TC Res. No. 2010-17 Approving a supplemental agreement revising the pipeline crossing agreement with union pacific railroad at mile post 308.51, Tennessee pass subdivision for construction of the community heat recovery projectTOWN OF AVON
RESOLUTION NO. 10 -17
Series of 2010
A RESOLUTION APPROVING A SUPPLEMENTAL AGREEMENT REVISING THE
PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD AT MILE
POST 308.51, TENNESSEE PASS SUBDIVISION, FOR CONSTRUCTION OF THE
COMMUNITY HEAT RECOVERY PROJECT
WHEREAS, the Town of Avon adopted Resolution 09 -42, A Resolution Approving the
Pipeline Crossing Agreement with Union Pacific Railroad at Mile Post 308.5 1, Tennessee Pass
Subdivision, for Construction of the Avon Community Heat Recovery Project; and
WHEREAS, Union Pacific Railroad has decided to disallow the Open Cut method of
pipeline installation in favor of the directional boring methodology; and
WHEREAS, the Town of Avon has been provided with the Supplemental Agreement,
attached hereto as Exhibit A; and
WHEREAS, the Supplemental Agreement changes the effective date and the method of
installation for the project; all other provisions from the original Pipeline Crossing Agreement
remain unaffected; and
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Supplemental Agreement as hereto attached as Exhibit A is hereby
approved by the Town of Avon.
ADOPTED THIS 131* = DAY OF
ATTEST:
Fa�tacKenn 3y
T wn lerk
jw , 2010
TOWN COUNCIL
TOWN OF AVON, COLORADO
Ronald C. Wolfe, Mayor
I
J: \CIP\Heat Recovery Project \1.0 Administration\ 1. 5 Permits \1.5.2 UPRR\Res No 10 -17 TOA approval of
supplemental UPRR pipeline crossing agreement 7 -13 -10 mtg.doc
SUPPAGR.DOC 980220
Fonn Approved, AVP -Law
SUPPLEMENTAL AGREEMENT
Folder: 02584 -73
Audit: 253519
THIS SUPPLEMENTAL AGREEMENT is made as of the day of ,
20 , between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the
"Licensor ") and TOWN OF AVON, a Colorado municipal corporation, with a mailing address at Po
Boa 975 , Avon, Colorado 81620 (hereinafter the "Licensee ").
RECITALS:
By instrument dated June 21, 2010, the parties hereto, or their predecessors in interest (if any),
entered into an agreement (herein the "Basic Agreement'), identified as Audit No. 253519, covering 10
inch pipeline crossing and encroachment at or near Avon, County, Colorado.
The parties now desire to modify the Basic Agreement by the following.
AGREEMENT:
NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows:
Article 1. SUBSTITUTION OF INSTALLATION METHOD.
The method of installation for the above mentioned pipeline installation is being changed from
open cut to jack and bore. Boring pits to be placed a minimum of 30 feet from the tracks.
Article 2. EFFECTIVE DATE.
This Supplemental Agreement shall be effective as of June 21, 2010.
Article 3. AGREEMENT SUPPLEMENT.
Nothing in this Supplemental Agreement shall be construed as amending or modifying the Basic
Agreement unless specifically provided herein.
IN WITNESS WHEREOF, the parties have executed this Supplemental Agreement as of the day
and year first written.
UNION PACIFIC RAILROAD COMPANY
By: - -- —
Manager - Contracts
TOWN OF + A ON
By , " 0a_ C it 4,11
Name Printed: d\ Q
Title: /Vtok 'A tic
Memo
To:
Honorable Mayor and Town Council Initials
Thru:
Larry Brooks, Town Manager
Legal Review: Eric Heil, Town Attorney
Approved by: Sally Vecchio, Asst.Town Manager /Dir. of Community Development
From:
Justin Hildreth, P.E., Town Engineer fr
Jeffrey Schneider, P.E., Project Engineer
Date:
July 7, 2010
Re:
Resolution 10 -17, Series of 2010, A Resolution Approving a Supplements
Agreement Revising the Pipeline Crossing Agreement with Union Pacific
Railroad at Mile Post 308.51, Tennessee Pass Subdivision, for Construction of
the Community Heat Recovery Project
Summary: Attached to this memorandum is Resolution 10 -17, Series of 2010, a Resolution
Approving a Supplemental Agreement Revising the Pipeline Crossing Agreement with Union Pacific
Railroad (UPRR) at Mile Post 308.51, Tennessee Pass Subdivision, for Construction of the
Community Heat Recovery Project (Attachment A). The supplemental agreement is a requirement of
UPRR for installation of the heat recovery pipelines across their property. The Supplemental
Agreement modifies the language in the original Pipeline Crossing Agreement to change the
installation methodology from open -cut to directional bore, and changes the effective date. All other
provisions of the original agreement remain in effect. The original agreement is attached as
Attachment B for reference. Staff recommends approval of Resolution 10 -17, Series of 2010.
