98-192 JULY, 2007
IN REVIEWING THIS FILE, IT WAS DETERMINED THAT AN EXECUTED COPY
OF THE AGREEMENT LISTED BELOW WAS NEVER RETURNED TO THE
CLERK'S OFFICE.
ALL THAT IS AVAILABLE IS THE ATTACHED DRAFT COPY OF THE
AGREEMENT AND ITS SUPPORTING PAPERWORK.
REFERENCE: RESOLUTION NO. 98-192
PASSED: AUGUST 12, 1998
SUBJECT: AGREEMENT WITH THE UNION PACIFIC RAILROAD COMPANY
FOR THE INSTALLATION OF A SANITARY SEWER WITHIN ITS
RIGHT-OF-WAY FOR THE TYLER CREEK INTERCEPTOR
SEWER-PHASE V
SPEED MESSAGE
TO FROM
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SIGNED _
WilsonJonese WHITE—ORIGINAL CANARY—DUPLICATE
44-900•Duplicate
Resolution No. 98-192
RESOLUTION
AUTHORIZING EXECUTION OF A PIPELINE CROSSING AGREEMENT WITH
THE UNION PACIFIC RAILROAD COMPANY
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Joyce A. Parker, City Manager, and Dolonna
Mecum, City Clerk, be and are hereby authorized and directed to
execute a Pipeline Crossing Agreement on behalf of the City of
Elgin with the Union Pacific Railroad Company for the
installation of a sanitary sewer within its right-of-way for
the Tyler Creek Interceptor Sewer - Phase V, a copy of which is
attached hereto and made a part hereof by reference.
s/ Kevin Kelly
Kevin Kelly, Mayor
Presented: August 12, 1998
Adopted: August 12, 1998
Omnibus Vote: Yeas 5 Nays 0
Attest:
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
4,47
Resolution No. 98-192
RESOLUTION
AUTHORIZING EXECUTION OF A PIPELINE CROSSING AGREEMENT WITH
THE UNION PACIFIC RAILROAD COMPANY
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Joyce A. Parker, City Manager, and Dolonna
Mecum, City Clerk, be and are hereby authorized and directed to
execute a Pipeline Crossing Agreement on behalf of the City of
Elgin with the Union Pacific Railroad Company for the
installation of a sanitary sewer within its right-of-way for
the Tyler Creek Interceptor Sewer - Phase V, a copy of which is
attached hereto and made a part hereof by reference.
Kevin Kelly, Mayor
Presented: August 12 , 1998
Adopted:
Vote: Yeas Nays
Recorded:
Attest:
Dolonna Mecum, City Clerk
/
`K OF E�0 /
`� � " \
Agenda Item No. __,
3 — City of Elgin 9
July 10 , 1998
TO: Mayor and Members of the City Council
FROM: Joyce A. Parker, City Manager
SUBJECT: License Agreement with Union Pacific Railroad
Company Associated with the Tyler Creek Interceptor
Sewer - Phase V
PURPOSE
The purpose of the memorandum is to provide the Mayor and
members of the City Council with information to consider
executing a License Agreement with Union Pacific Railroad for
the purpose of installing a 36" sanitary sewer within their
right-of-way.
BACKGROUND
Baxter & Woodman (B&W) is under contract with the City of
rk Elgin to provide engineering services for the completion of
plans and specifications for the Tyler Creek Interceptor
Sewer-Phase V (TCIS-V) . B&W, through their design investiga-
tions, has identified a location in which the TCIS-V must
cross beneath Union Pacific right-of-way. A map (Exhibit A) is
attached showing the location of the crossing.
B&W submitted a request to Union Pacific to cross their right-
of-way. Union Pacific has agreed to allow the installation of
the TCIS-V within their right-of-way and forwarded the license
agreement to the City for our execution. A copy of the license
agreement is attached as Exhibit B for your consideration.
Bids for this project were opened on May 6, 1998 , and the
award is pending execution of this agreement and an agreement
with I & M Rail Link, another railroad crossing. A time frame
for the award is unknown at this time .
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None .
((y.....ri
NANCIAL IMPACT
The cost of the license agreement is $1, 000 . The expenditure
will be funded from the Sewer portion of the 1997 bond sale
t where adequate monies remain. Account number
397-4200-795 . 92-41, Capital Additions - Distribution Systems,
project number 339558, Tyler Creek Sewer Phase V, will be
charged.
