Project No. 0797645
WIRELINE CROSSING
AGREEMENT
Mile Post: 519.48, Stanton Industrial Lead Subdivision
Location: Huntington Beach, Orange County, California
THIS AGREEMENT ("Agreement") is made and entered into as of August 9, 2024, Street, Huntington Beach, California 92648 ("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 Licensee set forth below and in further consideration of the covenants and agreements to be performed by Licensee, Licensor hereby grants to Licensee the right to construct and thereafter, during the term hereof, maintain and operate one (1) underground fiber optic wireline crossing only, including any appurtenances required for the operation of said wireline (collectively, "Licensee's Facilities") across Licensor's real property, trackage, or other facilities located in Huntington Beach, Orange County, State of Califoria ("Railroad Property'"). The specific specifications and limited purpose for Licensee's Facilities on, along, across and under Railroad Property are described in and shown on the Print and Specifications dated 262024-08-09, attached hereto as Exhibit A and made a part hereof.
Licensee represents and warrants that Licensee's Facilities will (i) only be used for one (1) underground fiber optic wireline crossing, and (il) not be used for any other purpose, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement.
C. Licensee acknowledges that if it or its contractor provides Licensor with digital imagery depicting Licensee's Facilities ("Digital Imagery"), Licensee authorizes Licensor to use the Digital Imagery in preparing Exhibit A. Licensee represents and warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Licensor to use the Digital Imagery in said manner.
D. Under no circumstances shall Licensee modify Licensee's Facilities or add additional wirelines to the conduits), if any, or allow any third-parties to modify Licensee's Facilities or add additional 1) without Lecter pre wirelines to the conduits), if any, without Licensor's prior review and approval, which may be withheld in Licensor's sole discretion. Any application to modify Licensee's Facilities or add additional wirelines to the conduits) shall be made in accordance with Licensor's then-current wireline crossing Article 2. LICENSE FEE.
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time License Fee of Fourteen Thousand Nine Hundred Fify Dollars ($14,950.00).
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Article 3. 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 provided in the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B.
Article 4. LICENSEE'S COMPLIANCE WITH GENERAL TERMS.
Licensee represents and warrants that all work on Licensee's Facilities performed by License r its contractors will strictly comply with all terms and conditions set forth herein, including tr General Terms and Conditions, attached hereto as Exhibit B and made a part hereof.
Article 5. INSURANCE.
A. During the term of this Agreement, Licensee shall fully comply or cause its contractors) to fully comply with the insurance requirements described in Exhibit C, attached hereto and made a par hereof. Upon request only, Licensee shall send copies of all insurance documentation (e.g., certificates endorsements, etc.) to Licensor at the address listed in the "NOTICES" Section of this Agreement.
B. If Licensee is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurance in compliance with Exhibit C of this Agreement, those statutes shall apply.
Article 6. DEFINITION OF LICENSEE.
For purposes of this Agreement, all references in this Agreement to Licensee will include Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its o:
heir authority (collectively, a "Contractor"). If a Contractor is hired by Licensee to perform any work on Licensee's Facilities (including initial construction and subsequent relocation, maintenance, and/or repair work), then Licensee shall provide a copy of this Agreement to its Contractor(s) and require its Contractor(s) to comply with all terms and conditions of this Agreement, including the indemnification requirements set forth in the "INDEMNITY" Section of Exhibit B. Licensee shall require any Contractor 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 7. ATTORNEYS' FEES, EXPENSES, AND COSTS.
If litigation or other court action or similar adjudicatory proceeding is undertaken by Licensee or Licensor to enforce its rights under this Agreement, all fees, costs, and expenses, including, without limitation, reasonable attorneys' fees and court costs, of the prevailing Party in such action, suit, or rene The provisions or is Arid at sury fe ter mini of this agreement or decision is Article 8. WAIVER OF BREACH.
The waiver by Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by Licensee shall in no way impair the right of Licensor to avail itself of any remedy for any subsequent breach thereof.
Article 9. ASSIGNMENT.
A. Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 and may result in Licensor's termination of this Agreement pursuant to the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B.
3. Upon Licensor's written consent to any assignment, this Agreement will be binding upo nd inure to the benefit of the parties thereto, successors, heirs, and assigns, executors, ar administrators.
Article 10. 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 Article 11. NOTICES.
