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HomeMy WebLinkAbout6.i. Authorize Pipeline Crossing Agreement - Akron Avenue Trunk Utility & Railroad Improvements, City Project #417 4ROSEMOUNT EXECUTIVE SUMMARY CITY COUNCIL City Council Meeting: June 17, 2008 AGENDA ITEM: Authorize Pipeline Crossing Agreement AGENDA SECTION: Akron Avenue Trunk Utility Railroad Consent Improvements, City Project #417 PREPARED BY: Andrew J. Brotzler, PE, City Engineer AGENDA NO. (p. j ATTACHMENTS: Agreement APPROVED BY: RECOMMENDED ACTION: Motion to Approve an Agreement with the Union Pacific Railroad for Pipeline Crossing at the Akron Avenue At -grade Crossing and Authorize the Necessary Signatures. ISSUE: City staff requests Council authorization for staff to execute an agreement with the Union Pacific Railroad for improvements to the at -grade crossing on Akron Avenue associated with the Akron Avenue Trunk Utility Railroad Improvements Project, City Project #417. BACKGROUND: Please find attached for Council consideration an agreement with Union Pacific Railroad Company for the installation of pipe crossings for trunk watermain, trunk sanitary sewer, and storm sewer within Akron Avenue (County Road 73) across Union Pacific Railroad right -of -way at the existing at -grade crossing. The agreement currently being considered allows for city contractors to conduct pipe jacking and other construction activities within railroad right -of -way as part of the construction contract for City Project #417. A copy of the agreement has been reviewed by the City Attorney. SUMMARY: Staff recommends Council authorization of the attached Pipeline Crossing Agreement. G: \ENGPROJ 417 AuthorizePipelineCrossingAgreementCC6-17-08.doc i Form Approved, AVP -Lang Folder No. 0246847 07/25/06 PIPELINE CROSSING AGREEMENT Mile Post: 335.64, Albert Lea Subdivision/Branch Location: Rosemount, Dakota County, Minnesota THIS AGREEMENT "Agreement is made and entered into as of June 02, 2008, "Effective Date by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, "Licensor and CITY OF ROSEMOUNT, a Minnesota municipal corporation to be addressed at 2875 145th Street West, Rosemount, Minnesota 55068 "Licensee IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one -time License Fee of One Thousand Five Hundred Dollars ($1,500.00). Article 2. 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 one 36" jacked reinforced concrete pipeline for transporting and conveying storm water 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 June 02, 2008 and marked Exhibit A, attached hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than transporting and conveying 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. Article 3. 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, attached hereto and hereby made a part hereof. Article 4. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is hired by the Licensee to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall require its contractor to execute the Licensor's current form of Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and an understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's property without first executing the Contractor's Right of Entry Agreement and the contractor providing to the Licensor the insurance binders, certificates and endorsements described in the Contractor's Right of Entry Agreement. Article 5. INSURANCE. A. Before commencement of the term of this Agreement and prior to any Pipeline construction, the Licensee, at its sole expense, shall provide to the Licensor the insurance binders, certificates and endorsements described in Exhibit C, attached hereto and hereby made a part hereof. The Licensee or it's contractor, whichever entity will be performing the Pipeline construction, will need to procure a Railroad Protective Liability Insurance policy for the duration of such work, as described in Exhibit C. B. Not more frequently than once every two years, Licensor may reasonably modify the required insurance coverage to reflect then current risk management practices in the railroad industry and underwriting practices in the insurance industry. C. All insurance correspondence shall be directed to: Connie Alvis Folder No. 02468 -47 Union Pacific Railroad Company Real Estate Department 1400 Douglas Street STOP 1690 Omaha, NE 68179 -1690 D. If the Licensee is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit C shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self insured with the consent and approval of Licensor. Article 6. TERM. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY CITY OF ROSEMOUNT By: By: Manager Contracts Title: 1 1 PLACE ARROW I NOf CAT ENG NORTH 1$ FORM DR- 0404- B z- .0', 02A( c 111, 0c,41•4 D 1 RECT ION RELAT I VE TO CROSS I NG !;3: 1 REv. 5- IS-98 4.• el/ ENCASED NON—FLAMMABLE 4/ 0 PIPELINE CROSSING 4.., ,orE: ALL AVAILABLE OWENS I DNS mUST BE NO SCALE FILLED IN TO PROCESS THIS APPLICATION -4 .s. -t oNC,--V-4.1> 0../..P P),P.k COLif ij Ws R/w A.A... '.4 0 .4, .0- 1 FT FT. 1 I cro I gtf I FT. 7.114* FT. (500 WE. 3 8 ST (sEE 'WE '3 8 5) nn. a -L 0. t (ANGLE OF CROSSING) q TO mEAREST RAM rOS A... tHAIN TRACk INCAREST ILL MON 111 1 I il l*, i 11'11 ILIO 1 :111,4 1 0 G-r....0,.I/3etx litiot... 7, i (OESER/BE FIXED OBJECT) 0.. I c114 (DESCRIBE FIXE0 OBJECT) ISEE TOTE 6) t: {SEC NOTE 51 I kOISTANCE ALCM MEN fROU SECTICA 14140 EAOSSINGI sr 1 FT. k 4 4 FT. arr ti .15 ‘CnO WZ F4 1 s e siY4- paner THIS Diuthnios Rumour IN ALL EASES.. 1 40. 13 .012 I a LOCATIONS AOT USING SECTIONS. DISTANCE 0 TO A LEGAL SORBET LINE IS REWIRED) An• 6 An 0 _FT. -It _FT. .k __FT. t i !if I I STEEL CASING WALL M OM ST ISA* NOAA 2) 0 1 7.,...cE THICKNESS tHART MINIMUM. DIAMETER OF I -sue0nATH THICKNESS CASING' PIPE ROAOBED I .2500" 1/4' 12- OR LESS I .3l25' 5/16 ovErl 42--18- 1 F T. STSTY• 3/13 OVER 113-22 5.5 il NUL \t .4375* 7/16' OVER 22 .5000 i' A 01, f T. (20 FT. A VIL I --F n SEAL CASIND SSW 9/ IV OVER TV 4 r I r-SEAL CASINO Le-- CASING PIPEI 1 SRN NNW 4 I 1 r L 4, I& S. i .625D 5/8" OVER 4r-4r OVER or MUST HE j ..e coma pm s. APPROVED BY R.R. CO. rT .4 E HOW l'HI$ CH OILY ART is LY t I (4) 1 1 FOK SUMER STEEL EASING PIPES WITH MINIMU TIELO STRENGTH 0 3$,000 PSI. ‘J, 1 0 us f 1.--,*1 5 FT. I VP* FT. "I l' 1 r T. FORMULA TO FIGURE CASING LENGTH 61051 ANGLE OF iLLFT. CROSSING OTHER THAN RCP FT. Hams 2 (CASING LENOTA WHEN NEASURED ALONG PIPELINE.) 0 ALL HORIZONTAL M °AKES TO 80 MEASURED AT RIGHT PR T ANGLES OWL Of 750.1.5. it. SIN 21 OASING 70 EXTEND 8(704.0 IAEA OF TRACK AT RION' ANGLES THE GREATER OF 20 20 FLA OA 30 FT. P, 8 5 AND 80700.0 LUNT OF RAILROAD RIGHT-OF-WA* IF NECESSARY TO PROVIDE PROPER 1.1.70074* coista a 10tADIST. 160. sr imam* or 50' ENDA TIM ENO OF ANY m RAILROAD oor. 4, oF key (vow 05 05001 ANY SWITCHOW 4. ARE& OHNE?) 41 SIGNAL REPRESENTATIVE WAIST BE PRESENT DURING INSTALLATION *4' RAILROAD SIGNALS ARE IN INC vICINITY OF CROSSING. ,6 nuv, St ALLOWABLE F1XE0 OBJECTS !Haulm BAGNIALLS OF 05100051 4. OF ROAD CROSSINGS 8 OVERHEAD VIADUCTS TORE ROAD NAND, OA CULVERTS. 6/ EASinG An0 CARRIER PIPE MST 50 pLAEFA A minium OF 2 FgET BUM TnE 0E157100 FtBER OPTIE CABLE. 5147 EXCAVATION ROMEO wITHIN ••s FEET OF THE EXISTING TIBET OPTIC CABLE MUST OE RANO ONG. A) 15 PIPELINE CROSSING WI THIN DEDICATED STREET Y YES;_____NO; E X fit I T "A' 13) IF YES, NAME OF STREET /kY4£13 It.4,3.31:-. +fel HATLFeas Ng A.0) 0) D I STR I BUT ION L I NE OR TRANSMISSION LI S C1 CARRIER PIPE UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED OPERATING PRESSURE V P51 .4/44 S 2 4 WALL THICKNESS _.....8---;0 I AMETER 1(.. ;MATERIAL ItCe .i,111VISIONI El CASING PIPE M. P J3C5 6 9' E. S. 499 t et1 WALL THICKNES5 414 .01AMETER-MATERIAL $41; 0 ,,,,,t, NOTE CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST 'ENCASED %%IC wt..14.0... CROSS I NG AT OUTS I OE 0 I AMETER OF CARRIER PIPE AND INTER I OR DI AME TER OF CASING PIPE. WHEN FURNISHING DIMENSIONS, GI YE OUTS (DE OF CARRIER PIPE AND INSIDE OF CASING P(PE., N4uAstc0N 11.411071 ,STAffi F) METHOD OF INSTALL I NG CASING PIPE UNDER TRACK(S) S .1. Crel a- 49...p' X DRY BORE AND JACK (WET BORE NOT PERM I TTED) TUNI4EL OTHER 02 DAT EAVVIArg GI W ILL CONSTRUCTION 8E BY AN OUTSIDE CONTRACTOR? YE5;__NO; RR FILE NO 4 HI DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND WARNING JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK c• 1 1 APR_ 1 CAmT HAS CONTACTED 1-800-336-9193, (30' ann.) IN ALL 00(4.5151455 U. PA CCOARTICATIONS OEPARTNENT MUST.BE CONTACTED IN ADVANCE U. P. COMMUN 1 CAT ION DEPARTMENT, AND HAS DETERMINED r I BER Of ANT HOAX TO OETERNINE EXISTENCE AND