Agreement between the Union Pacific Railroad Company and the City of
Shakopee for the 2003 Street Reconstruction, Project No. 2003-3, and move its adoption.
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Bruce Lone
Public W 0 s Director
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ENGRlZ003PROJECT12003RECON/WORDlMEM6049
RESOLUTION NO. 6049
A RESOLUTION
AUTHORIZING THE EXECUTION OF A PIPELINE
CROSSING AGREEMENT, BETWEEN THE
UNION PACIFIC RAILROAD COMPANY AND
THE CITY OF SHAKOPEE FOR THE
2003 STREET RECONSTRUCTION
PROJECT NO. 2003-3
WHEREAS, UNION PACIFIC RAILROAD COMPANY has tendered to CITY
OF SHAKOPEE an agreement covering a pipeline crossing at Shakopee, Scott County,
Minnesota; and
WHEREAS, the City Council of the City of Shakopee has said proposed
agreement before it and has given it careful review and consideration; and
WHEREAS, it is considered that the best interests of the City of Shakopee will
be sub served by the acceptance of said agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SHAKOPEE, MINNESOTA:
That the terms of the agreement submitted by UNION PACIFIC RAILROAD
COMPANY as aforesaid be, and the same are hereby, accepted on behalf of said City of
Shakopee;
That the appropriate City officials are hereby authorized, empowered and directed to
execute said agreement on behalf of said City of Shakopee and directed to attest said
agreement and to attach to each duplicate original of said agreement a certified copy of
Resolution No. 6049.
Adopted in session of the City Council of the City of Shako pee,
Minnesota, held this day of , 2004.
Mayor of the City of Shakopee
ATTEST:
City Clerk
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April 06, 2004
Folder: 02244-20
TOM VOLL
CITY OF SHAKOPEE
129 HOLMES STREET SOUTH
SHAKOPEE MN 55379
Re: Proposed Installation (no open cut installation at this location) Of An Underground 36" Sewer
Pipeline Crossing of Railroad Property at Mile Post 26.8 on the Mankato SubdivisionlBranch at
or near Shakopee, Scott County, Minnesota
Dear Mr. Voll:
Attached are duplicate originals of an agreement covering your use of the Railroad Company's right of
way. Please execute or arrange for execution of the attached document and have the signatures witnessed
or attested, as indicated. Please RETURN ALL COPIES of the document for execution on behalf of the
Railroad Company in the enclosed self-addressed envelope. Your copy of the fully-executed document
will be returned to you, if approved by the Railroad Company. Also, please provide a resolution or other
authorization for the party executing the documents, and Insurance Certificates, as required by the
agreement.
Also attached is Contractor's Right of Entry Agreement which must be executed and returned in
accordance with the attached' agreement, if work is to be performed by a contractor.
Payment in the amounfofOne Thousand Eight Hundred Thirty Nine Dollars ($1,839.00) is due and
payable upon your execution of the agreement. Please, include your check, with Folder No. 02244-20
written on the front, made payable to Union Pacific Railroad Company, with the return of the
documents. This agreement will not be accepted by the Railroad Company until the initial payment is
received and all Insurance Certificates are in proper form. If you require formal billing, you may consider
this letter as a formal bill. In compliance with the Internal Revenue Service's policy regarding Form
1099, I certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification
Number and that Union Pacific Railroad Company is doing business as a corporation.
If we have not received the executed documents within six months from the date of this letter, this
proposed offer of an agreement is withdrawn and becomes null and void.
Real Estate
UNION PACIFIC RAILROAD
1800 Farnam Street, Omaha, :>:ebrusK.a 68.102
... (x. (402) 99".;601
If you have any questions, please contactme at (402) 997-3549.
