26W ST ATE OF BRt
INSTRUMENT i
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Union Pacific Railroad Company
Attn: Madeline Roebke, General Attorney
1400 Douglas Street, Mail Stop 1580
Omaha, Nebraska 68179
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KAREN A. MADSEN
WASHINGTON COUNTY
REGISTER OF n�EI)8
B AIR, NI~
(Space Above for County recorder's Use)
2896 -06
GRANT OF EASEMENT AND AGREEMENT
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ( "Grantor "), for and in
consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, to it in hand paid
by CITY OF BLAIR ( "Grantee "), the receipt of which is hereby acknowledged, does hereby grant unto the
Grantee, its successors and assigns, a nonexclusive easement ( "Easement ") on, along, across and under the
property located near Blair, Washington County, State of Nebraska, as described in Exhibit A, hereto attached
and hereby made a part hereof (the "Easement Area "), together with the right of ingress and egress thereto, for
the sole purpose of installing, operating, maintaining, repairing and renewing certain drainage facilities as
shown on the print dated March 20, 2014, marked Exhibit A -1, hereto attached, on the Easement Area (the
"Drainage Facility ").
This Easement is subject to the terms, conditions, limitations and covenants set forth in Exhibit B,
hereto attached and hereby made a part hereof, which shall run with the Easement granted herein, and Grantee,
its successors and assigns, by acceptance of this Easement, agrees to observe each and all of said terms,
limitations and conditions, and to perform each and all of said covenants.
For purposes of this Grant of Easement and Agreement ( "Agreement "), all references in this
Agreement to Grantee shall include Grantee's contractors, subcontractors, officers, agents and employees, and
others acting under its or their authority. If a contractor is hired by Grantee for any work performed on the
Drainage Facility (including initial construction and subsequent relocation or maintenance and repair work),
then Grantee shall provide a copy of this instrument to its contractor and require its contractor to comply with
all the terms and provisions hereof relating to the work to be performed. Any contractor or subcontractor shall
be deemed an agent of Grantee for the purpose of this Agreement, and Grantee shall require such contractor or
subcontractor to release, defend and indemnify Grantor to the same extent and under the same terms and
conditions as Grantee is required to release, defend and indemnify Grantor herein.
During the life of this Agreement, Grantee shall fully comply with the insurance requirements
described in Exhibit C. Failure to maintain insurance as required shall entitle, but not require, Grantor to
terminate this Agreement immediately. If Grantee is subject to statute(s) limiting its insurance liability and/or
limiting its ability to obtain insurance in compliance with Exhibit C of this Agreement, those statutes shall
4837 - 9404 - 5214.2
9,014 .0 3 8 3 3
apply. Grantee hereby acknowledges that is has reviewed the requirements of Exhibit C, including without
limitation the requirement for Railroad Protective Liability Insurance during construction, maintenance,
installation, repair or removal of the pipeline which is the subject of this Agreement.
This Agreement shall take effect as of the date written hereunder and shall continue in full force and
effect until terminated as herein provided.
IN WITNESS WHEREOF, Grantor and Grantee have each caused this Agreement to be duly executed
as of the 5TO day of ['������ , 2014.
Attest:
*ssist4antecretary
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(Seal) 77 ,
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UNION PACIFIC RAILROAD COMPANY
a Delaware corporation
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CITY OF BLAIR
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2
4837 - 9404 - 5214.2
20-
STATE OF NEBRASKA )
ss
COUNTY OF DOUGLAS )
On DF 2014, before me, a Notary Public in and for said County
and State, personally appeared Renay J. Robison and' :Y' u, who
are the Director — Real Estate and Assistant Secretary, respectively, of UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, and who is personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to in the within instrument, and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
vEW NOTARY - State of NOV
JASO E MASHEK
M y Comm. Exp. Sept. 18, 2017
<:Z� a_
U 1, Notary Public
(Seal)
STATE OF NEBRASKA )
) ss.