Except Licensee's commencement of work notice(s) required under Exhibit B, all other notices required by this Agreement must be in writing, and (i) personally served upon the business address sted below ("Notice Address"), (ii) sent overnight via express delivery by a nationally recognize ernight delivery service such as Federal Express Corporation or United Parcel Service to the Notic Address, or (iii) by certified mail, return receipt requested to the Notice Address. Overnight express delivery notices will be deemed to be given upon receipt. Certified mail notices will be deemed to be If to Licensor: Union Pacific Railroad Company
Attn: Analyst - Real Estate Utilities (Project Number: 0797645) 1400 Douglas Street, MS 1690
Omaha, Nebraska 68179
If to Licensee: CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, California 92648
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF HUNTINGTON BEACH By: _ By: _
Craig Benson Name Printed: Gracey Van Der Mark
Manager Real Estate
Title: Mayor
CITY OF HUNTINGTON BEACH
By:_
Name Printed: Robin Estanislau APPROVED AS TO FORM
Title:_City Clerk BY MICHAEL E. GATES
CITY ATTORNEY
CITY OF HUNTINGTON BEACH
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
PLACE ARROW INDICATING NORTH
DIRECTION RELATIVE TO CROSSING UNDERGROUND WIRELINE CROSSING 750 VOLTS OR LESS FORM DR-0404 F
REV 10-26-2007
VOTE: ALL AVAILABLE DIMENSJUNS MUST 8
FILLED IN TO PROCESS THIS APPLICATION www.uprr.com
NO SCALE
I OR LEGAL SURVEY LINE, WHERE APPLICABLET
LINE SECTION - TOWNSHIP- -, RANGE. - MERIDIAN
B) 12588
2521 FT.
-212. 45FT.- 2750 FT. -
15FT.
-PIEREST R.R. TORE TAMELE OF CROSSING TO
TAIN TREE I NEAREST ROR, TORN
+ -
Edinger Ave C/L
(DESCRIBE FIRED OBJECT) (CESCRINE FIXED DEJECTI
(ES: 1117+90)
_15 FT.
(DISTANCE ALENG TRACK FROM SECTIUN LINE CRUSSING) Lat: 33.730155 (NOTE: THIS DIMENSION RECURED IN ALL CASES. Long: -117.998128
AT LOCATIONS NOT USING SECTIONS,
PR'S R/S 70 A CATAL SUMPEY LINE IS RENESTAMEE
15FT. 15__FT.
GROUND
_MIN, DIST SURFACE
A SUBCRADE
ROADBEN
6.5. FT.
55 FT. 1FT.
- MIRELINE ®
*CASING PIPE
-30 FT. 30 FT.
60 FT. → LENGTH TO ANGLE CASING
60.00 FT. CROSSING OTHER THAN 90%
NOTES : (CASING LENGTH WHEN MEASURED ALONG PIPELINE.)
SING 1/3 CASINO LENCYM
MIN. DIST.
TRACK
EXHIBIT "A"
150R RALADAS USE CALY • DO NOT ARITE IN THIS BOX
A) TYPE WIRELINE CROSSING: UNION PACIFIC RAILROAD CO.
B1 VOLTAGE TO BE CARRIED UNDER TRACK. • NO. OF WIRES 1
CI CASING TYPE TO BE INSTALLED 6" STEEL CONTAINING 3" PVC SCH 80 Stanton Ind. Ld.
DI METHOD OF INSTALLING CASING PIPE UNDER TRACKS): (sue: 755104 (WET BORE NOT PERMITTED); _ DRY BORE AND JACK M. P. 519.48 _ E. S. 1117+45
E) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND UNDERGROUND WIRELINE CROSSING
JACKING PITS WHEN MEASURED AT RIGHT ANGLES
HUNTING MEAN ORANGE CA
• DOLTY I STATEI
F) DISTANCE TO NEAREST ROAD CROSSING WITH SIGNAL LIGHTS OR GATES (IF LESS THAN ONE MILE)_ FOR CITY OF HUNTINGTON BEACH
GI APPLICANT HAS CONTACTED 1-800-336-9193,
U. P. COMMUNICATION DEPARTMENT, AND HAS DETERMINED RR FILE NO. 0797645 DATE8/912024
OPTIC CABLE EXIST IN VICINTY OF
WORK TO BE PERFORMED. TICKET NO._ WARNING
EATEN MUST BE COP A COLD IN ATANCE
OF ANY MORK TO DETERMINE EXISTENCE AND
LOCATION OF FIBER OPTIC CABLE.
PHONE : 1-800-336-9193
Form Approved, AVP-Law
Updated 051918
EXHIBIT B
GENERAL TERMS AND CONDITIONS
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. obligation to obtain such additional permission, license and grants necessary on account of any such existing rights.
Section 2. ENGINEERING REQUIREMENTS; PERMITS.
Licensee's Facilities will be designed, constructed, operated, maintained, repaired, renewed, modified, reconstructed, removed, or abandoned in place on Railroad Property by Licensee or its contractor to Licensor's satisfaction and in strict conformity with: (i) Licensor's current engineering standards and specifications, including those for aerial marker balls, shoring and cribbing to protect Licensor's railroad operations and facilities ("UP Specifications"), except for variances approved in advance in writing by Licensor's Assistant Vice President Engineering - Design or its authorized representative ("UP Engineering Representative"); (ii) such other additional safety standards as Licensor, in its sole discretion, elects to require, including, without limitation, American Railway Engineering and Maintenance-of-Way Association ("AREMA") standards and guidelines (collectively, "UP Additional Requirements"); and (iii) all applicable laws, rules, and regulations, including any applicable Federal Railroad Administration, Federal Energy Regulatory Commission, and Federal Aviation Administration regulations and enactments (collectively, "Laws"). If there is any conflict between UP Specifications, UP Additional Requirements, and Laws, the most restrictive will apply.