46 Discussion: Pursuant to the original Pipeline Crossing Agreement, the Town of Avon contacted
UPRR's local track manager, who ultimately has the authority to direct all installations across UPRR
right -of -way in Colorado. The local track manager, with support from the Denver office of UPRR,
refused to allow the Town to install the pipelines in an open cut configuration as contemplated in the
original agreement. This is the preferred method due to the lack of unknowns in excavating beneath
the tracks and was the method on which the project's bid structure is based. In short, the Town is a
victim of poor internal coordination within UPRR's ranks caused by the Omaha office of UPRR
issuing the permit for open cut without local consent.
Town staff investigated reapplying for the open cut permit and, after being told that a new application
would require 46 months to process, that it was a low priority issue, and that the open cut would
likely be disallowed anyway, Staff was directed to pursue a modification to the original Agreement
with a Supplemental Agreement. This is the most expeditious way to accomplish the utility
installation across the UPRR right -of -way and complete the project within schedule.
Financial Implications: The execution of the Supplemental Agreement has significant financial
implications to the Town since the change in installation methodology impacts the construction
budget. The change in installation methodology had an approximate $108,000 increase to the project
budget. Change Order 01 for the Community Heat Recovery Project, also on this meeting's agenda,
contains the details of the financial implications.
Recommendation: Staff recommends approval of Resolution 10 -17, Series of 2010, a Resolution
Approving a Supplemental Agreement Revising the Pipeline Crossing Agreement with Union Pacific
Railroad (UPRR) at Mile Post 308.51, Tennessee Pass Subdivision, for Construction of the
04 Community Heat Recovery Project.
Proposed Motion: I move to approve Resolution 10 -17, Series of 2010, a Resolution Approving a
Supplemental Agreement Revising the Pipeline Crossing Agreement with Union Pacific Railroad
(UPRR) at Mile Post 308.51, Tennessee Pass Subdivision, for Construction of the Community Heat
Recovery Project.
Town Manager Comments:
Attachments:
Attachment A: Resolution 10 -17, Series of 2010, a Resolution Approving a Supplemental Agreement
Revising the Pipeline Crossing Agreement with Union Pacific Railroad (UPRR) at Mile Post 308.51,
Tennessee Pass Subdivision, for Construction of the Community Heat Recovery Project
Exhibit A to Resolution 10 -17: Supplemental Crossing Agreement
Attachment 8: Original Pipeline Crossing Agreement
• Page 2
ATTACHMENT A
TOWN OF AVON
RESOLUTION NO. 10 -17
Series of 2010
A RESOLUTION APPROVING A SUPPLEMENTAL AGREEMENT REVISING THE
PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD AT MILE
POST 308.51, TENNESSEE PASS SUBDIVISION, FOR CONSTRUCTION OF THE
COMMUNITY HEAT RECOVERY PROJECT
WHEREAS, the Town of Avon adopted Resolution 09 -42, A Resolution Approving the
Pipeline Crossing Agreement with Union Pacific Railroad at Mile Post 308.51, Tennessee Pass
Subdivision, for Construction of the Avon Community Heat Recovery Project; and
WHEREAS, Union Pacific Railroad has decided to disallow the Open Cut method of
pipeline installation in favor of the directional boring methodology; and
WHEREAS, the Town of Avon has been provided with the Supplemental Agreement,
attached hereto as Exhibit A; and
WHEREAS, the Supplemental Agreement changes the effective date and the method of
installation for the project; all other provisions from the original Pipeline Crossing Agreement
remain unaffected; and
is NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Supplemental Agreement as hereto attached as Exhibit A is hereby
approved by the Town of Avon.
ADOPTED THIS DAY OF , 2010
TOWN COUNCIL
TOWN OF AVON, COLORADO
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny
04 Town Clerk
J: \CIP\Heat Recovery Project \1.0 Administration \1.5 Permits \1.5.2 UPRR \Res No 10 -17 TOA approval of
supplemental UPRR pipeline crossing agreement 7 -13 -10 mtg.doc
SUPPAGR.DOC 980220
Fonn Approved, AVP -Law
SUPPLEMENTAL AGREEMENT
EXHIBIT A
Folder: 02584 -73
Audit: 253519
THIS SUPPLEMENTAL AGREEMENT is made as of the day of ,
20_, between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the
"Licensor ") and TOWN OF AVON, a Colorado municipal corporation, with a mailing address at Po
Box 975 , Avon, Colorado 81620 (hereinafter the "Licensee').
