1
AD
DEN
DU
M N
O. 6
Brackish W
ater Desalination Project
PW 694
Issued Novem
ber 20, 2020
1.Addendum
No. 4, Item
s 1.a and 1.b, Section 00400, Bid Forms:
a.D
elete “Attachment M
” from the list of form
s to be submitted four (4) after Bid.
Attachment M
is to be submitted no later than 3 p.m
. the day Bids are due.
2.Section 00200, Instructions to Bidders:a.
Modify the third sentence of Article 39.11 as follow
s:“The Escrow
Bid Docum
ents shall be accompanied w
ith the certification found in Section 00400, Bid Form
, Attachment N
Q, BID
DO
CU
MEN
T CER
TIFICATIO
N,
signed by an individual authorized by ….”
3.Section 00400, Bid Form
s:a.
In the Table of Contents follow
ing “All Bidders Must Subm
it with Bid:”, R
eplace the listing of certifications w
ith the following:
“The Bidder shall complete all parts of, and subm
it with its Bid, the follow
ing attachm
ents:
Attachment A
Bidder’s Bond (if this is the Bidder’s chosen Bid Security).
Attachment B
Non-C
ollusion Declaration.
Attachment C
Designation of Subcontractors.
Attachment D
Iran Contracting Act C
ertification.
Attachment D
-1Anti-Lobbying C
ertification.Attachm
ent ESchedule of M
ajor Equipment and M
aterial Suppliers.Attachm
ent FSW
RC
B Form 4500-3 D
BE Subcontractor Performance Form
.Attachm
ent GSW
RC
B Form 4500-4 D
BE Subcontractor Utilization Form
.Attachm
ent HC
onsolidated Appropriations Act Buy American Iron and Steel
Certification.
Attachment I
Certification of Bidder’s Experience and Q
ualifications. (Excluding Part C
)Attachm
ent JC
ertification of Electrical Subcontractor’s Experience and Q
ualifications (to be submitted no later than 3 p.m
. the day Bids are due).
Attachment K
Certification of O
ff Plant Site Pipeline Subcontractor’s Experience and Q
ualifications. (to be submitted no later than 3
p.m. the day Bids are due).
Attachment L
Certification of M
arine Subcontractor’s Experience and Q
ualifications (to be submitted no later than 3 p.m
. the day Bids are due).
Attachment M
Certification of System
Integrator Experience and Q
ualifications (to be submitted no later than 3 p.m
. the day Bids are due).
2
Com
plete or have each of your subcontractors complete the above D
BE Program
and Buy American Iron and Steel form
s as required by the SWR
CB
CW
SRF Program
and submit w
ith the Bid.
Tae taree coweht m
onetlry Bdsserh m
uht hubmdt tae uoccow
dng A
ttlkamenth w
dtadn uour (4) buhdnehh slyh uoccowdng tae otendng ou tae
Bdsh:
In addition, the following attachm
ent requires submittal w
ithin four (4) business days follow
ing the opening of Bids:
Attlkam
ent Gj2
DB
E Goos Fldta Euuorth Verdudkltdon.
Attachment I
Part C- Financial Inform
ation.Attachm
ent ND
BE Contractor Subcontractor C
ertification.Attachm
ent OD
BE Selected by Prime C
ontractor.Attachm
ent PBuy Am
erican Iron and Steel Designation of Equipm
ent or M
aterial Manufacturers.
Attlkam
ent QB
ds Dokum
ent Certdudkl tdon”
b.R
eplace Article VIII with the follow
ing:
“The Bidder shall complete all parts of, and subm
it with its Bid, the follow
ing attachm
ents:
Attachment A
Bidder’s Bond (if this is the Bidder’s chosen Bid Security).
Attachment B
Non-C
ollusion Declaration.
Attachment C
Designation of Subcontractors.
Attachment D
Iran Contracting Act C
ertification.
Attachment D
-1Anti-Lobbying C
ertification.Attachm
ent ESchedule of M
ajor Equipment and M
aterial Suppliers.Attachm
ent FSW
RC
B Form 4500-3 D
BE Subcontractor Performance Form
.Attachm
ent GSW
RC
B Form 4500-4 D
BE Subcontractor Utilization Form
.Attachm
ent HC
onsolidated Appropriations Act Buy American Iron and Steel
Certification.
Attachment I
Certification
of Bidder’s
Experience and
Qualifications.
(Excluding Part C)
Attachment J
Certification
of Electrical
Subcontractor’s Experience
and Q
ualifications (to be submitted no later than 3 p.m
. the day Bids are due).
Attachment K
Certification
of O
ff Plant
Site Pipeline
Subcontractor’s Experience and Q
ualifications (to be submitted no later than 3
p.m. the day Bids are due).
Attachment L
Certification
of M
arine Subcontractor’s
Experience and
Qualifications (to be subm
itted no later than 3 p.m. the day
Bids are due).Attachm
ent MC
ertification of
System
Integrator Experience
and Q
ualifications (to be submitted no later than 3 p.m
. the day Bids are due).
In addition, the following attachm
ent requires submittal w
ithin four (4) business days follow
ing the opening of Bids:
3
Attlkam
ent Gj2
DB
E Goos Fldta Euuorth Verdudkltdon
Attachment I
Part C- Financial Inform
ation.Attachm
ent OD
BE Selected by Prime C
ontractor.Attachm
ent PBuy Am
erican Iron and Steel Designation of Equipm
ent or M
aterial Manufacturers.
Attlkam
ent QB
ds Dokum
ent Certdudkltdon”
c.Add the attached Attachm
ent Q, Bid D
ocument C
ertification.
4.Section 01140, W
ork Restrictions:
a.M
odify the second sentence of paragraph 1.04.B.6 as follows:
“Maxim
um allow
able outage of 8 7 hours per 48 hour time period.”
5.Section 02581, Precast Electrical H
andholes and Electrical Manholes:
a.M
odify paragraph 2.02.C.3.a as follow
s:
“Handholes: Alum
inum plate hinged floor access door (hatch) as specified
below: in Section 08320 - Floor Access D
oors:”
1.Section 11242, Skid M
ounted Liquid Chem
ical Diaphragm
-Type Metering Pum
ps:a.
Delete paragraph 2.06.A.3:
“Safety Enclosure: Furnish skid with a protective safety enclosure.”
2.Section 11312D
, Vertical Turbine Short Setting Centrifugal Pum
psa.
Add parapgraph 2.01.A.4:“4. G
oulds Pumps.”
b.Add paragraph 2.01.B.5: “5. G
oulds Pumps.”
3.Section 11902, Fish Screen Assem
bly and Cleaning System
a.Add paragraph 2.02-B.6.e:“e. Saylor-Beall.”
4.Section 15114, C
heck Valvesa.
Replace paragraph 1.03.A.1.b w
ith the following:
“b. Class:
1.Provide check valves suitable for w
orking pressures up to 150 pounds per square inch unless otherw
ise specified. 2.
Provide check valves suitable for test pressures up to 250 pounds per square inch in piping system
s with test pressure greater than 150
pounds per square inch and less than 250 pounds per square inch.”
5.Section 15117, Specialty Valvesa.
ADD
the following Article after Sub-Paragraph 2.05.D
.4:
“,.i6 SV932 – SOLEN
OID
VALVES
4
A.M
anufacturers: One of the follow
ing or approved equal:1.
Plastomatic PS Series Pilot O
perated Solenoid Valves.
B.D
esign:1.
