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HomeMy WebLinkAbout94-054 - Union Pacific Railroad - Pipeline Crossing AgreementROE 880702 81—,31.ROE Form Approved, AVP -Law Revised 9/26/94 RIGHT OF ENTRY AGREEMENT • T„ THIS AGREEMENT is made and entered into as of the 26 th day of September, 1994, by and between UNION PACIFIC RAILROAD COMPANY, a Utah corporation (hereinafter the "Railroad"); and CITY OF TUKWILA, WASHINGTON, a Washington municipal corporation, of 6300 Southcenter Boulevard - Ste. 100, Tukwila, WA 98188; atten: Mr. Robin Tischmak - Assoc. Engr.; tel: (206) 433-0179; fax: (206) 431-3665 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: I. 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. II. RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the Licensee the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the portion of Railroad's property in the vicinity of Mile Post 176.31 - Seattle Sub., at or near Tukwila, King County, Washington, 'as shown on the attached print dated July 11, 1994, marked Exhibit "B", for the purpose of temporary use of the Railroad's property as a work site for cleaning and painting the steel girders and rails of the Boeing Access Road overhead Bridge. The right herein granted to Licensee is limited to those portions of the Railroad's property specifically described herein, or designated by the Railroad representative named in Article 4. III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS A AND A-1. The terms and conditions contained in Exhibits A and A-1, hereto attached, are hereby made a part of this agreement. IV. ALL EXPENSES TO BE BORNE BY LICENSEE; RAILROAD REPRESENTATIVE. The Licensee shall bear any and all costs and expenses associated with any work performed by the Licensee, or any costs or expenses incurred by the Railroad relating to this agreement. All work performed by Licensee on Railroad's property shall be performed in a manner satisfactory to the representative local Manager of Track Maintenance of the Railroad or his authorized representative (hereinafter the Railroad Representative): Mgr. Trk. Mtnce. O. R. Oneida c/o Union Pacific Railroad Company 402 South Dawson Street Seattle, WA 98108 tel: (206) 764-1467; (206) 764-1516. Articles of Agreement Page 1 0702n V TERM; TERMINATION A The grant of right herein made to Licensee shall commence on 9/26/94, and continue until 11/30/94, unless sooner terminated as herein provided, or at such time as Licensee has completed its work on Railroad s property, whichever is earlier Licensee agrees to notify the Railroad Representative in writing when it has completed its work on Railroad property B This agreement may be terminated by either party on ten (10) days written notice to the other party VI CERTIFICATE OF INSURANCE A Before commencing any work, the Licensee will provide the Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 of this agreement in a policy which contains the following type of endorsement Union Pacific Railroad Company is named as additional insured with respect to all liabilities arising out of Insured's, as Licensee, performance of any work on the property of the Railroad " B Licensee warrants that this agreement has been thoroughly reviewed by its insurance agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and an endorsement as required herein C All insurance correspondence shall be directed to Union Pacific Railroad Company, Director (atten J M Martin - File # 811631 ROE), Room 1100, 1416 Dodge Street, Omaha, Nebraska 68179 VII PROTECTION OF FIBER OPTIC CABLE SYSTEMS Fiber optic cable systems may be buried on 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 Prior to beginning any work, the Licensee shall telephone the Railroad at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the property set forth herein If it is, the Licensee shall also comply with and be subject to the provisions contained in Section 6 of Exhibit A VIII ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM This agreement shall be governed, construed, and enforced in accordance with the laws of the state of Washington Litigation arising out of or connected with this agreement may be instituted and maintained in the courts of the state of Washington only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts Articles of Agreement Page 2 0702n IX SPECIAL PROVISIONS RAILROAD FLAGMAN REOUIRED; FLAGGING CHARGES : 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 25 feet of any of Railroad s track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains, pursuant to the terms of the attached Exhibit "A" All expenses connected with the furnishing of said flagman shall be at the sole cost and expense of the Licensee, who shall promptly pay to Railroad all charges connected therewith, within 30 days after presentation of a bill therefore The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed The current hourly rate of pay for Assistant Track Foreman is $14 40 (January 1992) In addition to the cost of such labor, a composite charge of 127 81 % for vacation, holiday, health & welfare, supplemental sickness, Railroad Retirement & UC, supplemental pension, Empl Liability & Property Damage and Administration will be included, computed on actual payroll One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; 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 the Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized Governmental Agency Additional charges on labor are also subject to change If the wage rate or additional charges are changed, the Licensee shall pay on the basis of the new rates and charges Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished, unless he 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 work Reimbursement will also be required for any day not actually worked by said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by. the Railroad Company by assignment of such flagman to other work, even though the Licensee may not be working during such time Arrangements for flagging are to be made at least seventy-two (72) hours in advance of commencing work, with the Railroad Manager of Track Maintenance His name and