RECITALS:
By instrument dated June 21, 2010, the parties hereto, or their predecessors in interest (if any),
entered into an agreement (herein the "Basic Agreement "), identified as Audit No. 253519, covering 10
inch pipeline crossing and encroachment at or near Avon, County, Colorado.
The parties now desire to modify the Basic Agreement by the following.
AGREEMENT:
NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows:
Article 1. SUBSTITUTION OF INSTALLATION METHOD
The method of installation for the above mentioned pipeline installation is being changed from
open cut to jack and bore. Boring pits to be placed a minimum of 30 feet from the tracks.
Article 2. EFFECTIVE DATE.
This Supplemental Agreement shall be effective as of June 21, 2010.
Article 3. AGREEMENT SUPPLEMENT.
Nothing in this Supplemental Agreement shall be construed as amending or modifying the Basic
Agreement unless specifically provided herein.
IN WITNESS WHEREOF, the parties have executed this Supplemental Agreement as of the day
and year first written.
UNION PACIFIC RAILROAD COMPANY TOWN OF AVON
IN
Manager - Contracts
Name Printed:
Title:
•
f
Pipeline Crossing 080808
Form Approved, AVP -Law
ATTACHMENT B
PIPELINE CROSSING
AGREEMENT
Mile Post: 308.5 1, Tennessee Pass Subdivision/Branch
Location: Avon, Eagle County, Colorado
Folder No. 02584 -73
THIS AGREEMENT ( "Agreement ") is made and entered into as of November 04, 2009,
( "Effective Date ") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware
corporation, ( "Licensor ") and TOWN OF AVON, a Colorado municipal corporation to be addressed at
Po Box 975, Avon, Colorado 81620 ( "Licensee ").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICENSOR GRANTS RIGHT
In consideration of the license fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and performed, the
Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to
maintain and operate
two 10 inch pipeline for transporting and conveying water only and one electrical and one data pipeline
across Licensor's track(s) and property (the "Pipeline ") in the location shown and in conformity with the
dimensions and specifications indicated on the print dated November 03, 2009 and marked Exhibit A,
attached hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of
the Pipeline for a purpose other than transporting and conveying water, electrical and date, and the
Pipeline shall not be used to convey any other substance, any fiber optic cable, or 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 2. LICENSE FEE.
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one -time License Fee
of Nine Thousand Eight Hundred Twenty Dollars ($9,820.00).
Article 3. OPEN CUT.
A. Administrative Handling Charge.
Upon the execution and delivery of this Agreement, the Licensee shall pay to the Licensor a fee
of Three Thousand DOLLARS ($3,000.00) for the convenience of utilizing 'open cut' method of
construction and for the impact or disruption this method of construction causes the Licensor in
scheduling work crews to accommodate the construction.
B. Licensee to Bear All Expenses Relating to Licensor Temporarily Removing
Trackage; Licensee to be Liable for Delay; Estimated Costs.
(1) The Licensee will utilize the `open cut' method of constructing and/or installing
the Pipeline on the Premises, which will require the Licensor, at Licensee's sole expense, to temporarily
remove and take out of service that portion of trackage designated on Exhibit A and relay such trackage
upon completion of Licensee's work.
C. Deferred Construction.
The Licensor and Licensee acknowledge that conditions inherent in the 'open cut' method of
constructing and/or installing the Pipeline may cause the complete stabilization of Licensor's trackage
supported by new cuts or fills to be deferred beyond the construction period, and that Licensor's operation
over the roadbed during the seasoning period will impose extraordinary maintenance costs in the event of
caving, sliding, slipping, sinking or settling, including damage to rip- rapping or protective work in
connection therewith, as well as settlement and consolidation of tracks and ballast, until the seasoning
period is complete. Therefore, the Licensee will pay to the Licensor, as a part of the consideration for this
Agreement, all that part of the cost and expense of extraordinary maintenance (hereinafter referred to as
'Deferred Construction') associated with the 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 Facility by the
Licensee or its contractor and ending five years thereafter. The Deferred Construction costs aforesaid
shall include reimbursement of the extra cost, in excess of normal maintenance costs, of maintaining
embankments and that portion of said tracks above subgrade in accordance with acceptable maintenance
standards, and will include cost of maintaining proper alignment, proper surface and use of ballast and
other necessary materials.