If Licensee's Facilities will be located underground, Licensee shall keep the soil over Licensee's Facilities thoroughly compacted, and maintain the grade over and around Licensee's Facilities even with the surface of the adjacent ground.
C. Licensee shall not transmit electric current from Licensee's Facilities at a difference of potential in excess of the voltage indicated on Exhibit A. If the voltage indicated is in excess of seven hundred fifty volts (750V), and Licensee's Facilities will be buried at any location outside of track ballast or roadbed on Railroad Property, Licensee shall install metallic conduit, or non-metallic conduit encased in a minimum of three inches (3") of concrete with a minimum of four feet (4') of ground cover the entire length of Licensee's Facilities. Any of Licensee's Facilities buried by removal of soil shall have, at a depth of one foot (1') beneath the surface of the ground directly above Licensee's Facilities, with a six inch (6" wide warning tape labeled "Danger-High Voltage" or equivalent wording. Any of Licensee's Facilities encased in conduit, jacked, or bored under Railroad Property must be identified with warning signs ("Warning Signs") at each edge of Railroad Property, to be installed and properly maintained at Licensee's cost and expense. Licensee shall not utilize Warning Signs in lieu of the warning tape where portions of the casing are installed by direct burial.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 If needed, Licensee shall secure, at Licensee's sole cost and expense, any and all necessary permits required to perform any work on Licensee's Facilities.
Section 3. NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES. icensee and its contractors are strictly prohibited from commencing any work associate ith Licensee's Facilities without Licensor's written approval that the work will be in strict complianc with the "ENGINEERING REQUIREMENTS; PERMITS" Section of this Exhibit B. Upon Licensor's approval, Licensee shall contact both of Licensor's field representatives ("Licensor's Field Representatives") at least ten (10) days before commencement of any work on Licensee's Facilities.
B. Licensee shall not commence any work until: (1) Licensor has determined whether flagging or other special protective or safety measures ("Safety Measures") are required for performance of the work pursuant to the "FLAGGING" Section of this Exhibit B and provided Licensee writte authorization to commence work; and (2) Licensee has complied with the "PROTECTION OF FIBEF OPTIC CABLE SYSTEMS" Section of this Exhibit B.
C. If, at any time, an emergency arises involving Licensee's Facilities, Licensee or its contractor shall immediately contact Licensor's Response Management Communications Center at (888) 877-7267.
Section 4. FLAGGING.
A. Following Licensee's notice to Licensor's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Licensor shall inform Licensee if Safety Measures are required for performance of the work by Licensee or its contractor on Railroad Property. If Safety Measures are required, no work of any kind may be performed by Licensee or its contractors) until arrangements for the Safety Measures have been made and scheduled. If no Safety Measures are required, Licensor will give Licensee written authorization to commence work.
B. If any Safety Measures are performed or provided by Licensor, including but not limited to flagging, Licensor shall 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. Additional information regarding the submission of such expenses by Licensor and payment thereof by Licensee can be found in the "LICENSEE'S PAYMENT OF EXPENSES" Section of this Exhibit B. If Licensor performs any Safety Measures, Licensee agrees that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreement.
C. For flagging, the rate of pay per hour for each flagger 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.
Reimbursement to Licensor will be required covering the full eight-hour day during which any flagger is furnished, unless the flagger can be assigned to other railroad work during a portion Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 of such day, in which event reimbursement will not be required for the portion of the day during which the flagger is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flaggers following the flaggers' assignment to work on the project for which Licensor is required to pay the flaggers and which could not reasonably be avoided by Licensor by assignment of such flaggers 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 flagger. If five (5) days notice of cessation is not given, Licensee will still be required to pay flagging charges for the days the flagger was scheduled, even though flagging is no longer 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.
Section 5. SAFETY.
Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of any work on Railroad Property performed by Licensee or its contractor, and takes precedence over any work on Licensee's Facilities to be performed by Licensee or its contractors.
Licensee shall be responsible for initiating, maintaining and supervising all safety operations and programs in connection with any work on Licensee's Facilities. Licensor and its contractor shall, at a minimum comply, with Licensor's then current safety standards located at the below web address ("Licensor's Safety Standards") 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 practices. Licensee and its contractor shall furnish copies of Licensor's Safety Standards to each of its employees before they enter Railroad Property found at the link below.
Union Pacific Current Safety Requirements
Licensee shall keep the job site on Railroad Property free from safety and health hazards and ensure that their employees are competent and adequately trained in all safety and health aspects of the work.