phone number are to be obtained by contacting the Railroad Representative Mgr Trk Mtnce 0 R Oneida c/o Union Pacific Railroad Company 402 South Dawson Street Seattle, WA 98108 tel (206) 764-1467; (206) 764-1516 LICENSEE SHALL PAY FEE TO RAILROAD : Articles of Agreement Page 3 0702n Licensee shall pay, and Railroad shall accept, upon the execution and return of this instrument, the nonrefundable sum of $1,200 00 (ONE THOUSAND AND TWO HUNDRED DOLLARS) to cover Railroad's cost to prepare and administrate this agreement Flagging charges are not included in this $1,200 00 sum, and will be billed separately at a later date IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate as of the date first herein written UNION PACIFIC RAILROAD COMPANY By Title Director - Contracts CITY OF TUKWILA, WASHINGTON Titles+0 n 7' 'an s, 'ayor (Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a copy of which shall be attached to the Railroad s original counterpart of this document ) Articles of Agreement Page 4 0702n Attest /J , e Cantu, City Clerk Approved As To Form City Attorney CONTRACTOR'S ENDORSEMENT - FILE # 811631 ROE A As a condition to entering upon Licensor's right-of-way to perform work pursuant to this Agreement, Licensee's contractor of (hereinafter Contractor") agrees to comply with all the terms and provisions of this Agreement relating to the work to be performed and the insurance requirements set forth in Exhibit A-1 B Before the Contractor commences any work, the Contractor will provide the Licensor with a certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 in a policy which contains the following type endorsement UNION PACIFIC RAILROAD COMPANY is named as an additional insureds with respect to all liabilities arising out of Insured's performance of work on behalf of the Licensee C All insurance correspondence shall be directed to J M Martin, (File # 811631 ROE), Room 1100, Union Pacific Railroad Company, 1416 Dodge Street, Omaha, Nebraska 68179 Witness (print contractor s name) X X By Articles of Agreement Page 5 0702n EXHIBIT A Cr t , on 1 NOTICE Of CCl'MENCEMENT OF WORK - FLAGGING The licensee agrees to notify the Railroad Representative at least 48 hours in advance of licensee commencing its work and at least 24 hours in advance of proposed performance of any work by the Licensee in which ani person or equipment will be within 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 25 feet of any track Upon receipt of suc notice, the Railroad Representative will determine and inform the licensee whether a flagman need be present and whether the Licensee need implement any special protective or safety measures If any flagmen or other special protective or safety measures are perforeed by the Railroad, such services will be provided at Licensee s expense wit the understanding that if the Railroad provides anyflagging or other services the licensee shall not be relieved of any of its responsibilities or liabilities set forh herein Section 2 LIMITATION AND SUBORDINATION OF RIGHTS GRANTED (a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation o the Railroad to use and maintain its entire property including the right and power of the Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Railroad without liability to the Licensee or to any other party for compensation or damages (b) The foregoing grant is also subject to alt outstanding superior rights (including those in favor of licensees and lessees of the Railroad s property, and others) and the right of the Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment Section 3 NO INTERFERENCE WITH RAILROAD S OPERATION No work performed by licensee shall cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railroad its lessees, licensees or others, unless specifically permitted under this agreement, or specifically authorized in advance by the Railroad Representative Nothing hall be done or suffered to be done by the licensee at any time that would in any manner impair the safety thereof When not in use, Licensee s machinery and materials shalt be kept at least 50 feet frau the centerline of Railroad s nearest track, and there shatl be no crossings of Railroad s tracks except at existing open public crossings Section 4 PERMITS Prior to beginning any work, the Licensee, at its sole expense, shall obtain all necessary permits to perform any work contemplated by this agreement Section 5 MECHANIC S LIENS The Licensee shall pay in full all persons who perform labor or provide materials for the work to be performed by licensee The Licensee shall not permit or suffer any mechanic s or materialmen s liens of any kind or nature to be enforced against any property of the Railroad for any such work performed The licensee shall indemnify and hold harmless the Railroad frau and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished Section 6 FIBER OPT1C CABLE SYSTEMS If fiber optic cable is buried anywhere on the Railroad premises to be used by Licensee, the Licensee will telephone the telecommunications ccmpany(,es) involved, arrange for a cable locator and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on Railroad s premises. In addition to the liability terms elsewhere in this Agreement, the licensee shall indermrfy and hold the Railroad harmless against and from all cost, liability and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the licensee, its subcontractor, agents and/or employees, that causes or in any way or degree contributes to (1) any damage to or destruction of any telecommunications system by the licensee and/or its subcontractor, agents and/or employees, on Railroad s property, (2) any injury to or death of any person employed by or on behalf of any telecommunications company and/or its contractor, agents and/or employees, on Railroad's property and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or toss of service by a custaner or user of, such telecommunication company(les) Section 7 CCMPLIANCE WITH LAWS In the prosecution of the work covered by this agreement, the Licensee shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work The licensee shall use only such methods as are consistent with