Temporary Construction Easement: Dec. 20142895 -87
AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT
This AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT
( "Easement ") is dated r IS - , 2014, and is between UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation ( "Grantor "), and CITY OF
BLAIR, a municipal corporation of the State of Nebraska, to be addressed at 218 South 16th
Street, Blair, Nebraska 68008 ( "Grantee ").
IT IS MUTUALLY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
Article 1. DEFINITION OF GRANTEE
For purposes of this Easement, all references in this Easement to Grantee shall include
Grantee's contractors, subcontractors, officers, agents and employees, and others acting under its
or their authority.
Article 2. RIGHT GRANTED; PURPOSE
A. Grantor hereby grants to Grantee 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 portion of Grantor's property in the vicinity of
Mile Post 340.84, Blair Subdivision, at or near Blair, Nebraska, for the purpose of providing a
temporary work space on Grantor's property to Grantee. The right herein granted to Grantee is
limited to those portions of Grantor's property specifically described herein in the location shown
on the print marked Exhibit A, attached hereto and hereby made a part hereof, or designated by
Grantor's Representative named in Article 3 of this Easement.
B. For the purposes of Exhibit A, Grantee acknowledges that if it or its contractor
provides to Grantor digital imagery, Grantee authorizes Grantor to use the Digital Imagery in
preparing the print attached as an exhibit hereto. Grantee represents and warrants that through a
license or otherwise, it has the right to use the Digital Imagery and to permit Grantor to use the
Digital Imagery in said manner.
Article 3. ALL EXPENSES TO BE BORNE BY GRANTEE,
GRANTOR'S REPRESENTATIVE
Grantee shall bear any and all costs and expenses associated with any work performed by
Grantee, or any costs or expenses incurred by Grantor relating to this Easement. All work
performed by Grantee on Grantor's property shall be performed in a manner satisfactory to
Grantor's Manager of Track Maintenance, Grantor's Manager of Signal Maintenance, whose
names and contact information is set forth below, or their designated representative (collectively,
"Grantor's Representative "):
Manager of Track Maintenance
Ron E. Jaure
Union Pacific Railroad Company
2204 Hwy. 30
Missouri Valley, Iowa 51555
Cell Phone: (307) 212 -2719
Email: rejaure@U.com
Article 4. TERM; TERMINATION
Manager of Signal Maintenance
Richard H. Brady
Union Pacific Railroad Company
1400 Douglas Street / CBSU
Omaha, Nebraska 68179
Office Phone: (712) 329 -5075
Cell Phone: (402) 681 -5837
A. The grant of right herein made to Grantee shall commence on the date of this
Easement, and continue until 3 �, Z 61 ��_ unless sooner terminated as
herein provided, or at such time as Grantee has completed its work on Grantor's property,
whichever is earlier. Grantee agrees to notify Grantor's Representative in writing when it has
completed its work on Grantor property.
B. This Easement may be terminated by either party on ten (10) days written notice
to the other party.
Article 5. ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM
This Easement shall be governed, construed, and enforced in accordance with the laws of
the State of Nebraska. Litigation arising out of or connected with this Easement may be
instituted and maintained in the courts of the State of Nebraska and Nebraska 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 6. PROTECTION OF FIBER OPTIC CABLE SYSTEMS
Fiber optic cable systems may be buried on Grantor'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. Prior to beginning any work,
Grantee shall telephone Grantor at 1 -800- 336 -9193 (a 24 -hour number) to determine if fiber
optic cable is buried anywhere on the property set forth herein. If it is, Grantee shall also comply
with and be subject to the provisions contained in Section 6 of the General Terms and Conditions
attached hereto as Exhibit B and made a part hereof.
Article 7. CERTIFICATE OF INSURANCE
A. Before commencing any work, Grantee shall provide Grantor with a Certificate
issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit C,
attached hereto and made a part hereof, in a policy which contains the following type of
endorsement:
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"Union Pacific Grantor Company is named as additional insured with respect to
all liabilities arising out of Insured's, as Grantee, performance of any work on the
property of Grantor."