Valves: Suitable for service under the following conditions:
a.Fluid: utility w
ater.b.
Temperature of fluid: 40 to 80 degrees Fahrenheit.
c.Piping test pressure: 100 pounds per square inch gauge.
2.U
nless otherwise indicated on the D
rawings, provide valves that:
a.M
inimum
NEM
A Type 4X enclosure.b.
120 VAC operation.
c.Suitable for use as indicated on the D
rawings.
d.Shall be C
lass F coil insulation.3.
Fail-Dry in the case of pow
er outage.4.
Size: ½-inch to 3-inch.
a.½
-inch Cv = 5 m
inimum
.b.
3-inch Cv = 80 m
inimum
.5.
Install strainer upstream of all solenoid valves.
C.
Materials:1.
Body:a.For utility w
ater service: PVC.
2.Seals: PTFE bellow
s barrier type seals.”
6.Section 17101.02, R
O System
Control Strategies
a.R
EPLACE Paragraph 3.04 B. 3. B. 8) a) w
ith the following:
“a) When a facility w
ide emergency shutdow
n is initiated, the sequence will
proceed according to the following steps:
(1)The R
O feed pum
ps stall shut down w
ithout a ramp dow
n of the VFD
s.(2)
Once the R
O feed pum
ps are shut down, the control system
shall com
mand the R
O train concentrate flow
control valves to 100-percent closed.
(3)The R
O train concentrate bypass valve w
ill open.(4)
Once the R
O feed pum
ps are shut down and the control valves are
proven in the proper state, the RO
feed pump isolation valves w
ill close 100 percent.
(5)All other facility functions w
ill operate normally.
(6)Follow
ing an emergency shutdow
n, the operator will be prom
pted to flush the system
s after the alarm conditions have been addressed.”
7.Section 17101.03, C
hemical C
ontrol Strategiesa.
INSER
T the following at the end of Article 3.04 “Erection, Installation,
Application, Construction”:
“E. Polymer System
:1.
References:
5
a.P&ID
drawings.
b.G
eneral control strategies in Section 17100 – Control Strategies.
c.Specific process control strategies in Section 17101 – Specific C
ontrol Strategies.2.
Abstract:a.
The polymer batching system
prepares dry polymer into a dilute
solution to serve as a flocculant aid. The polymer feed pum
ps deliver the polym
er solution from the polym
er tanks to the flocculators.
b.C
hemical feed rate for the location is m
easured by a chemical
flowm
eter.c.
Two pum
ps operate on an operator-adjustable duty/standby sequence.
3.C
ontrol strategy:a.
Tank Level:1)
Float switches included w
ith the vendor provided dry polymer
feed package measure the liquid depth in both the vendor
provided mixing tank and hold tank.
b.The chem
ical feed pumps adjust the pum
p feed rate based on the required chem
ical feed rate to achieve any of the following
methods of control as selected by the operator:
1)C
losed Loop: Maintain a flow
paced dose setpoint provided by the operator:a)
The control system calculates the required feed rate based
upon the following inform
ation:(1)
Dose setpoint (m
g/L), entered by the operator.(2)
Percent polymer concentration by w
eight, entered by the operator.
(3) Specific gravity of polym
er solution, entered by the operator.
(4) Process flow
rate:a.Flow
rate entering Plant A.2)
Open Loop: M
aintain a fixed metering pum
p rate provided by the operator:a)
The control system varies the pum
p speed linearly based on the operator specified percent of 100-percent rate capacity:
b)Exam
ple:(1)
Operator enters m
aximum
pump capacity: 2 gph.
(2)O
perator enters chemical delivery rate: 1 gph.
(3)R
esulting pump speed: 50 percent.
c)C
hemical feed rate display:
(1)The control system
monitors the actual chem
ical feed flow
through a flowm
eter to the injection location.(2)
The control system perform
s a running average of the flow
meter output to com
pensate for pulsations in flow.
(3)The calculated dosing rate (gph) is displayed on the control system
display for visual comparison w
ith the actual dosing rate (gph) from
the chemical flow
meter.
6
3)Alarm
s:a)
Polymer m
ixing tank level (vendor provided):(1)
High level: generate an alarm
.(2)
Low level: generate an alarm
.b)
Polymer holding tank level (vendor provided):
(1)H
igh level: generate an alarm.
(2)Low
level: generate an alarm.
c)Polym
er feed pump:
(1)If the duty pum
p is called to run and fails to start:(a)G
enerate an alarm.
(b)The standby pump is called to run.
(2)If standby pum
p is called to run and fails:(c)G
enerate an alarm.
d)Polym
er feed rate (FE 61.1101):(1)
High feed rate: generate an alarm
.(2)
Low feed rate: generate an alarm
.”
7.Section 17101, Specific C
ontrol Strategiesa.
Add the attached new Subsection 17101.04 to the end of the section.
8.Section 17505, C
hlorine Residual Analyzers:
a.M
odify the Type of unit shown in the Schedule at the end of the section as
follows:
“[Am
perometric] [C
olorimetric]”
b.Add chlorine residual analyzer AE 25.0905D
to the schedule following Section
17505. AE 25.0905D shall be provided as a spare to be installed as directed in
the field. The unit shall have the same design features and connected to the
same PC
M as AE 25.0904B.
9.APPEN
DIC
ES:
a.Add the attached U
PRR
permit to Appendix A (16 pages).
7
DR
AW
ING
SThe follow
ing drawings are m
odified as indicated below.
1.R
eplace the existing drawings w
ith the attached drawings for: G
010, TM01, TS08,
25C02, 25C
03, 25C05, 25S14, 25S32, 25S33, 25M
18, 25M27, 25M
28, E03-004, E03-010, E03-011, E03-012, E03-014, E04-001, E04-002, E05-003, 25E01-03, 25E05016, 25E05-17, 25E05-20, 25E05-23, 25E05-27, 25E10-02, 25E10-07, 25E15-01, 25E15-02, 00N
03-01, 21N21-06, 25N
61-02.
2.D
rawing G
17:a.
ADD
the following table to the draw
ing:PO
LYMER
SYSTEM D
ESIGN
CR
ITERIA
TYPE: 100% D
RY PO
LYMER
ACTIVATIO
N: BATC
H SYSTEM
DESC
RIPTIO
NU
NITS
VALU
EN
UM
BER O
F SYSTEMS
NO
.1
MAXIM
UM
PRO
DU
CTIO
N (0.5%
, 60 MIN
UTE M
IN. AG
E TIM
E)LBS/D
AY192
DR
Y POLYM
ER BAG
SIZELBS
55STO
RAG
E HO
PPER VO
LUM
EFT3
2.5
3.D
rawing 25C
08:a.
At gridline E-4, change callout “Unistrut Support” to “C
-channel Support - Typ”.
4.D
rawing 25S20:
a.At gridline D
5, ADD
a Key Note pointing tow
ards the concrete pedestal that the sulfuric acid day tank w
ill stand on. ADD
the following text assigned to that Key
Note: “PLAN
DIM
ENSIO
NS O
F CO
NC
RETE PED
ESTAL FOR
THE SU
LFUR
IC
ACID
DAY TAN
K TO BE C
ON
FIRM
ED BY C
ON
TRAC
TOR
BASED O
N
MAN
UFAC
TUR
ER SELEC
TED FO
R TH
E SULFU
RIC
ACID
DAY TAN
K. PED
ESTAL MU
ST BY ADEQ
UATELY SIZED
FOR
DAY TAN
K AND
ITS ASSO
CIATED
RESTR
AINT SYSTEM
. PEDESTAL PLAN
DIM
ENSIO
NS
APPRO
XIMATE AS SH
OW
N.”
b.AD
D the follow
ing General N
ote: “REFER
TO M
ECH
ANIC
AL DR
AWIN
GS FO
R
LOC
ATION
OF TH
E CH
EMIC
AL PUM
P SKIDS (SEVEN
TOTAL).
