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05-01-2003 UNION PACIFIC RAILROAD COMPANY PIPELINE CROSSING AGREEMENTr Folder No. 02152-42 NORMAN WOOD TOWN OF AVON P.O. BOX 975 AVON, CO 81620 Re: Proposed Underground Storm Runoff Pipeline Crossing Consisting of Two (2) 48-inch steel pipelines on and across Railroad Property at Mile Post 308.38 on the Tennessee Pass Subdivision at or near Avon, Eagle County, Colorado. Dear Mr. Wood: Attached is your original copy of our Agreement, fully executed on behalf of the Railroad Company. When you or your representative 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. If this construction is to be done by a contractor, before work can begin, the Contractor's Right of Entry Agreement must be executed by the contractor and returned to me, together with their proof of insurance, as provided in this Agreement. In accordance with the terms of the Agreement, you are required to notify the following local Railroad Company officials and the Telecommunications ("Call Before You Dig") number at least 10 days in advance of the date you plan on entering the right of way for further instructions and approval to commence construction. Jose R. Rodriguez Manager Track Maintenance 400 West "B" Street Pueblo, CO 81003 Phone: 719-549-6266 Fax: 719-549-6240 Keith L. Seely Manager Signal Maintenance 901 West 48th Avenue Denver, CO 80221 Phone: 303-964-4781 Fax: 303-964-4890 Telecommunications ("Call Before You Dig"): 1-800-336-9193 Real Estate UNION PACIFIC RAILROAD 1800 Farnam Street, Omaha, NE 68102 fx. (402) 997-3601 As an additional note, the casing and carrier pipe must be placed a minimum of two (2) feet below any existing fiber optic cable. Any open excavation required within five (5) feet of the fiber optic cable must be dug by hand. All future insurance notices should be forwarded to: Real Estate Department Folder No: 02152-42 Union Pacific Railroad Company 1800 Famam Street Omaha, NE 68102 Please contact me with any questions or concerns at (402) 997-3498. Sincerely yours, k' 114, 1 la Bill Ince Manager - Contracts PL X 940206 Form Approved, AVP-Law Folder No: 02152-42 PIPELINE CROSSING AGREEMENT Mile Post: 308.38, Tennessee Pass Subdivision Location: Avon, Eagle County, Colorado THIS AGREEMENT is made and entered into as of May 1, 2003, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and the TOWN OF AVON, a Colorado municipal corporation, whose address is P.O. Box 975, Avon, Colorado 81620 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of SIX THOUSAND SEVEN HUNDRED FORTY DOLLARS ($6,740.00). Article II. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one underground storm runoff pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated February 7, 2003, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Article III. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form 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 V. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B-1, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder No. 02152-42, 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 'Pipeline' located on Railroad right-of-way at Mile Post 308.38 on the Tennessee Pass Subdivision, at or near Avon, Eagle County, Colorado. B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No. 02152-42 Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Article VI. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VII. SPECIAL PROVISIONS. 1. The edge of the boring pits shall be a minimum of 30 feet from the centerline of track. 2. A Railroad Inspector shall be present during pipeline installation to monitor the track for movement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFICI~A AID COMPANY TOWN OF AVON By: - Contracts Title: -i 14 (-IL( -2co 013 (LACE ARROW INDICATING NORTH DIRECTION RELATIVE TO CROSSING NO SCALE tt TO (N ENCASED NON-FLAMMABLE FORM REV. 12-1DR-0-4001 PIPELINE CROSSING www.uprr.com NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. 4OR LEGAL SURVEY LINE, WHERE APPLICABLE) / LINE OF SECT ION_,TOW RR EkT FT. 1,766.0 FT. (SEE NOTE 3 B 5) A _C MAIN TRACK \-E-36"X24" CULVERT (SEE NOTE 51 (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) I / I - FT. (NOTE: THIS DIMENSION REQUIRED IN ALL CASES. AT LOCATIONS NOT USING, SECTIONS, DISTANCE _ TO A LEGAL SURVEY LINE IS REOUIR_ED) RR'SR/W" c h ~ FT. FT. i I I N. DIST (Se Note te 2)i KOAVOW 11.E FT. (4.577- MIN.) (20 FT.I MAX.) 1 , -CASING PIPET ~ I '110 FT. - -188.0( FT: . ( SEE NOTE 3 B 5) • AN RR' S R/W AR tt~VQ~ & T So FT. I To I NEAREST R. R. TOWNI W-36"X36" CULVERT/ (SEE NOTE 5) FT. Lat. 39.63 Lon.-106.53 ~y FT G RG12~ I SUBGRADE (3 f. FT N. ) SEAL CASING (See Note 4) 1. T CARRIER PIPE - - - ~ ~ ® I I ® I. i I i I 2 D 15 FT.