B. Grantee warrants that this Easement 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. Union Pacific Railroad Company must be listed as certificate holder and all
insurance correspondence shall be directed to Union Pacific Grantor Company, Real Estate
Folder No.02895-87), 1400 Douglas Street, STOP 1690, Omaha, Nebraska 68179 -1690.
IN WITNESS WHEREOF, the parties hereto have caused this Easement to be executed
as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
CITY OF BLAIR,
a municipal corporation of the State of
Nebraska
Title: (L
EXHIBIT A
PRINT OF GRANTOR'S PROPERTY
TO BE ATTACHED
EXHIBIT B
GENERAL TERMS AND CONDITIONS
Section 1. NOTICE OF COMMENCEMENT OF WORK — FLAGGING.
Grantee agrees to notify Grantor's Representative at least ten (10) days in advance of
Grantee commencing its work and at least twenty -four (24) hours in advance of proposed
performance of any work by Grantee in which any person or equipment will be within twenty -
five feet (25') 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 feet (25') of any track.
Upon receipt of such notice, Grantor's Representative will determine and inform Grantee
whether a flagman need be present and whether Grantee need implement any special protective
or safety measures. If any flagmen or other special protective or safety measures are performed
by Grantor, such services will be provided at Grantee's expense with the understanding that if
Grantor provides any flagging or other services, Grantee shall not be relieved of any of its
responsibilities or liabilities set forth herein.
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 Grantor to use and maintain its entire property including the right and
power of Grantor 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 Grantor without liability to Grantee 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 Grantees and lessees of Grantor's property, and others) and the right of Grantor
to renew and extend the same, and is made without covenant of title or for quiet enjoyment.
Section 3. NO INTERFERENCE WITH RAILROAD'S OPERATION.
No work performed by Grantee shall cause any interference with the constant, continuous
and uninterrupted use of the tracks, property and facilities of Grantor, its lessees, Grantee's or
others, unless specifically permitted under this Easement, or specifically authorized in advance
by Grantor's Representative. Nothing shall be done or suffered to be done by Grantee at any
time that would in any manner impair the safety thereof. When not in use, Grantee's machinery
and materials shall be kept at least fifty feet (50') from the centerline of Grantor's nearest track,
and there shall be no crossings of Grantor's tracks except at existing open public crossings.
Section 4. PERMITS
Prior to beginning any work, Grantee, at its sole expense, shall obtain all necessary
permits to perform any work contemplated by this Easement.
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Section 5. MECHANIC' LIEN
Grantee shall pay in full all persons who perform labor or provide materials for the work
to be performed by Grantee. Grantee shall not create, permit or suffer any mechanic's or
materialmen's liens of any kind or nature to be enforced against any property of Grantor for any
such work performed. Grantee shall indemnify and hold harmless Grantor 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.
Section 6. FIBER OPTIC CABLE SYSTEMS
In addition to other indemnity provisions in this Easement, Grantee shall indemnify and
hold Grantor 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
Grantee, its contractor, agents and /or employees, that causes or contributes to (1) any damage to
or destruction of any telecommunications system on Grantor'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 Grantor's property. Grantee shall not have or seek
recourse against Grantor 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 Grantor's
property or a customer or user of services of the fiber optic cable on Grantor's property.
Section 7. COMPLIANCE WITH LAWS
In the prosecution of the work covered by this Easement, Grantee shall comply with all
applicable federal, state and local laws, regulations and enactments affecting the work. Grantee
shall use only such methods as are consistent with safety, both as concerns Grantee, Grantee's
agents and employees, the officers, agents, employees and property of Grantor and the public in
general. Grantee (without limiting the generality of the foregoing) shall comply with all
applicable state and federal occupational safety and health acts and regulations. All Federal
Grantor Administration regulations shall be followed when work is performed on Grantor's
property. If any failure by Grantee to comply with any such laws, regulations, and enactments,
shall result in any fine, penalty, cost or charge being assessed, imposed or charged against
Grantor, Grantee shall reimburse and indemnify Grantor for any such fine, penalty, cost or
charge, including without limitation attorneys' fees, court costs and expenses. Grantee further
agrees in the event of any such action, upon notice thereof being provided by Grantor, to defend
such action free of cost, charge, or expense to Grantor.