Article 4. CONSTRUCTION MAINTENANCE AND OPERATION. as
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, attached hereto and hereby made
a part hereof.
Article 5. DEFINITION OF LICENSEE
For purposes of this Agreement, all references in this Agreement to the Licensee shall include the
Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their
authority. If a contractor is hired by the Licensee for any work performed on the Pipeline (including
initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall
provide a copy of this Agreement 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 Licensee for the purpose of this Agreement, and Licensee shall require such
contractor or subcontractor to release, defend and indemnify Licensor to the same extent and under the
same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein.
Article 6. INSURANCE.
A. Before commencement of the term of this Agreement and prior to any Pipeline
construction, the Licensee or Licensee's contractor shall obtain the required Railroad Protective
Liability insurance at its sole expense, as specified in Section E on Exhibit C attached hereto and
hereby made a part hereof. The Licensee, at its sole expense, shall also provide to the Licensor the other
insurance binders, certificates and endorsements described in Exhibit C, and also require that its
r
•
No
contractor or subcontractor maintain the insurance coverages as set forth in Exhibit C, naming Licensor
as and additional insured.
B. Not more frequently than once every two years, Licensor may reasonably modify the required
insurance coverage to reflect then - current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
C. All insurance correspondence, binders, certificates and endorsements shall be directed to:
Union Pacific Railroad Company
Real Estate Department — Folder No. 02584 -73
1400 Douglas Street STOP 1690
Omaha, NE 68179 -1690
D. Failure to provide evidence as required by this section shall entitle, but not require, Licensor
to terminate this License immediately. Acceptance of a certificate that does not comply with this Article
shall not operate as a waiver of Licensee's obligations hereunder.
E. If the Licensee is a public entity subject to any applicable statutory tort laws, the limits of
insurance described in Exhibit C shall be the limits the Licensee then has in effect or which is required
by applicable current or subsequent law, whichever is greater, a portion of which may be self - insured with
the consent and approval of Licensor.
F. The fact that insurance (including without limitation, self - insurance) is obtained by Licensee
or its contractor /subcontractor shall not be deemed to release or diminish the liability of Licensee
including, without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance coverage.
Article 7. TERM.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in
full force and effect until terminated as herein provided.
Article 8. SPECIAL PROVISIONS.
The Licensee must get approval from the Manager of Track Maintenance for the open cut method
of installation. The Manager of Track has total discretion on the method of installation..
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY
B n `mac
Y•
FS , Dir t �_contracts
TO ^ -- -
By:
Nary
Title
PLACE ARROW INDICATING NORTH
DIRECTION RELATIVE TO CROSSING
(
Qa;
3�V4,
� s
2 \�?5eo~
a
it
I
I
o y
?
P
� www.uprr.co
ENCASED NON—FLAMMABLE
PIPELINE CROSSING
NO SCALE
_FT, .
( /
FT. )
SEAL CASING
O
__. 2L� 3 FT. ....
-. .. + FT.
.. ( .. "1 FT.
9° ) M krrLd P N .
n
_� - - -I. T ✓
FT. .I ...
/ 115 T.
1� FT. (I )
)CASING PIPET(
F T.
GROUND
SURFACE
SUBGRAOE
I
1I FT.
.,;\) SEAL BASING
I '�I•UFT. .� �.. ._.. Z� FT,
I
ivo FT.
.. OO F T. ..
NOTES ( - ;- ) ._ _._ .. .•
11 ALL HORIZONTAL DISTANCES 10 BE MEASURED AT RIGHT ANGLES FROM Q OF TRACK.
21 CASING TO EXTEND BEYOND THE F OF TRACK AT RIGHT ANGLES THE GREATER OF 20 • 20 FT., OR 30 FT.,
ANO BErONO 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 BRIDGE, R. OF ANY CULVERT, OR FROM ANY SWITCHING AREA.
41 SIGNAL REP RE 5CMTATIVE MUST BE PRESENT DURING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSING.
SI ALLOWABLE FIxEO OBJECTS INCLUDE: BACKWALLS OF BRIDGES; 9. OF ROAD CROSSINGS B OVERHEAD VIADUCTS (GIVE ROAD NAMEI, OR CULVERTS.
61 CASING AND CARRIER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION
5 FEET OF THE EXISTING FIBER OPTIC CABLE MUST BE HAND DUG. REOUI RED WITHIN
A) 15 PIPELINE CROSSING WITHIN DEDICATED STREET ? YE
FT.
