Loading...
HomeMy WebLinkAboutResolution 2004-152 drainage facility and waterway agreement with UPRR for the san lucas developmentMARANA RESOLUTION NO. 2004-152 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A DRAINAGE FACILITY AND WATERWAY AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY TO FACILITATE CONSTRUCTION OF A DRAINAGE FACILITY FOR THE BENEFIT OF THE SAN LUCAS DEVELOPMENT. WHEREAS, certain drainage improvements are required to be constructed across Union Pacific Railroad Company's right-of-way for the benefit of the San Lucas development; and WHEREAS, the Developer of San Lucas is responsible for the cost to construct drainage improvements that benefit San Lucas; and WHEREAS, the Union Pacific Railroad Company requires the Town to execute a formal drainage agreement to facilitate construction of the drainage facilities; and WHEREAS, the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Drainage Facility and Waterway Agreement between the Town of Marana and the Union Pacific Railroad Company, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved. The Mayor is hereby authorized to execute said Exhibit A, and the Town Clerk is hereby authorized to attest thereto, for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of November, 2004. __..-----....t ~ J SEAL APpRC'~D~ A~S ~TO FORM: ~ ~ ~ ~' {00000314.DOG/} FJC/cds 10/26/04 UPRR Fold~r No'. 2227-89 DRAINAGE FACILITY & WATERWAY AGREEMENT · ' .UNION BETWEEN THE · PACIFIC RAILROAD COMPANY ':.iii'-:.::. i~!:' ': ';;'~":¥;· ~ :.'. LiCensOr original '.. DRAIN.DOC 920301 UPRR Folder No.: 2227-89 Form Approved, AVP-Law DRAINAGE FACILITY & WATERWAY AGREEMENT Mile Post: 961.66, Gila Subdivision Location: Marana, Pima County, Arizona THIS AGREEMENT is made and entered into as of the day of ,200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the Licensor) and the TOVv2N' OF IVIARANA, a municipal corporation of the State of Arizona, to be addressed at 3696 West Orange Road, Marana, AZ 85741 (hereinafter the Licensee). RECITALS: In order to improve drainage conditions the Licensee desires to construct a drainage facility in the vicinity of Licensor's right-of-way at Mile Post 961.66 on the Gila Subdivision, located at or near Marana, Pima County, Arizona, (hereinafter the "Premises"). The drainage facilities to be constructed by the Licensee, at Licensee's expense, on the Premises are hereinafter collectively referred to as the "Drainage Facility". The Drainage Facility and Premises are shown on the prints and legal description collectively marked Exhibit A, hereto attached. The Railroad is agreeable to the Licensee conslructing, maintaining and using the Drainage Facility upon the terms and conditions set forth herein. AGREEMENT: NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: ARTICLE 1 - 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 use the Drainage Facility. ARTICLE 2 - LICENSEE FEE Upon the execution and delivery of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of TWO THOUSAND ONE HUNDRED SEVENTY-SIX DOLLARS ($2,176.00). ARTICLE 3 - CONSTRUCTION WORK TO BE PERFORMED BY LICENSEE The Licensee, at its sole expense, shall construct the Drainage Facility and perform the work described in the Recitals above and/or described in Exhibit A. ARTICLE 4 - IF woRK IS TO BE PERFORMED BY CONTRACTOR If a contractor is to do any of the work performed on the Drainage Facility (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Licensor's form Contractors Right of Entry A~reement attached hereto as Exhibit C and hereby made a part hereof. Licensee acknowledges receipt of a copy of Contractors Rie, ht of Entry A~eement and understanding its term, 2227-89 Town of Marana, AZ Articles of Agreement revised September 30, 2004 Page 1 of 4 DRAIN.DOC 920301 UPRR Folder No.: 2227-89 Form Approved, AVP-Law provisions and requkements, 3and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's [ontractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Aereement. ARTICLE 5 - 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 6 - DEFERRED CONSTRUCTION The Licensor and Licensee acknowledge that conditions inherent in the Drainage Facility may cause the complete stabilization of Licensor's trackage supported by new cuts or fills to be deferred beyond the construction period, and that Licensor's operation over the roadbed during the seasoning period will impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or settling, including damage to rip-rapping or protective work in connection therewith, as well as settlement and consolidation of tracks and ballast, until the seasoning period is complete. Therefore, the Licensee will pay to the Licensor, as a part of the consideration for this Agreement, all that part of the cost and expense of extraordinary maintenance 0aereinafter referred to as "Deferred Construction") associated with the Drainage Facility which can be attributed to failure of subgrade, settlement, and consolidation of subballast, or roadbed, or any combination thereof, which are incurred during the period commencing immediately following completion of the work on the Drainage Facility by the Licensee or its contractor and ending five years thereafter. The Deferred Construction