C. Licensee represents and warrants that all parts of Licensee's Facilities within and outside of the limits of Railroad Property will not interfere whatsoever with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of Licensor, and nothing shall be done or suffered to be done by Licensee at any time that would in any manner impair the safety thereof.
Licensee shall take all suitable precaution to prevent interference (by induction, leakage of electricity, or otherwise) with the operation of the signal, communication lines or other installations or facilities of Licensor or of its tenants. If, at any time, the operation or maintenance of Licensee's Facilities results in any electrostatic effects which Licensor deems undesirable or harmful, or causes interference with he operation of the signal, communication lines or other installations or facilities, as now existing o vhich may hereafter be provided by Licensor and/or its tenants, Licensee shall, at the sole cost an expense of Licensee, immediately modify or take action as may be necessary to eliminate such interference.
D. Licensor's operations and work performed by Licensor's personnel may cause delays in Licensee's or its contractor's work on Licensee's Facilities. Licensee accepts this risk and agrees that * complane win ke NOTICE OF COMNENCEMENT OF WORK
EMERGENCIES" Section of this Exhibit B
Licensor shall have the right, if it so elects, to provide any support it deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 maintenance, repair, renewal, modification, relocation, reconstruction, or removal of Licensee's Facilities. In the event Licensor provides such support, Licensor shall invoice Licensee, and Licensee shall pay Licensor as set forth in the "LICENSEE'S PAYMENT OF EXPENSES" Section of this Exhibit B.
Licensee may use unmanned aircraft systems ("UAS") to inspect Licensee's Facilities only upon the prior authorization from and under the direction of Licensor's Field Representatives.
Licensee represents and warrants that its use of UAS on Railroad Property will comply with Licensor's then-current Unmanned Aerial Systems Policy and all applicable laws, rules and regulations, including any applicable Federal Aviation Administration regulations and enactments pertaining to UAS.
Section 6. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
Fiber optic cable systems may be buried on Railroad 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. In addition to the notifications required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Licensee shall visit up.com/CBUD to complete and submit the required form to determine if fiber optic cable is buried anywhere on Railroad Property to be used by Licensee. If it is, Licensee shall telephone the telecommunications company(les) involved, and arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee's expense, and will not commence any work on Railroad Property until all such protection or relocation has been completed Section 7. LICENSEE'S PAYMENT OF EXPENSES.
Licensee shall bear the entire cost and expense of the design, construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities.
B. Licensee shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, 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 Licensee. Licensee shall promptly pay or discharge all taxes, charges, and assessments levied upon, in respect to, or on account of Licensee's Facilities, to prevent the same from becoming a charge or lien upon any property f Licensor, and so that the taxes, charges, and assessments levied upon or in respect to such propert shall not be increased because of the location, construction, or maintenance of Licensee's Facilities or any improvement, appliance, or fixture connected therewith placed upon such property, or on account of Licensee's interest therein. Where such tax, charge, or assessment may not be separately made or assessed to Licensee but shall be included in the assessment of the property of Licensor, then Licensee shall pay to Licensor an equitable proportion of such taxes determined by the value of Licensee's property upon property of Licensor as compared with the entire value of such property.
C. As set forth in the "FLAGGING" Section of this Exhibit B, Licensor shall have the right, if it so elects, to provide any Safety Measures Licensor deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, including, but not limited to supervision, inspection, and flagging services. In the event Licensor provides such Safety Measures, Licensor shall submit an itemized invoice to Licensee's notice recipient listed in the "NOTICES" Article of this Agreement. Licensee shall pay to Licensor the total amount listed on such invoice within thirty (30) days of Licensee's receipt of such invoice.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Section 8. MODIFICATIONS TO LICENSEE'S FACILITIES.
A. This grant is subject to Licensor's safe and efficient operation of its railroad, and continued use and improvement of Railroad Property (collectively, "Railroad's Use"). Accordingly, Licensee shall, at its sole cost and expense, modify, reconstruct, repair, renew, revise, relocate, or remove (individually, "Modification", or collectively, "Modifications") all or any portion of Licensee's Facilities as Licensor may designate or identify, in its sole discretion, (i) in the furtherance of Railroad's Use, or (ii) as is necessary to ensure safe and reliable maintenance and operation of the facilities of Licensor and/or its tenants because of interference from Licensee's Facilities.
B. Upon any Modification of all or any portion of Licensee's Facilities to another location on Railroad Property, Licensor and Licensee shall execute a Supplemental Agreement to this Wireline Agreement to document the Modification(s) to Licensee's Facilities on Railroad Property. If the Modifications result in Licensee's Facilities moving off of Railroad Property, this Agreement will terminate upon Licensee's completion of such Modification(s) and all requirements contained within the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of this Exhibit B. Any such Modification(s) off of Railroad Property will not release Licensee from any liability or other obligation of Licensee arising prior to and upon completion of any such Modifications to the Licensee's Facilities.
Section 9. RESTORATION OF RAILROAD PROPERTY.