STEEL CASING WALL
THICKNESS CHART
MINIMUM DIAMETER OF
THICKNESS CASING PIPE
.2500" 1/4" 12" OR LESS
3125" 5/16" OVER 12 " -18"
.3750" 3/8" OVER 1B" -22'
4375" 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 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^
t+
�0
4
\,ti
(NOTE 2)
ra.a
8) IF YES, NAME OF STREET S, N0, EXHIBIT „A„
D) DISTRIBUTION LINE OR TRANSMISSION LINE
C) CARRIER PIPE :
COMMODITY TO BE CONVEYEDWeF2. 4'_LCC -4g L�
UNION PACIFIC RAILROAD CO.
OPERATING PRESSURE PSI 2- 1D''��
/ � 3 8
WALL THICKNESS A DIAMETER] -S" ;MATERIAL
HD � r
E1 CASING THICKNESS 0.675- 42 11
} MA P '�O�c•SI
E. S. 2,l-titt
;DIAMETER ;MATERIAL S'Y��
NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATEST
OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR
ENCASED (� CROSSING AT
DIAMETER OF
CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF
__p�a(��a
Iq yo y% E4 (t
CARRIER PIPE AND INSIDE OF CASING PIPE.
_
F) METHOD Of/'INSTALLING CASING PIPE UNDER TRACK(S):
DRY
C:t�
BORE AND JACK (WET BORE NOT PERMITTED) ;
•T �QJIw
TUNNEL ; OTHER OPF crr pa's, b
S) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR?
RR FILE N0.2s6'�'T3 M3 -e�
T E
DATE
YES; N0;
i) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF ry0
JACKING PITS WHEN MEASURED AT RIGHT �j1'
W A R
ANGLES TO TRACKB .
1 ) APPLICANT HAS CONTACTED 1-,800-336-9193, ( 1. 1
U. P.
N I N G
IN ALL OCCASIONS, U. P. COUµp ICATIONS
COMMUNICATION DEPAF}fMENT, AND HAS DETERMINED FIBER
OPTIC CABLE DOES VVDOES
DEPARTMENT MUST BE CONTACTED IN ADVANCE
OF
,_ Nl7T ; E)IIjT IN VICINITY OF
ANY WOPot TO DETERMINE EXISTENCE AND
WORK TO BE PERFORMED . TICKET NO.
LOCATION of FIBER OPTIC CABLE.
PHONE I- aoo-336 -91R3
Pipeline Crossing 07/20 /08
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 designed, constructed, operated, maintained, repaired, renewed, modified
and/or reconstructed by the Licensee in strict conformity with (i) Licensor's current standards and
specifications ( "UP Specifications "), except for variances approved in advance in writing by the
Licensor's Assistant Vice President Engineering — Design, or his authorized representative; (ii)
such other additional safety standards as the Licensor, in its sole discretion, elects to require,
including, without limitation, American Railway Engineering and Maintenance -of -Way
Association ( "ARENA") 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 the Licensor in connection with the design, 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 design, construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline
from Licensor's property, 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 Licensor's Assistant Vice President Engineering Design, or his authorized
representative, and then the work shall be done to the satisfaction of the Licensor's Assistant Vice
President Engineering Design 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
i 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
therefore, all expenses incurred by the Licensor in connection therewith, which expenses 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.
E. In the prosecution of any work covered by this Agreement, Licensee shall secure any and all
necessary permits and shall comply with all applicable federal, state and local laws, regulations
and enactments affecting the work including, without limitation, all applicable Federal Railroad
Administration regulations.
Section 3. NOTICE OF COMMENCEMENT OF WORK / LICENSOR REPRESENTATIVE
/ SUPERVISION / FLAGGING / SAFETY.
A. 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. The
Licensee will coordinate its initial, and any subsequent work with the following employee of
Licensor or his or her duly authorized representative (hereinafter "Licensor Representative" or
Railroad Representative "):
Robert Gutierrez - MTM
Union Pacific Railroad Company
2790 D Road, RM 2790 D Road
Grand Jct, CO 81501
970.248.4244 Cell 970.778.1507
Stephen Thompson - MSM
Union Pacific Railroad Company
2790 D Road
Grand Jct, CO 81501
970.248.4237 Cell: 970.261.0761
B. Licensee, at its own expense, shall adequately police and supervise all work to be performed. The
responsibility of Licensee for safe conduct and adequate policing and supervision of work shall
not be lessened or otherwise affected by Licensor's approval of plans and specifications involving
the work, or by Licensor's collaboration in performance of any work, or by the presence at the
work site of a Licensor Representative, or by compliance by Licensee with any requests or
recommendations made by the Licensor Representative.