COUNTY OF WASHINGTON )
On cm bt r � � , 2014, before me, allotary Public in and for said County
and State personally appeared Cl CAS I who is the
A of CITY OF BLAIR,
aUn �b�cr -c1 , and who is personally known to me (or proved to me on the -
basis of satisfactory evidence) to be the person whose name is subscribed to in the within instrument, and
acknowledged to me that he /she executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
GENERAL NOTARY - State of Nebraska
pq Rf,E,�1DA R WHEELER
_y ak it tviy C,. Exp. J1111,e 20, 2016
6& a- - 1 4 A-S� &�
Notary Public
(Seal)
91
4837 - 9404 - 5214.2
2014
EXHIBIT A
4837 - 9404 - 5214.2
2014-03833
Union Pacific Railroad Company
Exhibit A
LEGAL DESCRIPTION
Easement A
A TRACT OF LAND FOR ROAD CONSTRUCTION, OPERATION AND MAINTENANCE PURPOSES
LOCATED IN TAX LOT 174 OF SECTION 7, TOWNSHIP 18 NORTH, RANGE 12 EAST OF THE SIXTH
PRICIPLE MERIDIAN, Washington County, Nebraska, described as follows:
Beginning at the east corner of Lot 3 of Evergreen Bluff First Addition; thence northwest
deflecting N 61 deg. 06 min. 25 sec. W a distance of 40.23 feet along the northeasterly line of
said lot 3; thence northeast deflecting N 64 deg. 22 min. 58 sec. E a distance of 85.86 feet;
thence southeast deflecting S 48 deg. 09 min. 16 sec. E a distance of 41.29 feet; thence
southeast deflecting s 48 deg. 09 min. 16 sec. E a distance of 3.73 feet; thence southwest
deflecting S 64 deg. 22 min. 58 sec. W a distance of 76.34 feet; thence northwest deflecting N
25 deg. 37 min. 02 sec. W a distance of 10.05 feet; thence east a distance of 18.04 feet along a
non - tangential curve concave south having a radius of 2849.99 feet and a central angle of 00
deg. 21 min. 46 sec. and a chord bearing of N 68 deg. 50 min. 57 sec. E; thence northwest
deflecting N 60 deg. 56 min. 56 sec. W a distance of 88.99 feet to the Point of Beginning
containing 8060 square feet, more or less, which includes 4696 square feet, more or less,
previously occupied as public roadway.
Easement B
A TRACT OF LAND FOR ROAD CONSTRUCTION, OPERATION AND MAINTENANCE PURPOSES
LOCATED IN TAX LOT 174 OF SECTION 7, TOWNSHIP 18 NORTH, RANGE 12 EAST OF THE SIXTH
PRINCIPLE MERIDIAN, Washington County, Nebraska, described as follows:
Referring to the east corner of Lot 3 of Evergreen Bluff First Addition; to the northeasterly line
of said Lot 3 having a bearing of N 61 deg. 06 min. 25 sec. W; thence east a distance of 169.22
feet along a non- tangential curve concave south having a radius of 2965.99 feet and a central
angle of 03 deg. 16 min. 08 sec. and a chord bearing of N 69 deg. 11 min. 17 sec. E; thence
southeast deflecting S 48 deg. 09 min. 16 sec. E a distance of 28.73 feet to the Point of
Beginning; thence east a distance of 41.21 feet along a non - tangential curve concave south
1x
having a radius of 2931.26 feet and central angle of 00 deg. 48 min. 20 sec. and a chord bearing
of N 71 deg. 36 min. 02 sec. E; thence south deflecting S 17 deg. 52 min. 45 sec. E a distance of
2.96 feet; thence west a distance of 20.18 feet along a non - tangential curve concave south
having a radius of 2954.99 feet and a central angle of 00 deg. 23 min. 29 sec. and a chord
bearing of S 71 deg. 55 min. 30 sec. W; thence south deflecting S 12 deg. 52 min. 06 sec. W a
distance of 19.22 feet; thence northwest deflecting N 48 deg. 09 min. 16 sec. W a distance of
22.21 feet to the Point of Beginning containing 277 square feet, more or less.