safety, both as concerns the licensee, the Licensee s agents and employees, the officers, agents, employees and property of the Railroad and the public in general The licensee (without limiting the Exhibit A 07g03n1 of 3 ROE 880.702 -Washington Form Approved, AVP -law generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad s property If any failure by the Licensee to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the Licensee shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney s fees, court costs and expenses The Licensee further agrees in the event of any such action, upon nonce thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad Section 8 SAFETY INSTRUCTIONS Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work pursuant to this agreement As reinforcement and in furtherance of overall safety Treasures to be observe; by the Licensee (and not by way of limitation), the following special safety rules shall be followed (a) The Licensee shall keep the job site free frau safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job The Licensee shall have proper first aid supplies available on the job site so that prompt first aid services can be provided to any person that may be injured on the job site The Licensee shall promptly notify the Railroad of any U S Occupational Safety and Health Administration reportable injuries occurring to any person that may arise during the work performed on the job site The Licensee shall have a non -delegable duty to control its employees, while they are on the job site or any other property of the Railroad to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage or illegally obtained drug, narcotic or other substance (b) The employees of the licensee shall be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing or free use of their hands or feet Only waist length shirts with sleeves and trousers that cover the entire leg are to be worn If flare -legged trousers are worn, the trouser bottom must be tied to prevent catching The employees should wear sturdy and protective footwear Employees shall not wear boots (other than work boots), sandals, canvas -type shoes or other shoes that have thin soles or heels that are h gher than normal In addition, the Licensee shall require its emoloyees to wear personal protective equipment as specifies by Railroad rules, regulations or Railroad officials overlooking the work at the job site In particular, the protective equipment to be worn shall be (I) Protective head gear that meets American National Standard -189 I -latest revision It is suggested tha all hardhats be affixed with licensee s or subcontractor s company logo or name (2) Eye protection that meets American National Standard for occupational and educational eye and face protection, 187 I latest revision Additional eye protection must be provided to meet specific job situations such as welding, grinding, burning, etc , and (3) Hearing protection which affords enough attenuation to give protection frau noise levels that will be occurring on the job site (c) All heavy equipment provided or leased by the Licensee shall be equipped with audible back-up warning devices If in the opinion of the Railroad Representative any of Licensee s or any of its subcontractor s equiprent is unsafe for use on the Railroad s right-of-way, the Licensee, at the request of the Railroad Representative, shall remove such equipment frau the Railroad s right-of-way Section 9 INDEMNITY (a) As used in this Section, "Railroad" includes other railroad companies using the Railroad 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 Railroad s officers, agents, and employees, the Licensee s officers, agents, and employees, as well as any other person), and (b) damage to or loss or destruction of property whatsoever (including Licensee s property, damage to the roadbed, tracks, equipment, or other property of the Railroad, or property in its care or custody) (b) As a major iriducemnent and in consideration of the license and permission herein granted, the Licensee shall, to the extent of its own negligence, indemnify and hold harmless the Railroad from any Loss which is due to or arises from any cause and is associated in whole or in part with the work perforated under this agreement, a breach of the agreement or the failure to observe the health and safety provisions herein, or any activity or omission arising out of performance or nonperformance of this agreement Section 10 RESTORATION OF PROPERTY in the event the Railroad authorizes the Licensee to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Licensee then in that event the Licensee shall, as soon as possible and at Licensee s sole expense, restore such fence and Exhibit A Page 2 of 3 0122n Ro€ 880702 Form Approved, AVP-Liw other property to the same condition as the same were in moved or disturbed, and the Licensee shalt indefmif and employees, against and from any and all liability, loss, nature, arising frau the taking down of any fence or the Section II WAIVER OF BREACH before such fence was taken down or such other property was hold harmless the Railroad, its officers, agents and damages, claims, demands, costs and expenses of whatsoever moving or disturbance of any other property of the Railroad The waiver by the Railroad 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 Railroad to avail itself of any subsequent breach thereof Section 12 ASSIGNMENT - SUBCONTRACTING The Licensee shall not assign, sublet or subcontract this agreement, or any interest therein, without the written consent of the Railroad and any attempt to so assign, sublet or subcontract without the written consent of the Railroad shall be voidIf the Railroad gives the Licensee permission to subcontract all or any portion of the work herein described, the Licensee is and shall remain responsible for all work of subcontractors and all work of subcontractors shall be governed by the terms of this agreement 0703n ROE 880702 Form -Approved, AVP -Law EXHIBIT A-1 Right of Entry Agreement Insurance Requirements licensee shall, at its own sole cost and expense, procure the following kinds of insurance andr when due all premiums