costs aforesaid shall include reimbursement of the extra cost, in excess of normal maintenance costs, of maintaining embankments and that portion of said tracks above subgrade in accordance with acceptable maintenance standards, and will include cost of maintaining proper alignment, proper surface and use of ballast and other necessary materials. The work of such Deferred Construction shall normally be performed by the Licensor either with its own forces or through responsible contractors employed by Licensor. In the event major construction is required for Deferred Construction, the Licensee, at its expense, may accomplish such major items by contract, subject to approval and inspection by the Licensor. Except in cases where the continuity of train service is involved or threatened, the Licensor shall submit to the Licensee plans, specifications and estimates for such Deferred Conslruction work and shall not commence such work until the plans, specifications, and estimates for such work have been approved by the Licensee. The Licensor shall furnish to the Licensee quarterly estimates of costs of Deferred Construction thirty (30) days prior to the beginning of each quarter. The Licensee shall reimburse the Licensor, as provided herein, upon receipt of properly certified invoices, in quadruplicate, supported by such reasonable evidence as may be required by the Licensee. The Licensor will accomplish the final work of Deferred Construction within one year after termination of the five-year period above defined. Bills for reimbursement shall be rendered by the Licensor at intervals not more frequently than monthly and not less frequently than quarterly. ARTICLE 7 - TERM~ TERMINATION (a) This Agreement shall take effect as of the date first herein written and, unless sooner terminated as set forth in Paragraphs (b) and (c) below, shall continue in full force and effect for so long as the Premises and Drainage Facility shall be used by the Licensee for the purposes set forth herein; provided, however, that if the Licensee shall abandon the use of the Drainage Facility and Premises, or any part thereof, for such purposes, this Agreement and the rights and privileges granted to Licensee herein as to the portion(s) so abandoned shall cease and terminate at the time such portions of the Drainage Facility and Premises are abandoned. Co) 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 fi.om the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith and immediately terminate this Agreement by written notice to Licensee. (c) This Agreement may be terminated by either party, with or without cause, upon six (6) months written notice to the other party. In the event of such notice of termination, the parties shall arrange for either the Drainage Facility to be removed, filled in and graded to accommodate the surrounding grade surface, or to encase the Drainage Facility to the standards and satisfaction of the Licensor. 2227-89 Town of Marana, AZ Articles of Agreement Page 2 of 4 revised September 30, 2004 DRAiN.DOC 920301 UPRR Folder No.: 2227-89 Form Approved, AVP-I.~w (d) Notice of default and-notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Lic6nsee. Termination ofthi~ 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. ARTICLE 8 - INSURANCE (a) The Licensee, at its expense, shall obtain the insurance described in Exhibit B-l, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance issued by its insurance carrier confirming the existence of such insurance and that the policy or policies contain the following endorsement: Union Pacific Railroad Company is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the Drainage Facility located on Railroad's fight of way. (b) If the Licensee named in this Agreement is a public entity subject to any applicable statutory 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 portion of which may be self-insured with the consent and approval of the Licensor. (c) All insurance correspondence shall be directed to: UPRR Folder No.: 2227-89 Senior Manager Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street MS1690 Omaha, Nebraska 68179-1690 ARTICLE 9 - SPECIAL PROVISIONS None. 2227-89 Town of Marana, AZ Articles of Agreement Page 3 of 4 revised September 30, 2004 DRAIN.DOC 920301 UPRR Folder No.: 2227-89 Form Approved, AVP-Law IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By PAUL G. FARRELL Senior Manager Contracts WITNESS: TOWN OF MARANA X TOWN MAYOR APPROVED AS/TO FORM: // [F/I~NK (~ASSIDjt/ / ,ownA.o 4 2227-89 Town of Marana, AZ Articles of Agreement Page 4 of 4 revised September 30, 2004 LOCATION OF A SLOPE AND DRAINAGE EASEMENT CONSTRUCTION PROJECT W ~RBY HUGHES 3A~EBRUSHRD G'~ Subdiv~ion Z m o~ I/viP 961.66 - Gila Sub&vision Trico Marana Road - DOT #922399X New Slope & Drainage Easement Construction Project ICO MARANA RD WGRIEE. RD W TRICO MARANA RD ,Mamna Sheriffs Office 'Marana Post Office GLADDEN W BARNETT RD "" W AMOLE I AVRA z ': ~ ~: ~ mUJ ~_ W GRIER ...-.