UNION PACIFIC RAILROAD COMPANY
REAL ESTATE DEPT.
December 5, 2014
I ON me 1113 v IN
4837-9404-5214.2
2014-03833
2014-03833
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EXHIBIT B
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
A. The foregoing grant of right is subject and subordinate to the prior and continuing right and
obligation of 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, signal,
communication, fiber optics, or other wpelines, 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 2. CONSTRUCTION, MAINTENANCE AND OPERATION
A. The Drainage Facility will be designed, constructed, operated, maintained, repaired, renewed,
modified and /or reconstructed by Grantee in strict conformity with: (i) Grantor's current standards and
specifications ( "UP Specifications "), except for variances approved in advance in writing by Grantor's
Assistant Vice President Engineering — Design, or his authorized representative; (ii) such other additional
safety standards as Grantor, in its sole discretion, elects to require, including, without limitation, American
Railway Engineering and Maintenance -of -Way Association ( "AREMA ") standards and guidelines
(collectively, "UP Additional Requirements "), and (iii) all applicable laws, rules and regulations ( "Laws "). If
there is any conflict between the requirements of any Law and the UP Specifications or the UP Additional
Requirements, the most restrictive will apply.
B. All work performed on property of Grantor in connection with the design, construction,
maintenance, repair, renewal, modification or reconstruction of the Drainage Facility shall be done to the
satisfaction of Grantor.
C. Prior to the commencement of any work in connection with the design, construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Drainage Facility,
Grantee shall submit to Grantor plans setting out the method and manner of handling the work, including the
shoring and cribbing, if any, required to protect Grantor's operations, and shall not proceed with the work until
such plans have been approved by Grantor's Assistant Vice President Engineering Design, or his authorized
representative, and then the work shall be done to the satisfaction of Grantor's Assistant Vice President
Engineering Design or his authorized representative. Grantor 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 Grantor provides such support,. Grantee shall pay to Grantor, within fifteen (15) days after bills
shall have been rendered therefore, all expenses incurred by Grantor in connection therewith, which expenses
shall include all assignable costs.
D. In the prosecution of any work covered by this Agreement, Grantee 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.
4837 - 9404 - 5214.2
Section 3. NOTICE OF COMMENCEMENT OF WORK / GRANTOR'S REPRESENTATIVE /
SUPERVISION / FLAGGING / SAFETY
A. If an emergency should arise requiring immediate attention, Grantor shall provide as much
notice as practicable to Grantor before commencing any work. In all other situations, Grantee shall notify
Grantor at least ten (10) days (or such other time as Grantor may allow) in advance of the commencement of
any work upon property of Grantor 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. Grantee will coordinate its initial, and any subsequent work with the following
employee of Grantor or his or her duly authorized representative ( "Grantor's Representative" or "Railroad
Representative "):
Ron E. Jaure
Mgr Track Mntce
2204 Hwy 30
Missouri Valley, IA 51555
Cell Phone: 307 212 -2719
B. Grantee, at its own expense, shall adequately police and supervise all work to be performed.
The responsibility of Grantee for safe conduct and adequate policing and supervision of work shall not be
lessened or otherwise affected by Grantor's approval of plans and specifications involving the work, or by
Grantor's collaboration in performance of any work, or by the presence at the work site of Grantor's
Representative, or by compliance by Grantee with any requests or recommendations made by Grantor's
Representative.
C. At the request of Grantor, Grantee shall remove from Grantor's property any employee who
fails to conform to the instructions of Grantor's Representative in connection with the work on Grantor's
property. Grantee shall indemnify Grantor against any claims arising from the removal of any such employee
from Grantor's property.