for that insurance If it so elects, Railroad shall have the right to obtain such insurance and Licensee shall promptly reimburse Railroad for that expense The following insurance shall be kept in force during the life of this Agreement General Public Liability insurance providing bodily injury, including death, personal injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim and a general aggregate limit of at least $4,000,000 This insurance shall provide Broad Form Contractual Liability covering the indemnity provisions contained in this Agreement, Underground hazard, Products -Completed Operations with products -completed operation aggregate of at least $2,000,000, a separate general aggregate for the projectj(ISO Form CG 25 03 or equivalent), Broad Form Property Damage, severability of interests and name ailroad as an additional insured with respect to all liabilities arising out of Licensee s obligation to Railroad in the Agreement If coverage is purchased on a "claims made" basis it shall provide for at least a three (3) year extended reporting or discovery period, which shall be invoked should insurance covering the time period of this Agreement be cancelled Automobile Public Liability insurance providing bodily injury and property damage with a combined single limit of at least $2,000,000 each occurrence or claim This insurance shall provide contractual liability by endorsement ISO Form CA 00 25 or equivalent covering all motor vehicles including hired and non -owned, mobile equipment to the extent it may be excluded frau general liability insurance, severability of interests and name Railroad as an additional insured with respect to all liabilities arising out of Licensee s obligation to Railroad in the Agreement Worker s Compensation insurance covering the statutory liability as determined by the compensation laws of the state(s) affected by, this Agreement and Employers Liability Also compliance with all laws of states which require participation in their state workers compensation fund The Licensee hereby waives its right to subrogation, as respects the above insurance policy(ies), against Railroad for payments made to or on behalf of employees of _icensee or its agents and for loss of its owned ar leased property or property under its care, custody and control while on or near Railroad s right-of-way Dr other real property Licensee s insurance shall be primary with respect to any insurance carried by Railroad .icensee shall furnish to Railroad certificate(s) of insurance evidencing the required coverage and andorsement(s) and upon request a certified duplicate original of any of those policies The insurance :ompany(ies) issuing such policy(ies) shall notify Railroad in writing of any material alteration including any change in the retroactive date in any "claims -made" policies or substantial reduction of aggregate mats, if such limits apply, or cancellation thereof at least thirty (30) days prior thereto he insurance policy(ies) shall be written by a reputable insurance company or companies acceptable to ailroad or with a current Best s Insurance Guide Rating of 8 and Class V11 or better Such insurance_ ompany shall be authorized to transact business in the state(s) affected by this Agreement '.0n 809112 PX 170827 AGREEMENT allowing the City of Tukwila permission to be on and about Railroad property for the purpose of construction, maintenance and use of a nonvehicular recreation trail opposite Mile Post 171 62 in Tukwila, Washington. THIS AGREEMENT is made as of the /4 day of LCA , 1993, by and between UNION PACIFIC RAILROAD OMPANY, a Utah corporation (hereinafter the "Railroad") and the CITY OF TUKWILA, a municipal corporation of the State of Washington (hereinafter called "Licensee") IT IS AGREED as follows Section 1 Right Granted A The Railroad hereby grants Licensee the right, during the term, hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have reasonable ingress to and egress from the Railroad's right-of-way at or near Railroad's Mile Post 171 62 on the Seattle Subdivision at Tukwila, Washington, as shown on the attached print dated April 19, 1993, marked Exhibit A and described in the attached Crossing Description dated April 2, 1993, marked Exhibit B, for the sole and exclusive purpose of constructing, maintaining and using a nonvehicular recreational trail across Railroad's right-of-way Railroad is agreeable to allowing this operation to be undertaken, providing the following conditions are met B This agreement and the license and permission herein granted shall be effective as of the date first hereinabove written, and shall remain in full force and effect unless terminated as herein provided. C The right hereby granted is subject and subordinate to the Railroad's use of the railroad's property for railroad and incidental purposes, and is subject to any and all encumbrances and rights (whether public or private), irrespective of whether or not they are recorded, existing at the time of granting said right, and also to any and all extensions and renewals of said existing encumbrances and rights Licensee shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's said property, unless Licensee, at Licensee's own expense, settles with and obtains release from such nonparties on mutually satisfactory terms. Articles of Agreement Page 1 of 7 D The parties agree and understand that Railroad operations may include blocking the subject crossing for periods of time as necessary in the normal course of operation The Railroad will make reasonable efforts to keep the crossing clear when switching is not being performed but it shall not be subject to any liability, penalty or breach of this agreement by blocking the crossing E Said right is granted only insofar as the Railroad lawfully may grant the same, and the Railroad makes no covenant or warranty of title, for quiet possession or against encumbrances Said right includes only the Railroad's property identified in Paragraph A of this section, and no other property; and Licensee, by virtue of this grant, shall not encroach upon, occupy or use any other property of the Railroad Licensee's use of said property