~ tX: t- O W BARNETT RD < ~ W BARN RAILROAD WORK TO BE PERFORMED: l. Flagging EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY GILA SUBDIVISION MILE POST 961.66 GPS: N 32° 27.765', W 111° 12.932' near MARANA, PIMA CO., AZ. Illustrative print showing location of a new slope and drainage easement construction project with the TOWN OF MARANA. Folder No. 2227-89 Date: September 30, 2004 WARNING IN ALL OCCASIONS, U.P. COMMIJNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 14800) 336-9193 Exhibit A To Drainage Agreement 200' R/W NW COR. SECTION 22.'~ FD2" BCSM STAMPED - \ "C.F. TURNER C.E. NO. 1732 N 00'25'32" W 516.76' W 1/4- COR. SECTION 22, FD 3" ADOT BC SCALE: 1"= 60' EXHIBIT "B" DP, A[NAGE EASEMENT A PORTION OF THE SOUTHERN PACIFIC RAILROAD RIGHT-OF-WAY SITUATED IN THE NW 1/4 OF SEC. 22, T-Il-S, R-11-E GILA & SALT RIVER MERIDIAN. PIMA COUNTY, ARIZONA DATE: 10/09/03 · DRAWN BY: PFM 198072-06D ADOT_RR_ESMT Octot~er 9. 2003 MMI.A # 98072-06D EXHIBIT "A' LEGAl. DESCRIPTION DRAINAGE EASEMENT See attached Exhibit "B" Prepared by: MMLA, Inc. A portion of the Southern Pacific Railroad Right-of-Way. Situated in the Northwest one-quarter of Secti0n 22, Township I 1 South, Range I 1 East, Gila and Salt River Meridian, Pima County, Arizona, described as follows: COSIMENCING at the West one-quarter comer ofsaid Section 22; THENCE N 00025'32TM W upon the west line ofsaid Section 22 a distance of316.76 feet; THENCE N 39°42'42'' E a distance of 539.24 feet to the southwesterly fight-of-way line of the Southern Pacific Raih'oad, being coincident with 'the northeasterly right-of-way line of Interstate Highway 10; THENCE S 50°11'33" E upon said right-of-way, a distance of 143.79 feet to the POINT OF BEGINNING; THENCE continue S 50°11'33" E upon said right-of-way, a distance of 50.00 feet; - THENCE N 39048'27" E a distance of 42.00 feet; THENCE N 50°11'33" W a distance of S0.00 feet; THENCE S 39048'27'' W a distance of 42.00 feet to the POINT OF BEGINNING. Containing an area of 2100 sq~ ft., more or less. " /' Ernest Gomez, AZ. R.L.S. 27739 V-ADOT-dmg-esmt. rff '1- '- E~~IB To I-otto Approved. AVP-Law EXHIBIT B TO DRAINAGE FACILITY & WATERWAY AGREEMENT TERMS AND CONDITIONS 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. It shall be Licensee's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights. Section 2. CONSTRUCTION. MAINTENANCE AND OPERATION. a) The Licensee shall submit the design of the Drainage Facility to the Licensor for Licensor's prior approval. Ail work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Drainage Facility shall be done to the satisfaction of the Licensor and in substantial conformance to the specifications, notes and cross sections shown on Exhibit A. b) The Licensee, at its sole expense, shall operate, maintain and use the Drainage Facility in a good and safe condition and shall keep the Drainage Facility free and clear of debris, sediment or obstructive matter which may or could interfere with or impede the proper functioning of the Drainage Facility. c) The Licensee shall not cross any trackage of Licensor with any vehicles except at existing, open public crossings. The Drainage Facility shall be installed by an approved method of construction, or if by the jacking and bodng method, during jacking operations, the Licensee agrees to fill voids created between the embankment and pipe by pressure grouting. The Licensee shall provide adequate barder protection around the entire excavation area. d) During the performance of excavating, constructing and maintaining the Drainage Facility, or any part thereof, the Licensee shall not excavate near the toe of the track embankment of the trackbed and will protect the trackbed in the design, construction and maintenance of the Drainage Facility. In the event of any settlement of the Licensor's embankment caused by excavation of the Drainage Facility, the Licensee, at its sole expense, shall restore Licensor's embankment to its proper grade and dimensions. e) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Drainage Facility 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 dght, 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 Drainage Facility, 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 therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. 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 Drainage Facility. All such work shall be prosecuted diligently to completion. Drainage ExB 920301 Page 1 of 3 Exhibit B Form Approved, AVP-Law To Drainage Agreement Se'~.:ion 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the e-~tire cost and expense ir~curred in connection with the construction, maintenance, repair and renewal and any and all modificatio~ revision, relocation, removal or reconstruction of the Drainage Facility, inpluding any and all expense which may be incurred by the Licensor in connection therewith for inspection, flagging, or otherwise... Section 5. REINFORCEMENT. RELOCATION OR REMOVAL OF DRAINAGE FACILITY. 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 or encase the Drainage Facility, or move all or any portion of the Drainage Facility 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 Drainage Facility on property of the Licensor in the location hereinbefore described shall, so far as the Drainage Facility remains on the property, apply to the Drainage Facility as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Drainage Facility 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 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(les) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, and will commence no work on the right of way until all such protection or relocation has been accomplished. 