Yours truly,
~~, ~~\~\h-
Jan Bornholdt
Manager
PL X 940206
Fonn Approved, A VP-Law
Folder No. 02244-20
PIPELINE CROSSING
AGREEMENT
Mile Post: 26.8, Mankato SubdivisionIBranch
Location: Shakopee, Scott County, Minnesota
THIS AGREEMENT is made and entered into as of April 06, 2004, by and between UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the "Licensor") and CITY
OF SHAKOPEE, to be addressed at 129 Holmes Street South, Shakopee, Minnesota 55379 (hereinafter
the "Licensee'').
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
Article I. LICENSE FEE
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time License Fee
of One Thousand EightHundred Thirty Nine Dollars ($1,83~9.00}
Article ll. LICENSOR GRANTS RIGHT.
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 term hereof, to
maintain and operate only a
installation of an underground 36" sewer pipeline crossing (hereinafter the "Pipeline")
in the location shown and in confom'rity with the dimensions and specifications indicated on the attached
print dated March 26, 2004, marked Exhibit A. Under no circumstances shall Licensee modify the use of
the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used 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.
Article m. CONSTRUCTION, MAINTENANCE AND OPERATION.
The grant of right herein made to the Licensee is subject to each and all of the terms, provisions,
conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached.
Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If a contractor is to do any of the work performed on the Pipeline (including initial construction
and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its
contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee aclmowledges
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receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, pravisians,
and requirements, and will inform its contractor .of the need ta execute the Agreement. Under na
circumstances will Licensee's contractor be allowed .onto Licensar's premises without first executing the
Contractor's Right of Entry Agreement.
Article V. INSURANCE
A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B-1, hereto
attached. The Licensee will also provide to the Licensar a Certificate .of Insurance, identifyin! Folder
No. 02244-20, issued by its insurance camer confuming the existence of such insurance an that the
policy or palicies contain the following endorsement:
UNION PACIFIC RAILROAD COMPANY is named as an additional insured with respect
to al1liabilities arising out of the existence, use or any work perfonned an .or associated
with the 'Pipeline' lacated on Railraad right-af-way at Mile Post 26.8, on the Mankata
SubdivisianlBranch, at .or near Shakopee, Scatt Caunty, Minnesata.
B. If the Licensee named in this Agreement is a public entity subject ta any applicable statutary
tort laws, the limits .of insurance described in Exhibit B-1 shall be the limits the Licensee then has in
effect or which is required by applicable current or subsequent law, whichever is greater, a partion .of
which may be self-insured with the consent and approval .of the Licensor
C. All insurance correspondence shall be directed to:
Falder Na. 02244-20
Union Pacific Railraad Campany .
Real Estate Department .
1800 Farnam Street
Omaha, NE 68102
Article VI. TERM.
This Agreement shall take effect as .of the date first herein written and shall continue in full farce
and effect until terminated as herein provided.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement ta be executed as .of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF SHAKOPEE
By: By:
Manager Title:
~u \......~Q~ <D ~ G::. 1I rl.. r w-. ,.:o.NJo:JI'r \)~ -r uP f'I'oJ-,' l" \ ,I~ c-{ \
PLACE ARROW INDICATING NORTH O~\-\4"'-" CD ~a-e.k, ~ f;r"'- FORM OR- 0404- B
DIRECTION RELATIVE TO CROSSING REV. 5-15-98
ENCASED NON _FLAMMABLE.uprr.com
PIPELINE CROSSING
NOTE: ALL AVAILABLE DIMENSIONS MUST BE
NO.SCALE FILLED IN TO PROCESS THIS APP.LlCATION.~~\:'"
-- @ -- . ~.. RR' S R/W
[; I - -
IOS'~ FT. ~FT.
~o 5 FT. _FT. - ~Il\~ FT
(SEE""iiOrE I e S) (SEE /IOTE :5 e 5)
. .- .
..
.. TO S'--\c "(l..cu:t..
o:f
t !lAIN TRACe 0:"
oJ (NEAREST R. R. TOWNI
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'-~ C."V~""~od"" ~r. G::. ....r....7.,.,1"- So\-: ./
I DESCRIBE FIXED JECT) I OESCR I BE F I XED OBJECT)
I SEE NOTE 6) I SEE NOTE S)
'(DISTANCE Al.ONG TRACK FRQ!,f SECTION l.INE CROSSINGI ( fa C'........ .. \ "l 'l<'VO--.H f'. --s l{~ FT.