shall be subject to the safety and performance of work provisions set forth in Section 2 of this agreement. F The Railroad grants to Licensee only the right for the purpose aforesaid, and no interest in land or estate Licensee shall not use or permit use of said property or any part thereof for any other purpose No nonparty shall be admitted by Licensee to use or occupy any part of the Railroad's property for any purpose except as specifically provided for herein without the Railroad's written consent Nothing herein shall obligate the Railroad to give such consent, which, if granted, may be subject to such terms and conditions as the Railroad, in the Railroad's sole discretion, may deem to be necessary or convenient If said property of the Railroad, or any part thereof, shall cease to be used for the purposes aforesaid or shall be used for purposes unauthorized herein, then the right hereby granted as to such property or parts thereof shall cease and terminate. G As compensation for the rights granted herein, shall pay the Railroad, in advance, the sum of One Two Hundred Dollars ($1,200 00) Licensee Thousand Section 2 Safety and Performance of Work A The Railroad shall furnish all labor, material, equipment and supervision for, and shall install one 36 -foot rubberized crossing, relay and field weld rail, and renew crossties and ballast at Mile Post 171 62 in Tukwila, Washington, as shown generally on Railroad's Exhibit A print dated April 19, 1993 B All remaining work by or on behalf of Licensee on the Railroad's property shall be performed by Licensee at Licensee's own expense and without expense to the Railroad All references herein to work of Licensee shall include such work, whether performed by Licensee or Licensee's agents, employees or contractors Articles of Agreement Page 2 of 7 C The Licensee agrees to pay the Railroad 100% of the actual costs of the work performed and material supplied by the Railroad pursuant to Section 2 above, which is estimated to be Twenty-two Thousand Four Hundred Fifty-nine Dollars ($22,459 00). Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad Bills for work performed and materials supplied by the Railroad shall be paid by the Licensee promptly upon receipt thereof D Before commencing any such work, Licensee shall give the Railroad reasonable notice thereof, which notice shall be given not less than forty-eight (48) hours, exclusive of weekends and holidays, prior to the time work is to commence Railroad's representative to be contacted prior to entering upon Railroad's right-of-way is Superintendent of Transportation Services in Portland, Oregon, telephone (503) 249-2333 All of said work shall be performed at reasonable times and in such manner as not to endanger, interfere with, interrupt or delay the Railroad's operations, nor damage the Railroad's property, nor cause injuries to or death of persons or damage to or loss or destruction of property of the Railroad. E Licensee shall exercise due care to prevent injuries to or death of persons and damage to or destruction of property for the safety of whom or of which the Railroad may be responsible, and damage to or destruction of property of the Railroad Licensee shall and does assume all risk of damage to Licensee's own property and injury to Licensee's own personnel, resulting from or incidental to the prosecution of said work or from the presence of Licensee's property and personnel upon or about the Railroad's property, except when such damage is caused by the negligence of the Railroad, its officers, agents or employees. F In performing said work on or in the vicinity of the Railroad's property, Licensee shall exercise special care not to cause or create instability of rock, earth or other material, or cause slides of falling rock, earth or debris, nor to damage, obstruct or interfere with drainage, whether natural or artificial G. The Railroad, at the expense of Licensee, which expense Licensee agrees to pay promptly upon receipt of bill or bills therefor, shall furnish and station such flagman or flagmen as in the Railroad's judgment may be necessary or expedient to protect the Railroad's property and operations at the site of all such work by Licensee near any track of the Railroad. Licensee shall not perform any work in the vicinity of any track or tracks where the Railroad has determined a flagman or flagmen should be stationed, unless such flagman or flagmen are present. H Upon the completion of such work, Licensee shall restore and leave the Railroad's property in a condition satisfactory to the Railroad, including filling and leveling of all holes and pits Articles of Agreement Page 3 of 7 I Licensee, at its own sole cost and expense, shall determine the appropriate need for and design of warning signs at the crossing and shall design, construct and install and maintain those signs throughout the existence of this crossing Licensee accepts full responsibility for the design, construction, installation and maintenance of such signs or signals and will hold the Railroad harmless and indemnify the Railroad from any claims of their inadequacy whatsoever Section 3. Claims and Liens for Labor and Material. Licensee shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the Railroad's property for any work done or materials furnished thereon at the instance or request or on behalf of Licensee. Section 4 Compliance with Legal Requirements Licensee, in performing the work, shall observe and comply with all applicable federal, state and municipal and other laws, ordinances, rules and regulations, and shall apply for and obtain any and all public authority, permission and licenses necessary therefor, including any permission or authority from the Washington Utility and Transportation Commission Licensee shall indemnify and hold harmless the Railroad from and against any loss, cost, damage and expense, liabilities, penalties, claims and forfeitures resulting from any failure of Licensee to comply with the provisions of this section, or to comply with the requirements of any public authority, license or permission obtained as aforesaid Section 5 Assumption of Risk; Indemnification. Licensee's