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) arising out of any act or omission of the Licensee, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (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. Licensee 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 Drainage Facility, and shall not permit or suffer any mechanic's or matedalman'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 Drainage Facility, 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 Drainage Facility 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. Drainage ExB 920301 Page 2 of 3 Exhibit B Form Approved, AVP-Law To Drainage Agreement Se~:;on 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor auth~)rizes the Licensee to ta~e 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, rene. wal, modification, reconstruction, relocation or removal of the Drainage Facility, 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 (b) damage to or loss or destruction of property whatsoever (including Licensee's property and adjacent property and crops, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). b) To the extent it may lawfully do so, the Licensee agrees to assume the risk of loss or damage to the Drainage Facility and to indemnify and hold harmless the Licensor from any Loss which is due to or arises from (i)the installation, construction, maintenance, repair, reconstruction, removal, use or existence of the Drainage Facility and appurtenances thereto, or any part thereof, including any break in the Drainage Facility wall or structure or any leakage, flow of water or flooding from the Drainage Facility, or (ii) Licensee's failure to comply with or perform any of the terms and conditions set forth in this Agreement, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor, provided, however, that the foregoing indemnification provisions shall not apply to any claims, damages, costs and expenses that have been fully compensated for through the insurance required of Licensee in Exhibit B-l, or required of Licensee's contractor under the separate Contractor's Right of Entry Agreement. c) Any liability of either party hereunder to one of its employees under any Workers' Compensation Act or the Federal Employers' Liability Act shall not be questioned or in any way challenged by the other party, nor shall any jury or court findings, resulting from any employee's suit against either party pursuant to any such Act(s), be relied upon or used by either party in any attempt to assert common law liability against the other. Section 11. 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 dght of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 12. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the wdtten 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 13. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 12 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. Drainage ExB 920301 Page 3 of 3 Exhibit B Form Approved, AVP-Law To Drainage Agreement To ;eement Form Approved, AVP-Law EXHIBIT B-1 TO DRAINAGE FACILITY AND WATERWAY INSURANCE REQUIREMENTS The Licensee, at its own sole cost and expense, shall procure the insurance described in paragraphs A, B and C below and shall keep such insurance in force and effect during the life of this Agreement. The Licensee (or its contractor), at the sole cost and expense of the Licensee or its contractor, shall keep the Railroad Protective Insurance described in Paragraph D below in force and effect during the duration of any construction or major maintenance, repair, reconstruction, relocation or removal work involving the Drainage Facility. Do General Public Liability insurance providing bodily injury, including death, personal injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim and a general aggregate limit of at least $4,000,000. This insurance shall provide Broad Form Contractual Liability covering the indemnity provisions contained in this Agreement, Underground Hazard, Products-Completed Operations with products-completed operation aggregate of at least $2,000,000, a separate general aggregate for the project (ISO Form CG 25 03 or equivalent), Broad Form Property Damage, a waiver of governmental immunity (ISO Form CG 25 04 or equivalent) severability of interests and name Licensor as an additional insured with respect to all liabilities arising out of Licensee's obligation to Licensor in the Agreement. Coverage purchased on a claims made form shall provide for at least a three (3) year extended reporting or discovery period if (a) the coverage is changed from a claims made form to an occurrence form, (b) there is a lapse/cancellation of coverage, or (c) the succeeding claims made policy retroactive date is different from the expiring policy. Automobile Public Liability insurance providing bodily injury and property damage with a combined single limit of at least $2,000,000 each occurrence or claim. This insurance shall provide