OPT IC CABLE DOES I DOES NOT EXIST IN V I C V) TY OF LOCATION Of FIBER OPTIC CABLE. WORK TO BE PERFORMED TICKET NO. 1 oo f 01.01,10 V PkOHE I t.1100-SSB-A115 Form Approved, AVP Law Updated 07/2006 EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the 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. CONSTRUCTION, MAINTENANCE AND OPERATION. A. The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity 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, 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 "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 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 Licensor's Assistant Vice President Engineering Design, or his authorized representative, and then the work shalt be done to the satisfaction of the Licensor's Assistant Vice President Engineering Design 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, within fifteen (15) 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 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 Licensor at least ten (10) days (or such other 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. Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. A. The license herein granted 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 all 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, finds such action necessary or desirable. B. All the terms, 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 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. PROTECTION OF FIBER 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 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 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 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, DEFEND AND HOLD THE LICENSOR HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE WIIATSOEYER (INCLUDING; WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) CAUSED BY THE NEGLIGENCE OF THE LICENSEE, ITS CONTRACTOR, AGENTS AND /OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON LICENSOR'S PROPERTY, AND /OR (2) ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF OF ANY TELECOMMUNICATIONS COMPANY, AND /OR ITS CONTRACTOR, AGENTS AND /OR EMPLOYEES, ON 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 AGAINST 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 or 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 determined by the value of the Licensee's property upon property of the Licensor as compared 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 manner 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, DEFEND AND HOLD HARMLESS THE LICENSOR FROM ANY LOSS WHICH IS DUE TO OR ARISES FROM: 1. THE PROSECUTION OF ANY WORK CONTEMPLATED BY THIS AGREEMENT INCLUDING THE INSTALLATION, CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, MODIFICATION, RECONSTRUCTION, RELOCATION, OR REMOVAL OF THE PIPELINE OR ANY PART THEREOF; 2. THE PRESENCE, OPERATION, OR USE OF THE PIPELINE OR CONTENTS ESCAPING THEREFROM; OR 3. LICENSEE'S BREACH OF THIS AGREEMENT, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE DIRECT NEGLIGENCE OF THE LICENSOR, AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION, IT BEING THE INTENTION OF THE PARTIES THAT THE ABOVE INDEMNITY WILL OTHERWISE APPLY TO LOSSES CAUSED BY OR ARISING FROM, IN WHOLE OR IN PART, LICENSOR'S NEGLIGENCE. Section 11. REMOVAL OF PIPELINE 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, 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 removal 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 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. WAIVER 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. 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. Form Approved, AVP -Law Updated 08/2006 EXHIBIT C Union Pacific Railroad Insurance Requirements Licensee shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance required in Paragraph D), procure and maintain in effect during the term of this Agreement the following insurance coverage. Licensee shall procure and maintain, or cause to be procured and maintained by its contractor, at its sole cost and expense, Railroad Protective Liability Insurance coverage described in Paragraph D during any period of construction, maintenance, repair or reconstruction work. 