C. At the request of Licensor, Licensee shall remove from Licensor's property any employee who
fails to conform to the instructions of the Licensor Representative in connection with the work on
Licensor's property. Licensee shall indemnify Licensor against any claims arising from the
removal of any such employee from Licensor's property.
D. Licensee shall notify the Licensor 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 Licensor's track(s) at any time, for any reason, unless and until a railroad flagman is
provided to watch for trains. Upon receipt of such ten (10) day notice, the Licensor
Representative will determine and inform Licensor 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 Licensor, Licensor will bill Licensee for
such expenses incurred by Licensor, unless Licensor and a federal, state or local governmental
entity have agreed that Licensor is to bill such expenses to the federal, state or local governmental
entity. If Licensor will be sending the bills to Licensee, Licensee shall pay such bills within thirty
(30) days of receipt of billing. If Licensor performs any flagging, or other special protective or
safety measures are performed by Licensor, Licensee agrees that Licensee 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 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 Licensor 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, Licensee (or the governmental entity, as applicable) shall pay on
the basis of the new rates and charges.
F. Reimbursement to Licensor 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 Licensor is required to pay the flagman and which could not reasonably be
avoided by Licensor by assignment of such flagman to other work, even though Licensee may not
be working during such time. When it becomes necessary for Licensor to bulletin and assign an
employee to a flagging position in compliance with union collective bargaining agreements,
Licensee must provide Licensor 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, Licensee 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 Licensor if flagging services are needed again after such five day
cessation notice has been given to Licensor.
G. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work performed by Licensee or its contractor. Licensee shall be responsible
for initiating, maintaining and supervising all safety, operations and programs in connection with
the work. Licensee and its contractor shall at a minimum comply with Licensor's safety standards
listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by
Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee shall notify
Licensor if' it determines that any of Licensor's safety standards are contrary to good safety
V4 practices. Licensee and its contractor shall furnish copies of Exhibit D to each of its employees
before they enter the job site.
H. Without limitation of the provisions of paragraph G above, Licensee 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. is
Licensee shall have proper first aid supplies available on the job site so that prompt first aid
services may be provided to any person injured on the job site. Prompt notification shall be given
to Licensor of any U.S. Occupational Safety and Health Administration reportable injuries.
Licensee shall have a non - delegable duty to control its employees while they are on the job site
or any other property of Licensor, 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 Licensor, Licensee shall deliver to Licensor a copy of its safety plan for
conducting the work (the "Safety Plan "). Licensor shall have the right, but not the obligation, to
require Licensee to correct any deficiencies in the Safety Plan. The terms of this Agreement shall
control if there are any inconsistencies between this Agreement and the Safety Plan.
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee 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 Pipeline, including any and all expense which may be incurred by the Licensor in
connection therewith for supervision, inspection, flagging, or otherwise.
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 safe and
efficient operation of its railroad and in the improvement and use of its property. The Licensee
shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move all
or any portion of the Pipeline to such new location, or remove the Pipeline from the Licensor's
property, as the Licensor may designate, whenever, in the furtherance of its needs and
requirements, the Licensor, at its sole election, finds 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.
A. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor
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 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.
B. Explosives or other highly flammable substances shall not be stored on Licensor's property
without the prior written approval of Licensor.
C. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Licensor's trackage shall be installed or used by Licensor or its contractors without the prior
written permission of Licensor.
D. When not in use, any machinery and materials of Licensor or its contractors shall be kept at least
fifty (50) feet from the centerline of Licensor's nearest track.
E. Operations of Licensor and work performed by Licensor's personnel may cause delays in the
work to be performed by Licensee. Licensee accepts this risk and agrees that Licensor shall have
no liability to Licensee or any other person or entity for any such delays. Licensee shall
coordinate its activities with those of Licensor and third parties so as to avoid interference with
railroad operations. The safe operation of Licensor's train movements and other activities by
Licensor take precedence over any work to be performed by Licensee.