contractual liability by endorsement ISO Form CA 00 25 or equivalent covedng all motor vehicles including hired and non-owned, mobile equipment to the extent it may be excluded from general liability insurance, severability of interests and name Licensor as an additional insured with respect to all liabilities adsing out of Licensee's obligation to Licensor in the Agreement. Worker's Compensation insurance covering the statutory liability as determined by the compensation laws of the state(s) affected by this Agreement and Employers' Liability. Also compliance with all laws of states which require participation in their state workers' compensation fund. Railroad Protective Liability insurance naming Licensor and any railroad operating over its tracks as insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy form shall be AAR-AASHTO with broad form coverage for "Physical Damage to Property" (ISO Form GL 00 30) or as revised ISO-RIMA (Form CG 00 35) and include pollution adsing out of fuels and lubricants brought to the job site (ISO Form CG 28 31 or equivalent). If the Lloyd's London policy form is used, limits shall be $3,000,000 per occurrence with a $9,000,000 aggregate and the Extended Claims Made Date shall be determined by adding the length of the odginal policy pedod plus one year to the policy expiration date. The Licensee hereby waives its right to subrogation, as respects the above insurance policy(les), against Licensor for payments made to or on behalf of employees of Licensee or its agents and for loss of its owned or leased property or property under its care, custody and control while on or near Licensor's right-of-way or other real property: Licensee's insurance shall be pdmary with respect to any insurance carded by Licensor. Ucensee shall furnish to Licensor certificate(s) of insurance evidencing the required coverage and endorsement(s) and upon request a certified duplicate odginal of any of those policies. The insurance company(les) issuing such policy(les) shall notify Licensor in wdting of any matedal alteration including any change in the retroactive date in any "claims-made" policies or substantial reduction of aggregate limits, if such limits apply, or cancellation thereof at least thirty (30) days pdor thereto. The insurance policy(les) shall be wdtten by a reputable insurance company or companies acceptable to Licensor or with a current Best's Insurance Guide Rating of B and Class VII or better. Such insurance company shall be authorized to transact business in the state(s) affected by this Agreement. Drainage ExB-1 920301 Page 1 of 1 Exhibit B-I Form Approved, AVP-Law To Drainage Agreement T~ UPRR Folder No.: 2227-89 To the Contractor: Before the Railroad Company can permit you to perform work on its right of way for the installation of a drainage facility on the Railroad's right of way, for the Town of Marana, it will be necessary to complete the enclosed Contractor's Right of Entry Agreement as follows: Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. Return all copies of the Contractor's Right of Entry Agreement together with your Certificate of Insurance as required in Exhibit B-l, in the attached, self-'addressed envelope. Check made payable to the Union Pacific Raikoad Company in the amount of $500.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Raikoad Company is doing business as a corporation. After approval of the Contractor's Ri~t of Entry Agreement and the Insurance Certificate, your fully-executed document will be returned to you, with instructions to proceed. In no event should you begin work until you have received a copy of the signed Contractor's Ri~t of Entry Agreement. Under Exhibit C of the enclosed Conlractor's Right of Entry, you are required to procure Raikoad Protective Liability Insurance (R.PLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you. If you decide that acquiring this coverage from the Raikoad is of benefit to you, please contact Ms. Nancy Savage at (402) 544-2215. Yours truly, Senior Manager Contracts Phone: (402) 544-8620 E-Mail: pgTarrell~up, com Real Estate UNION PACIFIC RAILROAD ]400 Douglas Street, Stop 1690 Omaha, Nebraska 68179-1690 fx. {402) 501-0340 Exhibit C To Drainage Agreement DR.A. bN C KE. DOC 920301 Form Approved, AVP-Law DRAINAGE AND WATERWAY FACILITIES CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of ,200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"); and , a(n). (State of Incorporation) RECITALS: ('Name of Contractor) corporation (hereinafter the "Contractor"). The Contractor has been employed by the Town of Marana for the construction (hereinafter "work") of a drainage facility on property of the Railroad at Mile Post 961.66 on the Gila Subdivision at or near Marana, Pima County, Arizona, as shown on the print dated , marked Exhibit A, hereto attached. (Date of Basic AgreemenO The Contractor has requested the Railroad to permit it to perform the work and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE The Railroad hereby grants to the 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 of the Railroad at the heretofore mentioned Location, as shown on the Exhibit A print for the purpose heretofore stated. The fight herein granted