CO
NSTR
UC
T A 30-INC
H TALL EQ
UIPM
ENT STAN
D FO
R EAC
H C
HEM
ICAL
PUM
P SKID PER
TYPICAL D
ETAIL S302. SIZE OF EQ
UIPM
ENT STAN
D TO
BE C
ON
FIRM
ED BY C
ON
TRAC
TOR
BASED O
N PU
MP SKID
M
ANU
FACTU
RER
SELECTED
. APPRO
XIMATE O
UTLIN
E DIM
ENSIO
NS O
F EQ
UIPM
ENT STAN
D SH
OW
N O
N M
ECH
ANIC
AL DR
AWIN
GS.
ADEQ
UATELY SIZE EQ
UIPM
ENT STAN
DS FO
R AN
Y ANC
HO
RIN
G
REQ
UIR
EMEN
TS OF C
HEM
ICAL PU
MP SKID
S.”
8
5.D
rawing 25M
29:a.
Gridline B9, change “30” BFW
(S5)” callout at pump header to “30” BFW
(S4)”.
6.D
rawing 25N
2592:a.
Add new chlorine residual analyzer AE 25.0905D
as shown on the attached
sketch. This analyzer shall be provided as a spare to be installed by the C
ontractor as directed in the field.
7.D
rawing P01:
a.At grid line E-6, length of concrete cap over brine pipeline shall be from
Station 12+40 to 12+80. Also the length of shallow
brine pipeline shall match the cap
extension to allow for future D
elta Diablo pipe crossing.
8.D
rawing P02:
a.Add key note 3 to plan at Sta 16+50. Add to key notes: “3. W
ork on Plant Road
can be done M-F from
7 AM to 6PM
with one lane open at all tim
es.”
SELECTED
RESPO
NSES TO
REQ
UESTS FO
R IN
FOR
MA
TION
1.R
efer to the attached table for responses to Bidder questions received to date.
September 2020
00400-Q-1
10024A10 pw://Carollo/Documents/Client/CA/Antioch/10024A10/Specifications/00400 Attachm
ent Q (AD6)
ATTA
CH
MEN
T Q
BID
DO
CU
MEN
T CER
TIFICA
TION
(To Be Submitted w
ithin 4 Business Days of the Bid O
pening)
Project Nam
e: Brackish W
ater Desalination Project
Project N
o. P.W.694
The undersigned hereby certifies that the bid documentation contained herein constitutes the com
plete, only and all docum
entary information used in the preparation of the Bid as specified in the Instructions to
Bidders, and that I have personally examined these contents and have found that this bid docum
entation is com
plete. Furthermore, I certify that all Subcontractors w
hose total subcontract amount exceeds five
percent (5%) of the Total Base Bid Price have furnished separate Escrow
Bid Docum
ents and their bid docum
entation is also furnished herein.
By:
Title:
Firm: __________________________________
**END
OF B
ID D
OC
UM
ENT C
ERTIFIC
ATIO
N**
UTILITY
POW
ERPR
ESENT ?
YES
NO
RO
SYSTEMO
N ?
YESSTAR
T 2500KWG
ENER
ATOR
SHED
LOAD
2500 KWSW
ITCH
GEAR
NO
INH
IBIT
START 100 KW
GEN
ERATO
RS
INH
IBIT
SHED
LOAD
100 KWG
ENER
ATOR
S
DELAY
YES
START 100 KW
GEN
ERATO
RS
STOP 100 KW
GEN
ERATO
RS
NO
UTILITY PO
WER
AND
EMER
GEN
CY G
ENER
ATOR
S OPER
ATION
AL LOG
IC
REFER
ENC
E ADD
END
UM
6
REF SPEC
IFICATIO
N 16232
RO
SYSTEMM
ANU
ALSTAR
T ?
PERM
IT RO
SYSTEMM
ANU
ALSTAR
T
25.0905D
25.0905D
25.0905D
25.0905D
25.0905D 25.0905D 25.0905D
25.0905D 25.0905D 25.0905D
5
5. LOCATION OF ANALYZER TO BE DETERMINED.
Novem
ber 18, 2020 Folder: 03234-84 SC
OTT B
UEN
TING
CITY
OF A
NTIO
CH
PUB
LIC W
OR
KS D
EPTC
ITY O
F AN
TIOC
H PU
BLIC
WO
RK
S200 H
STREET
BA
SEMEN
TA
NTIO
CH
CA
94509 R
e: Proposed O
ne (1) 14 Inch Plastic Pipe Conveying The C
omm
odity Of B
rine Encased In A 24
Inch Steel
Pipeline Crossing
of R
ailroad Property
at M
ile Post
52.7 on
the Tracy
Subdivision/Branch at or near Antioch, C
ontra Costa C
ounty, California
Dear Scott:
A
ttached is an original of the agreement covering your use of the R
ailroad Com
pany’s right of w
ay. Please print two copies, execute on your behalf and return A
LL DO
CU
MEN
TS in one mailed
packaged with a check for any paym
ents required, as shown below
to 1400 Douglas Street, O
maha, N
E 68179-1690, A
ttn: Valerie H
arrill.
An original copy of the fully-executed docum
ent will be returned to you, w
hen approved and processed by the R
ailroad Com
pany. Also, please provide a resolution or other authorization for the party
executing the documents, if signature authorization is required by your Entity.
Payment in the am
ount of Three T
housand Dollars ($3,000.00) is due and payable to U
nion Pacific R
ailroad Com
pany upon your execution of the agreement. Please include your paym
ent, w
ith Folder No. 03234-84 noted on that docum
ent. If you require formal billing, you m
ay consider this letter as a form
al bill and that 94-6001323 is this Corporation’s correct Federal
Taxpayer Identification Num
ber.
R
ailroad Protective Liability Insurance (RPLI) m
ay be obtained from any insurance com
pany w
hich offers such coverage. Union Pacific has also w
orked with a national broker, M
arsh USA
, to m
ake available RPLI to you or your contractor. Y
ou can find additional information, prem
ium
quotes, and application forms at (uprr.m
arsh.com).
If w
e have not received the executed documents w
ithin six months from
the date of this letter, this proposed offer of an agreem
ent is withdraw
n and becomes null and void.
If you have any questions, please contact m
e at VA
HA
RR
. Sincerely, V
alerie Harrill
Mgr II R
eal Estate Contracts
Union Pacific R
ailroad Real Estate 1400 D
ouglas Street Stop 1690 Om
aha, Nebraska 68179-1690 fx. (402) 501-0340
Pipeline Crossing 080808
Folder N
o. 03234-84 Last M
odified: 06/05/18 Form
Approved, A
VP-Law
PIPE
LIN
E C
RO
SSING
A
GR
EE
ME
NT
Mile Post: 52.7, Tracy Subdivision
Location: Antioch, C
ontra Costa C
ounty, California
T
HIS A
GR
EE
ME
NT
(“Agreem
ent”) is made and entered into as of N
ovember 18, 2020,
(“Effective D
ate”) by
and betw
een U
NIO
N
PAC
IFIC
RA
ILR
OA
D
CO
MPA
NY
, a
Delaw
are corporation, (“Licensor”) and C
ITY
OF A
NT
IOC
H PU
BL
IC W
OR
KS D
EPT
, to be addressed at City
Of A
ntioch Public Works, 200 H
Street Basem
ent Antioch, C
alifornia 94509 (“Licensee”). IT
IS MU
TU
AL
LY
AG
RE
ED
BY
AN
D B
ET
WE
EN
TH
E PA
RT
IES H
ER
ET
O A
S FOL
LOW
S: A
rticle 1. L
ICE
NSO
R G
RA
NT
S RIG
HT
.