In the event Licensee, in any manner moves or disturbs any property of Licensor in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, then, Licensee shall, as soon as possible and at Licensee's sole cost and expense, restore Licensor's property to the same condition as the same were before such property Section 10. INDEMNITY.
A. Definitions. As used in this Section:
"Licensor" includes Licensor, its affiliates, its and their officers, directors, at or and e lots on ches cas indication and lei ficers, rectors, agents, and employees.
2. "Licensee" includes Licensee and its agents, contractors, subcontractors, sub-subcontractors, employees, officers, and directors, or any other person or entity acting on its behalf or under its control.
3. "Loss" includes claims, suits, taxes, loss, damages (including punitive damages, statutory damages, and exemplary damages), costs, charges, assessments, judgments, settlements, liens, demands, actions, causes of action fines, penalties, interest, and expenses of any nature, including court costs reasonable attorneys' fees and expenses, investigation costs, and appeal expenses.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
1. Bodily harm or personal injury (including any emotional injury or disease) to, or the death of, any person(s), including, but not limited to, Licensee, Licensor, any telecommunications company, or the agents, contractors, subcontractors, sub-subcontractors, or employees of the foregoing;
2. Damage to or the disturbance, loss, movement, or destruction of Railroac Property, including loss of use and diminution in value, including, but no limited to, any telecommunications systems) or fiber optic cable(s) on or near Railroad Property, any property of Licensee or Licensor, or any property in the care, custody, or control of Licensee or Licensor;
3. Removal of person(s) from Railroad Property;
4. Any delays or interference with track or Railroad's Use caused by Licensee's activity(ies) on Railroad Property, including without limitation the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities or any part thereof, any activities, labor, materials, equipment, or machinery in conjunction therewith;
5. Right(s) or interests) granted pursuant to this Agreement;
6. Electrical interference or other types of interference created or caused by or escaping from Licensee's Facilities;
7. Licensee's breach of this Agreement or failure to comply with its provisions, including, but not limited to, any violation or breach by Licensee of any representations and warranties Licensee has made in this Agreement; and
8. Violation by Licensee of any law, statute, ordinance, governmental administrative order, rule, or regulation, including without limitation all applicable Federal Railroad Administration regulations.
THE FOREGOING OBLIGATIONS SHALL APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW FOR THE BENEFIT OF LICENSOR TO LOSSES CAUSED BY, ARISING
FROM, RELATING TO, OR RESULTING FROM, IN WHOLE OR IN PART, THE NEGLIGENCE OF
LICENSOR, AND SUCH NEGLIGENCE OF LICENSOR SHALL NOT LIMIT, DIMINISH, OR LICENSEE'S OBLIGATIONS LICENSOR IN ANY RESPECT.
NOTWITHSTANDING THE FOREGOING, SUCH OBLIGATION TO INDEMNIFY LICENSOR
SHALL NOT APPLY TO THE EXTENT THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND
DIRECT NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF LICENSOR AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION.
Section 11. TERMINATION; REMOVAL OF LICENSEE'S FACILITIES.
If Licensee does not use the right herein granted on Licensee's Facilities for one (1) year, or if Licensee continues in default in the performance of any provision of this Agreement for a period of thirty (30) days after written notice from Licensor to Licensee specifying such default, Licensor may, at its sole discretion, terminate this Agreement by written notice to Licensee at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below.
In addition to the provisions of Paragraph "A" above, this Agreement may be terminated by written notice given by either party, without cause, upon thirty (30) days written notice to the non-terminating party at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 found below.
Prior to the effective date of any termination described in this Section, Licensee shall submit an application to Licensor's online at this link, for Licensee's removal, or if applicable, abandonment in place of Licensee's Facilities located underground on Railroad Property ("Removal/Abandonment Work") Upon the UP Engineering Representative's approval of Licensee's application for the Removal/Abandonment Work, Licensor and Licensee shall execute a separate consent document that will govern Licensee's performance of the Removal/Abandonment Work from those portions of Railroad Property not occupied by roadbed and/or trackage ("Consent Document"). Licensee shall then restore the impacted Railroad Property to the same or reasonably similar condition as it was prior to Licensee's Facilities.
For purposes of this Section, Licensee's (i) performance of the Removal/Abandonment Work, and (ii) restoration work will hereinafter be collectively referred to as the "Restoration Work".
Following Licensee's completion of the Restoration Work, Licensee shall provide a written certification letter to Licensor at the address listed in the "NOTICES" Article of this Agreement which certifies that the Restoration Work has been completed in accordance with the Consent Document. Licensee shall report to governmental authorities, as required by law, and notify Licensor immediately if any environmental contamination is discovered during Licensee's performance of the Restoration Work. Upon discovery, the Licensee shall initiate any and all removal, remedial and restoration actions that are necessary to restore the property to its original, uncontaminated condition.