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
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 the Licensoes 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 Licensor's property 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, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE,
INDEMNIFY, DEFEND 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 with the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the event the Licensee in any manner moves or disturbs any of the 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 property to the same condition as the same were before such 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 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
PERMISSION HEREIN GRANTED, TO
LAW, THE LICENSEE SHALL, AND
RELEASE, INDEMNIFY, DEFEND AND
CONSIDERATION OF THE LICENSE AND
THE FULLEST EXTENT PERMITTED BY
SHALL CAUSE ITS CONTRACTOR TO,
HOLD HARMLESS THE LICENSOR FROM
•
ANY LOSS WHICH IS DUE TO OR ARISES FROM:
1. 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;
2. ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE;
3. THE PRESENCE, OPERATION, OR USE OF THE PIPELINE OR CONTENTS
ESCAPING THEREFROM;
4. THE ENVIRONMENTAL STATUS OF THE PROPERTY CAUSED BY OR
CONTRIBUTED TO BY LICENSEE;
5. ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS,
INVITEES, EMPLOYEES, OR CONTRACTORS OR ANYONE DIRECTLY OR
INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR
EXERCISE CONTROL OVER; OR
6. LICENSEE'S BREACH OF THIS AGREEMENT, EXCEPT WHERE THE LOSS IS
CAUSED BY THE SOLE DIRECT AND ACTIVE NEGLIGENCE OF THE LICENSOR,
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, LICENSOR'S NEGLIGENCE.
C. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit of
proceeding brought against any indemnitee by any entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and /or save and hold
harmless any indemnitee. Licensee 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 PIPELINE 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, but is not obligated, to perform such work of
removal and restoration at the cost and expense of the Licensee. 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.
14
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.
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.
Section 16. SEVERABILITY.
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.
801
Pipeline Crossing 07/20/08
Form Approved, AVP -Law
EXHIBIT C
Union Pacific Railroad Company
Insurance Exhibit
PART 1: GENERAL INSTRUCTIONS AND REQUIREMENTS:
Prior to execution of this License, licensee shall furnish Railroad with a certificate(s) of insurance,
executed by a duly authorized representative of each insurer, showing compliance with all insurance
required by this License.
All certificates of insurance and correspondence shall be addressed and sent to:
Union Pacific Railroad Company
Real Estate Department — Folder No.: 02584 -73
1400 Douglas St., STOP 1690
Omaha, NE 68179 -1690
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.
All policies required by this License shall provide coverage for punitive damages unless (a) insurance
coverage may not lawfully be obtained for any punitive damages that may arise under this License, or
(d) all punitive damages are prohibited by all states in which this License will be performed.
The fact that insurance is obtained by Licensee will not be deemed to release or diminish the liability of
Licensee, including, without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Railroad from Licensee or any third party will not be limited by the amount of the
required insurance coverage.
PART 2: SPECIFIC INSURANCE LIMITS AND REQUIREMENTS
Licensee shall, at its sole cost and expense, procure and maintain during the life of this License (except
as otherwise provided in this License) the following insurance coverage:
A. Commercial General Liability Insurance written on ISO Occurrence form CG 00 01 12 04 (or a
substitute form providing equivalent coverage) with limits of not less than:
• $2,000,000 Each Occurrence
• $4,000,000 Aggregate
This policy must also contain the following endorsements (which must be stated on the
certificate of insurance):
Is
• Additional Insured Endorsement ISO Form CG 20 26 (or a substitute form providing equivalent
coverage).
The coverage provided to Railroad as additional insured shall, to the extent provided under ISO is
Additional Insured Endorsement Form CG 20 26, provide coverage for Railroad's negligence
whether sole or partial, active or passive, and shall not be limited by Licensee's liability under
the indemnity provisions of this License.
• Contractual Liability - Railroads ISO Form 2417 10 01 (or a substitute form providing equivalent
coverage) showing "Union Pacific Railroad Company Property" covered by this License as the
"Designated Job Site ".
B. Business Automobile Liability Insurance written on ISO Form CA 00 01 10 01 (or a substitute
form providing equivalent coverage) with a limit of:
• $2,000,000 each accident.
This policy must contain the following endorsements (which must be stated on the Certificate of
Insurance):
• Designated Insured ISO Form CA 20 48 02 99 (or a substitute form providing equivalent
coverage).
• Coverage for Certain Operations in Connection with Railroads ISO Form CA 20 70 10 01
showing "Union Pacific Railroad Property" covered by this License as the "Designated Job Site ".
• Motor Carriers Act Endorsement OMB Form MCS -90 (if required by law).
C. Workers Compensation Insurance. Coverage must include but not be limited to:
• Licensee's statutory liability under the workers' compensation laws of the state(s) affected by
this License. Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 disease policy limit $500,000 each employee.
• If Licensee is self- insured, evidence of state approval and excess workers compensation
coverage must be provided.
• Licensee shall waive 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 obtained by Licensee required in this
License. This waiver must be stated on the certificate of insurance.