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 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. Motor Carrier Act Endorsement Hazardous materials clean up (MCS -90) if required by law. C. Workers Compensation and Employers Liability insurance. Coverage must include but not be limited to: Licensee's and/or Licensee's contractor's statutory liability under the workers' compensation laws of the state where the Utility/Facility is located. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Licensee, and/or Licensee's 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. The policy must contain the following endorsement, which must be stated on the certificate of insurance: Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. 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 as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Licensor before the work may be commenced and until the original policy is forwarded to Licensor. E. Umbrella or Excess insurance. If Licensee, and/or Licensee's contractor, utilizes umbrella or excess policies, 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 Licensor as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Licensor as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Licensor's negligence whether 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 deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. 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. This waiver must be stated on the certificate of insurance. I. Prior to commencing any work, Licensee, and/or Licensee's contractor, shall furnish Licensor with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. 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 in which the Utility is located. K. The fact that insurance is obtained by Licensee, and/or Licensee's contractor, or by Licensor on behalf of Licensee, and/or Licensee's contractor, 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. MOH Pu«e 1 1111 1 June 02, 2008 Folder No. 02468 -47 To the Contractor: Before the Railroad Company can permit you to perform work on its right -of -way for the installation of a pipeline for CITY OF ROSEMOUNT, it will be necessary to complete and return the enclosed Contractor's Right of Entry Agreement. 1. First, we must have an executed License Agreement in place before we can process a Contractor's Right of Entry Agreement, associated with this project. 2. Fully complete and sign duplicate copies of this Agreement. This should include the legal company name, address and corporate status. Complete the signature block information, including contact information. 3. Check, with Folder No. 02468 -47 written on the front, made payable to the Union Pacific Railroad Company in the amount of FIVE HUNDRED DOLLARS ($500.00). 4. You must include a copy of your General Liability Certificate of Insurance, identifying Folder No. 02468 -47, with coverage levels and endorsements as required in Exhibit C of this Agreement. 5. In addition, you are required to procure and provide proof of a Railroad Protective Liability Insurance (RPLI) policy for the duration of the installation period, as required in Exhibit C of this Agreement. *If you would like to be included in the Union Pacific's RPLI program, through Marsh USA, simply follow the instructions on the enclosed form or go to www.uprr.com/reus/aroup /rrinsure. After approval of the Contractor's Right of Entry Agreement with all required documents, your fully- executed Agreement will be returned to the Licensee, and that party should provide you with a copy of this Agreement and instructions to proceed. In no event should you begin work until you have received a copy of the signed Contractor's Right of Entry Agreement and have this available on the project site. If you have any questions, please contact me at (402) 544 -8553. Sincerely, a tmo.;4) Connie Alvis Manager Contracts PL X &E ROE 940201 Folder No. 02468 -47 Fomi Approved, AVP -Law 08/25/2006 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of 20 by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, "Railroad and a corporation "Contractor to be addressed at RECITALS: The Contractor has been hired by CITY OF ROSEMOUNT to perform work relating to one 36" jacked reinforced concrete pipeline crossing for conveying storm water (the "work with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 335.64, Albert Lea Subdivision/Branch, located at or near Rosemount, Dakota County, State of Minnesota, which work is the subject of a contract dated June 02, 2008 between Railroad and CITY OF ROSEMOUNT, as such location is also shown on the print dated June 02, 2008, marked Exhibit A attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location describe above subject to the terms and conditions contained in this Agreement. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: Article I. DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this Agreement to the Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. Article II. RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing any work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article IV. Article III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, C and D, attached hereto, are hereby made a part of this Agreement. I i 1 Article IV. ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative Daniel J. Kodesh UPRR Co. Mgr Track Mntce 206 Eaton Street St. Paul, MN 55107 -1603 Phone: 651.552.3943 Fax: 651.552.3914 Cell: 612.759 -1721 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. Article V. TERM; TERMINATION A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until unless sooner terminated as herein provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. Article VI. CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit C of this Agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Folder No. 02468 -47 Union Pacific Railroad Company 1400 Douglas Street STOP 1690 Omaha, Nebraska 68179 -1690 Article VII. CHOICE OF FORUM. Litigation arising out of or connected with this Agreement may be instituted and maintained in the courts of the States of Nebraska and Minnesota only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts. Article VIII. DISMISSAL OF CONTRACTOR's EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. Article IX. ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad Five Hundred Dollars ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. Article X. CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. Article XL EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: Manager Contracts (Contractor Name) By Title: Telephone: Fax: PLACE ARROW INDICATING NORTH 1 FORM DR 0404 DIRECTION RELATIVE TO CROSSING `a° FT I-41711, D711(0 0I i REV. 5-1S-98 ENCASED NON-FLAMMABLE 0 PIPELINE CROSSING g� NOTE: ALL AVAILABLE DIMENSIONS MUST BE Q NO SCALE FILLED IN TO PROCESS �a.+ T APPLICATION. cw.0 ,3 K1 t °C) rJ-J� IG. pot .,400i 05 S R/R y1Q•y� 0 (SEE I I v '0 .r-- 55501 FT_ 1 65 5 0 FT. (SEE NOTE 3 0 5) NOTE 3 a 5) FT. o�, .:1----N 6 o_ e r To IREAREST R.R. TORTN 44. a 5 CHAIN 1RACK (AITGL OF 55056160 C NEAFICST R. R. TMB11 i i i t 0 g -c-013 MkA4-1. 'MAIL_ u1 -t3 5114 )r�� A h (DESCRIBE FIXED OBJECT) (0550116E F1XE0 OBJECT �2 A ,r te (SEE NOTE 6) n (SEE ROTE 5) `03 ?ilt. IOISTAI7CE *10110 TRA CK FROM 6105 CROSSING) a jA M 4 AS t('� >O 4,0°ZDI fT. �dti (NOTE: THI DIMENSION REIXIIREO IN ALL CASES. c4a1 —TS .2_t2. T AT L00.71005 AG7 USING SECTIONS. DISTANCE TO A LEGAL SURVEY LIRE IS REOUIREO) j 1 65 6Rita 0 7 e FT. 111 _FT. 1 —FT. t i I N NIH 6)51 I 1 SIA ACE STNICKkESSNCHARTI (See NAee 2) minium OlA1.ETER OF I sL6GRADE T HICKNESS CASING PIPE I 50500E0 1/4" /f6' OVER OR S "FL .3750' 3 /0 22 OVER l0` (4.5 f 1 MAIL) MIN.) .4375' 7116^ OVER 22 -20' 1 1 FT. (20 FT f SEAL CASING .5000' 1/2' OVER FT" 1"4" N.) FT. .5625" 9/ 1s' OVER 34 -42" SEAL CASING CASING PIPq(Sea Note 4) .6250' S /0" OVER 42' -48" s....._i OVER 40" MUST BE t .1 J CARRIER PIPE APPROVED BY R. R. CO. NOTE: THIS CHART 15 ONLY 1 1 FOR SMOOTH STEEL CASING PIPES WITH MINIMUM YIELD I STRENGTH OF 35,000 P51. �I e IS FT. 5 FT. FT. AI 1 1 FT. 1 FOR6OJLA TO FIGURE CASING LENGTH 0)TH ANGLE OF 17 FT. CROSSING OTHER THAN 90• F T. B NOTES 1 (CASING LENCIR WREN MEASURED ALONG PIPELINE.) I1 ALL HORIZONTAL DISTANCES TO BE /SEASONED AT RIGH1 ANGLES FROMt OF TRACIL CO SIN 21 CASING TO EXTEND 06101(0 711E4. OF TRACE AT RICHT ANGLES THE GREATER OF 20 20 FT., OR 70 FT., ysst' 8 051 0610ND LIMIT OF RAILROAD RtCHT -OF -WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK. 31 MINIUM OF 50• FROM THE END OF ANY RAILROAD 05)050, t OF AMY CULVERT. OR FROM ANY SWITCHING AREAL `1L MIN. 1!) 