Licensee shall provide written certification to Licensor at the address listed in the "NOTICES" Article of this Agreement that environmental contamination has been remediated and the property has been restored in accordance with Licensor's requirements. Upon Licensor's receipt of Licensee's restoration completion certifications, this Agreement will terminate.
In the event that Licensee fails to complete any of the Restoration Work, Licensor may, but is not obligated, to perform the Restoration Work. Any such work actually performed by Licensor will be at the cost and expense of Licensee. In the event that Licensor performs any of the Restoration Work, Licensee shall release Licensor from any and all Loss (defined in the "INDEMNITY" Section of this Exhibit B) arising out of or related to Licensor's performance of the Restoration Work.
F. Termination of this Agreement for any reason will not affect any of rights or obligations of the parties which may have accrued, or liabilities or Loss (defined in the "INDEMNITY" Section of this Exhibit B), accrued or otherwise, which may have arisen prior to such termination.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 proved: Insurance Gro
eated: 5/19/
EXHIBIT C
INSURANCE REQUIREMENTS
In accordance with Article 5 of this Agreement, Licensee shall (1) procure and maintain at its sole cost and expense, or (2) require its Contractors) to procure and maintain, at their sole cost and expense, the following insurance coverage:
Commercial General Liability Insurance. Commercial general liability (CGL) wit limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000 CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
"Contractual Liability Railroads" ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage must include liability arising out of any aut (including owned, hired, and non-owned autos).
The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
"Coverage For Certain Operations In Connection With Railroads" ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site.
Workers' Compensation and Employers' Liability 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 Agreement.
• 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. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
Railroad Protective Liability Insurance. Licensee must maintain for the duration of work "Railroad Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor only as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOE LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this Agreement. Notwithstanding the Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 foregoing, Licensee does not need Railroad Protective Liability Insurance after its initial construction work is complete and all excess materials have been removed from Licensor's property; PROVIDED, however, that Licensee shall procure such coverage for any subsequent maintenance, repair, renewal, modification, reconstruction, or removal work on Licensee's Facilities.
The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this Agreement.
Umbrella or Excess Insurance. If Licensee utilizes umbrella or excess policies, and these policies must "follow form" and afford no less coverage than the primary policy.
Other Requirements
All policy(ies) required above (except worker's compensation and employers' liability) ust include Licensor as "Additional Insured" using ISO Additional Insured Endorsements CG 20 2 nd CA 2048 (or substitute forms providing equivalent coverage). The coverage provided to License as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Licensor's negligence whether sole or partial, active or passive, and shall not be limited by Licensee's liability under the indemnity provisions of this Agreement.
G. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this Agreement, or (b) all punitive damages are prohibited by all states in which this Agreement will be performed.
Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Licensor and its agents, officers, directors and employees for damages covered by the workers' compensation and employers' liability or commercial umbrella or excess liability obtained by Licensee required in this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance.
I. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed.
The fact that insurance is obtained by Licensee or by Licensor on behalf of Licensee will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor from Licensee or any third party will not be limited by the amount of the required insurance coverage.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 CERTIFICATE NO. ISSUE DATE
GL2-843 Al CERTIFICATE OF COVERAGE 08/30/2024
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE Public Risk Innovation, CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BELOW. THIS CERTIFICATE OF COVERAGE DOES NOT CONSTITUTE A Solutions, and Management CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
CIO ALLIANT INSURANCE SERVICES, INC.
18100 VON KARMAN AVENUE, 10TH FLOOR
IRVINE, CA 92612
lieu of such endorsements).
PHONE (949) 756-0271 / FAX (619) 699-0901
LICENSE #0C36861 COVERAGE AFFORDED BY: A- Public Risk Innovation, Solutions, and Management Member: COVERAGE
AFFORDED BY: B
CITY OF HUNTINGTON BEACH
ATTN: DEANNA SORIA
2000 MAIN STREET COVERAGE
AFFORDED BY: C
HUNTINGTON BEACH, CA 92648
COVERAGE
AFFORDED BY: D
Coverages
TERMS, EXCLUSIONS AND CONDO SUCH MEMORAND LISHAVE BEEN RED CLASSET TALL THE cO TYPE OF COVERAGE MEMORANDUM/ COVERAGATEFECTIVE COVERACEATPIRATION LIABILITY LIMITS LTR POLICY #
A X Excess General Liability PRISM PE 24-GL2-25 07/01/2024 07/01/2025 Difference between $2,000,000 and Member's Self-Insured Retention of
X Excess Auto Liability $1,000,000 and/or applicable
additional member and pooled
layers of coverage
Completed Operations Aggregate
Applies
Program Aggregate Applies
Description of Operations/Locations/Vehicles/Special Items:
AS REPECTS WIRELINE CROSSING AGREEMENT NUMBER 051918 BETWEEN CITY OF HUNTINGTON BEACH AND UNION PACIFIC RAILROAD COMPANY FOR LOCATION: MILE POST 519.48, STANTON INDUSTRIAL LEAD SUBDIVISION, HUNTINGTON BEACH, ORANGE COUNTY, CA.