D. Grantee shall notify Grantor's Representative at least ten (10) working days in advance of
proposed performance of any work 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 Grantor'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, Grantor's
Representative will determine and inform Grantee whether a flagman need be present and whether any special
protective or safety measures need to be implemented. If flagging or other special protective or safety
measures are performed by Grantor, Grantor will bill Grantee for such expenses incurred by Grantor, unless
Grantor and a federal, state or local governmental entity have agreed that Grantor is to bill such expenses to the
federal, state or local governmental entity. If Grantor will be sending the bills to Grantee, Grantee shall pay
such bills within thirty (30) days of receipt of billing. If Grantor performs any flagging, or other special
protective or safety measures are performed by Grantor, Grantee agrees that Grantee is not relieved of any of
responsibilities or liabilities set forth in this Agreement.
E. 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
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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 Grantor 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,
Grantee (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges.
F. Reimbursement to Grantor 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 Grantor is required to pay the flagman and
which could not reasonably be avoided by Grantor by assignment of such flagman to other work, even though
Grantee may not be working during such time. When it becomes necessary for Grantor to bulletin and assign
an employee to a flagging position in compliance with union collective bargaining agreements, Grantee must
provide Grantor 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, Grantee 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 Grantor if flagging services are
needed again after such five day cessation notice has been given to Grantor.
G. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work performed by Grantee or its contractor. Grantee shall be responsible for initiating,
maintaining and supervising all safety, operations and programs in connection with the work. Grantee and its
contractor shall at a minimum comply with Grantor's safety standards listed in Exhibit 1, hereto attached, to
ensure uniformity with the safety standards followed by Grantor's own forces. As a part of Grantee's safety
responsibilities, Grantee shall notify Grantor if it determines that any of Grantor's safety standards are contrary
to good safety practices. Grantee and its contractor shall furnish copies of Exhibit 1 to each of its employees
before they enter the job site.
H. Without limitation of the provisions of Paragraph "G" above, Grantee shall keep the job site
free from safety and health hazards and ensure that their employees are competent and adequately trained in all
safety and health aspects of the job.
1. Grantee shall have proper first aid supplies available on the job site so that prompt first aid
services maybe provided to any person injured on the job site. Prompt notification shall be given to Grantor of
any U.S. Occupational Safety and Health Administration reportable injuries. Grantor shall have a non -
delegable duty to control its employees while they are on the job site or any other property of Grantor, 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.
J. If and when requested by Grantor, Grantor shall deliver to Grantor a copy of its safety plan for
conducting the work (the "Safety Plan"). Grantor shall have the right, but not the obligation, to require Grantee
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.
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Section 4. GRANTEE TO BEAR ENTIRE EXPENSE.
Grantee shall bear the entire cost and expense incurred in connection with the design, 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 Grantor in connection
therewith for supervision, inspection, flagging, or otherwise.
Section 5. REINFORCEMENT OR RELOCATION OF DRAINAGE FACILITY.
A. The rights herein granted are subject to the needs and requirements of Grantor in the safe and
efficient operation of its railroad and in the improvement and use of its property. Grantee shall, at the sole
expense of Grantee, reinforce or otherwise modify the Drainage Facility, or move all or any portion of the
Drainage Facility to such new location, as Grantor may designate, whenever, in the furtherance of its needs and
requirements, Grantor, at its sole election, finds such action necessary or desirable.
B. All the terms, conditions and stipulations herein expressed with reference to the Drainage
Facility on property of Grantor 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 GRANTOR'S OPERATION.
A. The Drainage Facility and all parts thereof within and outside of the limits of the property of
Grantor shall be designed, constructed and, at all times, maintained, repaired, renewed and operated in such
manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the
tracks, property and facilities of Grantor (including without limitation, its tracks, pole lines, communication
lines, radio equipment, wayside and /or cab based train signal systems, advanced train control systems, positive
train separation systems, and grade crossing systems), and nothing shall be done or suffered to be done by
Grantee at any time that would in any manner impair the safety thereof.