use and occupancy of the Railroad's right-of- way is at Licensee's own risk, and Licensee agrees to and does assume all risks thereof and incidental thereto Licensee acknowledges that Licensee's use of the Railroad's right-of-way permitted hereunder will subject the Railroad's property and operations to additional hazards and liability; and, as material consideration for this license, Licensee shall indemnify and hold harmless the Railroad and other railroad companies which use the property of the Railroad, their officers, agents and employees, against and from any and all loss, damages, claims, demands, actions, causes of action, costs and expenses of whatsoever nature which may result from injury to or death of persons whomsoever or from loss of or damage to property whatsoever (including damage to the roadbed, track, equipment, or other property of the Railroad and such other railroad companies) when such injury, death, loss or damage is due to or arises in connection with or as a result of the use of the Railroad's right-of-way by Licensee or the agents or employees of Licensee, or by others with the consent of Licensee, or by the general public, or by the equipment on the right-of-way with the consent of Licensee, or the breach of any covenant or obligation assumed by or imposed on Licensee pursuant to this Articles of Agreement Page 4 of 7 agreement, or for failure of Licensee to promptly and fully do any act or work for which Licensee is responsible pursuant to this agreement, except when such loss is caused by the negligence of the Railroad, its officers, agents or employees. Section 6 Termination on Breach and Waiver of Breach. It is agreed that the breach of any covenant, stipulation or condition herein contained to be kept and performed by Licensee shall, at the option of the Railroad, forthwith work a termination of this agreement and all rights of Licensee hereunder A waiver by the Railroad of a breach by Licensee of any covenant or condition of this agreement shall not impair the right of the Railroad to avail the Railroad of any subsequent breach thereof Section 7 Default If Licensee shall fail, refuse or neglect to do, keep, observe and perform each and all of the terms, provisions, conditions and covenants of this agreement, the Railroad, in addition to any other rights and remedies the Railroad may have, may perform any work which in the judgment of the Railroad is necessary to place the Railroad's property in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and Licensee will reimburse the Railroad for the expense thereof Section 8 Insurance A Licensee shall procure, or require any contractor engaged or employed to perform any work hereunder on behalf of Licensee on any part of premises to procure, and keep in effect during the period of such work Worker's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $1,000,000 00 for all damages arising out of bodily injuries to or death of one person and, subject to that limit for each person, a total limit of $1,000,000 00 for all damages arising out of bodily injury or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $1,000,000 00 for all damages arising out of injury to or destruction of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $1,000,000 00 for all damages arising out of injury to or destruction of property during the annual policy period If any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations Any limitation in the foregoing insurance which excludes work performed within fifty (50) feet of a railroad track shall be exempted out of said policies. Articles of Agreement Page 5 of 7 B Regardless of the insurance provisions set forth in Section 8 hereof, Licensee shall further require any contractor engaged or employed to perform any of the work referred to herein on any part of Railroad's property covered by this agreement to procure and keep in effect during the period of such work Railroad Protective Liability Insurance, in the form set forth in Federal Highway Program Manual, Volume 6, Section 2, Subsection 2, dated October 25, 1974, issued by Federal Highway Administration, as amended, on behalf of railroad, in amount of $2,000,000.00 combined single limit per occurrence for bodily injury, death and property damage, with an aggregate limit of $6,000,000 00 for the annual term of the policy, such insurance shall be in the form and in a company satisfactory to Railroad; and Licensee or its contractor shall not attempt to perform any work on or about Premises until notified by Railroad that the Railroad Protective Liability policy required hereunder is in form satisfactory to Railroad C Licensee shall further, at its own sole cost and expense procure and maintain in effect General Public Liability Insurance naming the Railroad as an additional named insured providing bodily injury, including death, personal injury and property damage coverage with a combined single limit of at least $1,000,000 00 each occurrence or claim and aggregate limit of at least $1,000,000 00 This insurance shall contain broad form contractual liability covering the indemnity provisions contained in this agreement and name the Railroad as an additional insured If coverage is purchased on a "claims made" basis, it shall provide for at least a three (3) year extended reporting or discovery period, which shall be invoked should insurance covering the time period of this agreement be cancelled D The contractor shall furnish to Railroad certificate(s) of insurance evidencing the required coverage and endorsements and upon request a certified duplicate original of any of those policies The insurance company(ies) issuing such policy(ies) shall notify the Railroad in writing of any material alteration, including any change in the retroactive date in any "claims made" policies, or substantial reduction of aggregate limits if such limits apply, or cancellation thereof at least thirty (30) days prior thereto. The insurance policies shall be written by a reputable insurance company acceptable to the Railroad and authorized to transact business in Washington E Anything in this Agreement to the contrary notwithstanding, the