D. Umbrella or excess liability Insurance. If Licensee utilizes umbrella or excess policies to meet
limit requirements, these policies must "follow form" and afford no less coverage than the primary
policy. If utilized, Licensee shall waive 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 Umbrella or Excess Liability obtained by Licensee required in this License. This waiver must
be stated on the certificate of insurance.
E. Railroad Protective Liability Insurance. At all times during construction, installation, repair or
removal of a pipeline or wire line Licensee or its Contractor must obtain and maintain Railroad
Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form
6 1
providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than
is $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must
be submitted to Railroad before the work may be commenced and until the original policy is forwarded
to Railroad.
1s
Pipeline Crossing 07/20/08
Form Approved, AVP -Law
EXHIBIT D
SAFETY STANDARDS
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of Licensee or its contractors, subcontractors,
or agents, as well as any subcontractor or agent of any Licensee.
I. Clothing
A. All employees of Licensee 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, Licensee'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
Licensee shall require its employee to wear personal protective equipment as specified by
Railroad rules, regulations, or recommended or requested by the Railroad Representative.
(i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision.
Hard hats should be affixed with Licensee's company logo or name.
(ii) Eye protection that meets American National Standard (ANSI) for occupational and
educational eye and face protection, Z87.1 — latest revision. Additional eye protection
must be provided to meet specific job situations such as welding, grinding, etc.
(iii) Hearing protection, which affords enough attenuation to give protection from noise levels
that will be occurring on the job site. Hearing protection, in the form of plugs or muffs,
must be worn when employees are within:
100 feet of a locomotive or roadway /work equipment
15 feet of power operated tools
150 feet of jet blowers or pile drivers
6 1
• 150 feet of retarders in use (when within 10 feet, employees must wear dual ear
protection — plugs and muffs)
(iv) Other types of personal protective equipment, such as respirators, fall protection
equipment, and face shields, must be worn as recommended or requested by the Railroad
Representative.
III. On Track Safety
Licensee is responsible for compliance with the Federal Railroad Administration's Roadway
Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules.
Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their
employees on such regulations. In addition to the instructions contained in Roadway Worker
Protection regulations, all employees must:
(i) Maintain a minimum distance of at least twenty-five (25) feet to any track unless the
Railroad Representative is present to authorize movements.
Wear an orange, reflectorized work wear approved by the Railroad Representative.
Participate in a job briefing that will specify the type of On -Track Safety for the type of
work being performed. Licensee must take special note of limits of track authority, which
tracks may or may not be fouled, and clearing the track. Licensee 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 Licensee to ensure that all equipment is in a safe condition to
operate. If, in the opinion of the Railroad Representative, any of Licensee's equipment is
unsafe for use, Licensee shall remove such equipment from Railroad's property. In
addition, Licensee must ensure that the operators of all equipment are properly trained
and competent in the safe operation of the equipment. In addition, operators must be:
Familiar and comply with Railroad's rules on lockout/tagout of equipment.
Trained in and comply with the applicable operating rules if operating any by -rail
equipment on- track.
Trained in and comply with the applicable air brake rules if operating any
equipment that moves rail cars or any other 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 the Railroad Representative, all equipment must be
parked a minimum of twenty-five (25) feet from any track. Before leaving any
equipment unattended, the operator must stop the engine and properly secure the
equipment against movement.
D. Cranes must be equipped with three orange cones that will be used to mark the working
area of the crane and the minimum clearances to overhead powerlines.
U
V. General Safety Requirements
A. Licensee shall ensure that all waste is properly disposed of in accordance with applicable
federal and state regulations.
B. Licensee shall ensure that all employees participate in and comply with a job briefing
conducted by the Railroad Representative, if applicable. During this briefing, the
Railroad Representative will specify safe work procedures, (including On -Track Safety)
and the potential hazards of the job. If any employee has any questions or concerns about
the work, the employee must voice them during the job briefing. Additional job briefings
will be conducted during the work as conditions, work procedures, or personnel change.
C. All track work performed by Licensee 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.
Do not step or walk on the top of the rail, frog, switches, guard rails, or other
track components.
In passing around the ends of standing cars, engines, roadway machines or work
equipment, leave at least 20 feet between yourself and the end of the equipment.
Do not go between pieces of equipment of the opening is less than one car length
(50 feet).
(iv) Avoid walking or standing on a track unless so authorized by the employee in
charge.
(v) Before stepping over or crossing tracks, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the
performance of your duties and only when track and equipment have been
protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace
safety.
sI