B. In the operation and maintenance of the Drainage Facility, Grantee shall take all suitable
precaution to prevent any interference with the operation of the signal, communication lines or other
installations or facilities of Grantor or of its tenants; and if, at any time, the operation or maintenance of the
Drainage Facility causes interference with the operation of the signal, communication lines or other
installations or facilities, as now existing or which may hereafter be provided by Grantor and /or its tenants,
Grantee shall, at the sole expense of Grantee, immediately make such modifications or take such action as may
be necessary to eliminate such interference. Grantee agrees to pay for any reasonable modifications, design
changes, or increased costs that may be necessary now or in the future to ensure safe and reliable maintenance
and operation of the facilities of Grantor and /or its tenants because of interference from the Drainage Facility.
C. Explosives or other highly flammable substances shall not be stored on Grantor's property
without the prior written approval of Grantor.
D. No additional vehicular crossings (including temporary Grantee haul roads) or pedestrian
crossings over Grantor's trackage shall be installed or used by Grantee or its contractors without the prior
written permission of Grantor.
E. When not in use, any machinery and materials of Grantee or its contractors shall be kept at
least iffy (50) feet from the centerline of Grantor's nearest track.
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4837 - 9404 - 5214.2 '2014 - 0 3 3
F. Operations of Grantor and work performed by Grantor's personnel may cause delays in the
work to be performed by Grantee. Grantee accepts this risk and agrees that Grantor shall have no liability to
Grantee or any other person or entity for any such delays. Grantee shall coordinate its activities with those of
Grantor and third parties so as to avoid interference with railroad operations. The safe operation of Grantor's
train movements and other activities by Grantor take precedence over any work to be performed by Grantee.
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. 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. Grantee shall telephone Grantor during normal business hours
(7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1- 800 - 336 -9193 (also a
24 -hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Grantor's
premises to be used by Grantee. If it is, Grantee will telephone the telecommunications company(ies) involved,
arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at
Grantee's expense, and will commence no work on Grantor's property until all such protection or relocation has
been accomplished. 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
or caused in any way by Grantee's failure to comply with the provisions of this paragraph.
B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT,
GRANTEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY,
DEFEND AND HOLD GRANTOR HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY
AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES,
COURT COSTS AND EXPENSES) CAUSED BY THE NEGLIGENCE OF GRANTEE, ITS
CONTRACTORS, AGENTS AND /OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR
DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON GRANTOR'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 GRANTOR'S PROPERTY, EXCEPT IF SUCH COSTS, LIABILITY OR
EXPENSES ARE CAUSED SOLELY BY THE DIRECT ACTIVE NEGLIGENCE OF GRANTOR.
GRANTEE FURTHER AGREES THAT IT 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 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES.
A. Grantee shall fully pay for all materials joined or affixed to and labor performed upon property
of Grantor 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 Grantee. Grantee shall indemnify and hold harmless Grantor 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. Grantee 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 Grantor, and so that the taxes, charges and assessments levied upon or in respect to such property
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4837 - 9404 - 5214.2
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shall not be increased because of the location, construction or maintenance of the Drainage Facility, appliance
or fixture connected therewith placed upon such property, or on account of Grantee's interest therein. Where
such tax, charge or assessment may not be separately made or assessed to Grantee but shall be included in the
assessment of the property of Grantor, then Grantee shall pay to Grantor an equitable proportion of such taxes
determined by the value of Grantee's property upon property of Grantor as compared with the entire value of
such property.
Section 9. RESTORATION OF GRANTOR'S PROPERTY.
In the event Grantee in any manner moves or disturbs any of Grantor's property in connection with the
construction, maintenance, repair, renewal, modification, reconstruction, or relocation of the Drainage Facility,
then in that event Grantee shall, as soon as possible and at Grantee's sole expense, restore such property to the
same condition as the same were before such 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, 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
moving or disturbance of any other property of Grantor.