Railroad has been advised that the Licensee is self-insured for general public liability, workers' compensation liability, and all other liability for which the Licensee shall be responsible under this Agreement and arising out of Licensee's obligations to Railroad under this Agreement Railroad agrees that so long as Licensee maintains its self-insured status, no additional or supplemental insurance coverage shall be required under this Agreement Articles of Agreement Page 6 of 7 Section 9 Fiber Optic Cable Warning. A Fiber optic cable systems may be buried on the Railroad's property. Licensee shall telephone the Railroad at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Licensee If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises B In addition to other indemnity provisions in this agreement, the Licensee shall indemnify and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of the Licensee, its contractors, agents and/or employees Section 10 Successors and Assigns This agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns, but Licensee shall not assign this agreement or any right hereunder without the written consent of the Railroad. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed, in duplicate as of the day and year first herein written Attest UNION PACIFIC RAILROAD COMPANY By itle Assistant Vice President - Contracts and Real Estate CITY OF TUKWILA Pursuant to attached MandAJ Articles of Agreement Page 7 of 7 R. M w 1 O OU mU A+It Z=F 0,4 0 O XR H109 EXHIBIT "B" UNION PACIFIC RAILROAD CROSSING DESCRIPTION THAT PORTION OF THE UNION PACIFIC RAILROAD SPUR LINE EASEMENT LYING WITHIN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 25, TOWNSHIP 23 NORTH, RANGE 4, EAST, W M , KING COUNTY, WASHINGTON INCLUDED WITHIN A STRIP OF LAND 16 00 FEET IN WIDTH LYING 800 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE. COMMENCING AT THE INTERSECTION OF THE WEST MARGIN OF THE PUGET SOUND POWER & LIGHT COMPANY RIGHT OF WAY AND THE CENTERLINE OF SAID RAILROAD EASEMENT, THENCE . SOUTH 45° 10' 30" EAST ALONG SAID CENTERLINE 3 47 FEET, THENCE NORTH 44° 49' 30" EAST 40 00 FEET TO THE NORTH MARGIN OF SAID RAILROAD EASEMENT AND THE TRUE POINT OF BEGINNING, THENCE SOUTH 01° 59' 52" EAST 116 92 FEET TO THE SOUTH MARGIN OF SAID EASEMENT AND THE TERMINUS POINT OF SAID CENTERLINE. THE SIDELINES OF SAID EASEMENT MAY BE SHORTENED OR LENGTHENED TO BEGIN AT THE NORTH MARGIN AND TERMINATE AT THE SOUTH MARGIN OF SAID RAILROAD EASEMENT CONTAINING 1,870 SQUARE FEET OR 0 04 ACRES MORE OR LESS I EXPIRES 5 / 22 /3 I PLX DOC 890707 Form Approved, AVP -Law PIPELINE CROSSING AGREEMENT Mile Post 172 20, Seattel Subdivision Location Tukwila, King County, Washington ��- ('2r/ Folder No 443-84 ,10 THIS AGREEMENT is made and entered into as of the 49 7� day of P�� , 19%4 by and between UNION PACIFIC RAILROAD COMPANY, a Utah corporation(hereinafter the Licensor) and CITY OF TUKWILA, a muncipality to be addressed at 6300 Southcenter Blvd, Tukwila, Washington (hereinafter the Licensee) IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS ARTICLE 1 - LICENSE FEE Upon the execution of this Agreement, the Licensee shall pay to the Licensor a license fee of THREE THOUSAND SEVEN HUNDRED TWENTY DOLLARS ($3,720 00) ARTICLE 2 - LICENSOR GRANTS RIGHT In consideration of the license fee to be paid by 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 12 inch water pipeline crossing (hereinafter called the Pipeline) in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated August 26, 1993 and marked Exhibit A ARTICLE 3 - CONSTRUCTION, MAINTENANCE AND OPERATION The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached ARTICLE 4 - 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 Articles of Agreement Page 1 of 2 DLX DOC 390707 Folder No 443-84 Form Approved, AVP -Law ARTICLE 5 - 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 Licensor's form Contractor's Right of Entry Agreement Licensee acknowledges receipt of a copy of Contractor's Right of Entry Agreement and understanding its term, 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 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written UNION PACIFIC RAILROAD COMPANY By: i ; • .. (_ 1 '�l� E �u`,` DIRECTOR - CONTRACTS WITNESS X _ 7,trf— APPROVED AS TO FORM - OFFICE OF THE CITY ATTORNEY - CITY OF TUKWILA Articles of Agreement Page 2 of 2 PAF ARROW INDICATING NORTH DIRECTION RELATIVE TO CROSSING 2 ���°t APPLICATION FOR ENCASED „Pev y NON-FLAMMABLE PIPELINE CROSSING NO SCALE e 1.) • N1 0%4 FT P ? — o't C- ASO FT • (SEE NOTE 3 8 5) 1 Unm v,. vw,- U REV 05-01-90 NOTE. ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO EXPEDITE THIS APPLICATION. o ® ti N TINC.OtiN p' Ori 1 NEAREST R. R. TOMN) . z cc RR'S R.'W QR.) `/ ic.. (DESCRIBE FIXED OBJECT) (SEE NOTE 5) (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) 3.{- FT ( NOTES THIS DIMENSION REQUIRED IN ALL CASES. AT LOCATIONS NOT USING SECTIONS, DISTANCE TO A LEGAL SURVEY LINE IS REQUIRED) N 0. w 4221. FT • Q`'c FT ISEE MOTE 3 a 51 Q (ANGLE OFi CROSSING) fN.I 61ZIOCoe 4111.38 (DESCRIBE FIXED OBJECT) (SEE NOTE 5) 4'3 FT T FT MIN. DIST (see Note 21 /FT r........_f-SEAL CASING s 4 2 D o FT RR'S R/W Lrp . r ( NEAREST R.R. TOWN) FT (4.5 FT MIN.) (20 FT MAX.) Le—CASING PIPE (See Note 4) ROADBED QC F7 GROUND -� SURFACE SUBGRADE t �Fr (3 FT MIN. 1 SEAL CASING r CARRIER PIPE • • a 0I Lia FT 15 FT •4 qt., FT FT 4B FT (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) • NOTES 1) ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIGHT ANGLES FROM E OF TRACK, EXCEPT AS NOTED. 2) CASING TO EXTEND BEYOND THE CENTERLINE OF TRACK AT RIGHT ANGLES THE GREATER OF 2D + 20 FT , OR 30 AND BEYOND LIMIT OF RAILROAD RIGHT-OF-WAY IF NECESSARY TO PROVIDE PROPER LENGTH OUTSIDE OF TRACK. 3). MINIMUM OF 50' FROM THE END OF ANY RAILROAD BRIDGE, 4 OF ANY CULVERT, OR FROM ANY SWITCHING AREA. 4) SIGNAL REPRESENTATIVE MUST BE PRESENT DURING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY 5) ALLOWABLE FIXED OBJECTS INCLUDE: BACKWALLS OF BRIDGES; ¢ OF ROAD CROSSINGS 8 OVERHEAD VIADUCTS (GIVE 4 FT STEEL CASING WALL THICKNESS CHART MINIMUM THICKNESS DIAMETER OF CASING PIPE 2500' 1/4' 12. OR LESS 3125' 5/16' OVER 12'-18' 3750' 3/8' OVER 18'-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 I5 ONLY FOR SMOOTH STEEL CASING PIPES WITH MINIMUM YIELD STRENGTH OF 35,000 PSI. FORMULA TO FIGURE y2 CASING LENGTH WITH ANGLE OF CROSSING OTHER THAN 90• FT, 8 MIN. DIST !NOTE 2) OF CROSSING. ROAD NAME), OR f OF CULVERTS. A) IS PIPELINE CROSSING WITHIN DEDICATED STREET YES;.