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HomeMy WebLinkAbout11 Development Agreement Truckee RailyardCONSENT To: From: Date: Board of Directors Neil Kaufman July 20, 2016 Agenda Item # 11 " TRUCKEE DONNER 1 Public Utility District , -' -----~----~-- Subject: Consideration of a Development Agreement with Truckee Development Associates for the Union Pacific Railroad Maintenance and Operations Building 1. WHY THIS MATTER IS BEFORE THE BOARD Per District Code Section 6.04.030, approval by the Board of Directors is required for any development agreement where the total value of on-site improvements being installed by the applicant to be conveyed to the District for ownership, operation and maintenance exceeds $400,000. 2. HISTORY When a developer proposes to construct a new project, a development agreement is necessary when there are facilities that will be constructed by the developer and then conveyed to the District for ownership, operation and maintenance. The development agreement is essentially a contract between a developer and the District. It describes the responsibilities of each party with respect to a particular project. Separate development agreements are created for the Electric Department and the Water Department. Items addressed in a development agreement typically include: • Costs and fees • Dedication of easements where necessary • Dedication of facilities constructed by the developer • Insurance • Indemnification • Project acceptance • Warranty The development agreement will normally reference the approved drawings for a project and the District's construction standards. The development agreement process typically takes the following steps: 1) Initial discussions between the developer and the District regarding project feasibility 2) Development agreement application 3) Review and revision of project plans (this may involve multiple rounds of review & revision) 4) Preparation of development agreement 1 of 78 5) Signing of development agreement and payment of costs and fees 6) Project construction 7) Project acceptance and administrative closeout 3. NEW INFORMATION The Railyard project is located at the east end of downtown Truckee. The project involves the construction of residential and commercial development on land that formerly belonged to the Union Pacific Railroad (UPRR). The overall layout of the Railyard project is shown on Figure 1. The land has been purchased by Truckee Development Associates (TOA). For the past few years TOA has been working with the Town of Truckee to develop a master plan for the area and to obtain the necessary approvals from the Planning Commission and Town Council. One component of the purchase agreement between UPRR and TOA involves the construction of a new maintenance and operations (M&O) building for UPRR. The existing M&O building is in poor condition and will be demolished in order to accommodate new development. A second component involves the realignment of the balloon track that is used to turn around snow removal equipment. This work is outlined in Figure 2. Due to deadlines within the purchase agreement TOA is moving forward with construction of the new maintenance and operations building and track realignment even though final approvals have not been obtained from the Town of Truckee. In order to provide sufficient fire flow for the new M&O building, a looped pipeline that connects Church Street to East River Street is necessary. The general route of this pipeline also shown on Figure 2. There are three railroad track crossings involved in this pipeline. For the two crossings in Church Street, the new water pipeline will be installed in a dedicated casing that contains only the water pipe. These casings will be installed be open-cut construction. The crossing to East River Street will involve a 54" diameter casing that contains both water and sanitary sewer pipes. This casing will be installed by bore and jack methods . The 54" casing will be owned by the District and a cooperative agreement between the District and the Truckee Sanitary District will be necessary to allow for the sanitary sewer. A development agreement with TOA covering these water system facilities has been prepared. A copy of the development agreement is attached. Additional development agreements will be prepared for future phases of the overall Railyard project. One critical aspect of the project involves license agreements with UPRR. UPRR does not normally grant easements for encroachments on UPRR property. UPRR utilizes a license agreement for such encroachments . There will be a total of four license agreements between the District and UPRR. There will a separate license agreement for each of the track crossings and a fourth agreement to cover water service to the new M&O building. The District has received draft versions of all four agreements and final versions of the license agreement will be included as attachments to the development agreement between the District and TOA. There are some articles within these draft license agreements that are concerning and the District will need the assistance of legal counsel to develop new language that is acceptable . 2 of 78 Porter-Simon has served as the District's legal counsel for a number of years. Porter-Simon has also performed work for TOA, thus creating a potential conflict of interest in regards to the Railyard project. This issue is currently being discussed between TOA, Porter-Simon and the District. It appears that the interests of TOA and the interests of the District are closely aligned with respect to creating license agreements that are acceptable to both the District and UPRR. Consequently , the Porter-Simon law firm is discussing a potential conflict of interest waiver. If it is agreeable to both parties, the District will need to sign a similar agreement (a draft is included as an attachment). The Electric Department development agreement is not complete at this time . The overall electric system design and project phasing is still being revised. The Electric Department development agreement will be presented for Board approval if the improvements exceed $400 ,000. 4. FISCAL IMPACT There is no direct fiscal impact to the District associated with this item. The developer will be responsible to reimburse the District for all costs associated with design, engineering, construction inspection and administration of the project. 5. RECOMMENDATION Approve the development agreement between Truckee Development 1) Associates and the District for water system improvements. 2) Authorize the General Manager to execute any ancillary agreements to the development agreement such as license agreements with UPRR and the cooperative agreement with TSO regarding the 54-inch casing subject to review by the District's legal counsel. 3) Authorize the General Manager to execute a conflict of interest waiver associated with the potential conflict of interest. Michael D. Holley General Manager /Water Utility Manager 3 of 78 Draft WATER DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND TRUCKEE DEVELOPMENT ASSOCIATES LLC APN 19-420-68 thru 19-420-71 UP RR Operations Building Infrastructure This Agreement is entered into between the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a local public agency of the State of California, hereafter referred to as "the District," and TRUCKEE DEVELOPMENT ASSOCIATES LLC, a California limited liability company, hereafter referred to as "Developer," with respect to the following facts : RECITALS A. Developer is the owner of that certain real property located within Nevada County, California , bearing Assessor's Parcel Numbers 19-420-68, 19-420-69, 19-420-70 & 19 -420-71 on which Developer intends to construct "infrastructure for the Union Pacific Railroad's Operations Building", hereafter referred to as the "Project." B. Developer intends to construct a complete water distribution system for the Project for domestic and fire protection use , landscape irrigation use, including pipes, valves, service laterals , and related equipment, in accordance with the approved plans and specifications. Such system shall hereafter be referred to as the "water distribution system." C . The water distribution system is a necessary part of the Project, and Developer has requested that the District accept the system by including it within the District's existing integrated systems . Developer has further requested that , upon completion, the District thereafter own, operate , maintain, repair, and replace the water distribution system as necessary . If the total value of the projects on-site improvements being installed by the Developer to be conveyed to the District for ownership , operation and maintenance exceeds $400 ,000 , the Development Agreement will be brought to District's Board of Directo rs for review. The total value will be calculated by the engineer of record . D. The District is willing to accept the water distribution system providing it is properly constructed in accordance with the approved plans, specifications and terms of this agreement. E. Complete plans and specifications for the construction of the water distribution system has been prepared in accordance with the District's Rules and Regulations and with the requirements and specifications as hereafter set forth. Copies of the approved plans and specifications are on file in the District's Water Department. F. Developer has selected contract ors for construction of the water portion of this Project. The names of the contracting firms, contact persons , mailing addresses , telephone numbers , 1 4 of 78 California Contractor license, insurance coverage verification and a schedule of construction dates have been included on data sheets entitled Contractor Firm Data Sheets, and are on file in the District's Water Department. G. The following items are on file in the District office and incorporated herein by reference : • Development Agreement application • Contractor firm data sheet -water • Temporary Blanket Public Utility Easement • Proof of Insurance • Project parcel map • Site and improvement plans -water • Estimated costs and calculation of fees -water • Improvements by and Responsibilities of Developer -water • Improvements by and Responsibilities of District -water • Project documentation policy THE PARTIES AGREE AS FOLLOWS: 1. Payment of Costs and Fees. The District has prepared an estimate of its costs for materials, labor, consultants, and legal expenses that the District expects to expend for administrative, design, inspection, and actual construction (hereafter collectively referred to as the "construction costs"). Upon start of construction, Developer shall deposit with the District amounts that shall be applied to the actual construction costs incurred by the District. If the actual cost exceeds the amount deposited , Developer shall pay such excess within thirty (30) days of receipt of the District's invoice. If the actual cost is less than the amount deposited, the District shall refund the difference within sixty (60) days of the date of Unconditional Acceptance of the water distribution system. Upon execution of this Agreement, Developer shall also pay to the District the fees set forth in the estimated construction costs and calculation of water fees. At the time water service is requested and construction of buildings or other facilities requiring water service are initiated, the payment of facilities and connection fees will be required. Facilities and connection fees paid will be at the rate in effect at the time service is requested . 