to Contractor is limited to those portions of the Raikoad's property specifically described herein, or designated by the Railroad representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS Ar B~ C AND D. The terms and conditions contained in Exhibit A, Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this agreement. ARTICLE 4 - ADMINISTRATIVE FEE Applicant shall pay to the Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expense in connection with the processing of this Agreement. ARTICLE 5 - ALL EXPENSES TO BE BORNE BY CONTRACTOR~ RAILROAD REPRESENTATIVE The Contractor shall bear any and all costs_ and expenses associated with any work performed by the Contractor, 2227-89 Town of Marana, AZ Articles of Agreement Exhibit C Page 1 of 3 To Drainage Agreement DR.4.LNCR.E. DOC 920301 UPKIK l-'older No.: 222/-~9 Fo:m Approved, AVP-Law or any costs or expenses incu~ed by the Railroad relati.fig to this agreement. All work performed by Contractor on Raikoad's property shall be performed in a manner satisfactory to the respective local Superintendent of Tran. sportation Ser',,ices of the Railroad or his authorized representative (hereinafter the Railroad Representative). :: ARTICLE 6 - TERM~ TERMINATION (a) The grant of right herein made to Contractor shall commence on the date herein written, and continue until ., unless sooner terminated as herein provided, or at such time as Contractor has (Extviration Date) 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 property. Co) This agreement may be terminated by either party, with or without cause, on ten (10) days' written notice to the other party. ARTICLE 7 - CERTIFICATE OF INSURANCE (a) Before commencing any work, the Contractor will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit C of this agreement in a policy which contains the following type of endorsement: Union Pacific Railroad Company is named as additional insured with respect to all liabilities arising out of Insured's, as Contractor, performance of any work on the property of the Raikoad. Co) Contractor warrants that this agreement has been thoroughly reviewed by its insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an endorsement as required herein. (c) All insurance correspondence shall be directed to: UPRR Folder No.:2227-89 Union Pacific Railroad Company Senior Manager Contracts 1400 Douglas Street, MS1690 Omaha, Nebraska 68179-1690 ARTICLE 8 - 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 Arizona 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 9 - SPECIAL PROVISIONS None. 2227-89 Town of Marana, AZ Articles of Agreement Exhibit C Page 2 of 3 To Drainage Agreement DRAINCRE. DOC 920301 UPKK Polder No.: 2227-89 Form Approved, AVP-Law IN WITNESS WHE.R_EOF, the parties hereto gave executed this agreement as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By PAUL G. FARRELL Senior Manager Contracts WITNESS: (Name of Conlracting Company) X Title: 2227-89 Town of Marana, AZ Articles of Agreement Page 3 of 3 Exhibit C To Drainage Agreement LOCATION PRINT FOR A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT " 3ASEBRUSHRD ._~ ................. m lCD MARANA RD ----'~-~'fi~-Sh~fi f f~-'O f fica 'l~-~na Pcs~ Office W SRIER RD ~ BARNETT IVi2 961.66 - Gila Subdiv/sion ~.. Trico Marana Road - DOT #922399X / ~/ INew Slope & Dra/nage Easement/' .~/ l Cons=c o P oject I .... /' ................ ",,. W AMBLE LAILROAD WORK TO BE PERFORMED: [. Flagging EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY GILA SUBDIVISION MILE POST 961.66 GPS: N 32° 27.765', W 111° 12.932' near MARANA, PIMA CO., AZ. To accompany a Contractor's Right of Entry Agreement with the TOWN OF MARANA coveting the construction of a drainage ditch along the Railroad's tight of way. Folder No. 222749 Date: September 30, 2004 WARNING /N ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: I-($00) 336-9193 Exhibit A To Contractor's Right of Entry Agreement Form Approved. AVP-Law EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. The 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 the 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 the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill. B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men 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 on the day of execution of this agreement. One and one-half times the current houdy rate is paid for overtime, Saturdays and Sundays; 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 the Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized Govemmental Agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covedng the full eight hour day during which any flagman is furnished, unless he 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 said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to other work, even though the Contractor may not be working dudng such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the Railroad a minimum of five (5) days notice pdor to the cessation of the need for a flagman. If five (5)-days notice of cessation is not given, the 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 the Railroad if flagging service are needed again after such five day cessation notice has been given Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED - A. The foregoing grant of dght 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 the 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 the Railroad without liability to the 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 the Railroad's property, and others) and the right of the 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. The 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 the Railroad, including without limitation, the operations of the Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done CROE ExB 7/30/01 Page 1 of 3 Exhibit B Form Approved, AVP-Law To Contractor's Right of Entry Agreement Form Approved, AVP-Law by ~;e 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 the Railroad's nearest track, and there shall be no vehicular crossings of Railroads .tracks except at existing, open public crossings. B. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to i~e performed by the Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor agrees that the Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid interference with railroad operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor. Section 4. LIENS. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The 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 the Railroad for any such work performed. The Contractor shall indemnify and hold harmless the 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 the Contractor fails to promptly cause any lien to be released of record, the 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 the 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 the Railroad dudng 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 the Railroad's premises to be used by the Contractor. If it is, Contractor will telephone the telecommunications company(les) involved, make arrangements for a cable Iocator and, if applicable, for relocation or other protection of the fiber optic cable. The 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, the Contractor shall indemnify, defend and hold the 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 the Contractor, its contractor, 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, the 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 the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by the Railroad's own forces. As a part of the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall furnish copies of Exhibit D to each of its employees before they enter on the job site. B. Without limitation of the provisions of paragraph A above, the 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. The 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. The Contractor shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of the 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. CROE ExB 7/30/01 Page 2 of 3 Exhibit B Form Approved, AVP-Law To Contractor's Right of Entry Agreement Form Approved, AVP-Law D. If and when requested by the. Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan for conducting the work (the "Safety P. lan"). Railroad shall have the right, but not the obligation, to require the 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, the Contractor shall indemnify, defend and hold harmless the 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, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (iii) any breach of this agreement by the Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving dse 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. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the 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 the Contractor in any attempt to assert liability against the Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by the 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 the Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the 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. The 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 the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the dght of the 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 the Contractor and the Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the Contractor and the Railroad and cancel and supersede any pdor negotiations, understandings or agreements, whether wdtten or oral, with respect to the work to be performed by the Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. The Contractor shall not assign or subcontract this agreement, or any interest therein, without the wdtten consent of the Railroad. The 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 the Contractor as provided in this agreement, and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement. CROE ExB 7/30/01 Page 3 of 3 Exhibit B Form Approved, AVP-Law To Contractor's Right of Entry Agreement Form Approved - ~VP Law EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General LiabiliW. insurance. This insurance shall contain broad form contractual liability with a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000. 