•
License Agrmnt with Union Pacific Railroad
July 10, 1998
Page 2
LEGAL IMPACT
W None .
ALTERNATIVES
None .
RECOMMENDATION
It is recommended that the City Council approve the license
agreement with Union Pacific Railroad and authorize the City
Manager to execute the agreement at a total cost of $1 , 000 . 00 .
Res.ectfully submitted,
41111,
•
J., e A! Parker
City Manager
SP/do
Attachment
EXHIBIT A
Location Map
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'.R. CO.
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VD AVENUEli
EXHIBIT B
License Agreement
PLX.DOC 940206 Folder No.1654-39
Form Approved,AVP-Law
PIPELINE CROSSING
AGREEMENT
Mile Post 46.15,Belvidere Branch
Location:West Elgin,Kane county,Illinois
THIS AGREEMENT is made and entered into as of the day of
199by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the
Licensor)and CITY OF ELGIN,a municipality of the State of Illinois to be addressed at 150 Dexter Court,Elgin IL
60120-5555(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 one-time license fee of ONE
THOUSAND DOLLARS($1,000.00).
ARTICLE 2-LICENSOR GRANTS RIGHT
rik 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
an underground sanitary sewer pipeline crossing for conveying(sanitary sewage)only,
(hereinafter the Pipeline)in the location shown and in conformity with the dimensions and specifications indicated on.
the attached print dated February 7, 1998 and marked Exhibit A. Under no circumstances shall Licensee modify the
use of the pipeline for a purpose other than conveying(sanitary sewage),and said pipeline shall not be used to convey
any other substance,any fiber optics,or for any other use,whether such use is currently technologically possible,or
whether such use may come into existence during the life of this Agreement.
ARTICLE 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-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.
1654-39.plx Articles of Agreement July 1,1998
Page 1 of 3
PLX.DOC 940206 Folder No.1654-39
Form Approved,AVP-Law
ARTICLE 5-INSURANCE
a). The Licensee,at its expense,shall obtain the insurance described in Exhibit B-1,hereto attached. The Licensee
will also provide to the Licensor a Certificate of Insurance issued by its insurance carrier confirming the existence of
such insurance and that the policy or policies contain the following endorsement:
Union Pacific Railroad Company is named as an additional insured with respect to all liabilities arising out
of the existence,use of any work performed on or associated with the underground sanitary sewer pipeline crossing
located on Railroad right of way at Mile Post 46.15 on the Belvidere Branch,at or near West Elgin,Kane county,
Illinois. i
b). If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws,the limits
of insurance described in Exhibit B-1 shall be the limits the Licensee then has in effect or which is required by
applicable current or subsequent law,whichever is greater,a portion of which may be self-insured with the consent and
approval of the Licensor.
c). All insurance correspondence shall be directed to:
Folder No: 1654-39
Union Pacific Railroad Company
Contracts&Real Estate Department
1416 Dodge Street,WP001
Omaha,Nebraska 68179
ARTICLE 6-TERM
This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until
terminated as herein provided.
ARTICLE 7-SEVERABILITY
The terms of this agreement shall be severable. In the event any of the terms or provisions of this agreement are
deemed to be void or otherwise unenforceable for any reason,the remainder of this agreement shall remain in full force
and effect.
ARTICLE 8-CHOICE OF FORUM
Litigation arising out of or connected with this agreement may be instituted and maintained in the courts of the
states of Nebraska and Illinois 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.
ARTICLE 9-AMENDMENT TO EXHIBIT B
Section 13(b)of Exhibit B,hereto attached,is hereby amended to read as follows:
(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,no less,however,than one(1)year subsequent to
the date upon which such notice shall be given.
r
1654-39.plx Articles of Agreement July 1,1998
Page 2 of 3
PLX.DOC 940206 Folder No.1654-39
rbk Form Approved,AVP-Law
ARTICLE 10-SPECIAL PROVISIONS
Additional requirements of the Railroad's Engineering Department:
1. Manholes must act as a positive connection or mechanical coupler required on reinforced concrete pipe(RCP).
2. RCP must be Class V.
3. Any voids between RCP and tunnel must be filled with grout.
4. Ends of casing must be sealed.
5. The local Manager of Track must be notified before boring under track.
6. Tunneling operation must be monitored. If any settling occurs during tunneling operation the project must halt
and the damage repaired before resuming operation. Any expense from monitoring operation is the
responsibility of the Licensee.