2. Provision of Easements-Permission to Enter Land . Developer will execute a temporary blanket easement granting the right to do all things necessary for the construction of the water facilities including, but not limited to, a right to ingress and egress, a right to temporarily store equipment and materials, to excavate, to drive vehicles over, to place markers on, to survey, to inspect and repair, and to remove rocks , boulders, trees and plant life in the course of excavation or re- excavation. The temporary easement will be abandoned upon receipt by the District of a permanent easement for the maintenance and repair of the water distribution system. 3 . Provision of Insurance -Upon execution of this agreement, Developer shall provide the District with satisfactory evidence of an insurance policy written upon a form and by a company which meets with the approval of the District, insuring the District, its officers, agents and employees against loss or liability which may arise during the construction, or which may result from any of the work or construction herein required to be done, including all costs of defending any claims arising as a result thereof. The minimum limits of such policy shall be in the amount of $1,000,000 for the death of or injury to any person in any one accident and $1,000,000 for the death of or injury to more than one person in any one accident and $500,000 for property damage in any one accident. Such policy shall be written in favor of Developer or its general 2 5 of 78 contractor and subcontractors and also in favor of the District, its officers , agents and employees and shall be maintained in full force and effect until the water distribution system is Unconditionally Accepted by the District. Such insurance policy shall state by its terms or by an endorsement that it shall not be canceled without thirty (30) days prior written notice to the District. 4 . Indemnification by Developer. Developer shall indemnify, defend and save harmless the District , its officers, agents and employees , and each of them , of and from any and all claims , demands , causes of action, damages, costs, expenses, losses, or liabilities , in law or in equity, of every kind and nature whatsoever, for, but not limited to, injury to or death of Developer, any subcontractor of Developer, or any officers, agents or employees of the District , of Developer, or of any subcontractor, or any other person, and damages to or destruction of property of the District or any other person, arising out of or in any manner directly or indirectly connected with the work to be performed under this Agreement, however caused, regardless of any negligence of the District or its officers, agents or employees, be it active or passive, except the sole negligence or willful misconduct of the District. 5 . Improvements by and Responsibilities of Developer. Developer shall perform and be responsible for all labor and material expenses involved in performing the water distribution system improvements described in the attachment entitled Improvements by and Responsibilities of Developer. 6. Improvements by and Responsibilities of District. The District shall assign a Project Administrator to oversee the project. The District shall perform water distribution system improvements at Developer's expense as described in the attachment entitled Improvements by and Responsibilities of District. The construction costs deposited with the District shall be applied to the actual construction costs unless otherwise indicated. If the actual construction costs exceed such deposit, Developer shall pay such excess within thirty (30) days of receipt of the District's invoice . 7. Construction Inspection . The District shall inspect the construction from time to time, in order to determine that the water distribution system is installed in accordance with the approved improvement plans , construction specifications and the terms of this agreement. 1) The District shall notify the Developer and/or the Developer's representatives in writing as to any deviation from the approved improvement plans, construction specifications and the terms of this Agreement. The Developer and/or the Developer's representatives shall correct such deviation or failure as soon as is reasonably practicable . 8. Timely Construction Required . Construction of the water distribution system Project shall be completed and Unconditional Acceptance by the District, as defined herein, within twelve (12) months from the date of execution of this Agreement. In the event Developer fails to complete the water distribution system Project within that time, the District may at its discretion (1) increase any and all fees and costs to equal the District's current charges, (2) require Developer's plans and specifications to be updated and redrawn to comply with the District's current standards, and (3) terminate this Agreement and recover from Developer the full cost of all expenses and charges incurred by the District, including but not limited to material, labor, backfill, paving and outside services. 9 . Developer's Warranty. Developer warrants and guarantees that all labor and materials supplied by Developer are of a good and workmanlike quality, free of any defects of any type whatsoever 3 6 of 78 for a period of one (1) year from the date of Unconditional Acceptance by the District. Within the period of this warranty, Developer shall repair or replace, at Developer's expense, any defective material or workmanship. The District shall notify Developer of any malfunction or nonconformity promptly upon discovery. Within fifteen (15) business days after receiving notice from the District, Developer shall commence to repair or replace the defective part and will expeditiously pursue such work to completion and acceptance by the District. Emergency repairs will be coordinated by District and charged to the Developer. 10. CONDITIONAL ACCEPTANCE -IF REQUESTED by Developer 4 If Developer requests Conditional Acceptance of the project, the circumstances outlined below must be complied with prior to issuance of written Conditional Acceptance from the District. A Provision of Water Service. Upon completion of water distribution system Project construction (including pressure testing and disinfection), the facilities under this Development Agreement shall remain off, without water services, until either: 1) Conditional Acceptance of the project is issued by the District. or 2) Unconditional Acceptance of the project is issued by the District. Until either of these conditions is met, water for domestic and fire protection will not be provided . B. Completion of the System . Project shall be deemed complete when the District determines that the water distribution system has been entirely finished, properly tested , and qualifies for Unconditional Acceptance . C. Conditional Acceptance . When the District has determined that the water distribution Project has been completed the District may provide water service, on a conditional basis , to the Project. Conditional Acceptance will enable Developer to use the Project while Developer is in the process of providing to the District those items specified in the Requirements for Unconditional Acceptance . When Developer has fully complied with all steps set forth below, the District will issue in writing Conditionally Acceptance of the water distribution Project. 1) The Developer submits a written request for Conditional Acceptance of the water Project using the District's form (provided upon request). 2) The Developer will arrange for District to conduct a walk through inspection of the Project water system improvements. Developer will be responsible to repair, replace and or correct deficiencies, identified during this inspection . 3) The Developer submits a Conditional Acceptance deposit for all potential water corrections that are within the limits of the water distribution Project in the amount equal to 5% of the project cost or phase cost. The method of calculating these deposits and the amounts required are on file at the District. 4) Developer shall execute an offer of dedication for the water distribution 7 of 78 system Project to the District in a form satisfactory to the District, without cost, free, and clear of all liens and encumbrances . 5) Developer shall provide the District with the appropriate permanent easements. 6) Developer shall provide a copy of the final map, if applicable . 7) Developer shall pay any outstanding costs and fees . If the actual costs exceed the amount deposited with the District, a funds transfer agreement can be executed to transfer any remaining deposits that may be in the Electric Development Agreement (if applicable) to cover the amount due in the Water Development Agreement. 8) The District has determined that the water system has been pressure tested, disinfected, successfully passed bacteriological sampling and it is appropriate to activate the water system. 9) The Conditional Acceptance Deposit will be refunded within 60 days of the date District issuance of Unconditional Acceptance of the water system Project. 11. UNCONDITIONAL ACCEPTANCE REQUIREMENTS 5 A. Project Final Walk Through Inspection. Developer acknowledges that a final walk through inspection of all water system improvements is required . Developer is responsible to repair, replace and or correct deficiencies identified during this inspection. B No Early Use of Project. Developer shall not request or obtain a temporary occupancy permit , final inspection approval, nor shall Developer use, or permit anyone else to use , any portion of the water distribution system Project, until the District has granted Conditional Acceptance in writing. C . Within thirty (30) days after Project completion as determined by the District. Developer shall comply with all steps set forth below and if Conditional Acceptance was not previously requested and granted prior to final acceptance, items C.4 through C.8 under Conditional Acceptance will be required. In addition to items C.4 through C .8, Developer shall comply with the following conditions. 1) Developer shall provide the District with Project documentation drawings in compliance with District policy (see attached). 2) Developer shall provide the District with a maintenance bond in a form satisfactory to the District in a sum equal to fifteen percent (15%) of the ultimate construction costs of the water distribution system. This bond shall remain in effect for a period of one (1) year after the date of District Unconditional Acceptance of the water distribution system Project that will protect against any defects or failures in the systems that may develop during that time . 8 of 78 3) Developer shall provide the District with a statement of the "as-built" dollar value of the installed water distribution system with documentation to substantiate the stated value. 4) Prior to Unconditional Acceptance of the water distribution system Project by the District, Developer shall be responsible for all maintenance and repair of the water distribution system Project. Upon Unconditional Acceptance of the water distribution system Project by the District, the District shall thereafter own, operate, maintain, repair and replace the water distribution system, unless such repairs or replacements are covered by Developer's warranty . 5) Following Unconditional Acceptance of the Project, the District shall use its best efforts to provide adequate water service to the Project upon completion of any permit requirements and payment of all appropriate fees and charges, in accordance with District Rules and Regulations . 