Section 8. SAFETY INSTRUCTIONS
Safety of personnel, property, rail operations and the public is of paramount importance
in the prosecution of the work pursuant to this Easement. As reinforcement and in furtherance of
overall safety measures to be observed by Grantee (and not by way of limitation), the following
.special safety rules shall be followed:
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A. Grantee 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.
Grantee shall have proper first aid supplies available on the job site so that prompt first aid
services can be provided to any person that may be injured on the job site. Grantee shall
promptly notify Grantor of any U.S. Occupational Safety and Health Administration reportable
injuries occurring to any person that may arise during the work performed on the job site.
Grantee shall have a non - delegable duty to control its employees, while they are on the job site
or any other property of Grantor to be certain they do not use, be under the influence of, or have
in their possession any alcoholic beverage or illegally obtained drug, narcotic or other substance
that may inhibit the safe performance of work by an employee.
B. The employees of Grantee shall 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.
Only waist length shirts with sleeves and trousers that cover the entire leg are to be worn. If
flare- legged trousers are worn, the trouser bottoms must be tied to prevent catching. The
employees should wear sturdy and protective footwear. 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. In addition, Grantee shall require its employees to wear personal protective
equipment as specified by Grantor rules, regulations or Grantor officials overlooking the work at
the job site. In particular, the protective equipment to be warn shall be:
(1) Protective head gear that meets American National Standard- Z89.1- latest
revision. It is suggested that all hardhats be affixed with Grantee's or
subcontractor's company logo or name;
(2) Eye protection that meets American National Standard 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, burning, etc.; and
(3) Hearing protection which affords enough attenuation to give protection
from noise levels that will be occurring on the job site.
C. All heavy equipment provided or leased by Grantee shall be equipped with
audible back -up warning devices. If in the opinion of Grantor's Representative any of Grantee's
or any of its subcontractors' equipment is unsafe for use on Grantor's right -of -way, Grantee, at
the request of Grantor's Representative, shall remove such equipment from Grantor's right -of-
way.
Section 9. INDEMNITY
A. As used in this Section, "Grantor" includes other railroad companies using
Grantor's property at or near the location of Grantee'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: (i) injury to or death of persons whomsoever (including Grantor's officers, agents,
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and employees, Grantee's officers, agents, and employees, as well as any other person); and (ii)
damage to or loss or destruction of property whatsoever (including Grantee's property, damage
to the roadbed, tracks, equipment, or other property of Grantor, or property in its care or
custody).
B. As a major inducement and in consideration of the license and permission herein
granted, Grantee agrees to indemnify and hold harmless Grantor from any Loss which is due to
or arises from any cause and is associated in whole or in part with the work performed under this
Easement, a breach of the Easement or the failure to observe the health and safety provisions
herein, or any activity or omission arising out of performance or nonperformance of this
Easement; regardless of whether caused solely or contributed to in part by the negligence or fault
of Grantor.
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 10. RESTORATION OF PROPERTY.
In the event Grantor authorizes Grantee to take down any fence of Grantor or in any
manner move or disturb any of the other property of Grantor in connection with the work to be
performed by Grantee, then in that event Grantee shall, as soon as possible and at Grantee'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 Grantee shall
indemnify and hold harmless Grantor, its officers, agents and employees, against and from any
and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature,
arising from the taking down of any fence or the moving or disturbance of any other property of
Grantor.
Section 11. WAIVER OF BREACH.
The waiver by Grantor of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by Grantee shall in no way impair the right of
Grantor to avail itself of any remedy for any subsequent breach thereof.