UNION PACIFIC RAILROAD COMPANY, ITS AGENTS, OFFICERS DIRECTORS AND EMPLOYEES ARE INCLUDED AS ADDITIONAL COVERED PARTIES, BUT ONLY INSOFAR AS THE OPERATIONS UNDER THIS CONTRACT ARE CONCERNED.
COVERAGE INCLUDES WORK PERFORMED ON THE RAIL, RIGHT OF WAY OR WITHIN 50 FEET OF THE RAIL.
THE AUTHORITY WAIVES ITS RIGHTS OF SUBROGATION AGAINST THE ADDITIONAL COVERED PARTY(IES) PURSUANT TO ENDORSEMENT NUMBER U-9.
Cancellation
Certificate Holder
UNION PACIFIC RAILROAD COMPANY
ATTN: ANALYST-REAL ESTATE
UTILITIES PROJECT NUMBER: 0797645 AUTHORIZED REPRESENTATIVE 1400 DOUGLAS STREET, MS 1690
OMAHA, NE 68179
Gina Hear
Public Risk Innovation, Solutions, and Management PAGE 1 OF 2 ENDORSEMENT NO. U-1
PUBLIC RISK INNOVATION, SOLUTIONS, AND MANAGEMENT
GENERAL LIABLILITY 2
ADDITIONAL COVERED PARTY AMENDATORY ENDORSEMENT
It is agreed that the 'Covered Party, Covered Persons or Entities" section of the Memorandum is amended to include the person or organization named on the Certificate of Coverage, but only with respect to liability arising out of premises owned by or rented to the Member, or operations performed by or on behalf of the Member or such person or organization so designated.
Coverage provided under this endorsement is limited to the lesser of the limits stated on the Certificate of Coverage or the minimum limits required by contract.
ADDITIONAL COVERED PARTY:
NAME OF PERSON OR ORGANIZATION SCHEDULED PER ATTACHED CERTIFICATE OF COVERAGE AS RESPECTS:
PER ATTACHED CERTIFICATE OF COVERAGE
It is further agreed that nothing herein shall act to increase PRISM's limit of liability.
This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other terms and conditions remain unchanged.
Effective Date: Memorandum No.: PRISM 24 GL2-00
Issued to: ALL MEMBERS
Issue Date: June 28, 2024
Lina Dear
Authorized Representative
Public Risk Innovation, Solutions, and Management PAGE 2 OF 2 ENDORSEMENT NO. U-2
PUBLIC RISK INNOVATION, SOLUTIONS, AND MANAGEMENT
GENERAL LIABILITY 2
AMENDATORY ENDORSEMENT - WAIVER OF SUBROGATION
It is understood and agreed that Condition 7. SUBROGATION, of the Memorandum to which it is attached, is deleted in its entirety and replaced by the following:
7. SUBROGATION
PRISM shall be subrogated to the extent of any payment hereunder to all the covered party's rights of recovery therefore; and the covered party shall do nothing after loss to prejudice such rights and shall do everything necessary to secure such rights. Any amount so recovered shall be apportioned as follows:
Any interest (including the covered party's) having paid an amount in excess of the self-insured retention, plus the limit of liability, hereunder shall be reimbursed first to the extent of actual payment. PRISM shall be reimbursed next to the extent of its actual payment hereunder. If any balance then remains unpaid, it shall be applied to reimburse the covered party. The expenses of all such recovery proceedings shall be apportioned in the ratio of respective recoveries. If there is no recovery in proceedings conducted solely by PRISM, it shall bear the expenses thereof.
Notwithstanding the above, PRISM waives its rights of subrogation against any person or organization with whom the covered party has entered into a written agreement that includes a waiver of subrogation, but only if the agreement is in effect before the injury, damage or liability occurs.
It is further agreed that nothing herein shall act to increase PRISM's limit of liability.
This endorsement is part of the Memorandum and takes effect on the effective date of the Memorandum unless another effective date is shown below. All other terms and conditions remain unchanged.
Effective Date: Memorandum No.: PRISM 24 GL2-00
Issued To: ALL MEMBERS
Issue Date: June 28, 2024
Mina lear
Authorized Representative
Public Risk Innovation, Solutions, and Management
CERTIFICATE NO. ISSUE DATE
WC-4008 CERTIFICATE OF COVERAGE 08/30/2024
PUBLIC RISK INNOVATION,
OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BELOW. THIS
SOLUTIONS, AND MANAGEMENT
CERTIFICATE HOLDER
C/O ALLIANT INSURANCE SERVICES, INC.