12. Notices. Notices or requests from either party to the other shall be in writing and delivered or mailed , postage prepaid, to the following addresses: Correspondence: JASON HANSFORD P.O. Box 10384 Truckee, CA 96160 Billings: TRUCKEE DEVELOPMENT ASSOCIATES 1201 Pine Street, Suite 151 Oakland, CA 94607 TRUCKEE DONNER PUBLIC UTILITY DISTRICT 11570 Donner Pass Road Truckee, CA 96161 13. Successors and Assigns. This Agreement shall be binding upon and insure to the benefit of the successors and assigns of all parties; however, Developer shall not assign any of its rights, duties or obligations under this Agreement without the prior written consent of the District. 14. District Powers. Nothing contained herein shall be deemed to limit, restrict, or modify any right, duty, or obligation given, granted, or imposed upon the District by the laws of the State of California now in effect, or hereafter adopted, nor to limit or restrict the power or authority of the District. The District may enact rules, regulations, resolutions, or ordinances, including, without limitation, creation of service zones and rate differentials applicable within the Project area that may not be applicable elsewhere, at its discretion . 15. Severability. In the event that any part or provision of this Agreement is found to be illegal or unconstitutional by a court of competent jurisdiction, such findings shall not affect the remaining parts , portions, or provisions of this Agreement. 16. Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable attorneys' fees and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein . 6 9 of 78 17. Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes any prior written or oral agreements between them concerning the subject matter contained herein . There are no representations, agreements, arrangements, or understandings, oral or written, between the parties relating to the subject matter contained in this Agreement which are not fully expressed herein. The provisions of this Agreement may be waived, altered, amended or repealed in whole or in part only upon the written consent of all parties to this Agreement. 18 . Dispute Resolution. If at any time during the Development Agreement process issues arise that need resolution, the Developer should submit a written request to the Project Administrator responsible for the project in question. Such request shall state all of the items of concern. The Developer can expect a response within 10 business days from receipt of request. If no resolution is reached, the Developer can request a meeting with the District's General Manager. If still no resolution is reached, the Developer can request a meeting before the Board to resolve the issue. Staff shall agendize the item before the Board for the next scheduled regular Board meeting . Scheduling shall be consistent with the Brown Act and must occur with at least 72 hours prior notice . Only after this process is exhausted without resolution of the dispute may the parties proceed to litigation . If either party commences a court action against the other based on a dispute or claim to which this paragraph applies without first complying with the provisions of this paragraph, the party commencing the court action shall not be entitled to recover attorney's fees, even if they would otherwise be available in such court action. 19. Forum . Any litigation to enforce or interpret the provisions of this Agreement or the parties' rights and liabilities arising out of this Agreement or the performance hereunder shall be maintained only in the courts in the Superior Court in and for the County of Nevada, California or the Federal Court for the Eastern District of California. 20. Captions. The captions and headings of the different paragraphs of this Agreement are inserted for convenience of reference only, and are not to be taken as part of this Agreement or to control or affect the meaning, construction, or effect of the same. 21. Necessary Acts. Each party to this Agreement agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 22 . No Waiver. The waiver by one party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver by such party of any other covenant, condition or promise. The delay in pursuing any remedy or ins isting upon full performance for any breach or failure of any covenant, condition or promise shall not prevent a party from later pursuing remedies or insisting upon full performance for the same or any similar breach or failure. 23 . Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California . 24. Union Pacific Railroad License Agreements 7 There are portions of the project that are subject to license agreements between the District and the Union Pacific Railroad (UPRR). There are four separate license agreements that are 10 of 78 applicable . These license agreements are included as Attachment A. According to these agreements , the Developer is acting under the authority of the District. The Developer shall comply with all requirements of the license agreements including the following : A. The Developer shall be responsible to pay any license fees associated with the project. Such payments can be made by the Developer directly to UPRR. The Developer shall provide a copy of any cancelled checks or other suitable documentation to verify that the licenses fees have been paid . B. The Developer shall be respons ible to coordinate all construction work directly with UPRR personnel including the scheduling of railroad flagmen when necessary. C. When constructing facilities subject to the UPRR license agreements , the Developer shall maintain commercial general liability insurance, business automobile insurance and workers compensation and employers liability insurance at levels equal or greater than specified in the license agreements . The District shall be named as an additional insured under these insurance policies . D. The Developer shall be responsible to provide and maintain Railroad Protective Liabil ity Insurance to the satisfaction of UPRR throughout the entirety of the construction period when constructing facilities subject to the UPRR license agreements. This Agreement shall be binding upon the parties only when signed by all parties . The District representative shall not sign this Agreement until Developer has provided all costs , fees and items required to be provided by Developer "upon execution of this Agreement." Truckee Development Associates, LLC By : Richard M. Holliday, Manager Truckee Donner Public Utility District By : Michael D. Holley , P.E., General Manager Truckee Donner Public Utility District Joseph R. Aguera , President of the Board 8 11 of 78 9 Estimated Costs Truckee Railyard Redevelopment, Phase 1 UP RR Operations Building Infrastructure WO# -10-744289 The Estimated Costs are as follows : Administrative and design Engineering & modeling Construction and inspection Project documentation deposit Total Estimated Costs The Fees as follows: $ 6,000.00 $ 0 .00 $ 20,000.00 $ 5,000.00 $ 31 ,000 .00 Costs associated with the relocation of the existing meter to the new point of service are included in the estimate for construction and inspection given above . Developer to pay UPRR license fees directly to UPRR. Total Fees Due Now Total Estimated Costs & Fees Less Deposit Paid in Advance BALANCE DUE $ 0.00 $ 31 ,000.00 ($ 1,000.00) $ 30.000.00 12 of 78 10 Improvements by and Responsibilities of Developer 1. Schedule a pre-construction meeting with District staff and the pipeline contractor. 2 . Provide all permits required. 3. Provide all traffic control and trench protection as required per applicable laws and TDPUD field supervisor's requirements. 4. Construct water system improvements per approved plans/construction drawing. 5 . Water facilities constructed under this "Development Agreement/Estimate of Water Construction" shall be constructed by appropriately licensed contractors . Contractors shall have current and active licenses issued by the California Department of Consumer Affairs, Contractors License Board . The appropriate licenses for water system construction are typically "A -General Engineering Contractor", or "C34 -Pipeline Contractor". 6. All construction to meet or exceed requirements of the current District WATER SYSTEM CONSTRUCTION STANDARDS . 7. Perform all water pipeline testing and disinfection per requirements of WATER SYSTEM CONSTRUCTION STANDARDS . 8. Provide compaction test results by a licensed professional. 9. Schedule main taps and meter installations with the Water Superintendent (Brian Wright 582-3957). A minimum of five working days notification is required for District crew scheduling. 10 . Contact Julie Nelson (582 -3926) to confirm cross connection installation requi rements (equipment , location, testing, etc .). 11 . Certify that the project was constructed with approved materials and in compliance with the development agreement and the approved plans, except as noted on the project documentation drawings . 12. Schedule and attend final walk through inspection with contractor and District representatives . 13 of 78 Improvements by and Responsibilities of District 1. Operate water system as required including customer notification (outages), system shut-down and system flushing. 2. Attend pre-construction meeting. 3. Inspect installation and construction of Project. 4. Observe "Site-Survey", document findings and prepare punch list of required work as necessary. 5. Perform 8" hot tap on contractor installed saddle and valve on East River Street. 6. Relocate existing 1-1/2" meter from existing point of service to new point of service. 7 . Take bacteriological samples. 8. Test locator wire installation. 9. Review, approve and inspect installation of all required back flow equipment. 10. Attend final walk thru inspection and prepare punch list if necessary. 11 14 of 78 Attachment A UPRR License Agreements Under review To be included prior to execution 12 15 of 78 UTILITY SERVICE PIPELINE AGREEMENT Between Mile Post 206.47 and 206.51, Roseville Subdivision Location: Truckee, Nevada County, California Folder No. 2995-22 THIS AGREEMENT ("Agreement") is made and entered into as of July 5, 2016, ("Effective Date") by and between UNION PACIFIC RAILROAD COMP ANY, a Delaware corporation, ("Licensor") and TRUCKEE DONNER PUBLIC UTILITY DISTRICT, to be addressed at 11570 Donner Pass Road, Truckee, CA 96161 ("Licensee"). RECITALS: The parties hereto desire to enter into an Agreement pursuant to which Licensee shall construct and maintain water lines and appurtenances as described below to serve the Licensor. IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. In consideration of the covenants and agreements herein contained to be by the Licensee kept, observed, and pe1formed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one (1) 6" longitudinal water line for fire suppression and 2 fire hydrants, one 8" and one (1) 2" longitudinal waterline for po1table water service to railroad owned buildings . Meter boxes, service laterals and other appurtenances as outline in the plans dated March 29, 2016 (hereinafter called the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated July 5, 2016 and marked Exhibit A. Article 2. 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, and 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. tM~?~~~~-ilfc4 ~5ilroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501 -0340 16 of 78 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 patt hereof. Article 4. 