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 Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations 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 including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. · Coverage for Contractor's (and Railroad's) employees shall not be excluded · Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $5,000,000 per 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 Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations 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 including but not limited to tracks, bddges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. · Motor Carder Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not 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 Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf CROE ExC 07/30/01 Page 1 of 2 Exhibit C Form Approved - AVP Law To Contractor's Right of Entry Agreement L;~tO~ ExC 07/30/01 Form Approved - AVP Law Do Land Act, if applicable. The policy shall also contain'the following endorsement which shall be indicated on the certificate of insurance: · Alternate Employer Endorsement · ' Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. Eo Railroad Protective Liability insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the odginal policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractor's insurance shall be pdmary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. Prior to commenting the Work, Contractor shall fumish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(les) to notify Railroad in wdting of any cancellation or matedal alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. Any insurance policy shall be wdtten 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 service is to be provided. Ko Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be pdmary. Lo The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall 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 shall not be limited by the amount of the required insurance coverage. CROE ExC 07/30/01 Page 2 of 2 Exhibit C Form Approved -AVP Law To Contractor's Right of Entry Agreement L,h((jP_ ExD 07/30/01 Form Approved - AVP Law .% EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of the Contractor as well as all employees of any subcontractor or agent of the Contractor. I. Clothing All employees of the 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, the Contractor's employees must wear: (i) (ii) (iii) Waist-length shirts with sleeves. Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. 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. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are ~igher than normal. 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 The 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) (ii) (iv) Hard hat that meets the American National Standard (ANSI) Z89.1 - latest revision. Hard hats should be affixed with the contractor's or subcontractor's company logo or name. 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. Headng protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Headng 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) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety The 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 49CFR2.14, 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) (ii) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. Wear an orange, reflectorized workwear approved by the Railroad Representative. CROE ExD 07t30/01 Page 1 of 2 Exhibit D Form Approved - AVP Law To Contractor's Right of Entry Agreement IV. Mo CROE ExD 07/30/01 Form Approved - AVP Law (iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed. Contractors must take special note of limits of. track authority, which tracks may or may not be fouled, and cleadng the track. The Contractors will also receive.'special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. .. Equipment It is the responsibility of the Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor shall remove such equipment from the Railroad's property. In addition, the Contractor must ensure that the operators of all equipment are propedy trained and competent in the safe operation of the equipment. In addition, operators must be: Familiar and comply with Railroad's rules on Iockout]tagout of equipment. Trained in and comply with the applicable operating rules if operating any hy-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. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. 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. 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. General Safety Requirements The Contractor shall ensure that all waste is propedy disposed of in accordance with applicable federal and state regulations. The Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. Dudng 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 dudng the work as conditions, work procedures, or personnel change. All track work performed by the Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. 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 eciuipment have been protected against movement. Ail employees must comply with all federal and state regulations concerning workplace safety. CROE ExD 07/30/01 Page 2 of 2 Exhibit D Form Approved - AVP Law To Contractor's Right of Entry Agreement