S /.DG:> '" FT. "i\<,~ '$0-\--\ a..t) 1
(NOTE: nlls DIMENSION REOUIRED IN ALL CASES. GY
AT LOCATIONS NOT USING SECTIONS, DISTANCE
RA'S R/W..- TO A LEGAL SURVEY LINE IS RE01~.'~ED) - -
~ \.\~FT. -I' 0 FT. '1"- 1.\0 J:'t.
,
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I STEEL CASING WALL
r ". "" " , TH.1CKNESS CHART
Il!I . . '"""" I MINIMUM OI~TER Of" ....
THICKNESS CASING pIp,'::
I ROADB I I . 2500" 1/4" 12" OR, LESS '" ..,
S.2FT,,' .3125" 5116" OVER 12".,.,IS"
, ..3750"' 3/B" OVER IS",-22"'
t I ' '
14. s7f' MIN.) I ~n:~..') , 'SEAL'CA'SING .4375" 7l!6" OVER 22"-2B"
(20 FT. "'AX,) , . 5000" 112" OVER 2S"-34~.
SEAL CAS ING r CASING' PIP~ 1 See Nate 4) : 3 FT., /oI1l(: ). ;;5625" 9/16' OVER 34"-42~'
G250" .5J.ll-' D1LiR--42"..,-4.B'~
--7- -- - - .- ---- -
I " OVER 4B" MUST BE
,. L_ tC CARA~R PIPE_ "- APPROVED BY R. R. CO.
- - -
@ (sq,ll:, ~\TJ~~f--~' , "~r NOTE: THIS CHART IS ONLY
I FOR SMOOTH STEEL CASING
i ~ ,-\0) PIPES WITH MINIMUM YIELD
,. I' STRENGTH OF 3S,000 PSI.
I ,.
, .
I S FT. /. 3S FT. I FORMULA TO FIGURE CASINO
~b FT. LENGTH WITH ANGLE OF
'ala H. CROSSING OTHER THAN 90.
B ..+
NOTES : ICASING LENGTH WIlEN MEASURED ALONG PIPELINE.) - .;1;"
II ALL HORIlONTAL DISTANCES TO BE /oIEASUREO AT RIGHT "'NGLES FRON'l. OF TRACK. /!:. 5tN .$>....
21 CASING TO EXTEND BEYOND THE 'I. OF TRACK AT RIGHT ANGLES THE GREATER OF 20 . 20 FT.. OR 30 FT.. ..~... B
AND BEYONO LIMU or RAILROAD JlIGHT-OF-WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK.
31 /oIINIWM OF SO' FROM THE 'ENO OF ANY RAILROAD BRIDGE, 'l OF ANY CULVERT, OR FROM AN'/' SWITCHING AREA. ,I'" M1N.01ST.
41 SIGNAL REPRESENTATIVE IoI\JST BE PRESENT DURING INSTALLATION IF RAILROAO SIGNALS ARE IH'TIIE VICINITY OF CROSSING. (NOTE 2)
51 Al.LOWABLE FIXED OeJECTS INCLUDE: BACKWALLS OF BRIDGES; 'l. OF ROAO CROSSINGS B OVERHEAO VIAOUCTS (GIVE ROAD NAMEI, OR CULVERTS. TRACK
61 CASINO AHO CARRIER PIPE MUST BE PLAcED A IIINIJ.IUIA OF 2 FEET BELOW THE EXISTING FISER OPTIC CABLE. ANY EXCAVATION REOUIREO WITHIN
5 FEET OF THE EXiSTING FIBER OPTIC CABLE NUSr BE HAHO OliGo
Al IS PIPELINE CROj~ING WITHIN DEDICATED STREET ?_____YES;____NO; EXHIBIT "A"
B) IF YES, NAME OF STREET rFOR RAILROAD us," GNU'
0) DISTRIBUTION LINE ,/ OR TRANSMISSION LINE
C) CARRIER PIPE: ..oj, '''-S.Ne:. s\-c{""'" v.J ..-'r-,.r UNlON PACIFIC RAILROAD CO.