A.
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 perform
ed by Licensee, Licensor hereby grants to Licensee the right to construct and thereafter, during the term
hereof, maintain and operate one (1) 14
inch plastic pipe conveying the comm
odity of brine encased in a 24 inch steel pipeline crossing only, including any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities") across Licensor’s real property, trackage, or other facilities located in A
ntioch, Contra C
osta C
ounty, State of California ("R
ailroad Property"). The specific specifications and limited purpose for
Licensee's Facilities on, along, across and under Railroad Property are described in and show
n on the Print and Specifications dated N
ovember 13, 2020, attached hereto as E
xhibit A and m
ade a part hereof. B
. Licensee represents and w
arrants that Licensee's Facilities will (i) only be used for one
(1) 14 inch plastic pipe conveying the comm
odity of brine encased in a 24 inch steel pipeline crossing, and (ii) not be used to convey any other substance, any fiber optic cable, or for any other use, w
hether such use is currently technologically possible, or w
hether such use may com
e into existence during the life of this A
greement.
C.
Licensee acknowledges that if it or its contractor provides Licensor w
ith digital imagery
depicting Licensee's Facilities ("Digital Im
agery"), Licensee authorizes Licensor to use the Digital
Imagery in preparing E
xhibit A. Licensee represents and w
arrants that through a license or otherwise, it
has the right to use the Digital Im
agery and to permit Licensor to use the D
igital Imagery in said m
anner. A
rticle 2. L
ICE
NSE
FEE
.
Upon execution of this A
greement, the Licensee shall pay to the Licensor a one-tim
e License Fee of T
hree Thousand D
ollars ($3,000.00).
Article 3.
TE
RM
.
This Agreem
ent shall take effect as of the Effective Date first herein w
ritten and shall continue in full force and effect until term
inated as provided in the "TERMIN
ATIO
N; R
EMO
VA
L OF LIC
ENSEE’S
FAC
ILITIES" Section of Exhibit B
. A
rticle 4. L
ICE
NSE
E'S C
OM
PLIA
NC
E W
ITH
GE
NE
RA
L T
ER
MS .
Licensee represents and w
arrants that all work on Licensee's Facilities perform
ed by Licensee or its contractors w
ill strictly comply w
ith all terms and conditions set forth herein, including the
General Term
s and Conditions, attached hereto as Exhibit B
and made a part hereof.
Article 5.
INSU
RA
NC
E.
A.
During the term
of this Agreem
ent, Licensee shall fully comply or cause its contractor(s) to fully
comply w
ith the insurance requirements described in E
xhibit C, attached hereto and m
ade a part hereof. U
pon request only, Licensee shall send copies of all insurance documentation (e.g., certificates,
endorsements, etc.) to Licensor at the address listed in the "N
OTIC
ES" Section of this Agreem
ent. B
. If Licensee is subject to statute(s) lim
iting its insurance liability and/or limiting its ability to
obtain insurance in compliance w
ith Exhibit C
of this Agreem
ent, those statutes shall apply. A
rticle 6. D
EFIN
ITIO
N O
F LIC
EN
SEE
.
For purposes of this A
greement, all references in this A
greement to Licensee w
ill include Licensee's contractors, subcontractors, officers, agents and em
ployees, and others acting under its or their authority (collectively, a "C
ontractor"). 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 A
greement to its C
ontractor(s) and require its C
ontractor(s) to comply w
ith all terms and conditions of this A
greement, including the indem
nification requirem
ents set forth in the "IND
EMN
ITY" Section of E
xhibit B. Licensee shall require any C
ontractor to release, defend, and indem
nify Licensor to the same extent and under the sam
e terms and conditions as
Licensee is required to release, defend, and indemnify Licensor herein.
Article 7.
AT
TO
RN
EY
S’ FEE
S, EXPE
NSE
S, AN
D C
OST
S .
If litigation or other court action or similar adjudicatory proceeding is undertaken by
Licensee or Licensor to enforce its rights under this Agreem
ent, all fees, costs, and expenses, including, w
ithout limitation, reasonable attorneys’ fees and court costs, of the prevailing Party in such action, suit,
or proceeding shall be reimbursed or paid by the Party against w
hose interest the judgment or decision is
rendered. The provisions of this Article shall survive the term
ination of this Agreem
ent. A
rticle 8. W
AIV
ER
OF B
RE
AC
H.
The w
aiver by Licensor of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by Licensee shall in no w
ay impair the right of Licensor to
avail itself of any remedy for any subsequent breach thereof.
Article 9.
ASSIG
NM
EN
T.
A.
Licensee shall not assign this Agreem
ent, in whole or in part, or any rights herein granted,
without the w
ritten consent of Licensor, which m
ust be requested in writing by Licensee. A
ny assignment
or attempted transfer of this A
greement or any of the rights herein granted, w
hether voluntary, by operation of law
, or otherwise, w
ithout Licensor's written consent, w
ill be absolutely void and may result
in Licensor's termination of this A
greement pursuant to the "TER
MIN
ATIO
N; R
EMO
VA
L OF
LICEN
SEE'S FAC
ILITIES" Section of Exhibit B
. B
. U
pon Licensor's written consent to any assignm
ent, this Agreem
ent will be binding upon and
inure to the benefit of the parties thereto, successors, heirs, and assigns, executors, and administrators.
Article 10.
SEV
ER
AB
ILIT
Y.
Any provision of this A
greement w
hich is determined by a court of com
petent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determ
ination, which shall not
invalidate or otherwise render ineffective any other provision of this A
greement.
Article 11.
NO
TIC
ES .
Except Licensee's com
mencem
ent of work notice(s) required under E
xhibit B, all other notices
required by this Agreem
ent must be in w
riting, and (i) personally served upon the business address listed below
("Notice A
ddress"), (ii) sent overnight via express delivery by a nationally recognized overnight delivery service such as Federal Express C
orporation or United Parcel Service to the N
otice Address, or
(iii) by certified mail, return receipt requested to the N
otice Address. O
vernight express delivery notices w
ill be deemed to be given upon receipt. C
ertified mail notices w
ill be deemed to be given three (3) days
after deposit with the U
nited States Postal Service. If to Licensor:
Union Pacific Railroad C
ompany
Attn: A
nalyst – Real Estate U
tilities (Folder No. 03234-84)
1400 Douglas Street, M
S 1690
O
maha, N
ebraska 68179
If to Licensee:
CITY
OF A
NTIO
CH
PUB
LIC W
OR
KS D
EPT C
ity Of A
ntioch Public Works
200 H Street B
asement
Antioch, C
alifornia, 94509
IN
WIT
NE
SS WH
ER
EO
F, the parties hereto have caused this Agreem
ent to be executed as of the date first herein w
ritten. U
NIO
N PA
CIFIC
RA
ILR
OA
D C
OM
PAN
Y
CIT
Y O
F AN
TIO
CH
PUB
LIC
WO
RK
S DE
PT
By: __________________________________
By: __________________________________
V
alerie Harrill
Mgr II Real Estate C
ontracts
Nam
e Printed: __________________________ Title: _________________________________
X
8
87
136.0
8056
01
25
6
NO
TES:1) ALL D
IMEN
SION
S MEASU
RED
PERPEN
DIC
ULAR
TO TH
E CEN
TERLIN
E OF TR
ACK
2) REFER
TO AR
EMA VO
LUM
E 1. CH
APTER 1. PAR
T 5. SECTIO
N 5.1
OPEN
TREN
CH
AT MIN
IMU
M SIG
NS W
ILL BE PRO
VIDED
AS STATED ABO
VE
PLASTICN
ABR
INE
6060
1714
NO
STEEL PIPEN
A
1360.5
24
YESO
PEN
8056
MAIN
LINE TR
ACK
38.00444444
-121.81972222
ANTIO
CH
CO
NTR
A CO
STAC
A
0323484/2020
CITY O
F ANTIO
CH
PUBLIC
WO
RKS D
EPT
NO
N-FLAM
MABLE LIQ
UID
PIPELINE
Centerline of m
iddle concrete railroad bridge supportcolumn
✔
36721608
50
52
53
50
(L St., D
OT: 751817M
)
5050
NA
NA
NA
Tracy Sub.
MA
INLIN
E
52.701561+64.5
Pipeline Crossing 06/05/18
Form A
pproved, AV
P Law
EX
HIB
IT B
GE
NE
RA
L T
ER
MS A
ND
CO
ND
ITIO
NS
Section 1. L
IMIT
AT
ION
AN
D SU
BO
RD
INA
TIO
N O
F RIG
HT
S GR
AN
TE
D.
A
. The foregoing grant is subject and subordinate to the prior and continuing right and
obligation of Licensor to use and maintain its entire property including the right and pow
er of Licensor to construct, m
aintain, repair, renew, use, operate, change, m
odify or relocate railroad tracks, signal, com
munication, fiber optics, or other w
irelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of w
hich may be freely done at any tim
e or times by Licensor w
ithout liability to Licensee or to any other party for com
pensation or damages.
B
. The foregoing grant is also subject to all outstanding superior rights (including those in
favor of licensees and lessees of Railroad Property) and the right of Licensor to renew
and extend the sam
e, and is made w
ithout covenant of title or for quiet enjoyment. It shall be Licensee's sole obligation
to obtain such additional permission, license and grants necessary on account of any such existing rights.
Section 2. E
NG
INE
ER
ING
RE
QU
IRE
ME
NT
S; PER
MIT
S .
A.
Licensee's Facilities will be designed, constructed, operated, m
aintained, repaired, renew
ed, modified, reconstructed, rem
oved, or abandoned in place on Railroad Property by Licensee or
its contractor to Licensor's satisfaction and in strict conformity w
ith: (i) Licensor’s current engineering standards and specifications, including those for shoring and cribbing to protect Licensor's railroad operations and facilities ("U
P Specifications"), except for variances approved in advance in writing by
Licensor’s A
ssistant V
ice President
Engineering –
Design
or its
authorized representative
("UP Engineering R
epresentative"); (ii) such other additional safety standards as Licensor, in its sole discretion,
elects to
require, including,
without
limitation,
Am
erican R
ailway
Engineering and
Maintenance-of-W
ay Association ("A
REM
A") standards and guidelines (collectively, "U
P Additional
Requirem
ents"); and (iii) all applicable laws, rules, and regulations, including any applicable Federal
Railroad A
dministration and Federal Energy R
egulatory Com
mission regulations and enactm
ents (collectively, "Law
s"). If there is any conflict between U
P Specifications, UP A
dditional Requirem
ents, and Law
s, the most restrictive w
ill apply. B
. Licensee shall keep the soil over Licensee's Facilities thoroughly com
pacted, and m
aintain the grade over and around Licensee's Facilities even with the surface of the adjacent ground.
C.
If needed, Licensee shall secure, at Licensee's sole cost and expense, any and all necessary perm
its required to perform any w
ork on Licensee's Facilities.
Section 3. N
OT
ICE
OF C
OM
ME
NC
EM
EN
T O
F WO
RK
; EM
ER
GE
NC
IES.
A
. Licensee and its contractors are strictly prohibited from
comm
encing any work associated
with Licensee's Facilities w
ithout Licensor's written approval that the w
ork will be in strict com
pliance w
ith the "ENG
INEER
ING
REQ
UIR
EMEN
TS; PERMITS" Section of this Exhibit B
. Upon Licensor's
approval, Licensee
shall contact
both of
Licensor's field
representatives ("Licensor's
Field R
epresentatives") at least ten (10) days before comm
encement of any w
ork on Licensee's Facilities.
B
. Licensee shall not com
mence any w
ork until: (1) Licensor has determined w
hether flagging or other special protective or safety m
easures ("Safety Measures") are required for perform
ance of the w
ork pursuant to the "FLAG
GIN
G" Section of this E
xhibit B and provided Licensee w
ritten authorization to com
mence w
ork; and (2) Licensee has complied w
ith the "PROTECTIO
N O
F FIBER
O
PTIC C
AB
LE SYSTEM
S" Section of this Exhibit B
.
C.
If, at any time, an em
ergency arises involving Licensee's Facilities, Licensee or its contractor shall im
mediately contact Licensor's R
esponse Managem
ent Com
munications C
enter at (888) 877-7267. Section 4.
FLA
GG
ING
.
A.
Following Licensee's notice to Licensor's Field R
epresentatives required under the "N
OTIC
E OF C
OM
MEN
CEM
ENT O
F WO
RK
; EMER
GEN
CIES" Section of this E
xhibit B, Licensor
shall inform Licensee if Safety M
easures are required for performance of the w
ork by Licensee or its contractor on R
ailroad Property. If Safety Measures are required, no w
ork of any kind may be perform
ed by Licensee or its contractor(s) until arrangem
ents for the Safety Measures have been m
ade and scheduled. If no Safety M
easures are required, Licensor will give Licensee w
ritten authorization to com
mence w
ork. B
. If any Safety M
easures are performed or provided by Licensor, including but not lim
ited to flagging, Licensor shall bill Licensee for such expenses incurred by Licensor, unless Licensor and a federal, state, or local governm
ental entity have agreed that Licensor is to bill such expenses to the federal, state, or local governm
ental entity. Additional inform
ation regarding the submission of such
expenses by Licensor and payment thereof by Licensee can be found in the "LIC
ENSEE’S PA
YM
ENT
OF EX
PENSES" Section of this E
xhibit B. If Licensor perform
s any Safety Measures, Licensee agrees
that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreem
ent. C
. For flagging, the rate of pay per hour for each flagger w
ill be the prevailing hourly rate in effect for an eight-hour day for the class of flagm
en used during regularly assigned hours and overtime in
accordance with Labor A
greements and Schedules in effect at the tim
e the work is perform
ed. In addition to the cost of such labor, a com
posite charge for vacation, holiday, health and welfare, supplem
ental sickness, R
ailroad Retirem
ent and unemploym
ent compensation, supplem
ental pension, Employees
Liability and Property Dam
age, and Adm
inistration will be included, com
puted on actual payroll. The com
posite charge will be the prevailing com
posite charge in effect at the time the w
ork is performed. O
ne and one-half tim
es the current hourly rate is paid for overtime, Saturdays and Sundays, and tw
o and one-half tim
es current hourly rate for holidays. Wage rates are subject to change, at any tim
e, by law or by
agreement betw
een Licensor and its employees, and m
ay be retroactive as a result of negotiations or a ruling of an authorized governm
ental agency. Additional charges on labor are also subject to change. If
the wage rate or additional charges are changed, Licensee (or the governm
ental entity, as applicable) shall pay on the basis of the new
rates and charges.
D.
Reim
bursement to Licensor w
ill be required covering the full eight-hour day during w
hich any flagger is furnished, unless the flagger can be assigned to other railroad work during a portion
of such day, in which event reim
bursement w
ill not be required for the portion of the day during which
the flagger is engaged in other railroad work. R
eimbursem
ent will also be required for any day not
actually worked by the flaggers follow
ing the flaggers' assignment to w
ork 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 w
ork, even though Licensee may not be w
orking during such time.
When it becom
es necessary for Licensor to bulletin and assign an employee to a flagging position in
compliance w
ith union collective bargaining agreements, Licensee m
ust provide Licensor a minim
um 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 w
ill 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 m
ust then be given to Licensor if flagging services are needed again after such five day cessation notice has been given to Licensor. Section 5.
SAFE
TY
.
A.
Safety of personnel, property, rail operations and the public is of paramount im
portance in the prosecution of any w
ork on Railroad Property perform
ed by Licensee or its contractor, and takes precedence over any w
ork on Licensee's Facilities to be performed Licensee or its contractors. Licensee
shall be responsible for initiating, maintaining and supervising all safety operations and program
s in connection w
ith any work on Licensee's Facilities. Licensee and its contractor shall, at a m
inimum
com
ply, with Licensor's then current safety standards located at the below
web address ("Licensor's
Safety Standards") to ensure uniformity w
ith the safety standards followed by Licensor's ow
n 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 em
ployees before they enter Railroad
Property. U
nion Pacific Current Safety R
equirements
B.
Licensee shall keep the job site on Railroad Property free from
safety and health hazards and ensure that their em
ployees are competent and adequately trained in all safety and health aspects of
the work. C
. Licensee represents and w
arrants that all parts of Licensee's Facilities within and outside
of the limits of R
ailroad Property will not interfere w
hatsoever 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 tim
e that would in any m
anner impair the safety thereof.
D.
Licensor's operations and work perform
ed 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
Licensor shall have no liability to Licensee or any other person or entity for any such delays. Licensee m
ust coordinate any work on R
ailroad Property by Licensee or any third party with Licensor's Field
Representatives
in strict
compliance
with
the "N
OTIC
E O
F C
OM
MEN
CEM
ENT
OF
WO
RK
; EM
ERG
ENC
IES" Section of this Exhibit
E. Licensor shall have the right, if it so elects, to provide any support it deem
s necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, m
aintenance, repair, renewal, m
odification, 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 "LIC
ENSEE'S PA
YM
ENT O
F EXPEN
SES" Section of this Exhibit B
.
F. Licensee m
ay use unmanned aircraft system
s ("UA
S") 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 U
AS on R
ailroad Property will com
ply with Licensor's
then-current Unm
anned Aerial System
s Policy and all applicable laws, rules and regulations, including
any applicable Federal Aviation A
dministration regulations and enactm
ents pertaining to UA
S.
Section 6. PR
OT
EC
TIO
N O
F FIBER
OPT
IC C
AB
LE
SYSTE
MS.
Fiber optic cable system
s may be buried on R
ailroad Property. Protection of the fiber optic cable system
s is of extreme im
portance 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 "N
OTIC
E O
F CO
MM
ENC
EMEN
T OF W
OR
K; EM
ERG
ENC
IES" Section of this Exhibit B
, Licensee shall telephone Licensor during norm
al business hours (7:00 a.m. to 9:00 p.m
. Central Tim
e, Monday through
Friday, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for em
ergency calls) to determ
ine if fiber optic cable is buried anywhere on R
ailroad Property to be used by Licensee. If it is, Licensee shall telephone the telecom
munications com
pany(ies) involved, and arrange for a cable locator, m
ake arrangements for relocation or other protection of the fiber optic cable, all at Licensee’s expense,
and will not com
mence any w
ork on Railroad Property until all such protection or relocation has been
completed.
Section 7. L
ICE
NSE
E'S PA
YM
EN
T O
F EX
PEN
SES.
A
. Licensee shall bear the entire cost and expense of the design, construction, m
aintenance, m
odification, reconstruction, repair, renewal, revision, relocation, or rem
oval of Licensee's Facilities.
B.
Licensee shall fully pay for all materials joined, affixed to and labor perform
ed on R
ailroad Property in connection with the construction, m
aintenance, modification, reconstruction, repair,
renewal, revision, relocation, or rem
oval of Licensee's Facilities, and shall not permit or suffer any
mechanic’s or m
aterialman’s lien of any kind or nature to be enforced against the property for any w
ork done or m
aterials furnished thereon at the instance or request or on behalf of Licensee. Licensee shall prom
ptly 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 of 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 m
aintenance of
Licensee's Facilities
or any
improvem
ent, appliance, or fixture connected therewith placed upon such property, or on account of
Licensee’s interest therein. Where such tax, charge, or assessm
ent may not be separately m
ade or assessed to Licensee but shall be included in the assessm
ent of the property of Licensor, then Licensee shall pay to Licensor an equitable proportion of such taxes determ
ined by the value of Licensee’s property upon property of Licensor as com
pared with the entire value of such property.
C
. A
s set forth in the "FLAG
GIN
G" Section of this E
xhibit B, Licensor shall have the right,
if it so elects, to provide any Safety Measures Licensor deem
s necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, m
aintenance, modification,
reconstruction, repair, renewal, revision, relocation, or rem
oval of Licensee's Facilities, including, but not lim
ited to supervision, inspection, and flagging services. In the event Licensor provides such Safety M
easures, Licensor shall submit an item
ized invoice to Licensee's notice recipient listed in the "N
OTIC
ES" Article of this A
greement. Licensee shall pay to Licensor the total am
ount listed on such invoice w
ithin thirty (30) days of Licensee's receipt of such invoice.
Section 8. M
OD
IFICA
TIO
NS TO
LIC
EN
SEE
'S FAC
ILIT
IES.
A.
This grant is subject to Licensor's safe and efficient operation of its railroad, and continued use and im
provement of R
ailroad Property (collectively, "Railroad's U
se"). Accordingly,
Licensee shall, at its sole cost and expense, modify, reconstruct, repair, renew
, revise, relocate, or remove
(individually, "Modification", or collectively, "M
odifications") all or any portion of Licensee's Facilities as Licensor m
ay designate or identify, in its sole discretion, in the furtherance of Railroad's Use.
B.
Upon any M
odification of all or any portion of Licensee's Facilities to another location on R
ailroad Property, Licensor and Licensee shall execute a Supplemental A
greement to this Pipeline
Agreem
ent to document the M
odification(s) to Licensee's Facilities on Railroad Property. If the
Modifications result in Licensee's Facilities m
oving off of Railroad Property, this Agreem
ent will
terminate upon Licensee's com
pletion of such Modification(s) and all requirem
ents contained within the
"TERM
INA
TION
; REM
OV
AL O
F LICEN
SEE’S FAC
ILITIES" Section of this Exhibit B
. Any such
Modification(s) off of R
ailroad Property will not release Licensee from
any liability or other obligation of Licensee arising prior to and upon com
pletion of any such Modifications to the Licensee's Facilities.