Section 12. ASSIGNMENT — SUBCONTRACTING
Grantee shall not assign, sublet or subcontract this Easement or any interest therein,
without the written consent of Grantor and any attempt to so assign, sublet or subcontract
without the written consent of Grantor shall be void. If Grantor gives Grantee permission to
subcontract all or any portion of the work herein described, Grantee is and shall remain
responsible for all work of subcontractors and all work of subcontractors shall be governed by
the terms of this Easement.
EXHIBIT C
INSURANCE REQUIREMENTS
(Agreement for Temporary Construction Easement)
Grantee shall, at its sole cost and expense, procure and maintain during the life of this
Easement (except as otherwise provided in this Easement) the following insurance coverage:
A. Commercial General Liability insurance. Commercial general liability (CGL)
with a limit of not less than $3,000,000 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:
• Grantee's statutory liability under the workers' compensation laws of the state(s)
affected by this Easement.
• Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 disease policy limit $500,000 each employee.
If Grantee is self - insured, evidence of state approval and excess workers' compensation
coverage must be provided. Coverage must include liability arising out of the U. S.
Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land
Act, if applicable.
D. Railroad Protective Liability insurance. Grantee 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 Grantor 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 Grantor before the work may be commenced and until the
original policy is forwarded to Grantor.
E. Umbrella or Excess insurance. If Grantee 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 Easement 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 Easement includes the disposal of any hazardous or
non - hazardous materials from the job site, Grantee must furnish to Grantor evidence of pollution
legal liability insurance maintained by the disposal site operator for losses arising from 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 workers' compensation and employers'
liability) must include Grantor 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 Grantor as additional insured shall, to the extent provided under ISO
Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Grantor's
negligence whether sole or partial, active or passive, and shall not be limited by Grantee's
liability under the indemnity provisions of this Easement.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on
the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any
punitive damages that may arise under this Easement, or (b) all punitive damages are prohibited
by all states in which this agreement will be performed.
I. Grantee waives all rights against Grantor and its agents, officers, directors and
employees for recovery of damages to the extent these damages are covered by the workers'
compensation and employers' liability or commercial umbrella or excess liability insurance
obtained by Grantee required by this Easement.
J. Prior to commencing the work, Grantee shall furnish Grantor with a certificate(s)
of insurance, executed by a duly authorized representative of each insurer, showing compliance
with the insurance requirements in this Easement.
K. All insurance policies must be written by a reputable insurance company
acceptable to Grantor 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 Grantee or by Grantor on behalf of Grantee
will not be deemed to release or diminish the liability of Grantee, including, without limitation,
liability under the indemnity provisions of this Easement. Damages recoverable by Grantor from
Grantee or any third party will not be limited by the amount of the required insurance coverage.
CONTRACTOR'S ENDORSEMENT
Folder No. 02895 -87
A. As a condition to entering upon Grantor's right -of -way to perform work pursuant
to this Agreement, Grantee's contractor,
( "Contractor ") agrees to comply with all the terms and provisions of this Agreement relating to
the work to be performed and the insurance requirements set forth in Exhibit C.
B. Before Contractor commences any work, Contractor shall pay Grantor
a nonrefundable payment of $500.00 upon execution and return of this Contractor's
Endorsement, and will Grantor with a certificate issued by its insurance carrier providing the
insurance coverage required under Exhibit C to the attached Agreement for Temporary
Construction Easement, in a policy which contains the following type endorsement:
UNION PACIFIC RAILROAD COMPANY is named as an additional insured
with respect to all liabilities arising out of Insured's performance of work on
behalf of the Grantee.
Union Pacific Railroad Company should be listed as certificate holder and all insurance
correspondence shall be directed to: Union Pacific Railroad Company, Attn: Kylan Crawford
(Folder No. 02895 -87), 1400 Douglas Street STOP 1690, Omaha, Nebraska 68179 -1690.
[Contractor Name]
By:
Printed Name:
Title:
Date: