11-114 t Y
Resolution No. 11-114
RESOLUTION
AUTHORIZING EXECUTION OF A LONGITUDINAL PIPELINE ENCROACHMENT
AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY
(Lord Street Sewer Separation Project)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that David J. Kaptain, Mayor, and Jennifer Quinton, Acting City Clerk, be and are hereby
authorized and directed to execute a longitudinal pipeline encroachment agreement on behalf of
the City of Elgin with Union Pacific Railroad Company for the Lord Street Sewer Separation
Project, a copy of which is attached hereto and made a part hereof by reference.
s/ David J. Kaptain
David J. Kaptain, Mayor
Presented: June 22, 2011
Adopted: June 22, 2011
Omnibus Vote: Yeas: 6 Nays: 0
Attest:
s/Jennifer Quinton
Jennifer Quinton, Acting City Clerk
AUDIT 2-c'876
Pipeline Encroachment 080808 Folder No.02639-63
Last Modified:03/29/10
Form Approved,AVP-Law
LONGITUDINAL PIPELINE
ENCROACHMENT AGREEMENT
Between Mile Posts 41.25 and 41.3 Belvidere Subdivision
Location: Elgin,Kane County, Illinois
THIS AGREEMENT("Agreement") is made and entered into as of April 01, 2011, ("Effective
Date") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation,
("Licensor") and CITY OF ELGIN, an Illinois municipal corporation to be addressed at 150 Dexter Ct,
Elgin,Illinois 60120("Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICENSOR GRANTS RIGHT.
In consideration of the License Fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and performed, the
Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to
maintain and operate
Approximately 290' of an Underground 96 inch Longitudinal Pipeline and a 5' x 10'
RCB Culvert for transporting and conveying storm sewer only
(hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and
specifications indicated on the print dated April 1, 2011 and marked Exhibits "A" and "A-1", attached
hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of the
Pipeline for a purpose other than transporting and conveying storm sewer, and the Pipeline shall not be
used to convey any other substance, any fiber optic cable, or for any other use, whether such use is
currently technologically possible, or whether such use may come into existence during the life of this
Agreement.
Article 2. LICENSE FEE.
Upon execution of this Agreement,the Licensee shall pay to the Licensor a one-time License Fee
of Sixteen Thousand Three Hundred Dollars($16,300.00).
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, attached hereto and hereby made
a part hereof.
Article 4. DEFINITION OF LICENSEE.
For purposes of this Agreement, all references in this Agreement to the Licensee shall include the
Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their
authority. If a contractor is hired by the Licensee for any work performed on the Pipeline (including
initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall
provide a copy of this Agreement to its contractor,require its contractor to comply with all the terms and
provisions hereof relating to the work to be performed. Any contractor or subcontractor shall be deemed
an agent of Licensee for the purpose of this Agreement, and Licensee shall require such contractor or
subcontractor to release defend and indemnify Licensor to the same extent and under the same terms and
conditions as Licensee is required to release,defend and indemnify Licensor herein.
Article 5. INSURANCE.
A. During the life of the Lease,Licensee shall fully comply with the insurance requirements
described in Exhibit C.
B. Failure to maintain insurance as required shall entitle,but not require,Licensor to
terminate this License immediately.
C. If the 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 lease,those statues shall apply.
D. Licensee hereby acknowledges that is has reviewed the requirements of Exhibit C,
including without limitation the requirement for Railroad Protective Liability Insurance during
construction, maintenance, installation, repair or removal of the pipeline which is the subject of this
Agreement.
Article 6 SPECIAL PROVISIONS
After further discussion and consideration of UP's concerns,UPRR will accept the proposed
storm sewer encroachment,subject to:
1. The outlet structure shall be located as shown on the attached drawing,marked as Exhibit A-1.
2. As previously noted, the placement of the proposed sewer and outlet may restrict the working
area around the adjacent bridge abutment. It is our intent that UPRR shall incur no additional cost in the
course of any future work due to the presence of the Applicant's structure. Any temporary modification,
shoring,relocation,or diversion of part of the of the storm sewer and/or outlet that may be required in the
course of UPRR maintenance or construction work shall be entirely at the expense of the Applicant..
•
3. Excavations on railroad right-of-way must comply with UPRR shoring requirements(attached).
Shoring for excavations within zones A or B must be reviewed and approved by UPRR. Allow 30 days
for approval.
4. A UPRR flagman is required when working within 25 feet of the track,when using cranes or
other equipment with booms that could reach within 25 feet of the track if fully extended,or otherwise at
the discretion of the local Manager-Track Maintenance.
Article 7. TERM.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in
full force and effect until terminated as herein provided.
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 ELGIN
By:gAiLithif By: atZ)frz/iri., •
i°enay J.Robison
• sistant Director-Contracts Name Printed: David J. Kaptain
Title: Mayor
ATTES •
-nnifer :uinton, Acting City Clerk
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NOTE: BEFORE YOU BEGIN ANY WORK. SEE
AGREEMENT FOR FIBER OPTIC PROVISIONS.
EXHIBIT "A-1"
UNION PACIFIC RAILROAD COMPANY
ELGIN. KANE COUNTY. IL
M.P. 41 .25 TO 41 .3 - BELVIDERE SUB.
TO ACCOMPANY AGREEMENT WITH
CITY OF ELGIN
CADD 0263963.dgn SCALE: 1" = 10'
FILENAME OFFICE OF REAL ESTATE
SCAN c:/work/2639-63.tif
OMAHA. NEBRASKA DATE: 4-1-2011
F II FNMA' NLP FILE: 2639-63
C:\work\0263963.dgn 4/4/2011 12:56:02 PM
•
Pipeline Crossing 07/20/08
Form Approved,AVP Law
EXHIBIT B
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
A. The foregoing grant of right is subject and subordinate to the prior and continuing right and
obligation of the Licensor to use and maintain its entire property including the right and power of
the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate
railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other
facilities upon, along or across any or all parts of its property, all or any of which may be freely
done at any time or times by the Licensor without liability to the Licensee or to any other party
for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of
licensees and lessees of the Licensor's property, and others)and the right of the Licensor to renew
and extend the same, and is made without covenant of title or for quiet enjoyment.
Section 2. CONSTRUCTION,MAINTENANCE AND OPERATION.
A. The Pipeline shall be designed, constructed, operated, maintained, repaired, renewed, modified
and/or reconstructed by the Licensee in strict conformity with(i)Licensor's current standards and
specifications ("UP Specifications"), except for variances approved in advance in writing by the
Licensor's Assistant Vice President Engineering— Design, or his authorized representative; (ii)
such other additional safety standards as the Licensor, in its sole discretion, elects to require,
including, without limitation, American Railway Engineering and Maintenance-of-Way
Association("AREMA") standards and guidelines(collectively, "UP Additional Requirements"),
and (iii) all applicable laws, rules and regulations ("Laws"). If there is any conflict between the
requirements of any Law and the UP Specifications or the UP Additional Requirements,the most
restrictive will apply.
B. All work performed on property of the Licensor in connection with the design, construction,
maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the
satisfaction of the Licensor.
C. Prior to the commencement of any work in connection with the design, construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline
from Licensor's property, the Licensee shall submit to the Licensor plans setting out the method
and manner of handling the work, including the shoring and cribbing, if any, required to protect
the Licensor's operations, and shall not proceed with the work until such plans have been
approved by the Licensor's Assistant Vice President Engineering Design, or his authorized
representative, and then the work shall be done to the satisfaction of the Licensor's Assistant Vice
President Engineering Design or his authorized representative. The Licensor shall have the right,
if it so elects,to provide such support as it may deem necessary for the safety of its track or tracks
during the time of construction, maintenance, repair, renewal, modification, relocation,
reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support,
the Licensee shall pay to the Licensor,within fifteen(15)days after bills shall have been rendered
therefore, all expenses incurred by the Licensor in connection therewith, which expenses shall
include all assignable costs.
D. The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the
grade even with the adjacent surface of the ground.
E. In the prosecution of any work covered by this Agreement, Licensee shall secure any and all
necessary permits and shall comply with all applicable federal, state and local laws, regulations
and enactments affecting the work including, without limitation, all applicable Federal Railroad
Administration regulations.
Section 3. NOTICE OF COMMENCEMENT OF WORK/ LICENSOR REPRESENTATIVE
/SUPERVISION/FLAGGING/SAFETY.
A. If an emergency should arise requiring immediate attention, the Licensee shall provide as much
notice as practicable to Licensor before commencing any work. In all other situations, the
Licensee shall notify the Licensor at least ten(10) days (or such other time as the Licensor may
allow)in advance of the commencement of any work upon property of the Licensor in connection
with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or
removal of the Pipeline. All such work shall be prosecuted diligently to completion. The
Licensee will coordinate its initial, and any subsequent work with the following employee of
Licensor or his or her duly authorized representative (hereinafter "Licensor Representative" or
"Railroad Representative"):
Thomas L.Haseltine,MTM
Union Pacific Railroad Company
200 North 6th Street
Dekalb,IL 60115
Work: 815/758-7139
Email: tlhaseltAup.com
B. Licensee, at its own expense, shall adequately police and supervise all work to be performed. The
responsibility of Licensee for safe conduct and adequate policing and supervision of work shall
not be lessened or otherwise affected by Licensor's approval of plans and specifications involving
the work, or by Licensor's collaboration in performance of any work, or by the presence at the
work site of a Licensor Representative, or by compliance by Licensee with any requests or
recommendations made by the Licensor Representative.
C. At the request of Licensor, Licensee shall remove from Licensor's property any employee who
fails to conform to the instructions of the Licensor Representative in connection with the work on
Licensor's property. Licensee shall indemnify Licensor against any claims arising from the
removal of any such employee from Licensor's property.
D. Licensee shall notify the Licensor Representative at least ten (10) working days in advance of
proposed performance of any work in which any person or equipment will be within twenty-five
(25)feet of any track, or will be near enough to any track that any equipment extension(such as,
but not limited to, a crane boom)will reach to within twenty-five(25) feet of any track. No work
of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s),
vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of
any of Licensor's track(s) at any time, for any reason, unless and until a railroad flagman is
provided to watch for trains. Upon receipt of such ten (10) day notice, the Licensor
1 •1
Representative will determine and inform Licensor whether a flagman need be present and
whether any special protective or safety measures need to be implemented. If flagging or other
special protective or safety measures are performed by Licensor, Licensor will bill Licensee for
such expenses incurred by Licensor, unless Licensor and a federal, state or local governmental
entity have agreed that Licensor is to bill such expenses to the federal, state or local governmental
entity. If Licensor will be sending the bills to Licensee,Licensee shall pay such bills within thirty
(30) days of receipt of billing. If Licensor performs any flagging, or other special protective or
safety measures are performed by Licensor, Licensee agrees that Licensee is not relieved of any
of responsibilities or liabilities set forth in this Agreement.
E. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-
hour day for the class of flagmen used during regularly assigned hours and overtime in
accordance with Labor Agreements and Schedules in effect at the time the work is performed. In
addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare,
supplemental sickness, Railroad Retirement and unemployment compensation, supplemental
pension, Employees Liability and Property Damage and Administration will be included,
computed on actual payroll. The composite charge will be the prevailing composite charge in
effect at the time the work is performed. One and one-half times the current hourly rate is paid
for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays.
Wage rates are subject to change, at any time, by law or by agreement between Licensor and its
employees, and may be retroactive as a result of negotiations or a ruling of an authorized
governmental agency. Additional charges on labor are also subject to change. If the wage rate or
additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on
the basis of the new rates and charges.
F. Reimbursement to Licensor will be required covering the full eight-hour day during which any
flagman is furnished, unless the flagman can be assigned to other railroad work during a portion
of such day, in which event reimbursement will not be required for the portion of the day during
which the flagman is engaged in other railroad work. Reimbursement will also be required for
any day not actually worked by the flagman following the flagman's assignment to work on the
project for which Licensor is required to pay the flagman and which could not reasonably be
avoided by Licensor by assignment of such flagman to other work,even though Licensee may not
be working during such time. When it becomes necessary for Licensor to bulletin and assign an
employee to a flagging position in compliance with union collective bargaining agreements,
Licensee must provide Licensor a minimum of five (5) days notice prior to the cessation of the
need for a flagman. If five(5)days notice of cessation is not given,Licensee will still be required
to pay flagging charges for the five(5)day notice period required by union agreement to be given
to the employee, even though flagging is not required for that period. An additional ten(10)days
notice must then be given to Licensor if flagging services are needed again after such five day
cessation notice has been given to Licensor.
G. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work performed by Licensee or its contractor. Licensee shall be responsible
for initiating, maintaining and supervising all safety, operations and programs in connection with
the work. Licensee and its contractor shall at a minimum comply with Licensor's safety standards
listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by
Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee shall notify
Licensor if it determines that any of Licensor's safety standards are contrary to good safety
practices. Licensee and its contractor shall furnish copies of Exhibit D to each of its employees
before they enter the job site.
H. Without limitation of the provisions of paragraph G above, Licensee shall keep the job site free
from safety and health hazards and ensure that their employees are competent and adequately
trained in all safety and health aspects of the job.
I. Licensee shall have proper first aid supplies available on the job site so that prompt first aid
services may be provided to any person injured on the job site. Prompt notification shall be given
to Licensor of any U.S. Occupational Safety and Health Administration reportable injuries.
Licensee shall have a non-delegable duty to control its employees while they are on the job site
or any other property of Licensor, and to be certain they do not use,be under the influence of, or
have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe
performance of any work.
J. If and when requested by Licensor,Licensee shall deliver to Licensor a copy of its safety plan for
conducting the work(the "Safety Plan"). Licensor shall have the right, but not the obligation,to
require Licensee to correct any deficiencies in the Safety Plan. The terms of this Agreement shall
control if there are any inconsistencies between this Agreement and the Safety Plan.
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost and expense incurred in connection with the design,
construction, maintenance, repair and renewal and any and all modification,revision, relocation,removal
or reconstruction of the Pipeline,including any and all expense which may be incurred by the Licensor in
connection therewith for supervision,inspection, flagging,or otherwise.
Section 5. REINFORCEMENT,RELOCATION OR REMOVAL OF PIPELINE.
A. The license herein granted is subject to the needs and requirements of the Licensor in the safe and
efficient operation of its railroad and in the improvement and use of its property. The Licensee
shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move all
or any portion of the Pipeline to such new location, or remove the Pipeline from the Licensor's
property, as the Licensor may designate, whenever, in the furtherance of its needs and
requirements, the Licensor,at its sole election, finds such action necessary or desirable.
B. All the terms, conditions and stipulations herein expressed with reference to the Pipeline on
property of the Licensor in the location hereinbefore described shall, so far as the Pipeline
remains on the property, apply to the Pipeline as modified, changed or relocated within the
contemplation of this section.
Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION.
A. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor
shall be designed, constructed and, at all times, maintained, repaired, renewed and operated in
such manner as to cause no interference whatsoever with the constant, continuous and
uninterrupted use of the tracks, property and facilities of the Licensor and nothing shall be done
or suffered to be done by the Licensee at any time that would in any manner impair the safety
thereof.
B. Explosives or other highly flammable substances shall not be stored on Licensor's property
without the prior written approval of Licensor.
C. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Licensor's trackage shall be installed or used by Licensor or its contractors without the prior
written permission of Licensor.
D. When not in use, any machinery and materials of Licensee or its contractors shall be kept at least
fifty(50)feet from the centerline of Licensor's nearest track.
E. Operations of Licensor and work performed by Licensor's personnel may cause delays in the
work to be performed by Licensee. Licensee accepts this risk and agrees that Licensor shall have
no liability to Licensee or any other person or entity for any such delays. Licensee shall
coordinate its activities with those of Licensor and third parties so as to avoid interference with
railroad operations. The safe operation of Licensor's train movements and other activities by
Licensor take precedence over any work to be performed by Licensee.
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic
cable systems is of extreme importance since any break could disrupt service to users resulting in
business interruption and loss of revenue and profits. Licensee shall telephone the Licensor
during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday,
except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to
determine if fiber optic cable is buried anywhere on the 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 Licensor's property until all
such protection or relocation has been accomplished. Licensee shall indemnify and hold the
Licensor harmless from and against all costs, liability and expense whatsoever(including, without
limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by
Licensee's failure to comply with the provisions of this paragraph.
B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, THE
LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE,
INDEMNIFY, DEFEND AND HOLD THE LICENSOR HARMLESS FROM AND
AGAINST ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES)
CAUSED BY THE NEGLIGENCE OF THE LICENSEE, ITS CONTRACTOR, AGENTS
AND/OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTRUCTION
OF ANY TELECOMMUNICATIONS SYSTEM ON LICENSOR'S PROPERTY,AND/OR
(2)ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF
OF ANY TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR,
AGENTS AND/OR EMPLOYEES, ON LICENSOR'S PROPERTY, EXCEPT IF SUCH
COSTS, LIABILITY OR EXPENSES ARE CAUSED SOLELY BY THE DIRECT
ACTIVE NEGLIGENCE OF THE LICENSOR. LICENSEE FURTHER AGREES THAT
IT SHALL NOT HAVE OR SEEK RECOURSE AGAINST LICENSOR FOR ANY
CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE
OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A
TELECOMMUNICATION COMPANY USING LICENSOR'S PROPERTY OR A
CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON
LICENSOR'S PROPERTY.
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES.
A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon
property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or
materialman's lien of any kind or nature to be enforced against the property for any work done or
materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee
shall indemnify and hold harmless the Licensor against and from any and all liens, claims,
demands, costs and expenses of whatsoever nature in any way connected with or growing out of
such work done, labor performed, or materials furnished.
B. The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in
respect to, or on account of the Pipeline,to prevent the same from becoming a charge or lien upon
property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect
to such property shall not be increased because of the location,construction or maintenance of the
Pipeline or any improvement, appliance or fixture connected therewith placed upon such
property, or on account of the Licensee's interest therein. Where such tax, charge or assessment
may not be separately made or assessed to the Licensee but shall be included in the assessment of
the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion
of such taxes determined by the value of the Licensee's property upon property of the Licensor as
compared with the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
In the event the Licensee in any manner moves or disturbs any of the property of the Licensor in
connection with the construction,maintenance,repair, renewal,modification,reconstruction,relocation or
removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole
expense,restore such property to the same condition as the same were before such property was moved or
disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and
employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of
whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of
persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury,
death, damage, loss or destruction grows out of or arises from the moving or disturbance of any other
property of the Licensor.
Section 10. INDEMNITY.
A. As used in this Section, "Licensor" includes other railroad companies using the Licensor's
property at or near the location of the Licensee's installation and their officers, agents, and
employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties,
costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may
result from: (a)injury to or death of persons whomsoever (including the Licensor's officers,
agents, and employees, the Licensee's officers, agents, and employees, as well as any other
person); and/or(b)damage to or loss or destruction of property whatsoever (including Licensee's
property, damage to the roadbed,tracks, equipment, or other property of the Licensor, or property
in its care or custody).
f 1 r
B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND
PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO,
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR FROM
ANY LOSS WHICH IS DUE TO OR ARISES FROM:
1. THE PROSECUTION OF ANY WORK CONTEMPLATED BY THIS AGREEMENT
INCLUDING THE INSTALLATION, CONSTRUCTION, MAINTENANCE, REPAIR,
RENEWAL, MODIFICATION, RECONSTRUCTION, RELOCATION, OR REMOVAL
OF THE PIPELINE OR ANY PART THEREOF;
2. ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE;
3. THE PRESENCE, OPERATION, OR USE OF THE PIPELINE OR CONTENTS
ESCAPING THEREFROM;
4. THE ENVIRONMENTAL STATUS OF THE PROPERTY CAUSED BY OR
• CONTRIBUTED TO BY LICENSEE;
5. ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS,
INVITEES, EMPLOYEES, OR CONTRACTORS OR ANYONE DIRECTLY OR
INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR
EXERCISE CONTROL OVER; OR
6. LICENSEE'S BREACH OF THIS AGREEMENT, EXCEPT WHERE THE LOSS IS
CAUSED BY THE SOLE DIRECT AND ACTIVE NEGLIGENCE OF THE LICENSOR,
AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT
JURISDICTION, IT BEING THE INTENTION OF THE PARTIES THAT THE ABOVE
INDEMNITY WILL OTHERWISE APPLY TO LOSSES CAUSED BY OR ARISING
FROM,IN WHOLE OR IN PART,LICENSOR'S NEGLIGENCE.
C. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit of
proceeding brought against any indemnitee by any entity, relating to any matter covered by this
License for which Licensee has an obligation to assume liability for and/or save and hold
harmless any indemnitee.Licensee shall pay all costs incident to such defense,including, but not
limited to, reasonable attorney's fees, investigators' fees, litigation and appeal expenses,
settlement payments and amounts paid in satisfaction of judgments.
Section 11. REMOVAL OF PIPELINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole
expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track
or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such
property to as good a condition as they were in at the time of the construction of the Pipeline. If the
Licensee fails to do the foregoing, the Licensor may, but is not obligated, to perform such work of
removal and restoration at the cost and expense of the Licensee. In the event of the removal by the
Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein
provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the
•
Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or
impair any right of action for damages,or otherwise,that the Licensor may have against the Licensee.
Section 12. WAIVER OF BREACH.
The waiver by the Licensor of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by the Licensee shall in no way impair the right of the
Licensor to avail itself of any remedy for any subsequent breach thereof.
Section 13. TERMINATION.
A. If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the
Licensee continues in default in the performance of any covenant or agreement herein contained
for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying
such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by
written notice.
B. In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by
written notice given by either party hereto to the other on any date in such notice stated, not less,
however,than thirty(30)days subsequent to the date upon which such notice shall be given.
C. Notice of default and notice of termination may be served personally upon the Licensee or by
mailing to the last known address of the Licensee. Termination of this Agreement for any reason
shall not affect any of the rights or obligations of the parties hereto which may have accrued, or
liabilities, accrued or otherwise, which may have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED.
The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted,
without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted
transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by
operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option
of the Licensor, shall terminate this Agreement.
Section 15. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to
the benefit of the parties hereto,their heirs,executors,administrators, successors and assigns.
Section 16. SEVERABILITY.
Any provision of this Agreement which is determined by a court of competent jurisdiction to be
invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which
shall not invalidate or otherwise render ineffective any other provision of this Agreement.
Approved:Insurance Group
Created:9/23/05
Last Modified:03/29/10
Form Approved,AVP-Law
EXHIBIT C
Union Pacific Railroad Company
Contract Insurance Requirements
Licensee shall, at its sole cost and expense, procure and maintain during the life of this Lease (except as
otherwise provided in this Lease)the following insurance coverage:
A. Commercial General Liability insurance. Commercial general liability (CGL) with a 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
equivalent coverage).
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 auto (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.
C. 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.
D. Railroad Protective Liability insurance. Licensee must maintain"Railroad Protective Liability"
insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent
coverage) on behalf of Railroad 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"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
E. 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
F. All policy(ies) required above (except worker's compensation and employers liability) must
include Railroad as"Additional Insured"using ISO Additional Insured Endorsements CG 20 26, and CA
20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as
additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26,
and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and
shall not be limited by Licensee's liability under the indemnity provisions of this 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.
H. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of
damages against Railroad and its agents, officers, directors and employees for damages covered by the
workers compensation and employers liability 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.
J. The fact that insurance is obtained by Licensee or by Railroad 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 Railroad from Licensee or any third
party will not be limited by the amount of the required insurance coverage.
Pipeline Crossing 07/20/08
Form Approved,AVP-Law
EXHIBIT D
SAFETY STANDARDS
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of Licensee or its contractors, subcontractors,
or agents, as well as any subcontractor or agent of any Licensee.
Clothing
A. All employees of Licensee will be suitably dressed to perform their duties safely and in a
manner that will not interfere with their vision,hearing, or free use of their hands or feet.
Specifically,Licensee's employees must wear:
(i) Waist-length shirts with sleeves.
•
(ii) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser
bottoms must be tied to prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees working on
bridges are required to wear safety-toed footwear that conforms to the American
National Standards Institute(ANSI)and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or
other shoes that have thin soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose
jewelry while operating or working on machinery.
II. Personal Protective Equipment
Licensee shall require its employee to wear personal protective equipment as specified by
Railroad rules,regulations,or recommended or requested by the Railroad Representative.
(i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision.
Hard hats should be affixed with Licensee's company logo or name.
(ii) Eye protection that meets American National Standard (ANSI) for occupational and
educational eye and face protection, Z87.1 — latest revision. Additional eye protection
must be provided to meet specific job situations such as welding,grinding,etc.
(iii) Hearing protection,which affords enough attenuation to give protection from noise levels
that will be occurring on the job site. Hearing protection, in the form of plugs or muffs,
must be worn when employees are within:
• 100 feet of a locomotive or roadway/work equipment
• 15 feet of power operated tools
• 150 feet of jet blowers or pile drivers
• 150 feet of retarders in use (when within 10 feet, employees must wear dual ear
protection—plugs and muffs)
(iv) Other types of personal protective equipment, such as respirators, fall protection
equipment, and face shields, must be worn as recommended or requested by the Railroad
Representative.
III. On Track Safety
Licensee is responsible for compliance with the Federal Railroad Administration's Roadway
Worker Protection regulations — 49CFR214, Subpart C and Railroad's On-Track Safety rules.
Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their
employees on such regulations. In addition to the instructions contained in Roadway Worker
Protection regulations,all employees must:
(i) Maintain a minimum distance of at least twenty-five (25) feet to any track unless the
Railroad Representative is present to authorize movements.
(ii) Wear an orange,reflectorized work wear approved by the Railroad Representative.
(iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of
work being performed. Licensee must take special note of limits of track authority, which
tracks may or may not be fouled, and clearing the track. Licensee will also receive
special instructions relating to the work zone around machines and minimum distances
between machines while working or traveling.
IV. Equipment
A. It is the responsibility of Licensee to ensure that all equipment is in a safe condition to
operate. If, in the opinion of the Railroad Representative, any of Licensee's equipment is
unsafe for use, Licensee shall remove such equipment from Railroad's property. In
addition, Licensee must ensure that the operators of all equipment are properly trained
and competent in the safe operation of the equipment. In addition,operators must be:
• Familiar and comply with Railroad's rules on lockout/tagout of equipment.
• Trained in and comply with the applicable operating rules if operating any by-rail
equipment on-track.
• Trained in and comply with the applicable air brake rules if operating any
equipment that moves rail cars or any other rail bound equipment.
B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and
audible back-up warning device.
C. Unless otherwise authorized by the Railroad Representative, all equipment must be
parked a minimum of twenty-five (25) feet from any track. Before leaving any
equipment unattended, the operator must stop the engine and properly secure the
equipment against movement.
D. Cranes must be equipped with three orange cones that will be used to mark the working
area of the crane and the minimum clearances to overhead powerlines.
V. General Safety Requirements
A. Licensee shall ensure that all waste is properly disposed of in accordance with applicable
federal and state regulations.
B. Licensee shall ensure that all employees participate in and comply with a job briefing
conducted by the Railroad Representative, if applicable. During this briefing, the
Railroad Representative will specify safe work procedures, (including On-Track Safety)
and the potential hazards of the job. If any employee has any questions or concerns about
the work,the employee must voice them during the job briefing. Additional job briefings
will be conducted during the work as conditions,work procedures,or personnel change.
C. All track work performed by Licensee meets the minimum safety requirements
established by the Federal Railroad Administration's Track Safety Standards 49CFR213.
D. All employees comply with the following safety procedures when working around any
railroad track:
(i) Always be on the alert for moving equipment. Employees must always expect
movement on any track,at any time,in either direction.
(ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other
track components.
(iii) In passing around the ends of standing cars, engines, roadway machines or work
equipment, leave at least 20 feet between yourself and the end of the equipment.
Do not go between pieces of equipment of the opening is less than one car length
(50 feet).
(iv) Avoid walking or standing on a track unless so authorized by the employee in
charge.
(v) Before stepping over or crossing tracks, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the
performance of your duties and only when track and equipment have been
protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace
safety.
r F
• i. •
SUBMITTING REQUESTS FOR
RAILROAD PROTECTIVE LIABILITY INSURANCE
($2,000,000 per occurrence/$6,000,000 aggregate)
Application forms for inclusion in Union Pacific Railroad's Blanket Railroad Protective Liability
Insurance Policy may be obtained by accessing the following website(includes premiums as well):
www.uprr.com/reus/rrinsure/insurovr.shtml
If you have questions regarding railroad protective liability insurance (i.e. premium quotes, application)
please contact the Marsh USA Service Team, Bill Smith or Cindy Long at:
Phone:(800)729-7001
Fax:(816)556-4362
Email: williamj.smithamarsh.com
Email: cindy.long@marsh.com
*PLEASE NOTE - The RPLI application and premium check should be sent directly to Marsh, USA at
the address shown below - do NOT send your check and application via overnight air, as the P.O. Box
will NOT accept overnight deliveries.
If you are in a situation where you require a RUSH, please contact Bill Smith or Cindy Long and they
will do their best to accommodate your needs. All checks written to Marsh, USA should reference Union
Pacific Railroad in the"Memo"section of the check.
Send Checks and Applications to the following"NEW"address:
Marsh USA
NW 8622
PO Box 1450
Minneapolis,MN 55485-8622
ego , h 1:4••1r
1 _` •
NOTE:BEFORE YOU BEGIN ANY WORK,SEE
AGREEMENT FOR FIBER OPTIC PROVISION.
EXHIBIT"A"
UNION PACIFIC RAILROAD COMPANY
ELGIN,IL
M.P.41.25 -Belvidere Subdivision
License to CITY OF ELGIN
SCALE: 1"=0'
REAL ESTATE DEPARTMENT
OMAHA,NE Date: 11/22/2010
Folder:02639-63
•
NOTE:BEFORE YOU BEGIN ANY WORK,SEE
AGREEMENT FOR FIBER OPTIC PROVISION.
EXHIBIT"A"
UNION PACIFIC RAILROAD COMPANY
ELGIN,IL
M.P.41.25 -Belvidere Subdivision
License to CITY OF ELGIN
SCALE: 1"=0'
REAL ESTATE DEPARTMENT
OMAHA,NE Date: 11/22/2010
Folder:02639-63
UNION
PACIFIC
IMO
l''
July 6, 2011
Folder: 02639-63
MR. ERIC B. WEISS, P.E.
CITY OF ELGIN
150 DEXTER CT
ELGIN IL 60120
RE: Proposed Construction of approximately 290' of an Underground 96" Longitudinal Pipeline and a
5'X 10' RCB Culvert Pipeline Encroachment at Mile Posts 41.25 and 41.3 on the Belvidere
Subdivision at or near Elgin, Kane County, Illinois
Dear Mr. Weiss:
Attached is your original copy of our Agreement, fully executed on behalf of the Railroad Company.
When you or your representative enters the Railroad Company's property, a copy of this fully-executed
document must be available at the site to be shown on request to any Railroad employee or official.
In accordance with the terms of the Agreement, you are required to notify the following Railroad
Company's Manager of Track Maintenance, Manager of Signal Maintenance, and the
Telecommunications ("Call Before You Dig")number at least 10 days in advance of the date you plan on
entering the right of way for further instructions and approval to commence construction.
Thomas L. Haseltine, MTM Ralph E. Gillen, MSM
Union Pacific Railroad Company Union Pacific Railroad Company
200 North 6th Street 7 East Lake Street
Dekalb, IL 60115 Northlake, IL 60164
Work: 815/758-7139 Work: 708/679-2522
Email: tlhaselt@up.com Email: regillen@up.com
Telecommunications ("Call Before You Dig"): 1-800-336-9193
As an additional note, the top of the casing must be a minimum of two feet below any existing fiber optic
cable. Any open excavation required within five feet of the fiber optic cable must be dug by hand.
All future insurance notices should be forwarded to:
Real Estate Department
Folder No: 02639-63
Union Pacific Railroad Company
1400 Douglas Street STOP 1690
Omaha,NE 68179-1690
Thank you.
Sincerely,
22d ,�
Mary C. Gross
Manager-Contracts- Real Estate
Email : MCGROSS@up.com
Phone : (402) 544-8623
s' r, t
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2 City of Elgin Memorandum
R
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Date: July 18, 2011
To: Jennifer Quinton, Deputy City Clerk
From: Eric Weiss, Water Operations Engineer
Subject: Agreement with Union Pacific Railroad
Enclosed you will find the original signed and executed Longitudinal Pipeline Encroachment
Agreement with Union Pacific Railroad Company(Lord Street Sewer Separation Project). This
was approved as Resolution No. 11-114, Adopted at the June 22, 2011 Council Meeting.
Thanks.
Enclosure