Section 9. R
EST
OR
AT
ION
OF R
AIL
RO
AD
PRO
PER
TY
.
In the event Licensee, in any manner m
oves or disturbs any property of Licensor in connection w
ith the construction, maintenance, m
odification, 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 sam
e were before such property w
as m
oved or disturbed. Section 10.
IND
EM
NIT
Y.
A
. D
efinitions . As used in this Section:
1.
"Licensor" includes Licensor, its affiliates, its and their officers, directors, agents and em
ployees, and other railroad companies using R
ailroad Property at or near the location of Licensee’s installation and their officers, directors, agents, and em
ployees. 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, dam
ages (including punitive damages,
statutory dam
ages, and
exemplary
damages),
costs, charges,
assessments,
judgments, settlem
ents, 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.
B.
Licensee shall release, defend, indemnify, and hold harm
less Licensor from and against
any and all Loss, even if groundless, fraudulent, or false, that directly or indirectly arises out of or is related to Licensee’s construction, m
aintenance, modification, reconstruction, repair, renew
al, revision, relocation, rem
oval, presence, use, or operation of Licensee's Facilities, including, but not limited to, any
actual or alleged:
1. B
odily harm or personal injury (including any em
otional injury or disease) to, or the death of, any person(s), including, but not lim
ited to, Licensee, Licensor, any telecom
munications
company,
or the
agents, contractors,
subcontractors, sub-subcontractors, or em
ployees of the foregoing; 2.
Dam
age to or the disturbance, loss, movem
ent, or destruction of Railroad Property,
including loss of use and diminution in value, including, but not lim
ited to, any telecom
munications
system(s)
or fiber optic cable(s) on
or near R
ailroad Property, any property of Licensee or Licensor, or any property in the care, custody, or control of Licensee or Licensor;
3. R
emoval of person(s) from
Railroad Property;
4. A
ny delays or interference with track or R
ailroad’s Use caused by Licensee's
activity(ies) on Railroad Property, including w
ithout limitation the construction,
maintenance, m
odification, reconstruction, repair, renewal, revision, relocation,
or removal of Licensee's Facilities or any part thereof, any activities, labor,
materials, equipm
ent, or machinery in conjunction therew
ith ; 5.
Right(s) or interest(s) granted pursuant to this A
greement;
6. C
ontents escaping from Licensee's Facilities, including w
ithout limitation any actual
or alleged pollution, contamination, breach, or environm
ental Loss; 7.
Licensee’s breach of this Agreem
ent or failure to comply w
ith its provisions, including, but not lim
ited to, any violation or breach by Licensee of any representations and w
arranties Licensee has made in this A
greement; and
8. V
iolation by Licensee of any law, statute, ordinance, governm
ental administrative
order, rule, or regulation, including without lim
itation all applicable Federal R
ailroad Adm
inistration regulations.
C.
THE FO
REGO
ING
OBLIG
ATIO
NS SH
ALL A
PPLY TO
THE FU
LLEST EXTEN
T PERM
ITTED BY
LAW
FOR TH
E BENEFIT O
F LICENSO
R TO LO
SSES CAU
SED BY
, ARISIN
G
FROM
, RELATIN
G TO
, OR RESU
LTING
FROM
, IN W
HO
LE OR IN
PART, TH
E NEG
LIGEN
CE OF
LICENSO
R, A
ND
SU
CH
NEG
LIGEN
CE O
F LIC
ENSO
R SH
ALL
NO
T LIM
IT, D
IMIN
ISH,
OR
PRECLUD
E LICENSEE’S O
BLIGA
TION
S TO LICEN
SOR IN
AN
Y RESPECT. N
OTW
ITHSTA
ND
ING
TH
E FOREG
OIN
G, SU
CH O
BLIGA
TION
TO IN
DEM
NIFY
LICENSO
R SHA
LL NO
T APPLY
TO TH
E EX
TENT TH
E LOSS IS CA
USED
BY TH
E SOLE, A
CTIVE A
ND
DIRECT N
EGLIG
ENCE, G
ROSS
NEG
LIGEN
CE, OR W
ILLFUL M
ISCON
DU
CT OF LICEN
SOR A
S DETERM
INED
IN A
FINA
L JU
DG
MEN
T BY A
COU
RT OF CO
MPETEN
T JURISD
ICTION
. Section 11.
TE
RM
INA
TIO
N; R
EM
OV
AL
OF L
ICE
NSE
E'S FA
CIL
ITIE
S.
A.
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 perform
ance of any provision of this Agreem
ent for a period of thirty (30) days after w
ritten notice from Licensor to Licensee specifying such default, Licensor m
ay, at its sole discretion, term
inate this Agreem
ent by written notice to Licensee at the address listed in the
"NO
TICES" A
rticle of this Agreem
ent. This Agreem
ent will not term
inate until Licensee complies w
ith Paragraphs "C" and "D
" of this Section found below.
B.
In addition to the provisions of Paragraph "A" above, this A
greement m
ay be terminated
by written notice given by either party, w
ithout cause, upon thirty (30) days written notice to the
non-terminating party at the address listed in the "N
OTIC
ES" Article of this A
greement. This A
greement
will not term
inate until Licensee complies w
ith Paragraphs "C" and "D
" of this Section found below.
C. Prior to the effective date of any term
ination described in this Section, Licensee shall submit an
application to Licensor's online Utility Contracts System
at this link for Licensee's removal, or if applicable,
abandonment in place of Licensee's Facilities located on R
ailroad Property ("Rem
oval/Abandonm
ent W
ork"). U
pon the
UP
Engineering R
epresentative's approval
of Licensee's
application for
the R
emoval/A
bandonment
Work,
Licensor and
Licensee shall
execute a separate consent docum
ent that will govern Licensee's perform
ance of the Rem
oval/Abandonm
ent W
ork from
those
portions of
Railroad
Property not
occupied by
roadbed and/or
trackage ("C
onsent Docum
ent"). Licensee shall then restore the impacted R
ailroad Property to the same or
reasonably similar condition as it w
as prior to Licensee's installation of Licensee's Facilities. For purposes of this Section, Licensee's (i) perform
ance of the Rem
oval/Abandonm
ent Work, and (ii) restoration w
ork w
ill hereinafter be collectively referred to as the "Restoration W
ork".
D
. Follow
ing Licensee's completion of the R
estoration Work, Licensee shall provide
a written certification letter to Licensor at the address listed in the "N
OTIC
ES" Article of this A
greement
which certifies that the R
estoration Work has been com
pleted in accordance with the C
onsent Docum
ent. Licensee shall report to governm
ental authorities, as required by law, and notify Licensor im
mediately if
any environmental contam
ination is discovered during Licensee's performance of the R
estoration Work.
Upon discovery, the Licensee shall initiate any and all rem
oval, remedial and restoration actions that are
necessary to restore the property to its original, uncontaminated condition. Licensee shall provide w
ritten certification to Licensor at the address listed in the "N
OTIC
ES" Article of this A
greement that
environmental contam
ination has been remediated and the property has been restored in accordance w
ith Licensor's requirem
ents. Upon Licensor's receipt of Licensee's restoration com
pletion certifications, this A
greement w
ill terminate.