COMMODITY TO BE CONVEYED tV\~~ K",-{ (;)
OPERATCNG PRESSURE PSI t\ . MA TER I AL S r--"""\ .
WALL TH I CKNESS :/0, II jDIAMETER ~I:. , SuaOIV,SIONI
, .. . , lb.<( E. s. /1(,\'''' ~('t
E) CASING PIPE: ~~~ M. P
WALL THICKNESS jD I AMETER iMATERIAL j
NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST eNCASED Si........ .1 vo.: '" CROSSING AT
OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF SL..::~:r:. ,':;- Su>it /VIN
CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF
CARRIER PIPE AND CNSIOE OF CASING PCPE. I tOWllr) IUnEr
F) METHOD~ INSTALLING CASING PIPE UNDER TRACKISI: C,'ty 1- S\"'",tt. fe..~
_____DRy BORE AND JACK 1 WET BORE NOT PERMITTED) ; (UPLlCAHtl
TUNNEL i OTHER RR FILE NO. ~~4~~4~ DATE ).?.c...7.J2I'il,-/
Gl W1LL-coNSTRUCTlON BE BY AN OUTSCDE CONTRACTOR? v' YESj----NOj
Hl DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND WAR N I N 0
JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK 'Lo .... ~o'
11 APPLICANT HAS CONTACTED 1-800-336-9193,. pO' /olIN.) IN ALL OCCASIONS. U. P. COtJMlJNlCATlOHS
DEPARTMENT MUST aE CONrACTEO IH AQvmcE
U. P. COMMUNICATION DEPA~~NT, AND HAS DETERMINED FIBER OF ANY WORK TO DETERlIINE EXISTENCE AND
OPTIC CABLE_DOES i--..:..DOES NOT; EXIST IN VICINITY OF LOCATION OF FIBER OPTIC CABLE.
WORK TO BE PERFORMED. TICKET NO. "'5'"1 1:\ ~b'2-u., ... PHONE I I- 800- 338- 919 3
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PL X 980112
Fonn Approved. A VP-Law
EXHIBIT B
Section 1. UMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the 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 times by the
Licensor without liability to the Licensee or to any other party for compensation or damages.
(b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of
the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of
title or for quiet enjoyment.
Section 2. CONSTRUCITON. MAINTENANCE AND OPERATION.
, (a) The Pipeline shall be constructed, operated, maintained. repaired. renewed. moc:lified and/or reconstructed by the
Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and
all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified
and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with
the requirements of any federal, state or municipal law or regulation. such requirements shall govern on all points of conflict, but
in all other respects the Specification shall apply.
(b) All work performed on property of the Licensor in connection with the construction, maintenance, repair. renewal,
modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor.
(c) Prior to the commencement of any work in connection with the construction. maintenance, repair, renewal,modification,
relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor.
the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including 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 Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of the Vice
President-Engineering Services or his authorized representative. The Licensor shall have the right. if it so elects. to provide such
support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal,
modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the
Licensee shall pay to the Licensor, wj.thin fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the
Licensor in connection therewith, which expense shall include all assignable costs.
(d) The Licensee shall keep and maintain the soil over. the Pipeline thoroughly compacted and the grade even with the
adjacent surface of the ground.
Section 3. NOTICE OF COMMENCEMENT OF WORK.
If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable
to licensor before commencing any work. In all other situations, the Licensee shall notify the Ucensor at least ten (10) days (or
such othE}r time as the Licensor may allow) 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 diligently to completion.