4) SIGNAL REPRESENTATIVE MUST BE PRESENT DURING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF 550551H0. SI ALLOWABLE 010E0 OBJECTS THEME: OACKWALLS OF BRIOGE5) t OF ROAD CROSSINGS 0 OVERHEAD VIADUCTS tG1VE ROAD NAME!, OR CULVERTS. 61 CASING AND CARRIER PIPE MUST BE PLACED A MM1wM OF 2 FEET BELOW THE EXTSTI110 FIBER OPTIC CABLE. ANY EXCAVATION REOUIRED WITHIN 5 FEET OF THE EXISTING FIBER OPTIC CABLE MUSE 8E HAND OW. A) IS PIPELINE CROSSING WITHIN EDD STREET YES;_N0; EXHIBIT "A" 8) IF YES, NAME OF STREET »4o (WTr,..) I 10 11111.020 VSt 04.11 Dl DISTRIBUTION LINE OR TRANSMISSION LINE C) CARRIER PIPE UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED V INIl' ,22 OPERATING PRESSURE i7 P51 /7� WALL THICKNESS f! ;DIAMETER 1 ;MATERIAL 0-4P ISUSSIV1N E) CASING PIPE M. P tit3(r 6 V E. S. /0 9?al f WALL THICKNESS {L p. ;DIAMETER Milt ;MATERIAL ASIA A) NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST ENCASED S'+.t1•A.w4.1 CROSSING AT OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF ii CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF (210Vi P01. (?A. P- ha.1 CARRIER PIPE AND INSIDE OF CASING PIPE. I.tsALS. Din 1P:MU t'UR1 F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): Orel LI %44 ..Yr X. DRY BORE ANO JACK (WET BORE NOT PERMITTED) ..slaw.. TUNNEL OTHER RR FILE NO. 02.4(411- DATE_. G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? YES; N0; H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND WARN I N G JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK 7 1) APPLICANT HAS CONTACTED 1- 800 336 -9193, (30' 5)56) IN ALL OCCASIONS, u P. tav IN OEPARIMEWT MUST BE CONTACTED 1H ADVANCE U. P. COMMUNICATION DEPARTMENT, AND HAS DETERMINED FIBER OF ANY WORK TO DETERMINE EXISTENCE AND OPTIC CABLE DOES DOES NOT EXIST IN VICINITY OF LOCATION Of FIBER OPTIC CABLE. WORK TO BE PERFORMED TICKET NO. 7J717'R 111.OW> S PRONE 1 -800- 336 -9113 Form Approved, AVP -Law 07/25/06 EXHIBIT B CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COMMENCEMENT OF WORK FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty -five (25) feet of any track No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will 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. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. 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 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. C. Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman 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 flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not 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 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by 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's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS, A. Fiber optic cable systems may be buried on Railroad'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. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except 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's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, 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 Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees "Indemnified Parties from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss incurred by any person (including, without limitation, any Indemnified Party, Contractor, or any employee of Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal Employers' Liability Act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor'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. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default 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 or default. Section 11. MODIFICATION ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. 