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 patties have caused this Agreement to be executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMP ANY Name Printed: 4843-5832-1444.1 5/26/15 ~~~~~~~~~~~- Name Printed: ~~~~~~~~~~~~ 17 of 78 "'---~ l[ .. ~790 .;}() """""" >---+---+-~-+---+~--+~~~~~~~~~~~ """"" TL-\ · ENGINEE RIN G & PL ANNING IS :~ E\JREJV\ ROAD. SUITE 100 kOSEV!tLE..CA!lS66l !l 16.7S6~1S \ ~ C£SlQEl UNDER TK s.RJMSl(JllJ': C1>nl:lclln ad1'antrlodotrrmlno r1i.ton<:r 11r n11r r Optk Cllblo l{IOO)lJ&.?l 'J EXHllllTMAM p UNIO N PAC::UlC kAlt.llOADCO~O'AN\' ROSKVILU: SUBDIVISION Liccro:.:c: Truc:kccDonnttl'bli~Uti lltrDi 'tri.:t 11.AJLRO.\O ~ULE l'OST !Otl.47 nnd l OG.~I Truc~co , Nt'l':ld:i (°.l!Ullly, C~l ifoml~ Fal <lcr l'o.~5-~DJt c :71 Sl20 1 G FtR REtlJaD PLAHS IRQMAL s::.IU.15 ti tlOfS © f'IR[ SO™a: UNt. SlNa..t CHEQ(, PIV, AND roe SIZE PER FIRE SPfflNKLEl'I DESICN£R @ WATER FAC.UTI£S CONSTRVClID TO lRUO<Et DONNER PUBUC Ul\UTY D!SlRICT (lDPl.JD) STANDARDS @ SEWER FACUTIES CONSlRIJC'TED TO TRUCXEE SANITATION OTSiRICT (TSO) STANDARDS © ~~~. ~~~E :so~~~= ~~~a>E LOCATED SEM:R WANHCl..E5. @ OOMESllC WATER. BELOW CAOUNO. TIPE K SOMU:SS c:a>PER 'llllH NO JOINTS. @ FlREMYDRANTS 'MlH BAARIER POSlS PER TDPUO S10 DRA"'1NC W-22.e ANO W-40.1. @ WATER MAIN 1t> BE Dfl-14 CllOO, PRtSSURE a.ASS J03 PSL © DUE TO EXIS11NC SANITARY SEVER W:VATIONS. WAmt LINE TO CROSS UNOCR lHE SEWER WAIN AHO T>IE SEWER SER\1Cl'. PER lt>PUD DETAIL W-+4.2 ® Sa: SHEETS cg ANO C10 FOR WATER ,\NO SC'liER STANOAAD DETAILS 1' 20 10 20 ·----~ IMPROVEMENT PLANS UTILITY PLAN D 1" 't' I "'""""""" I '""'-"""' , .. ., IU .P. MAINTENANCE BUILDING Ref: OZS10 'lfXT.SCAl.E: M:.910'fltl COc:QmlJI{ ll:J """'"-r TRUCKEE CALIFORNIA "" i t ..... ;:: 0 <i> ~ "' z :5 a. a. ~ " z g 11il w 0 z <( =1r C6 ~ ;;: :;; 10 I~ 18 of 78 EXHIBITB 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 paiis of its prope1iy, 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 paiiy for compensation or damages. B. The foregoing grant of right is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's prope1iy, 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 Licensee in strict conformity with: (i) Licensor's current standards and specifications ("UPRR Specifications"), except for variances approved in advance in writing by Licensor's Assistant Vice President Engineering -Design, or his authorized representative; (ii) such other additional safety standards as Licensor, in its sole discretion, elects to require, including, without limitation, American Railway Engineering and Maintenance-of-Way Association ("AREMA") standards and guidelines (collectively, "UPRR Additional Requirements"), and (iii) all applicable laws, rules and regulations ("Laws"). If there is any conflict between the requirements of any Law and the UPRR Specifications or the UPRR Additional Requirements, the most restrictive will apply. B. All work performed on prope1iy of Licensor in connection with the design, construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of 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, Licensee shall submit to Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect Licensor's operations, and shall not proceed with the work until such plans have been approved by Licensor's Assistant Vice President Engineering Design, or his authorized representative, and then the work shall be done to the satisfaction of Licensor's Assistant Vice President Engineering Design or his authorized representative. Licensor shall have the right, if it so elects, to provide such supp01i 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. D . 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 under the terms and conditions herein, Licensee shall secure any and all necessaiy permits and shall comply with all applicable federal, state and local 4843-5832-1444 .1 5/26/15 19 of 78 laws , regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 3. NOTICE OF COMMENCEMENT OF WORK/FLAGGING. A . If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor by calling the Response Management Communication Center at (888) 877-7267 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 prope11y 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. B. Licensee has been informed that federal railroad regulations require a railroad flagman for the 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 unless and until a railroad flagman is provided to watch for trains . Flagmen will be provided at Licensor's expense, and Licensor will reimburse Licensee for any reasonable expenses incurred due to delays caused by flagging or train operations . Section 4. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. A. The right herein granted is subject to the needs and requirements of Licensor in the safe and efficient operation of its railroad and in the improvement and use of its prope11y . Licensee shall reinforce or otherwise modify the Pipeline, or move all or any po1tion of the Pipeline to such new location or remove the Pipeline, as Licensor may designate, whenever in the fmtherance of its needs and requirements Licensor, at its sole election, finds such action necessary or desirable . Licensor will reimburse Licensee for all reasonable costs of any relocation or removal. B . All the terms, conditions and stipulations herein expressed with reference to the Pipeline on the prope11y of the Licensor in the location hereinbefore described shall , so far as the Pipeline remains on the prope11y , apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 5 . NO INTERFERENCE WITH LICENSOR'S OPERATION. A. The Pipeline 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 Licensor 's trackage and prope11y and nothing shall be done or suffered to be done by 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 prope11y 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 Licensee or its contractors without the prior written permission of Licensor. 4843-5832-1444.1 5/26/15 20 of 78 D . When not in use, any machine1y and materials of Licensee or its contractors shall be kept at least fifty (50) feet from the centerline of Licensor's trackage . Section 6. 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 Licensor during normal business hours (7:00 a .m. to 9:00 p .m . Central Time, Monday through Friday, except for holidays) at (800) 336-9193 to determine if fiber optic cable is bur ied anywhere on the Licensor's property 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 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 release, indemnify, defend and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, cowt 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 prope1ty, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contract01;, agents and/or employees, on Licensor's prope1ty, except to the extent such costs, liability or expenses are attributable to the negligence or willful misconduct of the Licensor. Licensee fwther 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 prope1ty. Section 7. CLAIMS AND LIENS FOR LABOR AND MATERIAL. A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon prope1ty 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 prope1ty 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 prope1ty of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such prope1ty 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 prope1ty of the Licensor, then the Licensee shall pay to the Licensor an equitable prop01tion of such taxes determined by the value of the 4843-5832-1444.1 5/26/15 21 of 78 Licensee's personal prope1ty upon the prope1ty of the Licensor as compared with the entire value of Licensor's propetty. Section 8. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other personal 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 Licensor's sole expense, restore such fence and other personal prope1ty to the same condition as the same were in before such fence was taken down or such other personal prope1ty 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 prope1ty whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other personal propetty of the Licensor. Section 9. INDEMNITY. A. As used in this Section, "Licensor" includes other railroad companies using the Licensor's prope1ty 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 prope1ty whatsoever (includ ing Licensee's personal propetty, damage to the roadbed, tracks, equipment, or other personal propetty of the Licensor, or personal pro petty in its care or custody). B. As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees 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 patt thereof; or 2. The presence, operation , or use of the Pipeline or contents escaping therefrom except to the extent that the Loss is attributable to the direct and active negligence or willful misconduct of the Licensor. Section 10. 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 the propetty of the Licensor and restore such prope1ty to as good a condition as it was in before the Pipeline was originally constructed, all to the satisfaction of the Licensor. If the Licensee fails to do the foregoing, the Licensor may perform the work of removal and restoration at the expense of the Licensee. The Licensor shall not be liable to the Licensee for any damage sustained by the Licensee as a result of the removal of the Pipeline by the Licensor as in this section provided, nor shall such action prejudice or impair any right of action for damages or otherwise that the Licensor may, 4843-5832-1444.1 5/26/15 22 of 78 at the time of such removal , have against the Licensee. Section 11. 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 other shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 12. 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 paiiies hereto which may have accrued, or liability, accrued or otherwise, which may have arisen prior thereto . Section 13. AGREEMENT NOT TO BE ASSIGNED. A. The Licensee shall not assign this Agreement, in whole or in pati, 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 voluntaiy, 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. B. With any request for consent to an assigmnent, Licensee will provide Licensor with the name of the proposed assignee and its principals, and the cetiified financial statement of the proposed assignee. C . Notwithstanding the foregoing, Licensee may, without Licensor's consent but with prior written notice to Licensor, assign to: (i) any financially responsible entity controlled by, controlling, or under common control with Licensee (provided that Licensee remain liable, jointly and severally with such entity, for all obligations of Licensee under this Agreement); or (ii) any entity into or with which Licensee is merged or consolidated or which acquires ownership or control of all or substantially all of the assets of Licensee . D . In the case of any assignment, including without limitation those assignments under Section 13 (C) hereof, Licensee will provide Licensor: (i) with fully executed counterpaiis of all agreements petiaining to the assignment, and an assignment and assumption agreement, confirming that assignee has accepted and assumed all obligations of Licensee under this Agreement for the benefit of Licensor; and (ii) the name, address and contact information of the assignee . 4843-5832-1444.1 5/26/15 23 of 78 Section 14. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 13 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto , their heirs , executors, administrators, successors and assigns . Section 15. 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. 