E. In the event that Licensee fails to com
plete any of the Restoration W
ork, Licensor may,
but is not obligated, to perform the R
estoration Work. A
ny such work actually perform
ed by Licensor will
be at the cost and expense of Licensee. In the event that Licensor performs any of the R
estoration Work,
Licensee shall release Licensor from any and all Loss (defined in the "IN
DEM
NITY
" Section of this E
xhibit B) arising out of or related to Licensor's perform
ance of the Restoration W
ork. F.
Termination of this A
greement for any reason w
ill not affect any of rights or obligations of the parties w
hich may have accrued, or liabilities or Loss (defined in the "IN
DEM
NITY
" Section of this E
xhibit B), accrued or otherw
ise, which m
ay have arisen prior to such termination.
E
XH
IBIT
C
IN
SUR
AN
CE
RE
QU
IRE
ME
NT
S
In accordance w
ith Article 5 of this A
greement, Licensee shall (1) procure and m
aintain at its sole cost and expense, or (2) require its C
ontractor(s) to procure and maintain, at their sole cost and expense,
the following insurance coverage:
A
. C
omm
ercial General Liability Insurance . C
omm
ercial general liability (CG
L) with
a limit of not less than $2,000,000 each occurrence and an aggregate lim
it of not less than $4,000,000. C
GL insurance m
ust be written on ISO
occurrence form C
G 00 01 12 04 (or a substitute form
providing equivalent coverage).
The policy m
ust also contain the following endorsem
ent, WH
ICH
MU
ST BE STA
TED O
N TH
E C
ERTIFIC
ATE O
F INSU
RA
NC
E:
C
ontractual Liability Railroads ISO
form C
G 24 17 10 01 (or a substitute form
providing equivalent coverage) show
ing "Union Pacific R
ailroad Com
pany Property" as the Designated Job
Site.
B.
Business
Autom
obile C
overage Insurance .
Business
auto coverage
written
on ISO
form C
A 00 01 10 01 (or a substitute form
providing equivalent liability coverage) with a lim
it of not less $2,000,000 for each accident, and coverage m
ust include liability arising out of any auto (including ow
ned, hired, and non-owned autos).
The policy m
ust contain the following endorsem
ents, WH
ICH
MU
ST BE STA
TED O
N TH
E C
ERTIFIC
ATE O
F INSU
RA
NC
E:
"C
overage For Certain O
perations In Connection W
ith Railroads" ISO
form C
A 20 70 10 01 (or a
substitute form providing equivalent coverage) show
ing "Union Pacific R
ailroad Com
pany Property" as the D
esignated Job Site.
C
. W
orkers' Com
pensation and Em
ployers' Liability Insurance . C
overage must include
but not be limited to:
Licensee’s statutory liability under the w
orkers' compensation law
s of the state(s) affected by this A
greement.
Em
ployers' Liability (Part B) w
ith limits of at least $500,000 each accident, $500,000 disease
policy limit $500,000 each em
ployee.
If Licensee is self-insured, evidence of state approval and excess w
orkers' compensation coverage
must be provided. C
overage must include liability arising out of the U
. S. Longshoremen's and H
arbor W
orkers' Act, the Jones A
ct, and the Outer C
ontinental Shelf Land Act, if applicable.
D
. E
nvironmental Liability Insurance . Environm
ental Legal Liability Insurance (ELL) applicable to bodily injury, property dam
age, including loss of use of damaged property or of property
that has not been physically injured or destroyed, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlem
ent of claims, or com
pliance with statute, all in
connection with any loss arising from
the insured’s performance under this A
greement. Except w
ith respect to the lim
its of insurance, and any rights or duties specifically assigned to the first named insured,
this insurance must apply as if each nam
ed insured were the only nam
ed insured; and separately to the additional insured against w
hich claim is m
ade or suit is brought. Coverage shall be m
aintained in an am
ount of at least $2,000,000 per loss, with an annual aggregate of at least $4,000,000.
Licensee w
arrants that any retroactive date applicable to ELL insurance coverage under the policy is the sam
e as or precedes the Effective Date of this A
greement, and that continuous coverage w
ill be m
aintained for a period of five (5) years beginning from the tim
e the work under this A
greement is
completed or if coverage is cancelled for any reason the policies extended discovery period, if any, w
ill be exercised for the m
aximum
time allow
ed.
E.
Railroad Protective L
iability Insurance . Licensee must m
aintain for the duration of w
ork "Railroad Protective Liability" insurance w
ritten on ISO occurrence form
CG
00 35 12 04 (or a substitute form
providing equivalent coverage) on behalf of Licensor only as named insured, w
ith a limit
of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB
LO
CA
TION
" and "WO
RK" on the declaration page of the policy shall refer to this A
greement and shall
describe all WO
RK or O
PERA
TION
S performed under this A
greement. N
otwithstanding the foregoing,
Licensee does not need Railroad Protective Liability Insurance after its initial construction w
ork is com
plete and all excess materials have been rem
oved from Licensor's property; PR
OV
IDED
, however,
that Licensee shall procure such coverage for any subsequent maintenance, repair, renew
al, modification,
reconstruction, or removal w
ork on Licensee's Facilities.
F.
Um
brella or Excess Insurance. If Licensee utilizes um
brella or excess policies, and these policies m
ust "follow form
" and afford no less coverage than the primary policy.
Other R
equirements
G
. A
ll policy(ies) required above (except business automobile, w
orkers' compensation and
employers' liability) m
ust include Licensor as "Additional Insured" using ISO
Additional Insured
Endorsement C
G 20 26 (or substitute form
(s) providing equivalent coverage). The coverage provided to Licensor as additional insured shall not be lim
ited by Licensee’s liability under the indemnity provisions
of this Agreem
ent. BO
TH LIC
ENSO
R A
ND
LICEN
SEE EXPECT TH
AT LIC
ENSO
R W
ILL BE
PRO
VID
ED W
ITH TH
E BR
OA
DEST PO
SSIBLE C
OV
ERA
GE A
VA
ILAB
LE BY
OPER
ATIO
N O
F LA
W U
ND
ER ISO
AD
DITIO
NA
L INSU
RED
FOR
M C
G 20 26.
H
. Punitive dam
ages exclusion, if any, must be deleted (and the deletion indicated on the
certificate of insurance), unless (a) insurance coverage may not law
fully be obtained for any punitive dam
ages that may arise under this A
greement, or (b) all punitive dam
ages are prohibited by all states in w
hich this Agreem
ent will be perform
ed.
I.
Licensee waives all rights of recovery, and its insurers also w
aive all rights of subrogation of dam
ages against Licensor and its agents, officers, directors and employees for dam
ages covered by the w
orkers' compensation and em
ployers' liability or comm
ercial umbrella or excess liability
obtained by Licensee required in this Agreem
ent, where perm
itted by law. This w
aiver must be stated on
the certificate of insurance.
J.
All insurance policies m
ust be written by a reputable insurance com
pany acceptable to Licensor or w
ith a current Best's Insurance G
uide Rating of A
- and Class V
II or better, and authorized to do business in the state(s) in w
hich the work is to be perform
ed.
K
. The fact that insurance is obtained by Licensee w
ill not be deemed to release or dim
inish the liability of Licensee, including, w
ithout limitation, liability under the indem
nity provisions of this
Agreem
ent. Dam
ages recoverable by Licensor from Licensee or any third party w
ill not be limited by the
amount of the required insurance coverage.