-s; 1 1 'L FT. I 30 FT. -►I 30 FT. I 75 FT: 7S FT. NDTES I (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) 1) ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIGHT ANGLES FROM Q. OF TRACK. 2) CASING TO EXTEND BEYOND THE 4 OF TRACK AT RIGHT ANGLES THE GREATER OF 20 • 20 FT., OR 30 FT., AND BEYOND LIMIT OF RAILROAD RIGHT-OF-WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF' TRACK. 31 MINIMUM OF 50' FROM THE END OF ANY RAILROAD BRIOGE, Q Of ANY CULVERT, OR FROM ANY SWITCHING AREA. 4) SIGNAL REPRESENTATIVE MUST BE PRESENT "ING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSING. S) ALLOWABLE FIXED OBJECTS INCLUDE) BACKWALLS Of BRIDGES] 4L OF ROAD CROSSINGS • OVERHEAD VIADKTS (GIVE ROAD NAME), OR CULVERTS. 6) CASING AND CARRIER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION REQUIRED WITHIN A) IS PIPELINE CROSSING WITHIN DEDICATED STREET ? YES;__X_NO; B) IF YES, NAME OF STREET C) DISTRIBUTION LINE OR TRANSMISSION LINEX D) CARRIER PIPE : COMMODITY TO BE CONVEYED STORM RUNOFF OPERATING PRESSURE 0.00 PSI WALL THICKNESS 0.00 ;DIAMETER 0.00 ;MATERIALO ; E) CASING PIPE : 't. WALL THICKNESS-0.75 ;DIAMETER ;MATERIAL STEEL ; NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR.DIAMETER OF CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF CARRIER PIPE AND INSIDE OF CASING PIPE. F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): x_ DRY BORE AND JACK (WET BORE NOT PERMITTED) ; TUNNEL ; OTHER G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES;--NO; H) DISTANCE FROM.CENTER LINE OF TRACK TO NEAR FACE OF BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK 1) APPLICANT HAS CONTACTED 1-600-336-9193, (30, MIN.) U. P. COMMUNICATION DEPARTMENT, AND HAS DETERMINED FIBER OPTIC CABLE DOES ; x DOES NOT EXIST IN VICINITY OF WORK TO BE PERFORMED TICKET NO. 20621204010 I STEEL CASING WALL THICKNESS CHART THICKNESS CASING PIPE .2500"' 1/4" 12' LE .3125' 5/16" OVER 12"-1.8' .3750" 3/8' OVER 16"-22" .4375' 7/16" OVER 22'-28' .5000" 1/2" OVER 28"-34' .5625' 9/16' OVER 34"-42' .6250" 5/8" OVER 42'-48", OVER 48' MUST BE APPROVED BY R. R. CO. NOTE: THIS CHART IS ONLY FOR SMOOTH STEEL CASING PIPES WITH MINIMUM YIELD STRENGTH OF 35,000 PSI. FORMULA TO FIGURE CASING LENGTH WITH ANGLE OF CROSSING OTHER THAN 90- eta a A SIN J+'~ B MIN.DIST. (NOTE 2) EXHIBIT "A" 1 FOR MILAOAD USE ONLY) UNION PACIFIC RAILROAD CO. IenaQ_ ssc c P,ss (SUBDIVISION) M. P 3bVit E. S. Zt?t qS r ENCASED gTnEjm RI INnFFCROSS I NG AT AVON E-alit CO INEMEST CETYI (COUNTY) ISTATEI TOWN nF AVON 1 APPL [CANT) RR F I L E N0. n21..r,2d0 DATE W A R N I N G IN ALL OCCASIONS, U. P. COLMRIICATIDNS DEPARTMENT MUST DE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE : I-600.336-9193 4LFT. ..-SEAL CASING Q PL X 980112 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION (a) The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the 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 Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. plx.exb Page 1 of4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE (a) The license herein granted is subject to the needs and requirements of the Licensor in the 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 the Pipeline, or move all or any portion of the Pipeline 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 Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor,. and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the l icensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. (b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (1) any damage to or destruction of any telecommunications system on Licensor's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as compared plx.exb Page 2 of4 Exhibit B PL X 980112 Form Approved, AVP-Law with the entire value of such property. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. (a) As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). (b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: The prosecution of any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof; or The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost. and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. plx.exb Page 3 of 4 Exhibit B PL X 9801 12 Form Approved, AVP-Law Section 13. TERMINATION (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default in the performance of any covenant. or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. plx.exb Page 4 of 4 Exhibit B PLNVUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law EXHIBIT B-1 Union Pacific Railroad Company Insurance Provisions For Pipeline / Wireline / Drainage License Agreements Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Licensee's (and Licensor's) employees shall not be excluded • Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $2,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: • Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Licensee in states that require participation in state workers' compensation fund, Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. Page 1 of 2 PUWUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law Other Requirements E. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of insurance. N. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance.company(ies) issuing such policy(ies) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished. 1. Any insurance policy shall 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(s) in which the service is to be provided. J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's insurance coverage will be primary. K. The fact that insurance is obtained by Licensee or Licensor on behalf of Licensee shall 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 shall not be limited by the amount of the required insurance coverage. Page 2 of 2 May 1, 2003 Folder No. 02152-42 NORMAN WOOD TOWN OF AVON P.O. BOX 975 AVON, CO 81620 Re: Proposed Underground Storm Runoff Pipeline Crossing Consisting of Two (2) 48-inch steel pipelines on and across Railroad Property at Mile Post 308.38 on the Tennessee Pass Subdivision at or near Avon, Eagle County, Colorado. Dear Mr. Wood: Attached are duplicate originals of an agreement covering your use of the Railroad Company's right of way. Please execute or arrange for execution of the attached document and have the signatures witnessed or attested, as indicated. Please RETURN ALL COPIES of the document for execution on behalf of the Railroad Company in the enclosed self-addressed envelope. Your copy of the fully- executed document will be returned to you, if approved by the Railroad Company. Also, please provide a resolution or other authorization for the party executing the documents, and Insurance Certificates, as required by the agreement. Also attached is Contractor's Right of Entry Agreement which must be executed and returned in accordance with the attached agreement, if work is to be performed by a contractor. Payment in the amount of Six Thousand Seven Hundred Forty Dollars ($6,740.00) is due and payable upon your execution of the agreement. Please include your check, with Folder No. 02152-42 written on the front, made payable to Union Pacific Railroad Company, with the return of the documents. This agreement will not be accepted by the Railroad Company until the initial payment is received and all Insurance Certificates are in proper form. 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, 1 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. If we have not received the executed documents within six months from the date of this letter, this proposed offer of an agreement is withdrawn and becomes null and void. Real Estate UNION PACIFIC RAILROAD 1800 Farnam Street, Omaha, NE 68102 fx. (402) 997-3601 Please contact me with any questions or concerns at (402) 997-3498. Sincerely yours, Bill Ince Manager - Contracts PL X 940206 Form Approved, AVP-Law Folder No: 02152-42 PIPELINE CROSSING AGREEMENT Mile Post: 308.38, Tennessee Pass Subdivision Location: Avon, Eagle County, Colorado THIS AGREEMENT is made and entered into as of May 1, 2003, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and the TOWN OF AVON, a Colorado municipal corporation, whose address is P.O. Box 975, Avon, Colorado 81620 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of SIX THOUSAND SEVEN HUNDRED FORTY DOLLARS ($6,740.00). Article II. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one underground storm runoff pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated February 7, 2003, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. Article III. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form 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 V. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B-l, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder No. 02152-42, 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 'Pipeline' located on Railroad right-of-way at Mile Post 308.38 on the Tennessee Pass Subdivision, at or near Avon, Eagle County, Colorado. B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No. 02152-42 Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 Article VI. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VII. SPECIAL PROVISIONS. 1. The edge of the boring pits shall be a minimum of 30 feet from the centerline of track. 