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:
CONTRACT REPRESENTATIVE
WITNESS: CITY OF ELGIN
X
Title:
r
1654-39.plx Articles of Agreement July 1,1998
Page 3 of 3
FORM•
DR-0404-s
PLACE ARROW INDICATING NORTH 2, REV. 10 -1-93
CTRECTION RELATIVE TO CROSSING oaf
toi
•
0v �s
APPLICATION FOR ENCASED
. •
., .
NON—FLAMMABLE PIPELINE CROSSING
I �� NOTE: ALL AVAILABLE DIMENSIONS MUST BE
.fir NO SCALE FILLED IN TO PROCESS THIS APPLICATION.
1 i __ Q® t I RR'S RR
4 Q
H hyo 4511.3_ FL 768.7
FT.
: �Ni 460[ XFT. 325 FT. �/�
�., `I
v (SEE NOTE 3 a S) (SEE NOTE 3 a 5) i SOFT.
461
I ;___ Gilberts ` ¢a 6- 0 W TO Elgin —
TO 10 c j (ANGLE OF CROSSING) I NEAREST R R loom
! f NEAREST P.R. TOWN) H�4~ i , _ i { fl W IM TIUQ r i r ' s
�, i ' , { i f f i { I ( 1
' ,x.41 4 _Stone Blk Culver 54" Culvert J
i 4-*/ o (DESCRIBE FIXED OBJECT) (DESCRIBE FIXED OBJECT)
! *..Aye `4, (SEE NOTE 6) (SEE NOTE S)
' � ,tom tDISTANCE ALONG TRACK-FFM SECTION LINE CROSSING) 5d FT.
; :trill y 65 FT. •
( (NOTE: THIS O1NENSION REWIRED IN ALL CASES.
Al LOCATIONS NOT USING SECTIONS. DISTANCE (ii) /
TO A LEGAL SZRVET LIME IS REQUIRED) - --
; Ra'S R,W �/� --
.JV FT. -1 0 FT. �+"---- �T.
'•
I I raw STEEL CASING WALL
i ? NTN. DIST 837.40 SiFRFum THICKNESS CHART
�c IS«No+A 2�� I AIINIIALIA THICSHE55 DIAIETER OF
RIOF
I I r
1 .2 ••• 1/4' 12' OR L S
! i i "a 0� X .3125' 5/16' OYER 12'-18"
29.5y�T, I .3750' 3/8' OVER 16'-22'
A .4375' 7/1c' OVER 22'-26'
I 34 FT. (4.5
(2D F7. WL) 2/'c7. sEAI east .5000' 1/2' OVER 26'-34'
(3 rte) .5E25' 9/IS' OVER 3.1r-41r
SEAL CASIMc CASING PI (S.. Note a) j .6250 5/6' OVER t2'-46'
- -
O
rill** _ 1,T j I _ _ - I_ f GRRIET►PIPE ♦ (' APPROVED BT R..1. CO.
T / NOTE: THIS CHART IS ONLY
•
"� �� ` •
I I I •♦® � P S w TH Y TEFL CAYIELD
•
II I I I STRENGTH OF 35,000 PSI.
r 1VFL _ 88 FT. FOR%RJLA TO FIGURE CASING
1
!
I 240 F7. LENGTH WITH ANGLE OF
CROSSING OTHER THAN 90.
240 FT. .. B
j , NOTES. (CASING LENGTH WHEN ,EASURED ALONG PIPELINE.) A SIN
: 1) ALL ►ORICONTAL DISTANCES TO BE AEtSIRED AT RIGHT ANGLES
O r i OF Tura. ��
2: CASING TO EZTDBETaC THE 4 Cc TRAQ AT RIONT ANGLES Tit_.EATER OF 20• 20 FT., OR 30 FT., ' B
AMP BETPO IIWIT DF RAILROAD RIO.-OP-NAT IF NECESSAR'' TO PRDYIDE PROPER LDCTN OUTSIDE OF TRAQ. �" LIN.CI°T.