4843-5832-1444.1 5/26/15 24 of 78 Pipeline Crossing 080808 La st Modified: 03 /29/10 Form Approved , A VP -Law PIPELINE CROSSING AGREEMENT Mile Post: 206.68, Roseville Subdivision Location: Truckee, Nevada County, California Folder No. 02941-83 THIS AGREEMENT ("Agreement") is made and entered into as of June 22, 2016, ("Effective Date") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, ("Licensor") and TRUCKEE DONNER PUBLIC UTILITY DISTRICT, to be addressed at 11570 Donner Pass Road, Truckee, California 96161 ("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 one two (2) fomteen (14) inch encased pipeline for transp01ting and conveying water only across Licensor's track(s) and prope1ty (the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the print dated January 15 , 2016 and marked Exhibit A , 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 water, 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. For the purposes of Exhibit A , Licensee acknowledges that if it or its contractor provides to Railroad digital imagery depicting the Pipeline crossing, Licensee authorizes Railroad to use the Digital Imagery in preparing the print attached as an exhibit hereto. Licensee represents and warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Railroad to use the Digital Imagery in said manner. Article 2. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time License Fee of Seventy Nine Thousand Dollars ($79,000.00). 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 fo1th herein and in Exhibit B , attached hereto and hereby made a part hereof. 25 of 78 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 and 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 License , 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 license, those statutes 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. 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 COMP ANY Renay J. Robison Director -Real Estate TRUCKEE DONNER PUBLIC UTILITY DISTRICT 26 of 78 NON-FLAMMABLE LIQUID PIPELINE lXJ CROSSING DENCROACHMENT DBOTH 0::130 o::I , §JI~ ~ OUTER 10:: j TRACK 1___ 17 _J_, r. __ ___ SCALE: h'OllE ct OUTER • TRACK I I• 0::1"" [lo N~'IJ =>10: I _r1, I ..____ _________ 340 FT.-----------------' i-------34 FT. ____ ,___82 .07FT' __.....,,_____ ____ _ 34 FT, ' ' VENT PIPE I 7 I ,___ ___ _ ....,._ __ 32 FT. ' TOTAL TRACKS' NOTES: ll ALL DIMENSIONS MEASURED PERPENDICULAR TO THE CENTERLINE OF TRACK. 21 REFER TD AREMA VOLUME I. CHAPTER I. PART 5, SECTION 5.3. 32 FT. I- I GROUND SURFACE Al METHOD OF INSTALLATION --'-J-'-'-ac-'-'-l<_a-'-n-'-d _Bo_r_e ______ _ Bl DIST. FRPM CENTERLINE OF TRACK TO PIPE ENCROACHMENT N/A Cl SIGNS PROVIOED'i' _l:!Q__, 0) CARRIER MATERIAL HOPE DR9 , IF RCP, CLASS V? ~ -BUILDING AMERICA0 COMMODITY TO BE CONVEYED Water • ._ ____ E_X_H_l _B _l _T--.. -Al"-----" OPERATIONAL PRESSURE ___1QQ__ PSI. MAOP 350 PSI. WALL THICKNESS (JNCHl/ SCHEDULE ·J .556" . DIAMETER _·JL_I _JN. SUBDIVISION: -Rosev/tlt s u6. CATHODIC/COATING PROTECTION___liQ_____ TRACK TYPE: tn{Nil El CASING MATERIAL Steel IF RCP CLASS VI' M 'I r 1 o 2 ' -· .P.: ..LOW'"'(\ LAT.:; I TOTAL LENGTH CASING PIPE: 150 FT. \•/ALL THICKNESS 0.781" IN. DIAMETER __§_1__ IN. E.S.M.: go rt 31 -LONG.:-1 ~o. (7(1.J.,, CATHODIC/COATING PROTECTION Sacrificial Anode NEAREST CITY: COUNTY: CASING PIPE IS sealed AT THE ENDS. T (vtc,k et FJ DISTANCE FROM CENTERLINE OF TRACK TO NEAR FACE OF 1---'--------"-.lf-"-l'--'--'-----=-n-~-~+--'--...,-I BORING AND JACKING PITS WHEN MEASURED AT RIGHT ANGLES 1-A_P_P_L_IC_A_N~T :__.:.1_ru~c~k.(.~e----'-"~=--.l_;_;:_--=---::__,l--'---'----l __M__ AND ~. FILE NO.: d ~(- 27 of 78 Pipeline Crossing 07/20/08 Fonn Approved , A VP Law EXHIBITB 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 patis 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 patty 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 prope1iy, 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 prope1ty 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 prope1ty , 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 E ngineering Design, or hi s 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, 28 of 78 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 I LICENSOR REPRESENTATIVE I SUPERVISION I FLAGGING I 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"): MICHAEL P. UPTON MGR TRACK MNTCE 1 SOUTH PYRAMID WAY SPARKS, NV 89431 Work Phone #402-501-1237 Cell Phone# 559-240-3734 Email: mupton @ up.com GARRETT R . BROOKS MGR SIGNAL MNTCE 401 RAILROAD ST COLFAX, CA 95713 Work# 402-591-2823 Cell # 916-628-1046 Email: grbrooks@up .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 s hall 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 29 of 78 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 (I 0) day notice , the Licensor Representative will determine and inform Licensee 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 perfo1med 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 Prope1iy 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-halftimes 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 wil .l 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 30 of 78 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 repo1table 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 ce1tain 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 inte1ference 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. 31 of 78 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 Licensee 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 Licen sor 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 patiies 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 impmiance 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 , comi 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 CONTRACTORS, 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 HA VE 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 32 of 78 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 prope1ty 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 materia ls furnished thereon at the instance or requ est or on behalf of the Licensee . The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens , claims, demand s, 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 prope1ty of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such prope1ty 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 prope1ty , 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 prope1ty. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensee in any manner moves or disturbs any of the prope1ty 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 prope1ty 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 , d amage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature , including court costs and attorneys' fees, which m ay result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents , and employees , the Licensee's officers, agents , and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks , equipment, or other property of the Licensor, or property in its care or custody). B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND 33 of 78 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 OF ANY KIND, NATURE OR DESCRIPTION ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): 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 p01tions of the prope1ty 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 prope1ty 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 mam1er be liable to the Licensee for any damage sustained by the 34 of 78 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 (I) year, or if the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may , at its option, f01thwith 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 pait, 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 patties 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. 35 of 78 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 Agreement (except as otherwise provided in this Agreement) 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 for the duration of such work "Railroad Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of 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. Notwithstanding the foregoing, Licensee 36 of 78 does not need Railroad Protective Liability Insurance after its work is completed and all excess materials are removed, but will procure coverage for any subsequent maintenance work. 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 ce1iificate 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. 37 of 78 Pipeline Crossing 07/20/08 Form Approved , A VP-Law EXHIBITD 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. I. 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. l -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. l -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 38 of 78 • 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 and its contractor are responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations -49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR2 l 4, 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 hy -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. 39 of 78 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 49CFR2 I 3 . D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the ale1t 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 direct ions 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 workpl ace safety . 40 of 78 Pipeline Crossing 080808 Last Modified: 03/29/10 Form Approved, A VP-Law PIPELINE CROSSING AGREEMENT Mile Post: 206.06, Roseville Subdivision/Branch Location: Truckee, Nevada County, California Folder No. 2987-75 This PIPELINE CROSSING AGREEMENT ("Agreement") is made and entered into as of June 11, 2016 ("Effective Date"), by and between UNION ~ACIFIC RAILROAD COMPANY, a Delaware corporation ("Licensor"), and TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a California corporation, to be addressed at 11570 Donner Pass Road, Truckee, California 96161 ("Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. A. In 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, dming the term hereof, to maintain and operate one ( 1) twelve inch (12 11 ) underground potable water pipeline in the location shown and in conformity with the dimensions and specifications indicated on the print dated May I 0, 2016, attached hereto as Exhibit A and made a part hereof, which will cross Licensor's tracks located on real property in Truckee, Nevada County, State of California, legally described in that certain Grant Deed dated December 23, 2005 from Licensor to Trnckee Development Associates, LLC, a Delaware limited liability company, identified in Licensor's records as Audit No. 239332 in Folder No. 2228-52, under which Licensor reserved a perpetual easement in, on, under, over and through the real property described therein ("Easement Property") for the constrnction, reconstrnction, maintenance, operation, use and/or removal of existing and/or future railroad, rail and railroad-related equipment and facilities, including entering into licenses with third parties for longitudinal occupancies or crossings. B. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than for the purpose set forth in this Article l, and the Pipeline shall not be used to convey any other substance or for any other use, whether such use is currently technologically possible, or whether such use may come into existence dming the life of this Agreement. C. For the purposes of Exhibit A, Licensee acknowledges that if it or its contractor provides to Licensor digital imagety depicting the Pipeline, Licensee authorizes Licensor to use the digital imagery in preparing Exhibit A. Licensee represents and warrants that through a license or otherwise, it has the right to use the digital image1y and to permit Licensor to use the digital imagery in said manner. 41 of 78 Article 2. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of rigl1t 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 pmt hereof. Article 3. DEFINITION OF LICENSEE. For pmposes 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. ff a contractor is hired by the Licensee for any work performed on the Pipeline (including initial constrnction and subsequent relocation or maintenance and repair work), then the Licensee shall provide a copy of this Agreement to its contractor and 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 4. INSURANCE. A. During the life of the Agreement, Licensee shall fully comply with the insmance requirements described in Exhibit C. B. Failure to maintain msurance 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 Agreement, those statutes shall apply. D. Licensee hereby acknowledges that it has reviewed the requirements of Exhibit C, including without limitation the requirement for Railroad Protective Liability Insurance during constrnction, maintenance , installation, repair or removal of the Pipeline which is the subject of this Agreement. Article 5. TERM. This Agreement shall take effect as of the Effective Date first herein writtei1 and shall continue in full force and effect until terminated as herein provided. (R emainder o.f page i11te11tio11ally left blank) 42 of 78 IN WITNESS WHEREOF, the pa1ties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RA,ILROAD COMP ANY TRUCKEE DONNER PUBLIC UTILITY DISTRICT 43 of 78 NON-FLAMMABLE LIQUID PIPELINE @CROSSING DENCROACHMENT DBOTH -"---------------------------~-l--!'."'~-"' ~·.!--- -----------:-------------T- , . . ~ , r---lM_rf. ---~-----~-~~~.47.75fl. ____ 1 ~ ~--------<+ - -- -_, ___ 5 i~i~i\~~~-------7-·-·-·-·-·' ·-((T?~, ' le ' ;g t . \_ OESCll IO[ <L ! ['.; OESCfl I BE • flXU OUJ£CT '"I FIXED OOJECT t;:: • CRO~S I UC lRACK ' CROSS JUG lRACK ·· ) Soulharn OactwH oJRR Bli<f'la I tlorthorn B;e\w;I of RR D@o ~I ,_,_1> . ____ N_9~~-··---------------"---;;J.-UPM-R-:-0~fi;-------------------------j __ PLAN smc: 11J.\( g;l~ 'i ourrn £ ou1rn ~~ g,~ I TRACK • TRACK :::.:;;! I----~-r1, __ ..., ~----..1lLF1. I [ I I I . ---·---. ~rr. : I I ••n . : I ·,1 >----·--M... H, ---·~ o Fl, I 45.0 fl,--------1- l ,,-·-· VWI PIP£ I -' [ n-f· r"'I . ro1~L rni1.cK!. !---------·---_n, -·· ·-·---t j ~n cnou110 I -fl. -~--I . -·-ORAlllAG£ '1 T I. r 5URrAC£ I =1= OITCJI I ! .J,§_~T, '1!' r It n. I l I -· Tfil._FT, tlOTES: I) ALL (}!ME tlSIONS MEASURED PE RPEllDJCULA!l TO me CENTERLlllE OF TRACK 2)/lEFF.llTONlEt,\I\ VOLUl.IE 1. CHAPrnn 1;.fAHT5,.,.,s,..Ec .... 1,..10.,.1-1 ... 5;.;... l _______ ...... ________________ -I Al METHOD OF INSTALLATION ..Q~~nui _ Ill DIS I. FllOM CENTERLINE OF lf!ACK 1U PIPE ENCROACHMENT ~~ Cl SIGNS PflOVIOED? ll\ml1il)\U11l l!<J~H1Jl b& P10V:d1d •• •l•led abo1 .. Dl Ct\RR!El1 MMEHIAL Dvct~llronl'is>e • IF RCP, CLASS V? fil...... ~ BUILDING AMERICA' COMMOOJTY TO BE CONVF.YF.O l'ol~bl•\'Wer 1------E-X-H-IB_l_T--,.-A-,,------1 OPEllAT IONAL PRESSURE 350.0 PS!.. 1·1AOP 350.0 _ PSI. WALL Tl!ICKNESS flNClll/ SCHEDULE 0.5 • DIAf.IETEfl .!!.:Q___(lj, ._su_o_D_1_v_1s_1o_N_:_1n<1_T1_&e«_' 0pp_._R_o1_ol(_:n_.s_u_b. ____ ____. CA rHODICICOfll ING PROf[(;l ION...l:lL_ TRACK TYPE: ln<lu•1iy0<Spwlrac)( El CASING MA IERIAL ~~'------~ TOTAL LENGTH CASING PIPE: WL.... FT. IF flCP, CLASS V? fil...... -M.P.: Opp.200.00 I LAT.: 3~.:rn>eomom £-:S~M.: 7•33 I LONG.: .120.11~mm HALL THICKNESS .M.__ JN, DIN·lETF.R ~ IN. CATHOD!C/COATIHG PROTECTJmL..Hq__ CASING PIPE IS -~..e.L AT 1HE EtlOS. Fl DISTANCE FROM CElllERLINE OF lllACK TO NEllR FACE OF DORING /\ND Jl\Cl:ING PITS liHEN MEASURED 1\T RIGHT ANGLES NEAREST CITY: COUNTY1 STATE1 TllUCKEE Nevada ... -~c="--1 APPLICAM T: TRUCKEE OONNEfl PUBLIC UTILITY DISTAJCT FILE N0.1 0298715 I DATE: (\.4/2212016 '-------~-~~~~-------~-----'-------------'----------' ~---------··-·------------------------------------' 44 of 78 Pipeline Crossing 07/20/08 form Approved, A VP Law EXHIBITB 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 the Easement 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 the Easement Property, all or any of which may be freely clone 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 Easement 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 e1tioyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. A. The Pipeline shall be designed , constructed, operated, maintained, repaired, renewed, modified and/or reconstrnctecl 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, rnles 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 . 8. All work performed on the Easement Property 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 the Easement 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 Y ice 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. 45 of 78 E. In the prnsecution 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 I LICENSOR REPRESENTATIVE I SUPERVISION I FLAGGING I 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 11 or "Railroad Representative"): Michael P. Upton MGR Track Maintenance l South Pyramid Way Sparks, NV 89431 Work Phone: 402.501.1237 Cell Phone: 559.240.3734 Email: mupton@up.com Garrett R. Brnoks MGR Signal Maintenance 40 I Railroad Street Colfax, CA 95713 Work Phone: 402.591.2823 Cell Phone: 916.628.1046 Email: grbrnoks@up.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 the Easement Property any employee who fails to conform to the instrnctions of the Licensor Representative in connection with the work on the Easement Property. Licensee shall indemnify Licensor against any claims arising from the removal of any such employee from the Easement 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 (l 0) day notice, the Licensor Representative will determine and inform Licensee whether a flagman need be present and whether any special protective or safety measures need to be implemented. lf flagging or other special protective or safety measures are performed by Licensor, Licensor will bill Licensee for such expenses incmred 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. lf Licensor will be sending the bills to Licensee, Licensee shall pay such bills 46 of 78 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 fmth in this Agreement. E. The rate of pay per hour for each flagman will be the prevailing homly 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 Sch edules 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 ove1time, 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. Reimbmsement 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 reimbmsement 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 necessaiy 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. Jffive (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 contrmy 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 ensme 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 ittjured on the job site. Prompt notification shall be given to Licensor of any U.S . Occupational Safety and Health Administration repo1table injmies. Licensee shall have a non-delegable duty to control its employees while they are on the job site or any other property of 47 of 78 Licensor, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drng 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 the Easement Property. The Licensee shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move all or any p01tion of the Pipeline to such new location, or remove the Pipeline from the Easement 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 the Easement Property hereinbefore described shall, so far as the Pipeline remains on the Easement Property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO lNTERFERENCE WITH LICENSOR'S OPERATION. A. The Pipeline and all parts thereof within and outside of the limits of the Easement Property 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 uninterrnpted 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 the Easement Property or other property owned by Licensor without the prior written approval of Licensor. C. No additional vehicular crossings (including tempora1y 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 48 of 78 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 Easement Prope11y. Protection of the fiber optic cable systems is of extreme importance since any break could disrnpt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor during normal business homs (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 Easement 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 CONTRACTORS, AGENTS AND/OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON THE EASEMENT 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 THE EASEMENT 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 HA VE 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 THE EASEMENT PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON THE EASEMENT PROPERTY. Section 8. CLAIMS AND LillNS FOR LABOR AND MATERIAL; TAXES. The Licensee shall fully pay for all materials joined 01· affixed to and labor performed upon the Easement Properly in connection with the construction, maintenance, repair, renewal, modification or reconstrnction 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. Section 9. RESTORATION OF EASEMENT PROPERTY. In the event the Licensee in any manner moves or disturbs any of the Easement Prope11y in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or 49 of 78 removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore the Easement 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 ittj u1y to or death of persons whomsoever, or damage to or Joss 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 Easement 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) injrny to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BYLAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR FROM ANY LOSS OF ANY KIND, NATURE OR DESCRIPTION ARISING OlJT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): 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 AGREEMENT; 3. THE PRESENCE, Ol>ERA TION, 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, 50 of 78 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 Easement Prope1iy not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of the Easement Property to as good a condition as they were in at the time of the constrnction 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. 8. In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either paity hereto to the other on any date in such notice stated, not less, however, than thitiy (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 patties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. 51 of 78 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. 52 of 78 Approved : Insurance Group Created: 9/23/05 Last Modified: 03/29/10 Form Approved, A VP-Law EXHIBITC INSURANCE REQUIREMENTS Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as otherwise provided in this Agreement) the following insurance coverage: A. Commercial General Liability insurance . Commercial genel·al 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 0 I 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 0 l (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 I 0 0 l (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 JO 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. C. ·workers Compensation and Employers Liability insurnnce. 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. 53 of 78 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. Umbl'clla or Excess insurance. lf Licensee utilizes umbrella or excess policies, and these policies must "follow form" and afford no less coverage than the primaiy 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 Insmed Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage prnvided 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 prnvisions 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. 54 of 78 Pipeline Crossing 07/20/08 Form Approved, A VP-Law EXHIDITD SAFETY STANDARDS 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 . I. 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. I -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. l -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 occmring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: • l 00 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 I 0 feet, employees must wear dual ear protection -plugs and muffs) 55 of 78 (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 and its contractor are 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 instrnctions 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 instrnctions 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 rnles if operating any hy-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 power lines. 56 of 78 V. General Safety Requit·ements A. Licensee shall ensure that all waste is prnperly 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 Railrnad 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 arnund 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, rnadway 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 . 57 of 78 Pipeline Crossing 080808 Last Modified: 03/29/10 Form Approved, A VP-Law PIPELINE CROSSING AGREEMENT Mile Post; 206.24, Roseville Subdivision/Branch Location: Truckee, Nevada County, California folder No . 2987-81 This PIPELINE CROSSING AGREEMENT ("Agreement") is made and entered into as of June .11, 2016 ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Licensor"), and TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a California corporation, to be addressed at 11570 Donner Pass Road, Trnckee, California 96161 ("Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. A. In consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate one (I) twelve inch (I 2") underground potable water pipeline in the location shown and in conformity with the dimensions and specifications indicated on the print dated May 10, 2016, attached hereto as Exhibit A and made a pa1t hereof, which will cross Licensor's tracks located on real prope1ty in Trnckee, Nevada County, State of California, legally described in that certain Grant Deed dated December 23, 2005 from Licensor to Trnckee Development Associates, LLC, a Delaware limited liability company, identified in Licensor's records as Audit No. 239332 in Folder No. 2228-52, under which Licensor reserved a perpetual easement in, on, under, over and through the real property described therein ("Easement Prope1ty") for the construction, reconstruction, maintenance, operation, use and/or removal of existing and/or future railroad, rail and railroad-related equipment and facilities, including entering into licenses with third parties for longitudinal occupancies or crossings. B. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than for the purpose set forth in this A1ticle I, and the Pipeline shall not be used to convey any other substance or for any other use, whether such use is currently technologically possible, or whether such use may come into existence dming the life of this Agreement. C. For the pmposes of Exhibit A, Licensee acknowledges that if it or its contractor provides to Licensor digital imagery depicting the Pipeline, Licensee authorizes Licensor to use the digital image1y in preparing Exhibit A. Licensee represents and warrants that through a license or otherwise, it has the right to use the digital image1y and to permit Licensor to use the digital imageiy in said manner. 58 of 78 Article 2. 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 fo1th herein and in Exhibit B, attached hereto and hereby made a part hereof. Article 3. 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 Pipe] ine (including initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall provide a copy of this Agreement to its contractor and require its contractor to comply with all the terms and prnvisions 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 4. INSURANCE. A. During the life of the Agreement, Licensee ·shall fully comply with the insurance requirements described in Exhibit C. B. Failme 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 Agreement, those statutes shall apply. D. Licensee hereby acknowledges that it 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 . A1·ticle 5. 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. (Remainder of page i11te11tfo11ally left blank) 59 of 78 IN WITNESS WHEREOF, the pa1ties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMP ANY TRUCKEE DONNER PUBLIC UTILITY DISTRICT 60 of 78 '., NOTES: NON-FLAMMABLE LIQUID PIPELINE 0CROSSING DENCROACHMENT OBOTH ~ ~ o.to \l OUTCR £ QUTEll ~,~. ::>f'>! j 1RhCK j TllACK 5j r--..M..rT. --f ::- 1 ,__ ____ -®..Fr.----~ ,__ _________ I_ ~rJ,--1 --------------,1 _____.~ I I 0 ' -~ FT, __ ____,,_.....__, _n, --~1 -----~H. ,..L---vrnr PIPE ' 1 I nTT f I l TOl~L TRACKS 1' _fl.~----,..-! lm!mr·y-vfiOUllO ~ FT, OR.\lllhGE I 1 • SURFACE . ~:f" =:====····==-··=:~.,;~":_IJ ~ ~T ~ :~:~ ~1~0G-;l;E .. -----SECT l ON A LO.'\GllUOlllnL PIPE_/ mw l~)S( EllCfiOAC!lllEIH !)All Dll.IEllSJOllS l.IJ!J\SU/ll!O PEllPEUO IGULNt TO YHI: CEllTEnUl!E OF TRACK 2) RffER TO Nlf.1.111 VOLUME 1. CllAPTIH\ 1. PMni. SECTION 5.1 Al METHOD OF INSTALLATION -'~=n'-"Tr=M=<h,__ _______ _ Bl D[ST, FROM CENTERLINE OF TnflCK fO PIPE ENCROACHMf.NT ~ Cl SIGNS Pfl0VIDE07 L!!.fil@t.>nH\Jns \\i1 be ptO'Med •Hlaled tbo'1t DI CARf!IEf! MATERIAi. DJ«!o llM P~ • IF flCP, CLASS Y? 11!!__. ~ BUILDING AMERICA' COMMDDJlY TO UE COINF.YEO f'l)(3t1ewmr , 1----~E-X_H_l_B_J_T--,-, A-.. --~--l OPl:flATIONl'll Pf!ESSURE ~PSI, WtOP W&-.. PSI. WALL THICKNESS !INCHI/ SCHEDULE 0.26 ' OltiMt:rrn J1,Q__1N. l-s_u_u_o_1v_1_s1_o_N1_l_nd_Tr_nc_l<Opp_;._:._._R_~_e\t_ro_s_ub. ____ ~ CATHODIC/COATING PROTECTIQN_1_10_ TRACK TYPE: lndu1tiyorspurTmk F.I CASING MllTf.RIAL Sleel Pipe , IF flCP, CLASS V? .!!LL. M.P.: '206.24 1 LAT.: 3 9 .~1omm11 TOTAL LENGTH CASING PIPfil !IM__ FT. I ~/ALL THICKNESS lli_ IN, DIAMETER ID___ IN. E.S.M.: 7 •~ LONG.: ·12<>.178.4929294 CATHODIC/COATING PROTECTION--lli.-NEAREST CIYY1 COUNJY1 STAIE1 CASlflG PIPE IS~ AT THE ENOS. lltUCKEE Um~• ~C~A ~_, Fl DISTANCE FROM CENTEflLINE OF TllACK TO NEAR FACE OF APPLICANT: TRUct<eeoo1111rnPUDllCUllllTYOISllt1c:r BORING ANO JACKING PITS WllEN MEASURED Al RIGHT ANGLES ___!!!L_ l'lNO ..--11A-, FILE N0.1 0198761 I DATE1 ~ICVlOI& 61 of 78 Pipeline Crossing 07/20/08 Form Approved, AVP Law EXHIBITB 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 the Easement Property including the right and power of the Licensor to constrnct, 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 the Easement 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 Easement Property, and others) and the l"ight 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, mies and regulations ("Laws"). lf 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 the Easement Prope1ty in connection with the design, constrnction, maintenance, repair, renewal, modification or reconstrnction 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, constmction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline from the Easement Prope1ty, 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 suppo1t as it may deem necessary for the safety of its track or tracks during the time of constrnction, 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. 62 of 78 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 I LICENSOR REPRESENTATIVE I SUPERVISION I FLAGGING I 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"): Michael P. Upton MGR Track Maintenance 1 South Pyramid Way Sparks, NV 89431 Work Phone: 402.501.1237 Cell Phone: 559.240.3734 Email: mupton@up.com Garrett R. Brooks MGR Signal Maintenance 40 I Railroad Street Colfax, CA 95713 Work Phone: 402.591.2823 Ce! I Phone: 916.628. l 046 Email: grbrooks@up.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 the Easement Property any employee who fails to conform to the instructions of the Licensor Representative in connection with the work on the Easement Property. Licensee shall indemnify Licensor against any claims arising from the removal of any such employee from the Easement 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 Representative will determine and inform Licensee 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 63 of 78 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 necessaty 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. Iffive (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 pmt of Licensee's safety responsibilities , Licensee shall notify Licensor if it determines that any of Licensor's safety standards are contra1y to good safety practices. Licensee and its contractor shall furnish copies of Exl1ibit 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 i1tjured on the job site. Prompt notification shall be given to Licensor of any U.S. Occupational Safety and Health Administration reportable iitjuries . Licensee shall have a non-delegable duty to control its employees while they are on the job site or any other property of 64 of 78 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 11 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, constrnction, 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 the Easement 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 Easement Prnperty, as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor, at its sole election, finds such action necessaiy or desirable. B. All the terms, conditions and stipulations herein expressed with reference to the Pipeline on the Easement Property hereinbefore described shall, so far as the Pipeline remains on the Easement 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 paits thereof within and outside of the limits of the Easement Property 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, prnperty 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 the Easement Property or other property owned by Licensor without the prior written approval of Licensor. C. No additional vehicular crossings (including tempormy 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 65 of 78 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 Easement 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 Easement Prope11y 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, comt 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 CONTRACTORS, AGENTS AND/OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON THE EASEMENT 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 THE EASEMENT 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 HA VE 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 THE EASEMENT PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON THE EASEMENT PROPERTY. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon the Easement Property in connection with the constrnction, maintenance, repair, renewal, modification or reconstrnction 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. Section 9. RESTORATION OF EASEMENT PROPERTY. In the event the Licensee in any manner moves or disturbs any of the Easement Prope11y in connection with the construction, maintenance, repair, renewal, modification, reconstrnction, relocation or 66 of 78 removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore the Easement 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 injmy 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 Easement 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) inju1y 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 prope1ty, damage to the roadbed, tracks, equipment, or other prope1ty of the Licensor, or property in its care or custody). B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BYLAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR FROM ANY LOSS OF ANY ICTND, NATURE OR DESCRIPTION ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): 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 AGREEMENT; 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, 67 of 78 EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE DIRECT AND ACTIVE NEGLIGENCE OF THE LICENSOR, AS DETERMINED IN A FINAL .nJDGMENT 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 Easement 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 the Easement 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. W AIYER OF BREACH. The \Vaiver 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 two (2) years, or if the Licensee continues in default in the performance of any covenant or agreement herein contained for a period of thilty (30) clays 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. 1!11 addition to' the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either patty 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. 68 of 78 Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shal I 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 voluntmy, 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 pa11ies hereto, their heirs, executors, administrators, successors and assigns. Section 16. SEVERABILITY. Any provision of this Agreement which is determined by a comt 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. 69 of 78 Approved: Insurance Group Created: 9123105 Last Modified: 03129110 Form Approved, A VP-Law EXHIDITC INSURANCE REQUIREMENTS Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as otherwise provided in this Agreement) the following insurance coverage: A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occmrence 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 JO 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Prope11y" 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 Employe1·s 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 (Patt 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. 70 of 78 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 primmy 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 recove1y, 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 ceitificate 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 insmance 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. 71 of 78 Pipeline Crossing 07/20/08 Form Approved, A VP-Law EXHIBITD SAFETY STANDARDS 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. I. 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 jewelty while operating or working on machinery. II. Personal Pl'Otcctivc 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.l -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. l -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: • I 00 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) 72 of 78 (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 and its contractor are responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations -49CFR214, Subpa1t 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 instrnctions 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. Jn 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 hy-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. 73 of 78 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. Dming 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 ale1t 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. 74 of 78 Ir u t k e e Railyard Master P lan Vision DOWNTOWN EXTENSION DISTRICT (DE The Downtown Extension (DE) District will be a physical extension of the commercial shops, restaurants, and lodging existing along Commercial Row. The DE District will provide new reta il, office, entertainment, residential , recreation, and civic uses in within the Railyard Mixed-Use Development and Downtown. The DE District will generally have the greatest intensity of development of the three Districts. LEGEND ---.....,..,lftm ·--.....,..._ . ~ ......... _ ..... Ill ____ .... _ D __ _.. • td.IMllll~IMM: L Dllficns:OllM:i: . -.-.. c ......... ~...._...., ----------~ ....... ..- ___ ====:I 91:1'~~ FIGURE 1 TROUT CREEK DISTRICT (TC) The Trout Creek (TC) District will provide a mix of multi-family and single-family residential homes to increase the amount of residential within the Railyard Mixed-Use Development with connections to the Trout Creek Greenway. The TC District will have the lowest density of the three Districts. \- The Industrial Heritage (IH) District will strengthen the RailyardMixed~Oseprojectwith more residential and commercial and industrial uses that support a community of local business people, artisans, entrepreneurs, and the continued operation of the railroad . Multi-family residential, live-work and work-live units and commercial development will occur in the IH district. Development in the IH District will refiect historic industrial character of uses that once existed on the site including the Lumber Mill and railyard operations. I &;::; I --·.,_- 75 of 78 JiQru EASEMENT TRACK 515 EAST UTILITY CROSSING SEE SHEET C7 ... ..::"'/"" ~ ~· ::1~1r (P) DITCH SEE TRACK 515 EAST ;:..;~ · ,,.. ,., - DITCH GRADING SHEET CIO J.·/ .. .• DITCH LIMITS OF ,._,.... CONSTRUCTION . ----· All TRACK WORK TO BE PERFORMED BY OTHERS CONCURRENT OR AFTER UTILITY WORK. SITE PLAN ~ -I "' I" I' I " 'Fi (.!) ~ 'Fi 'Fi 2 u sj f:.,.. ., "l ~~ §; ~ 'Fi ~ :$ 80 'Fl<.., ~~~ E-i U) ~ Z'Fl i;:l ;;'; i5 ""0:: -3~~ "lZu > 0., "loo:; Q .-q ... "l"' ga~ ~ [!] : ~= z ~u -~~~ ct: z,, z Li.I g!~ ct: <{ Lr.I gl' Lr.I ct: z ~ I-ct: -~ UJ Lr.I [!] ~. <{ -z ·~ @ wcnw ~~ w> liJii:-zc: ~z: ~ ~~ ~ ~~· u,. C3 OFC14 76 of 78 Louis A. Basile Kelley R. Carroll*t Peter H. Cuttitta* Steven C. Gross* Brian C. Hanley* James L. Porter, Jr.* James E. Simon PORTER A PROFESSIONAL CORPORAT ION t Certified Specialist in Estate Planning, Trust & Probate Law Truckee Donner Public Utility District Attn: Michael Holley, General Manager 11570 Donner Pass Road Truckee, CA 96161 July 14, 2016 Ravn R. Whitington* Christian N. Brown Stephen C. Lieberman, Of Counsel Dennis W. De Cuir, A Law Corporation, Of Counsel * Also licensed in Nevada Re: Conflict of Interest Waiver -Truckee Development Associates, LLC and Truckee Donner Public Utility District Dear Mike: As we have discussed, Truckee Donner Public Utility District (TDPUD) asked our firm to review and advise it with respect to TDPUD's provision of water service to the Railyard Project, which is being developed by Truckee Development Associates, LLC, and specifically the negotiation of a Development Agreement between Truckee Development Associates, LLC and TDPUD and license agreements with Union Pacific Rail Road (UPRR). As you know, our office also represents Truckee Development Associates, LLC (TOA) and Richard M. Holliday, its Managing Member. In the process of representing TDPUD in the above referenced matter, a conflict of interest exists. Our office has agreed to advise TDPUD on TDPUD's provision of water service to the Railyard Project, including the negotiation of a Development Agreement between TDPUD and TOA and license agreements with UPRR, subject to securing written conflict waivers from TDPUD and TOA. Lawyers may represent clients with conflicting or potentially conflicting interests provided that the clients sign informed, written conflict waivers . Therefore, in order to comply with our professional obligations and to protect both of us, we ask that you agree, as indicated by your signature on this letter, that you waive all conflicts of interest associated with our representation of TOA on the matters described in this letter and that you will keep our firm apprised of any other potential or any actual conflicts of interest which you may become aware of in the future. If, at any time during the course of this firm's representation of TOA, you decide that any of this firm's relationship with TDA may be detrimental to TDPUD's interests, we also ask that you agree, as indicated by your signature on this letter, to notify us immediately so that we may address those concerns. Of course, should you at any time feel that there is a conflict of interest in this firm's representation of TDA and TDPUD that cannot be resolved, you may end our representation of TDPUD on the matters described in tis letter upon timely submission of written notice. Regardless of whether any actual conflict of interest arises, we will not be able to disclose any confidential and/or privileged information that we acquired in our representation of TDA to TDPUD or any confidential and/or privileged information that we acquired in our representation of TDPUD to TDA. We suggest that you consult an independent attorney to discuss the conflicts of interests involved here and the risks and consequences for you arising therefrom . {00601593.DOC I } TRUCKEE 40200Truc:kee Airport Road, Truckee, California 96161 phone (530) 587-2002 fax{530) 587-1316 TAHOE CITY RENO 77 of 78 Page 2 of 2 July 14, 2016 Accordingly, in order to comply with our professional obligations and to protect TDPUD and us, we ask that you sign and return to us a copy of this letter acknowledging and agreeing that: 1. You have been advised of our firm's past and current representation of TDA and TDPUD, and have been fmther advised that a conflict of interest exists in this firm's representation ofTDPUD in this matter; 2. You have been advised that should a conflict of interest develop between TDPUD and TDA in this matter that cannot be resolved, either TDA or TDPUD may request that we withdraw and refrain from representation of TDPUD in this matter . 3. You have been advised that you have the right to seek, and that you should seek, independent counsel regarding the conflict of interest and potential conflicts of interest identified in this letter; and 4. Having been advised in this letter of the conflict of interest and potential for fmther conflicts of interest between TDA and TDPUD, you neve1theless agree to waive all conflicts of interest referenced in this letter and wish this firm to represent TDPUD in the TDPUD water service matter, including the Development Agreement and license agreements referenced in this letter. Future matters between TDA and TDPUD shall not be covered by this conflict waiver and shall require a separate conflict waiver by each patty prior to this firm representing either patty in a matter involving the other party. Thank you very much for addressing these concerns. Should you have any questions or concerns regarding this letter, please discuss them with us before signing and returning this letter. Very truly yours , PORTER SIMON Professional Corporation STEVEN C. GROSS gross@porters imon. com I understand and agree to the foregoing and acknowledge that I have received a copy of this conflict of interest waiver. By: Name: Michael Holley General Manager {00601593.DOC I } 78 of 78