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Drainage Facility & Waterway Agreement: June 2014,. DRAIN.DOC 920301 Form Approved, AVP -Law Folder No. 02843 -91 DRAINAGE FACILITY & WATERWAY AGREEMENT Mile Post: 340.84 & 341.15, Blair Subdivision/Branch Location: Blair, Washington County, Nebraska THIS AGREEMENT ( "Agreement ") is made and entered into as of June 05, 2014, ( "Effective Date ") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, ( "Licensor ") and CITY OF BLAIR, to be addressed at 218 South 16th Street, Blair, Nebraska 68008 ( "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 Posts 340.84 & 341.15 on the Blair Subdivision, located at or near Blair, Washington County, Nebraska (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 print dated March 20, 2014, marked Exhibit A -1 & A -2, hereto attached. The Railroad is agreeable to the Licensee constructing, maintaining and using the Drainage Facility upon the terms and conditions set forth herein. AGREEMENT: NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows: Article 1. LICENSOR GRANTS RIGHT. In 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. 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 -1 & A -2. Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. 02843 -91.dm Articles of Agreement June 05, 2014 Article 4. 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 (hereinafter 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. Article 5. ONE -TIME PAYMENT. Upon execution and delivery of this Agreement, the Licensee shall pay to the Licensor a one -time License Fee of Five Thousand DOLLARS ($5,000.00). Article 6. 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. B. If the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith 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. 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 Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. 02843 -91.dm Articles of Agreement June 05, 2014 Article 7. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Drainage Facility or Premises (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's Premises without first executing the Contractor's Right of Entry Agreement. Article 8. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit C, 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 right of way between Mile Posts 340.84 on the Blair Subdivision, located at or near Blair, Washington County, Nebraska. 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 C shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self - insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No.: 02843 -91 Director - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street STOP 1690 Omaha, Nebraska 68179 -1690 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY Kylan Crawford MANAGER CONTRACTS CITY OF BLAIR By: ..� Title: U. ir �$ 02843 -91.dm Articles of Agreement June 05, 2014 Drainage Exhibit B 920301Form 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 Licensoe'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 Licensoe's prior approval. All 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 boring method, during jacking operations, the Licensee agrees to fill voids created between the embankment and pipe by pressure grouting. The Licensee shall provide adequate barrier 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 Licensoe'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. Drainage.Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law 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 right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the 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. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Drainage Facility, including any and all expense which may be incurred by the Licensor in connection therewith for inspection, flagging, or otherwise. Section S. 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 Drainage.Exb Exhibit B Drainage Exhibit B 920301Form Approved AVID - Law 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(ies) 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 materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the 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 Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the 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 C, 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. Drainage.Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law 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 right 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 written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 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 Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law _ __- - r . �wv wTV O_ 1ATA TRR AAIAV Drainage.Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law EACH OCCURREN CGL Policy is endorsed to Include Union Pacific Railroad as Additional Insured as required by agreem 11 CGL Policy Is endorsed to include "Contractual Liability Railroads" as required by agreement. Auto Liability Policy is endorsed to include "Certain Operations In Connection With Railroads" as required by agreement. Auto Liability Policy is endorsed to include Union Pacific Railroad as Additional Insured as required by agreement. Punitive damages (one of the following statements must be included): 1. Policies are silent concerning punitive damages. that arise underthls agreement. 2. Insurance coverage may not lawfully be obtained for any p unitive damages 9 may 3. All punitive damages are prohibited by all states in which this agreement will be performed. Workers' Compensation Policy Is endorsed waiving subrogation for Workers' Compensation and Employers Liability in favor of Union Pacific Railroad. Railroad Protective Liability as required by agreement with Railroad as named insured with limits of not less than $2.0 million per occurrence and an aggregate of $6.0 million. �: a... — I. in mane must be arovided to Railroad until policy is forwarded to Raliroad. Drainage.Exb Exhibit B HOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE KPIR4TION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO UNION PACIFIC RAILROAD CO AAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE Real Estate Department EFT, BUT FAILURE TO MAIL SUCH NOTICE IMPOSE NO OBLIGATION OR ATT: (ABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. 1400 Douglas St STOP 1690 OMAHA, NE 68179.1690 IITHORIZED REPRESENTATIVE Drainage.Exb Exhibit B PL/WL/DRAINAGE INS. Form Approved, AVP -Law Updated 03/01/2003 Form Approved, AVP -Law Updated 08/2006 EXHIBIT C Union Pacific Railroad Insurance Requirements Licensee shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance required in Paragraph D), procure and maintain in effect during the term of this Agreement the following insurance coverage. Licensee shall procure and maintain, or cause to be procured and maintained by its contractor, at its sole cost and expense, Railroad Protective Liability Insurance coverage described in Paragraph D during any period of construction, maintenance, repair or reconstruction work. A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 O1 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. ® Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law. C. Workers Compensation and Employers Liability insurance. Coverage must include but not be limited to: Licensee's and/or Licensee's contractor's statutory liability under the workers' compensation laws of the state where the Utility/Facility is located. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Licensee, and /or Licensee's contractor, is self - insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: a Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing PL/WL/DRAINAGE INS. Form Approved, AVP -Law Updated 03/01/2003 equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Licensor before the work may be commenced and until the original policy is forwarded to Licensor. E. Umbrella or Excess insurance. If Licensee, and/or Licensee's contractor, utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. Other Requirements F. All policy(ies) required above (except worker's compensation and employers liability) must include Licensor as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Licensor as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Licensors negligence whether sole or partial, active or passive, and shall not be limited by Licensee's liability under the indemnity provisions of this Agreement. G. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. H. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. I. Prior to commencing any work, Licensee, and/or Licensee's contractor, shall furnish Licensor with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. J. All insurance policies must be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state in which the Utility is located. K. The fact that insurance is obtained by Licensee, and/or Licensee's contractor, or by Licensor on behalf of Licensee, and/or Licensee's contractor, will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor from Licensee or any third parry will not be limited by the amount of the required insurance coverage. June 05, 2014 Folder: 02843 -91 To the Contractor: Before the Railroad Company can permit you to perform work on its right of way for the installation of approximately 70 feet of 18 inch Reinforced Concrete Pipe, a 24 inch Grate Inlet Corrugated Metal Pipe and .03 acres of drainage modifications according to exhibit A -1 and A -2 for CITY OF BLAIR Blair, Nebraska, it will be necessary to complete the enclosed Contractor's Right of Entry Agreement as follows: 1. 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 6, Paragraph (a). 3. 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. 4. Return all copies of the Contractor's Right of Entry Agreement, together with your Certificate of Insurance, identifying Folder No. 02843 -91, as required in Exhibit C, in the attached self - addressed envelope. Check, with Folder No. 02843 -91 written on the front, made payable to the Union Pacific Railroad Company in the amount of FIVE HUNDRED DOLLARS ($500.00). If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Service's policy regarding Form 1099, I certify that 94- 6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. After approval of the Contractor's Right 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 Right of Entry Agreement. Under Exhibit C of the enclosed Contractor's Right of Entry Agreement, you are required to procure Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you. You are not required to purchase this coverage from the Railroad and are encouraged to shop the market for the best available rate. If you decide, however, that acquiring this coverage from the Railroad is of benefit to you, simply follow the instructions on the enclosed form. Sincerely, Kylan Crawford Asst Manager - Real Estate (402) 544 -8536 Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law DRAINCRE.DOC 920301 Form Approved, AVP -Law Folder No. 02843 -91 11 v081806 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 20 by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, ( "Railroad ") and addressed at corporation ( "Contractor "), RECITALS: a to be Contractor has been hired by the CITY OF BLAIR for the construction of a drainage facility (the "work ") with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 340.84 & 341.15, Blair Subdivision/Branch, located at or near Blair, Washington County, State of Nebraska, which work is the subject of a contract dated June 05, 2014 between Railroad and CITY OF BLAIR, as such location is also shown on the print dated March 20, 2014, marked Exhibit A -1 & A -2 attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location describe above subject to the terms and conditions contained in this Agreement. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: Article I. DEFINITION OF CONTRACTOR For purposes of this Agreement, all references in this Agreement to the Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. Article II. RIGHT GRANTED: PURPOSE Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing any work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article IV. Article III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D The terms and conditions contained in Exhibit B, C and D, attached hereto, are hereby made a part of this Agreement. CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law Article IV. ALL EXPENSES TO BE BORNE BY CONTRACTOR REPRESENTATIVE A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative "): GERALD S. ALLEN JR MGR TRACK MNTCE 1629 RADIANT RD CARROLL, IA 51401 Work Phone: 712/8 792 -0151 Cell Phone: 712 635 -1676 sallen @up.com RON E. JAURE MGR TRACK MNTCE 2204 HWY 30 Missouri Valley, IA 51555 Cell Phone: 307 212 -2719 rejaure @up.com C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. Article V. TERM: TERMINATION A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. Article VI. CERTIFICATE OF INSURANCE A. Before commencing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit C of this Agreement. B. All insurance correspondence, binders, policies, certificates and /or endorsements shall be sent to: Folder No. 02843 -91 Union Pacific Railroad Company 1400 Douglas Street STOP 1690 Omaha, Nebraska 68179 -1690 CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law Article VII. CHOICE OF FORUM. Litigation arising out of or connected with this Agreement may be instituted and maintained in the courts of the States of Nebraska and 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 VHI. DISMISSAL OF CONTRACTOR'S E MPLOYEE At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. Article IX. ADMINISTRATIVE FEE Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad Five Hundred Dollars ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. Article X. CROSSINGS No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. Article XI. EXPLOSIVES Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY IC Kylan Crawford Manager Contracts (Name of Contracting Company) X Title: Telephone: Fax: CROE,Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law Form Approved, AVP -Law 07/25/06 EXHIBIT B CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COMMENCE OF WORK - FLAGGING A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty -five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty -five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty -five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight -hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one -half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one -half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assigninent of such flagman to other work , even though Contractor may not be working during such time. CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP Law Section 5. PROT ECTION OF FIBER OPTIC CABLE SYSTEMS A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1- 800 - 336 -9193 (also a 24 -hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and /or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SA A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan "). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section S. INDEMNITY A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees ( "Indemnified Parties ") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss ") incurred by any person (including, without limitation, any Indemnified Parry, Contractor, or any employee of Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal Employers' Liability Act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. CROE.Exb Exhibit B Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law Section 10. WAIVER OF DEFAULT Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTM AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. CROE.Exb Exhibit B Form Approved, AVP -Law 08/24/06 EXHIBIT C CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Union Pacific Railroad Company Insurance Provisions For Contractor's Right of Entry Agreement Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and and the Contractor has removed all until all Project wo� materials from the Railroad' property and has cleaned equipment and mate and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liabi lity insurance. Commercial general liability (CGL) with a lim not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000, 000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Cover insurance. Business auto coverage written on ISO form CA 00 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. Motor Carrier Act Endorsement — Hazardous materials clean up (MCS -90) if required by law. C. Wor Compensation and Employ Liability insurance. Coverage must include but not be limited to: Contractor's statutory liability under the workers' compensation laws of the states) affected by this Agreement. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self - insured, evidence of state approval and excel workers compensation coverage must be provided. Coverage must include liability arising out of the U.S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liabili insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution Liability coverage must be included when the scope of the work as defined in the Agreement includes installation, temporary storage, or disposal of any "hazardous" material that is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury at any time. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non- hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising form the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Other Requirements G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I, Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. Form Approved, AVP -Law 07/25/06 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist - length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare- legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: 100 feet of a locomotive or roadway /work equipment 15 feet of power operated tools 150 feet of jet blowers or pile drivers 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty -five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: Familiar and comply with Railroad's rules on lockout/tagout of equipment. Trained in and comply with the applicable operating rules if operating any by -rail equipment on- track. Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self - propelled equipment must be equipped with a first -aid kit, fire extinguisher, and audible back -up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty -five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure, that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. PACIFIC June 05, 2014 Folder: 02843 -91 ALLEN SCHOEMAKER CITY OF BLAIR 218 SOUTH 16TH STREET BLAIR NE 68008 RE: Proposed Construction of a Drainage Facility on the Railroad Company's Right -of -Way at Mile Post 340.84 on the Blair Subdivision/Branch at or near Blair, Washington County, Nebraska Allen Schoemaker: Attached is your original copy of our Agreement, fully executed on behalf of the Railroad Company. When you or your representatives enter the Railroad Company's property, a copy of this fully- executed document must be available at the site to be shown on request to any Railroad employee or official. In accordance with the terms of the Agreement, you are required to notify the following Railroad Company's Manager of Track Maintenance and the Fiber Optics Hot Line at least 48 hours in advance of the date you plan on entering the right of way for further instructions and approval to commence GERALD S. ALLEN JR RON E. JAURE MGR TRACK MNTCE MGR TRACK MNTCE 1629 RADIANT RD 2204 HWY 30 CARROLL, IA 51401 Missouri Valley, IA 51555 Work Phone: 712/8 792 -0151 Cell Phone: 307 212 -2719 Cell Phone: 712 635 -1676 rejaure @up.com sallen @up.com Fiber Optics Hot Line: 1- 800 - 336 -9193 As an additional note, any open excavation required within five (5) feet of the fiber optic cable must be dug by hand. Sincerely, Kylan Crawford Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179 -1690 fx. (402) 501 -0340 Asst Manager - Real Estate (402) 544 -8536 BCC: Property Records: Attached is the Railroad Company's original of the Contractor's Right of Entry Agreement to be filed with the Agreement Audit No. Manager of Track Maintenance: Manager of Signal Maintenance: Contractor Contact: Contractor Phone : SUBMITTING REQUESTS FOR RAILROAD PROTECTIVE LIABILITY INSURANCE ($2,000,000 per occurrence /$6,000,000 aggregate) Application forms for inclusion in Union Pacific Railroad's Blanket Railroad Protective Liability Insurance Policy may be obtained by accessing the following website (includes premiums as well): www. Urr .com /reus /rrinsure /index.slitml If you have questions regarding railroad protective liability insurance (i.e. premium quotes, application) please contact the Marsh USA Service Team, Bill Smith or Cindy Long at: Phone: (800) 729 -7001 Fax: (816) 556 -4362 Email: william.j.smith@,,marsh.com Email: cindy.long(a,marsh.com *PLEASE NOTE - The RPLI application and premium check should be sent directly to Marsh, USA at the address shown below - do NOT send your check and application via overnight air, as the P.O. Box will NOT accept overnight deliveries. If you are in a situation where you require a RUSH, please contact Bill Smith or Cindy Long and they will do their best to accommodate your needs. All checks written to Marsh, USA should reference Union Pacific Railroad in the "Memo" section of the check. Send Checks and Applications to the following "NEW" address: Marsh USA NW 8622 PO Box 1450 Minneapolis, MN 55485 -8622 Folder No. 02843 -91