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair
and renewal and any and all modification, revision. relocation, removal or reconstruction of the Pipeline, including any and all
expense which may be incurred by the Licensor in connection therewith for supervision. inspection. flagging, or otherwise.
pb:.exb Page I of4 Exhibit B
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PL X 980112
. Ponn Approved, A VP-Law
Section 5. REINFORCEMENT. RELOCATION OR REMOVAL OF PIPEUNE.
(a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and
in the improvement and use of its property, and the licensee shall. at the sole expense of the Licensee, reinforce the Pipeline. or
move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever. in the furtherance of its
needs and requirements, the Licensor shall find such action'necessary or desirable.
(b) All the terms. conditions and stipulations herein expressed with reference to the Pipeline on property of th-e 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 contemplation of this section.
Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION.
The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and,
at all times, maintained, repaired. renewed and operated in such manner as to cause no interference whatsoever with the constant.
continuous and uninterrupted 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.
Section 7. PROTECfION OF F1BER OPTIC CABLE SYSTEMS.
(a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of
extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine 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 right of, way until all such protection or relocation has been
accomplished. Licensee shall indemnify and hold the Licensor harmless 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 way by
Licensee's failure to comply with the provisions of this paragraph.
(b) In addition to other indemnity provisions in this Agreement. the Licensee shall indemnify and hold the Licensor harmless
from and against all costs, liability and expense whatsoever (including. without limitation. attorneys' fees. court costs and expenses)
caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (l) any damage to or destruction
of any teleconununications system on Licensor's property, and/or (2) any injury to or death of any person employed by or onbehalf
of any teleconununications company, and/or its contractor, agents and/or employees, on Licensor's property, except if such costs,
liability or expenses are caused 'solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have
or seek recourse dgainst Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other
consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber
optic cable on Licensor's property.
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL: TAXES.
(a) ,The Licensee shall fully pay for .all materials joined or affixed to and labor performed upon property of the Licensor in
connection with the construction, maintenance, repair, renewal. modification or reconstruction of the Pipeline, 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 ot
materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold
harmless the Licensor against and from any and all liens. claims. demands, costs and expenses of whatsoever nature in any way
connected with or growing out of such work done. labor performed. or materials furnished.
(b) The Licensee 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 ~E3termined by the value of the Licensee's property upon property of the Licensor as compared
plx.exb Page 2 of 4 Exhibit B
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PL X 980112.
Form Approved. A VP-Law
with the entire value of such property.
Section 9. RESTORATION OF liCENSOR'S PROPERTY.
In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any mcmner move or disturb
any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal. modification,
reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's
sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down
or such other property was moved or disturbed. and the Licensee shall indemnify and hold harmless the Licensor, its officers,
agents 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
taking down of any fence or the moving or disturbance of any other property of the Licensor.
Section 10. INDEMNITY.
(a) As used in this Section. "Licensor" includes other railroad companies using 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 whomsoever (including the Licensor's officers, agents, and employees, the Licensee's
officers. agents. and employees. as well as any other person); and/or (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 inducement and in consideration of the license and permission herein granted. the Licensee agrees to
indemnify and hold harmless the Licensor from any Loss which is due to or arises from:
1. The prosecution of any work contemplated byihis Agreement including the installation. construction.
maintenance. repair. renewal, modification, reconstruction. relocation, or removal of the Pipeiine 'Of uny part
thereof; or
2. The presence, operation. or use of the Pipeline or contents escaping therefrom,
except to the extent that the Loss is caused by the sole and direct negliger:ce of the Licensor.
Section 1 L REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever. the Licensee shall, at Licensee'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 portions 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 do such work of removal and restoration at the cost and
expense of the Licensee. The Licensor may, at its option, upon such termination, atlhe entire cost and expense of the Licensee,
remove the portions of the ~ipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a
condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and
restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Ucensee 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
damage sustained by the Licensee for 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 Licensor may have against the Licensee.
Section 12. WNVER OF BREACH.
The waiver by the Licensor of the breach of any condition. covenant or agreement herein contained to be kept, observed
and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent
breach thereof.
plx.exb Page 3 of4 Exhibit B
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PL X 980112
Form Approved. A VP.law
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default
in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the
Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement
by written notice.