2. A Railroad Inspector shall be present during pipeline installation to monitor the track for movement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY TOWN OF AVON By: Assitant Director - Contracts Title: I- IL(. - 20°-3 )LACE ARROW INDICATING NORTH DIRECTION RELATIVE TO CROSSING NO SCALE TO 1N MAIN TRACK E-36"X24" CULVERT (SEE NOTE 5) / I - (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) FT. (NOTE: THIS DIMENSION REQUIRED IN ALL CASES. AT LOCATIONS NOT USING SECTIONS, DISTANCE _ TO A LEGAL SURVEY LINE IS REQUIRED) RR'3-R/N FT. FT. - MIN. DIST (See Note 2) I ROADBED-- CAS Aso FT. - 188.0( FT: ( SEE NOTE 3 B 5) n = 90 , - ANGLE OF CROSSING) 1T W-36"X36" CULVERT luex".oc . w~uy (SEE NOTE S) RR' S R/W RR RM~ XT ) S~ FT. TO (NEAREST R. R. TOWN) So Lat. 39.63 FT. Lon, --106.53 - 35 FT -+~C • • GROUND _ / p I STEEL CASING WALL SURFACE y THICKNESS CHART 11.E'FT. (4.5 FT MINI (20 FT.~ MAX.) II f CASING P4 (see Note 4) SUBGRADE FT (3 FT. MI.N. SEAL CASING ) [Hit; L55 CASING PIPE 2500: 1/4" 12" R L .31255/16" OVER 12"-18" .3750" 3/8" OVER ID"-22" ,4375" 7/16" OVER 22'-28- 5000" I/2" OVER 28"-34" .5625" 9/16" OVER 34--42- 6250* 5/8" OVER 42'-48- OVER 48" MUST BE APPROVED BY R. R. CO. NOTE: THIS CHART 15 ONLY FOR SMOOTH STEEL CASING PIPES WITH MINIMUM YIELD STRENGTH OF 35,000 PSI. 2D 15 FT.-I 14 I 5 FT. 30 FT. ~ 30 FT. I 75 FT: 7S FT. NOTES ) (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) 1) ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIGHT ANGLES FROM t OF TRACK. 2) CASING TO EXTEND BEYOND THE t OF TRACK AT RIGHT ANGLES THE GREATER OF 2D , 20 FT.. OR 30 FT., . AND BEYOND LIMIT OF RAILROAD RIGHT-OF-WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK. 3) MINIMN OF SO' FROM THE END OF ANY RAILROAD BRIDGE, t OF ANY CULVERT, OR FROM ANY SWITCHING AREA. SIGNAL REPRESENTATIVE MAT BE PRESENT DURING INSTALLATION IF RAILROAD S16NALS ARE IN THE VICINITY OF CROSSING 5) ALLOWABLE FIXED OBJECTS INCLUDE, BACKWALLS OF BRIDGES) t OF ROAD CROSSINGS B OVERHEAD VIADUCTS IGIVE ROAD NAME), OR CULVERTS. 6) CASING AND CARR IER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION REQUIRED WITHIN 5 FEET OF THE EXISTING FIBER OPTIC CABLE MUST BE NAND DUG. A) IS P E PEL I CROSS 1 THIN DED 1 GATED STREET ? YES;_ X NO; EXHIBIT "A" B) IF YES, NAME OF STREET T C) DISTRIBUTION LINE OR TRANSMISSION LINEX (FOR RAILROAD USE ONLY) D) CARRIER PIPE : UNION PACIFIC RAILROAD CO. COMMODITY TO BE CONVEYED STORM RUNOFF OPERATING PRESSURE 0.00 PSI ~CnKQ_Sscc Q,SS WALL THICKNESS 000 ;DIAMETER 0.00 ;MATERIALO E) CASING PIPE : 'L 11 M. P 30g. It Z"Q3 fi qs~ WALL THICKNESS 75 ;DIAMETER yg ;MATERIAL STEEL E. S. NOTE :CASING MUST HAVE 2' CLEARANCE BETWEEN GREATEST ENCASED gT(ORM RI wc)FFCROSS]. NG AT OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR.DIAMETER OF CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF AVON f7.5it CO CARRIER PIPE AND INSIDE OF CASING PIPE. INEAREST C(TV) (COUNTY) (STATE) F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): X DRY BORE AND JACK (WET BORE NOT PERMITTED) ; TOWN OF AV(ON TUNNEL ;OTHER (ArrLlcAxT) G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES;__N0; RR F [ LE N0. m~~~a~ DATE Z''j'Zoo~ H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND W A R N 1 N G JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK I) APPL 1 CANT HAS CONTACTED I- 800- 336- 9 193, (30' MIN) IN ALL OCCASIONS, LL P. CON"ICATION5 U. P. COMMUNICATION DEPARTMENT, AND HAS DETERMINED FIBER DEPARTMENT LUST DE CONTACTED IN ADVANCE OPTIC CABLE DOES X DOES NOT EXIST IN VICINITY OF of ANY WORK TO DFI BER OP EXISTENCE AND WORK TO BE PERFORMED TICKET NO. TOb21204010 PHONE LOCATION : 1800 OPTIC CABLE ) -I-800-336-9197 ENCASED NON-FLAMMABLE FORM REV. PIPELINE CROSSING www.uprr.com NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO PROCESS THIS APPLICATION. (OR LEGAL SURVEY LINE, WHERE APPLICABLE) C"15T '39OD FT. N 1,766.0 FT.- (SEE NOTE 3 B 5) FORMULA TO FIGURE CASING LENGTH WITH ANGLE OF CROSSING OTHER THAN 90" B d SIN B M(N.DIST. (NOTE 2) PL X 980112 Form Approved, AVP-Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION. MAINTENANCE AND OPERATION (a) The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Vice President-Engineering Services. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the 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 Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF WORK If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. plx.exb Page 1 of4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 5. REINFORCEMENT RELOCATION OR REMOVAL OF PIPELINE (a) The license herein granted is subject to the needs and requirements of the Licensor in the 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 the Pipeline, or move all or any portion of the Pipeline 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 Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor,. and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor 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, all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. -(b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) caused by the negligence of the Licensee, its contractor, agents and/or employees, resulting in (1) any damage to or destruction of any telecommunications system on Licensor's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Licensor's property, except if such costs, liability or expenses are caused solely by the direct active negligence of the licensor. Licensee further agrees that it shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL: TAXES (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the licensor as compared plx.exb Page 2 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law r with the entire value of such property. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attomeys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. (a) As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). (b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to indemnify and hold harmless the Licensor from any Loss which is due to or arises from: The prosecution of any work contemplated by this Agreement including the installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part thereof; or 2. The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee falls to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost. and expense of the Licensee, remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to as good a condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. plx.exb Page 3 of 4 Exhibit B PL X 980112 Form Approved, AVP-Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default in the performance of any covenant. or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. (b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. plx.exb Page 4 of 4 Exhibit B PUWUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law EXHIBIT B-1 Union Pacific Railroad Company Insurance Provisions For Pipeline / Wireline / Drainage License Agreements Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage-Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. Coverage for Licensee's (and Licensor's) employees shall not be excluded Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $2,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: • Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Licensee in states that require participation in state workers' compensation fund, Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of -the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. Page 1 of 2 PUWUDRAINAGE INS. 02/16/01 Form Approved, AVP-Law I Other Requirements E. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of insurance. H. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished. 1. Any insurance policy shall 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(s) in which the service is to be provided. J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's insurance coverage will be primary. •K. The fact that insurance is obtained by Licensee or Licensor on behalf of Licensee shall 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 shall not be limited by the amount of the required insurance coverage. Page 2 of 2 TOWN OF AVON RESOLUTION NO. 03-20 SERIES OF 2003 A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF THE PIPELINE CROSSING AGREEMENT WITH THE UNION PACIFIC RAILROAD COMPANY AS REQUIRED FOR COMPLETION OF THE BUCK CREEK STORMWATER DRAINAGE PROJECT IN THE TOWN OF AVON, COLORADO WHEREAS, the Union Pacific Railroad Company requires a Pipeline Crossing Agreement for the installation of the two proposed 48-inch underground drainage pipelines crossing railroad property; and WHEREAS, the installation of the two proposed 48-inch underground drainage pipelines crossings of railroad property is necessary to complete the Buck Creek Storm Drainage Project. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Pipeline Crossing Agreement between the Town of Avon and the Union Pacific Railroad Company for the installation of two (2) 48- inch Underground Drainage Pipelines Crossing of Railroad Property at Mile Post 308.38 on the Tennessee Pass Subdivision at or near Avon, Eagle County, Colorado is hereby approved and execution is authorized by the Town of Avon, Colorado. ADOPTED THIS D DAY OF MAY, 2003. f 1 ATTEST:, P tty Kenny T wn lerk TOWN COUNCIL TOWN OF AVON, COLORADO Albert D. Reynolds, Mayor 1:\Town Clerk\Council\Resolutions\2003\Resolution No. 03-20 Pipeline Agmnt.Doc