&__NO; B) IF YES, NAME OF STREET C) DISTRIBUTION LINE X OR TRANSMISSION LINE 0) CARRIER PIPE COMMOD i TY TO BE CONVEYED VIA,1141-- OPERATING PRESSURE 120 PSI WALL THICKNESS '3.1' ,DIAMETER \t ; MATERIAL nl-C 52 • E) CASING PIPE WALL THICKNESS �•�5 ;DIAMETER 24" ;MATERIAL S'rEEl ; 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 ANO JACK (WET BORE NOT PERMITTED); TUNNEL ;OTHER G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES;_N0; H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK 40' I) APPLICANT HAS CONTACTED 130' MILL) OF U. P COMMUNICATION DEPARTMENT AND HAS DETERMINED FIBER OPTIC CABLE _ _ DOES ;___DOES NOT ; EXIST IN VICINITY OF WORK TO BE PERFORMED. NOTE Casing and carrier 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 hand dug EXHIBIT "A" (FOR RA LIMO USE ONLY 00 NOT MITI 1M THIS 100 SM -Y -N l,Jko,.% PACIFIC RAILROAD CO. E.PTT-; LE. (5IIAIV1510M) M. P 1'12. 20 E 5 0L24,. 4- IS ENCASED V•)P-�= Pim CROSSING AT 1 NEAREST u STATIOI(I 1 =KM FOR C,k \4 c7..)!I-wILA. 1 STATE) 1 ARL IGMT1 RR F I LE NO. 1 -4 -L -1•% -T) -it- DATE Q.) WARN I N G IN ALL OCCASIONS, U. P COMMUNICATIONS DEPARTMENT MUST BE CONTACTED 1N ADVANCE OF ANY WORK TO DETERMINE EXISTENCE ANO LOCATION OF FIBER OPTIC CABLE. PHONE )-BOO.336-9193 Pt X 890701 Form Approved, AVP -Law EXHIBIT 8 Section I 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 madea part hereof, exceptas may be modified and approved by the licensors Assistant 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, suchrequirements 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 under the supervision and 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 Assistant Vice President -Engineering Services of the Licensor and then only under the supervision of the Assistant 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 alt 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 CC MENCEMENT 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 Exhibit 8 044e5nIof4 PL X/A Section 5 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, move all or any portion of the Pipeline to such new location as the Licensor may designate,.whenever, to 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 beburied 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 fiberoptic i cable is buried anywhere on the Licensor's premises to be used by the Licensee If it s. Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and nuke arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Licensor's premises (b) In addition to other indemnity provisions in this Agreement the Licensee shall indemnify and hold the Licensor harmless from and against alt costs, liability and expense whatsoever (including, without limitation, attorney s fees, court costs and expenses) arising out of any act or omission of the Licensee, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor s property, and (2) any injuryto or death of any person employed by or on behalf of mi any telecommunications company, and/or its contractor, agents and/or employees on Licensor's propertyLicensee 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 telecamunication 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 naterialman'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 inany way connected with or growing out of such work done, labor performed, or materials furnished (b) The licensee shall prarptly pay or discharge alt taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same frau 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 Licensor authorizes the licensee to take down any fence of the Licensor or in any manner anus or disturb any of the other property of the licensor in Exhibit B 06582 of 4 Pt. X 890101 Form Approved, AVP -Law connection with the construction, maintenance, repair, renewal, andification, 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 propertywas moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any andall 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 Toss 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 As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees, "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents and employees, the Licensee's officers, agents, and employees, as well as any other person), and (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody) As a major inducement and inconsideration of the license and permission herein granted, the licensee agrees to indemnify and hold harmless the Licensor frau any Loss which is due to or arises from: I The prosecution of any work installation, construction, reconstruction, relocation, 2 The presence, operation, or contemplated by this Agreement including the maintenance, repair, renewal, modification, or removal of the Pipeline or any part thereof; 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 II 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 propertynot 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 restoresuch roadbed to as good acondition 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 under the supervision 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 theLicensee 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 subsequent breach thereof Section 13 TERMINATION (a) If the Licensee does not use the right herein granted or the Pipeline for one (I) 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 frau the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice Exhibit 8 Page 0405n 3 of 4 PL X 890707 Form Approved, AVP -law (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 haye 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 taw, 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 he benefit of the parties hereto, their heirs, executors, administrators, successors and assigns Exhibit 8 Page 4 of 4 0405n