Section 10, 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: (a) injury to or death of persons whomsoever
(including Grantor's officers, agents, and employees, Grantee's officers, agents, and employees, as well as any
other person); and /or (b) 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 EASEMENT
AND PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BY LAW,
GRANTEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY,
DEFEND AND HOLD HARMLESS GRANTOR FROM ANY LOSS OF ANY KIND, NATURE OR
DESCRIPTION ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN
PART) :
1. THE PROSECUTION OF ANY WORK CONTEMPLATED BY THIS
AGREEMENT INCLUDING THE INSTALLATION, CONSTRUCTION,
MAINTENANCE, REPAIR, RENEWAL, MODIFICATION,
RECONSTRUCTION, RELOCATION, OR REMOVAL OF THE DRAINAGE
FACILITY OR ANY PART THEREOF;
2. ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
3. THE ENVIRONMENTAL STATUS OF THE PROPERTY CAUSED BY OR
CONTRIBUTED TO BY GRANTEE;
4. ANY ACT OR OMISSION OF GRANTEE OR
EMPLOYEES, O'
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4837 - 9404 - 5214.2
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DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER; OR
5. GRANTEE'S BREACH OF THIS AGREEMENT,
EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE DIRECT AND ACTIVE NEGLIGENCE
OF GRAIeNTOR, AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT
JURISDICTION, IT BEING THE INTENTION OF THE PARTIES THAT THE ABOVE
INDEMNITY WILL OTHERWISE APPLY TO LOSSES CAUSED BY OR ARISING FROM, IN
WHOLE OR IN PART, GRANTIOR'S NEGLIGENCE.
C. Upon written notice from Grantor, Grantor agrees to assume the defense of any lawsuit of
proceeding brought against any indemnitee by any entity, relating to any matter covered by this Agreement for
whom Grantee has an obligation to assume liability for and /or save and hold harmless any indemnitee. Grantee
shall pay all costs incident to such defense, including, but not limited to, reasonable attorney's fees,
investigators' fees, litigation and appeal expenses, settlement payments and amounts paid in satisfaction of
judgments.
Section 11. REMOVAL OF THE DRAINAGE FACILITY UPON TERMINATION OF GRANT.
Prior to the termination of this Agreement howsoever, Grantee shall, at Grantee's sole expense, remove
the Drainage Facility from those portions of the property not occupied by the roadbed and track or tracks of
Grantor and shall restore, to the satisfaction of Grantor, such portions of such property to as good a condition
as they were in at the time of the construction of the Drainage Facility. If Grantee fails to do the foregoing,
Grantor may, but is not obligated, to perform such work of removal and restoration at the cost and expense of
Grantee. In the event of the removal by Grantor of the property of Grantee and of the restoration of the
roadbed and property as herein provided, Grantor shall in no manner be liable to Grantee for any damage
sustained by Grantee for or on account thereof, and such removal and restoration shall in no manner prejudice
or impair any right of action for damages, or otherwise, that Grantor may have against Grantor.
Section 12. 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 13. TERMINATION
A. If Grantee continues in default in the performance of any covenant or agreement herein
contained for a period of thirty (3 0) days after written notice from Grantor to Grantee specifying such default,
Grantor may, at its option, forthwith immediately terminate this Agreement by written notice.
B. Notice of default may be served personally upon Grantee or by mailing to the last known
address of Grantee. Termination of this Agreement shall not affect any of the rights or obligations of the
parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior
thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED
Grantee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the
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written consent of Grantor, 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 Grantor, shall terminate this
Agreement.
Section 15. SUCCESSORS AND ASSIGNS
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, executors, administrators, successors and assigns.
Section 16. SEVERABILITX.
Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid
or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not
invalidate or otherwise render ineffective any other provision of this Agreement.
Section 17. DEFERRED CONSTRUCTION
The Grantor and Grantee acknowledge that conditions inherent in the Drainage Facility may require
the complete stabilization of Grantor's trackage supported by new cuts or fills to be deferred beyond the
construction period, and that Grantor'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 Grantee will pay to the Grantor, 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 Grantee 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.