18100 VON KARMAN AVENUE, 10TH FLOOR
IRVINE, CA 92612
PHONE (949) 756-0271 / FAX (619) 699-0901
LICENSE #0C36861 COVERAGE
AFFORDED BY: A Public Risk Innovation, Solutions, and Management Member: COVERAGE
CITY OF HUNTINGTON BEACH AFFORDED BY: B
ATTN: DEANNA SORIA
2000 MAIN STREET COVERAGE
HUNTINGTON BEACH, CA 92648 AFFORDED BY: C
COVERAGE
AFFORDED BY: D
THIS IS TO CERTIFY THAT THE MEMORANDUMS OF COVERAGE AND POLICIES LISTED BELOW HAVE BEEN ISSUED TO THE MEMBER
NAMED ABOVE FOR THE PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE COVERAGE AFFORDE 3Y THE MEMORANDUMS AND POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH MEMORANDUMS AND POLICIES.
CO TYPE OF COVERAGE MEMORANDUM/ COVERADAEFECTIVE COVERA TYPIRATION LIABILITY LIMITS
LTR POLICY NUMBER
A EXCESS WORKERS' PRISM PE 24 EWC-164 07/01/2024 07/01/2025 WORKERS' COMPENSATION:
COMPENSATION & Difference between
EMPLOYER'S LIABILITY 51.00000 Meniors
EMPLOYERS' LIABILITY:
Retention
LIMITS APPLY PER OCCURRENCE FOR ALL PROGRAM MEMBERS COMBINED.
Description of Operations/Locations/Vehicles/Special Items:
AS REPECTS EVIDENCE OF COVERAGE FOR WIRELINE CROSSING AGREEMENT NUMBER 051918 BETWEEN CITY OF HUNTINGTON BEACH AND UNION PACIFIC RAILROAD COMPANY FOR LOCATION: MILE POST 519.48, STANTON INDUSTRIAL LEAD SUBDIVISION, HUNTINGTON BEACH, ORANGE COUNTY, CA.
THE AUTHORITY WAIVES ITS RIGHTS OF SUBROGATION AGAINST UNION PACIFIC RAILROAD COMPANY, ITS AGENTS, OFFICERS DIRECTORS AND EMPLOYEES PURSUANT TO ENDORSEMENT NUMBER U-2.
Cancellation
Certificate Holder
UNION PACIFIC RAILROAD COMPANY
ATTN: ANALYST-REAL ESTATE UTILITIES AUTHORIZED REPRESENTATIVE PROJECT NUMBER: 0797645
1400 DOUGLAS STREET, MS 1690
OMAHA, NE 68179 Sina Dear
Public Risk Innovation, Solutions, and Management
PUBLIC RISK INNOVATION, SOLUTIONS, AND MANAGEMENT
EXCESS WORKERS' COMPENSATION PROGRAM
2024/2025 SCHEDULE OF INSURERS
CITY OF HUNTINGTON BEACH
PROVIDER MEMORANDUM / LIMIT
POLICY NUMBER
Public Risk Innovation, Solutions, PRISM PE 24 EWC-164 Workers' Compensation:
and Management $50,000,000 each occurrence
(Difference between $50,000,000 and the
individual member's retention)
Employers' Liability:
$5,000,000 each occurrence
(Difference between $5,000,000 and the
individual member's retention)
Liberty Mutual Fire Insurance Co EW2-64N-444785-014 Statutory each accident/each employee for disease excess of
$50,000,000
ENDORSEMENT NO. U-2
PUBLIC RISK INNOVATION, SOLUTIONS, AND MANAGEMENT
EXCESS WORKERS' COMPENSATION
WAIVER OF SUBROGATION ENDORSEMENT
It is understood and agreed that Section VIII. SUBROGATION of the CONDITIONS section of the Memorandum of Coverage is deleted in its entirety and replaced by the following:
VIII. SUBROGATION: In the event of any payment under this Memorandum, PRISM shall be subrogated, to the extent of such payment, to all the Covered Party's rights of recovery therefore, and the Covered Party shall execute all papers required and shall do everything that may be necessary to secure such rights. Any amount recovered as a result of such proceedings, together with all expenses necessary to the recovery of any such amount shall be apportioned as follows:
PRISM shall first be reimbursed to the extent of its actual payment hereunder. If any balance then remains, said balance shall be applied to reimburse the Covered Party. The expenses of all proceedings necessary to the recovery of such amount shall be apportioned between the Covered Party and PRISM in the ratio of their respective recoveries as finally settled. If there should be no recovery in proceedings instituted solely on the initiative of PRISM, the expenses thereof shall be borne by PRISM.
However, in the event of any loss payment under this Memorandum for which you have waived the right of recovery in a written contract entered into prior to the loss, we hereby agree to also waive our right of recovery but only with respect to such loss.
It is further agreed that nothing herein shall act to increase PRISM's limit of indemnity.
This endorsement is part of the Memorandum of Coverage and takes effect on the effective date of the Memorandum of Coverage unless another effective date is shown below. All other terms and conditions remain unchanged.
Effective Date: Memorandum No.: PRISM 24 EWC-00
Issued to: ALL MEMBERS
Issue Date: June 28, 2024
Lina Dear
Authorized Representative
Public Risk Innovation, Solutions, and Management