(b) In addition to the provisions of subparagraph (a) above. this Agreement may be terminated 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
which such notice shall be given.
(c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known
address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties
hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto.
Section 14. AGREEMENT 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, shall be absolutely
void and. at the option of the Licensor, shall terminate this Agreement.
Section 15. SUCCESSORS AND 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:
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plx.exb Page 4 of4 Exhibit B
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, PLlWUDRAINAGE INS. 02116101
Form Appro,ved. AVP-Law
EXHIBIT B-1
Union Pacific Railroad Company
Insurance Provisions For
Pipeline I Wireline I Drainage License Agreements
Licensee shall. at itssole cost and expense. procure and maintain during the life ofthis Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least
$2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO
or equivalent form. including but not limited to coverage for the following:
. Bodily injury including death and personal injury
. Property damage
. Fire legal liability (Not less than the replacement value of the portion of the premises occupied)
. Products and completed operations
The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance:
. "For purposes of this insurance, Union Pacific Railroad payments related to the Federal ~mployers Uabi!i!1 ,\ct or a Union
Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or Ol)!j~!::;i'ons assumed
under any Workers Compensation, disability benefits, or unemployment compensation law or similar law."
. The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad inch lding but not
limited to tracks, bridges. trestles, roadbeds, terminals. un~erpasses or crossings), and explo~lonl collaps,:,: """,i underground
hazard shall be removed. .
. Coverage for Licensee's (and Licensor's) employees shall not be excluded
. Waiver of subrogation
B. Business Automobile CoveraQe insurance. This insurance shall contain a combined single limit of at least.RODO,OOOper
occurrence or claim, including but not limited to coverage for the following:
. Bodily injury and property damage
. Any and all motor vehicles including owned, hired and non-owned
The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance:
. "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers LiabiUty ,:\::; or a Union
Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obliga!:":;,, assumed
under any Workers Compensation, disability benefits, or unemployment compensation law or similar law."
. The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroi}(; ;l::,:i:;"!: :g but not
limited to tracks. bridges, trestles, roadbeds. terminals. underpasses or crossings), and explosion, collap:;::: 8W; iiiiJerground
hazard shall be removed.
. Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law.
C. Workers Compensation and Employers Liability insurance including but not limited to:
. Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreernent
. Employers' Liability (Part B) with limits of at least
$500,000 each accident, $500,000 disease policy limit
$500,000 each employee
If Workers Compensation insurance will not cover the liability of Licensee in states that require participation ;:, -;;:';l:, oNorkers'
compensation fund, Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of s\ai,~: i1':"P:' ;.;;~; '':1ust be
provided along with evidence of excess workers compensation coverage. Coverage shall include liability ariS!'iQ <,;,:.:: ::.' :h(o. U. S.
Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance:
. Alternate Employer Endorsement
O. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess. policies, these policies sh;;;.;: i',,,:.;-" . ''''j 3:;,:1
afford no less coverage than the primary policy,
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PUWUDRAINAGE INS. 02116/01
Form Approved, Avp.Law
other Reauirements
E. Punitive damage exclusion mustbe deleted, which deletion shall be indicated on the certificate of insurance.
F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of
subrogation against Licensor. Licensee further waives .itsright of recovery, and its insurers also waive their right of subrogation against
Licensor for loss of its owned or leased property or property under its care. custody and control. licensee's insurance shall be primary
with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance.
G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name licensor as
an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of
insurance.
H. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required
coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance companyOes)
issuing such policyQes) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified
duplicate original of any required policy shall be furnished.
I. Any insurance policy shall 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 service is to be provided.
J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by licensee's insurance agent(s)/broker(s), who have
been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's
insurance coverage will be primary.
. K. The fact that insurance is obtained by Licensee or Licensor on behalf of licensee shall 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 shall not be limited by the amount of the required insurance coverage.
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