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EXHIBIT 1 TO EXHIBIT B
The term "employees" as used herein refer to all employees of Grantee or its contractors, subcontractors, or
agents, as well as any subcontractor or agent of any Grantee.
I. Clothing
A. All employees of Grantee 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, Grantee's employees must wear:
(i) Waist - length shirts with sleeves.
(ii) Trousers that cover the entire leg. If flare- legged trousers are worn, the trouser
bottoms must be tied to prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees working on
bridges are required to wear safety -toed footwear that conforms to the American
National Standards Institute (ANSI) and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other
shoes that have thin soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose
jewelry while operating or working on machinery.
II. Personal Protective Equipment
Grantee shall require its employee to wear personal protective equipment as specified by Railroad
rules, regulations, or recommended or requested by Grantor's Representative.
A. Hard hat that meets the American National Standard (ANSI) Z89.1— latest revision. Hard
hats should be affixed with Grantee's company logo or name.
B. 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.
C. 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)
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D. Other types of personal protective equipment, such as respirators, fall protection equipment,
and face shields, must be worn as recommended or requested by Grantor Representative.
III. On 'Track Safety
Grantee and its contractor are responsible for compliance with the Federal Railroad Administration's
Roadway Worker Protection regulations — 49CFR214, Subpart C and Grantor'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:
A. Maintain a minimum distance of at least twenty -five (25) feet to any track unless Grantor's
Representative is present to authorize movements.
B. Wear an orange, reflectorized work wear approved by Grantor Representative.
C. Participate in a job briefing that will specify the type of On -Track Safety for the type of work
being performed. Grantee must take special note of limits of track authority, which tracks may
or may not be fouled, and clearing the track. Grantee 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 Grantee to ensure that all equipment is in a safe condition to operate.
If, in the opinion of Grantor's Representative, any of Grantee's equipment is unsafe for use,
Grantee shall remove such equipment from Grantor's property. In addition, Grantee 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 Grantor's rules on lockout/tagout of equipment.
Trained in and comply with the applicable operating rules if operating any hyrail
equipment on- track.
Trained in and comply with the applicable air brake rules if operating any equipment
that moves rail cars or any other rail bound 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 Grantor's 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. Grantee shall ensure that all waste is properly disposed of in accordance with applicable
federal and state regulations.
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B. Grantee shall ensure that all employees participate in and comply with a job briefing
conducted by Grantor's Representative, if applicable. During this briefing, Grantor's
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 Grantee 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) Ili 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.
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EXHIBIT C
Grantee shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as
otherwise provided in this Agreement) the following insurance coverage:
A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less
than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be
written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE
CERTIFICATE OF INSURANCE: "Contractual Liability Railroads" ISO form CG 24 17 10 01 (or a
substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the
Designated Job Site.
B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 10
01 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each
accident, and coverage must include liability arising out of any auto (including owned, hired, and non -owned
autos).
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 7010
01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated
Job Site.
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 Agreement.
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 Railroad only as named insured, with a limit of not less than $2,000,000 per occurrence
and an aggregate of $6,000,000.
The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this
Agreement and shall describe all WORK or OPERATIONS performed under this agreement
E. Umbrella or Excess insurance. If Grantee utilizes umbrella or excess policies, and these policies must
"follow form" and afford no less coverage than the primary policy.
Other Requirements
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20's 4
F. 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
Grantee'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 (a) insurance coverage may not lawfully be obtained for any punitive damages that may
arise under this agreement, or (b) all punitive damages are prohibited by all states in which this agreement will
be performed.
H. Grantee 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 for damages covered by the workers
compensation and employers liability or commercial umbrella or excess liability obtained by Grantee required
in this agreement, where perinitted by law This waiver must be stated on the certificate of insurance.
I. 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.
J. The fact that insurance is obtained by Grantee or by Railroad 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 Agreement. Damages recoverable by Railroad from Grantee or any third party will not be
limited by the amount of the required insurance coverage.
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