1 NINIALIN OF S0' MN TME O OF ANY RAILROAD BRIDGE, i OF ART 0J..YF7RT, OR AVM AN/ SWITCHING AREA. ''� (NOTE 2)
• A. SIGNAL REPRESENTATIVE RUST BE ARMOR DIJR ING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSIMC. A. + wet
. ALLORABLE FIXED OBJECTS INCLtlaC BAQBALLS OF BRIDGES; i OF ROAD :TnOSSINGS B OVERHEAD VIADLCTS (GIVE ROAD NAE), OR CuLTERTS.
6) CASING AAO CARRIER PIPE 141ST BE PLACED A MINIMAL OF 2 FEET ISELIN TTA( ExISTING FIBER OPTIC CARLL ANT EXCAVATION REWIRED WITMIM
' S FEET OF TIC EXISTING FIBER OPTIC CABLE 1UST BE NNO DUG.
IS PIPELINE CROSSING WITHIN DEDICATED STREET ? TES;X N0; 1 EXHIBIT "A"
3) IF YES, NAME OF STREET N/A (FM RA)uo.B INC.an
DISTRIBUTION LINE OR TRANSMISSION LINE X
.c) CARRIER PIPE : (414/04/ PACIFIC RAILROAD CO.
COr.AOD I TY TO BE CONVETED Sanitary Sewage i
OPERATING PRESci S I1 ,(g6L t//DERE oef.44/C1/
WALL THICKNESS IAMETER 36" ;MATERIAIFC�/PVCT 1 ,.Nems..■+
E) CASIWALLPIPE
THICKNES56 75" ;DIAMETER 60F, ;MATERIAL RCP ; # M. p i16,/S" E. S. ZZ�i'�f0�'
NOTE :CASING HAST HAVE 2' CLEARANCE BETWEEN GREATEST ' ENCASED s,1^v,7'Ay- �IL.CROSSING AT
OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF
CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF 111.EL Gm/ k4/VE IL
CARRIER PIPE AND INSIDE OF CASING PIPE. 1 .praPor.7.1 CI TVI
I MIMS 'rfan'
F) METHOD OF INSTALLING CASING PIPE Un'DER TRACK( S): 1 Cif- OA' EGG'iA/
; DRY BORE .AND JACK (WET BORE NOT PERMITTED) ; I f ,..,,,j„r),
�—TUNNEL ; 0-7-44E4 Manned entry IBM machine ' RR FILE N0. AS-9-3? DATE 1/779,,G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? X YES; u0;(110WI
DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BORING AND I ■ A R N I N G
JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK
, APPLICANT HAS CONTACTED Rod B11derb,3ch (3Q' WIN.) I IN LU. OCCA3IDMt, IL P. caea"IEATIDNes
DEPARTN(iT RUST BE CONTACTED IN ADVANCE
OF U. P. CO4(UNICATION DPARTMENT AND HAS DETERMINED FIBER Ain AMons TD DETE�AINE Exuma Alio CABLE DOES ; DOES NO .j IN VICINITY OF S L. ON D
ATtF FIBER OPTIC LULL
' WORK TO BE PERFORMED . TICKET NO. �01` T iiif PNarE: 1-200`336-2113
• • WL•X.EXB 980112
Form Approved,AVP-Law
•
EXHIBIT B
• .
•
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to
use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use,
operate,change,modify or relocate railroad tracks,signal,communication,fiber optics, or other wirelines,pipelines and other
facilities upon,along or across any or all parts of its property,all or any of which may be freely done at any time or times by the
Licensor without liability to the Licensee or to any other party for compensation or damages.
(b) The foregoing grant is also subject to all outstanding superior rights(including those in favor of licensees and lessees of
the Licensor's property,and others)and the right of the Licensor to renew and extend the same, and is made without covenant of
title or for quiet enjoyment.
Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION.
(a) If the Wireline or any part thereof is to be located above the top of the rails of any track or communication and signal lines,
including static wires, overhead clearance provided by the Wireline shall be no less than that shown on Exhibit A. The Wireline
shall be constructed,operated,maintained,repaired,renewed,modified and/or reconstructed by the Licensee in strict conformity
with the Specifications prescribed in the current issue of the National Electrical Safety Code of the American National Standards
Institute. In the event such Specifications conflict in any respect with the requirements of any federal, state or municipal law or
regulation, such requirements shall govern on all points of conflict,but in all other respects the Specifications shall apply.