1 Form Approved, AVP -Law 08/24/06 EXHIBIT C CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Union Pacific Railroad Company Insurance Provisions For Contractor's Right of Entry Agreement Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from the Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, 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 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. Motor Carrier Act Endorsement Hazardous materials clean up (MCS -90) if required by law. C. Workers Compensation and Employers Liability insurance. Coverage must include but not be limited to: 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 excel workers compensation coverage must be provided. Coverage must include Iiability arising out of the U.S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. f E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution Liability coverage must be included when the scope of the work as defined in the Agreement includes installation, temporary storage, or disposal of any "hazardous" material that is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury at any time. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non- hazardous materials fi the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising form the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Other Requirements G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing 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 whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. A. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. 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. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of 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. Forth Approved, AVP -Law 07/25/06 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor'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 to 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 conforms 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 ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 latest revision. Hard hats should be affixed with Contractor's company 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 give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: 100 feet of a locomotive or roadway /work equipment 15 feet of power operated tools 150 feet of jet blowers or pile drivers 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection (v tyP P P P P equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal 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 training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear 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 performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: Familiar and comply with Railroad's rules on lockout/tagout of equipment. Trained in and comply with the applicable operating rules if operating any by -rail equipment on- track. Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self propelled equipment must be equipped with a first -aid kit, fire extinguisher, and audible back -up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements 1 A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including 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 briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. 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, frog, 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 equipment of the opening 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 performance 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. SUBMITTING REQUESTS FOR RAILROAD PROTECTIVE LIABILITY INSURANCE ($2,000,000 per occurrence /$6,000,000 aggregate) Application forms for inclusion in Union Pacific Railroad's Blanket Railroad Protective Liability Insurance Policy may be obtained by accessing the following website (includes premiums as well): www. uprr.com/reus/rrinsure /insurovr.shtml If you have questions regarding railroad protective liability insurance (i.e. premium quotes, application) please contact the Marsh USA Service Team, Bill Smith or Cindy Long at: Phone: (800) 729 -7001 Fax: (816) 556 -4362 Email: william.j.smith@marsh.com Email: cindy.longa.marsh.com *PLEASE NOTE The RPLI application and premium check should be sent directly to Marsh, USA at the address shown below do NOT send your check and application via overnight air, as the P.O. Box will NOT accept overnight deliveries. If you are in a situation where you require a RUSH, please contact Bill Smith or Cindy Long and they will do their best to accommodate your needs. All checks written to Marsh, USA should reference Union Pacific Railroad in the "Memo" section of the check. Send Checks and Applications to the following "NEW" address: Marsh USA NW 8622 PO Box 1450 Minneapolis, MN 55485 -8622 f S 3