(b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Wireline shall be done to the satisfaction of the Licensor.
rc) If the Wireline is an existing one not conforming in its construction to the above provisions of this Section 2,the Licensee
-call, within ninety(90)days after the date hereof,reconstruct it so as to conform therewith.
(d) The Wireline shall be constructed., maintained and operated by the Licensee in such manner as not to be or constitute
a hazard to aviation. With respect to the Wireline the Licensee,without expense to the Licensor,will comply with all requirements
of law and of public authority,.whether federal, state or local,including but not limited to aviation authorities. .
(e) In the operation of the Wireline,the Licensee shall not transmit electric current 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(750)volts, and the Wireline is,or is to
be. buried at any location on the property of the Licensor outside track ballast sections or roadbed the Licensee shall install
metallic conduit, or non-metallic conduit encased in a minimum of three(3)inches of concrete with a minimum of four(4)feet of
ground cover the entire length of the Wireline on the property of the Licensor. A Wireline buried by removal of the soil shall have,
at a depth of one(1)foot beneath the surface of the ground directly above the Wireline, a six(6)inch wide warning tape bearing
the warning. "Danger-High Voltage,"or equivalent wording. A Wireline encased in conduit,jacked or bored under the property
of the Licensor,must be identified by placing warning signs,to be installed and properly maintained at the expense of the Licensee,
at each edge of the Licensor's property.The Licensee shall not utilize the signs in lieu of the warning tape where portions of the
casing are installed by direct burial.
Section 3. NOTICE OF COMMENCEMENT OF WORK.
If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable
to Licensor before commencing any work. In all other situations,the Licensee shall notify the Licensor at least ten(10)days(or such
other time as the Licensor may allow)in advance of the commencement of any work upon property of the Licensor in connection
with the construction,maintenance,repair, :enewal, modification,reconstruction, relocation or removal of the Wireline. All such
work shall be prosecuted diligently to completion.
E
wlx.exb Page 1 of 4 Exhibit B
' • WLX.EXB 980112
Form Approved,AVP-Law
•
•
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 Wireline,including any and all
expense which may be incurred by the Licensor in connection therewith for supervision or inspection,or otherwise.
Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF WIRELINE.
(a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and
in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee,reinforce or encase the
Wireline(if it is an underground facility)to the satisfaction of the Licensor,or move all or any portion of the Wireline to such new
location,as the Licensor may designate,whenever in the furtherance of its needs and requirements,the Licensor shall find such
action necessary or desirable.
(b) All the terms, conditions and stipulations herein expressed with reference to the Wireline on property of the Licensor in
the location hereinbefore described shall, so far as the Wireline remains on the property, apply to the Wireline as modified,
changed or relocated within the contemplation of this section.
Section 6. INTERFERENCE.
In the operation and maintenance of the Wireline the Licensee shall take all suitable precaution to prevent any interference
(by induction,leakage of electricity, or otherwise)with the operation of the signal, communication lines or other installations or
facilities of the Licensor or of its tenants;and if,at any time,the operation or maintenance of the Wireline results in any electrostatic
effects which the Licensor deems undesirable or harmful,or causes interference with the operation of the signal,communication
lines or other installations or facilities,as now existing or which may hereafter be provided by the Licensor and/or its tenants,the
Licensee shall, at the sole expense of the Licensee, immediately take such action as may be necessary to eliminate such
interference.
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
(a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of
extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
profits. Licensee shall telephone the licensor at 1-800-336-9193(a 24-hour number)to determine if fiber optic cable is buried
anywhere on the licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications
company(ies)involved,arrange for a cable locator,make arrangements for relocation or other protection of the fiber optic cable,
all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been
accomplished. Licensee shall indemnify L.,-3 hold the Licensor harmless from and against all costs, liability and expense
whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by
Licensee's failure to comply with the provisions of this paragraph.
(b) In addition to other indemnity provisions in this Agreement,the Licensee shall indemnify and hold the Licensor harmless
from and against all costs,liability and expense whatsoever(including,without limitation,attorneys'fees,court costs and expenses)
caused by the negligence of the Licensee,its contractor, agents and/or employees, resulting in(1)any damage to or destruction
of any telecommunications system on Licensor's property,and/or(2)any injury to or death of any person employed by or on behalf
of any telecommunications company, and/or its contractor,agents and/or employees,on Licensor's property, except if such costs,
liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it shall not have
or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other
consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber
optic cable on Licensor's property.
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL.
(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 Wireline,and shall not permit
r-suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or
wlx.exb Page 2 of 4 Exhibit B
' , WL'X.EXB 980112
Form Approved,AVP-Law
materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold
!zarmless the Licensor against and from any and all liens,claims,demands,costs and expenses of whatsoever nature in any way
connected with or growing out of such work done,labor performed, or materials furnished.
(b) The Licensee shall promptly pay or discharge all taxes,charges and assessments levied upon,in respect to,or on account
of the Wireline,to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges
and assessments levied upon or in respect to such property shall not be increased because of the location, construction or
maintenance of the Wireline 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 move or disturb
any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification,
reconstruction,relocation or removal of the Wireline, then in that event the Licensee shall, as soon as possible and at Licensee's
sole expense,restore such fence and other property to the same condition as the same were in before such fence was taken down
or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor,its officers,
agents and employees,against and from any and all liability,loss,damages, penalties, claims, demands,costs and expenses of
whatsoever nature,including court costs and attorneys'fees,which may result from injury to or death of persons whomsoever,or
damage to or loss or destruction of property whatsoever, when such injury, death, damage,loss or destruction grows out of or
arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor.
Section 10. INDEMNITY.
t) As used in this Section, "Licensor"includes other railroad companies using the Licensor's property at or near the location
the Licensee's installation and their officers, agents, and employees;"Loss"includes loss,damage,claims,demands,actions,
causes of action,penalties,costs,and expenses of whatsoever nature,including court costs and attorneys'fees,which may result
from: (a) injury to or death of persons whomsoever (including the licensor's officers, agents, and employees, the Licensee's
officers,agents,and employees,as well as any other person);and/or(b)damage to or loss or destruction of property whatsoever
(including Licensee's property,damage to the roadbed,tracks, equipment,or other property of the Licensor,or property in its care
or custody).
(b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to
indemnify and hold harmless the Licensor from any Loss which is due :or arises from:
1. The prosecution of any work contemplated by this Agreement including the installation, construction,
maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Wireline or any part
thereof;or
2. The presence, operation, or use of the Wireline or electric current conducted thereon or escaping therefrom,
except to the extent that the Loss is caused by the sole and direct negligence of the Licensor.
Section 11. REMOVAL OF WIRELINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever,the Licensee shall,at Licensee's sole expense,remove the Wireline
from the property of the Licensor and restore such property to as good a condition as it was in before the Wireline was originally
constructed,all to the satisfaction of the Licensor. If the Licensee fails to do the foregoing, the Licensor may perform the work of
removal and restoration at the expense of the Licensee. The Licensor shall not be liable to the Licensee for any damage sustained
by the Licensee as a result of the removal of the Wireline by the Licensor as in this section provided,nor shall such action prejudice
or impair any right of action for damages or otherwise that the Licensor may, at the time of such removal, have against the
filk ensee.
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• WZ•.X.EXB 980112
Form Approved,AVP-Law
Section 12. WAIVER OF BREACH.
The waiver by the Licensor of the breach of any condition,covenant or agreement herein contained to be kept,observed
and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent
breach thereof. \4%\T 1/4',6
SEEaAmc1E 9
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Wireline for one(1)year,or if the - ee c• tinues in default
in the performance of any covenant or agreement herein contained for a period of thirty(30)days afte •• tten notice from the
Licensor to the Licensee specifying such default,the Licensor may,at its option,forthwith immediately terminate this Agreement
by written notice.
-•- - --- • - - . . - .. . .. . .. - . • .: - . -., . - , .••-•- , . .. . .. • . ..• ... -..- . - .. -
4yo.1 n r1,icli 3Lat la nt,tice shall be givcn.
(c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known
address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties
hereto which may have accrued,or liability,accrued or otherwise,which may have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement,in whole or in part,or any rights herein granted,without the written consent
of the Licensor,and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of
the rights herein granted,whether voluntary,by operation of law,or otherwise,without such consent in writing, shall be absolutely
void and, at the option of the Licensor, shall terminate this Agreement.
rob.ection 15. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 14 hereof,this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their heirs, executors, administrators, successors and assigns.
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