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R-87-990 - 4/23/1987WHEREAS, the City of Round Rock would like to construct an underground water pipeline crossing under Missouri Pacific Railroad Company property; and WHEREAS, Missouri Pacific Railroad Company is agreeable to said crossing; and WHEREAS, Missouri Pacific Railroad Company has submitted a license agreement for the underground water pipeline crossing, NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to enter into said license agreement with Missouri Pacific Railroad Company, a copy of said agreement being attached hereto and incorporated herein for all purposes. ATTEST: ,23,/9,97. RESOLUTION NO. % q0/ MIKE ROBINSON, Mayor City of Round Rock, Texas PIPE LINE AGREEMENT CROSSING Mile Post 159.28, Austin Sub. near Round Rock, Williamson County, Texas THIS AGREEMENT is made and entered into as of the ,g2,5 day of , 19 ,Q7 by and between MISSOURI PACIFIC RAILROAD , a Delaware corporation (hereinafter the Licensor) and CITY OF ROUND RSCK, a municipal corporation of 214 East Main Street, Round Rock, Texas 78664 (hereinafter the Licensee). Article 4. TERM. DUPLICATE ORIGINALUCINSEE'S COPY Audit No. 1165 -42 IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSE FEE. Upon the execution of this Agreement, the Licensee shall pay to the Li- censor a license fee of ONE THOUSAND ONE HUNDRED DOLLARS ($1,100.00). Article 2. LICENSOR GRANTS RIGHT. In consideration of the license fee to be paid by Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate an underground water pipe line crossing (hereinafter called the Pipe Line) in the location shown and in conformity with the dimensions and specifications indicated on the attached print marked Exhibit A. Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. Witness: MISSOURI PACIFIC RAILROAD COMPANY Wire /Pipe Line Agmt Crossing Form App 8/86 AVP -Law By General Director -Real Estate Witness: CITY OF ROUND ROCK eltul Mayor I NM •IM MN NOTE: BEFORE YOU BEGIN ANY WORK, SEE AGREEMENT FOR FIBER OPTIC PROVISIONS. T 70 PALESTINE LJP FILE, 1(1 0 m II= MO N, ■ _ — 90 " - TO LAOD f� 4 :L 1.702' TO F.F. BRIDGE NO. 159.6 4 MO Mb EXHIBIT 'A' MISSOURI PACIFIC RAILROAD COMPANY NR. ROUND ROCK. WILLIAMSON COUNTY. TEXAS M.P.159.28 - AUSTIN SUB. TO ACCOMPANY AGREEMENT WITH THE CITY OF ROUND ROCK COVERING AN UNDERGROUND WATER PIPELINE CROSSING. Scale P = 100' Office of Director -Real Estate Omoho, Nebraska APRIL 2,1987 • L D G D N D U.G. WATER PIPELINE X -ING SHOWN.... YELLOW RRCo. R/W Outlined PL X/E LI 86223 ' Form Approved, AVP -Law Section I. 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 wire lines pipe lines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or tines by the Licensor without liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. (a) The Pipe Line shall be constructed, operated, maintained, repaired, renewed, modified and /or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and all amendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as may be modified and approved by the Licensor's Assistant Vice President - Engineering. In the event such Specification conflicts in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construc- tion, maintenance, repair, renewal, modification or reconstruction of the Pipe Line shall be , done under the supervision and to the satisfaction of the Licensor. (c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipe Line where it passes underneath the roadbed and track or tracks of the Licensor, 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 Assistant Vice President - Engineering of the Licensor and then only under the supervision of the Assistant Vice President - Engineering 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 Pipe Line, and, in the event the Licensor pro- vides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipe Line thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COMMENCEMENT OF MORK. 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 Pipe Line. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction maintenance, repair and renewal and any and all modification, revision, reloca- tion, removal or reconstruction of the Pipe Line, including any and all expense which nay, be incurred by the Licensor in connection therewith for supervision or inspection, or otherwise. Exhibit B Page l of 4 041On EXHIBIT B PL X/E LI 86223 Form, Approved, AVP -Law Section 5. RELOCATION OR REMOVAL OF PIPE LINE. (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property and the Licensee shall, at the sole expense of the Licensee, nave all or any portion of the Pipe Line to such new location or (unless the Pipe Line extends entirely across the property of the Licensor) remove the Pipe Line from such property, as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor shall find such action necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the PIpe,Line on property of the Licensor in the location hereinbefore described shall, so far as the Pipe Line remains on the property, apply,to the Pipe Line as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipe Line and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section 7. PROTECTION Of FIBER OPTIC CABLE SYSTEMS. (a) fiber optic cable systems may be buried on the Licensor's property. Licensee shall telephone the Licensor at 1-800-356-9193 (a 24 -hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Licensor's premises. (b) In addition to the liability terms elsewhere in this Agreement, the Licensee shall indemnify and hold the Licensor harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by, any act or omission of the Licensee, its contractor, agents and /or employees, that causes or in any way or degree contributes to (1) any damage to or destruction of any telecommunications system by the Licensee, and /or its contractor, agents and /or employees, on Licensor's property, (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, and /or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunciation company(ies). Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipe Line, and shall not permit or suffer any mechanic's or neterialnen's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. (b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipe Line, to prevent the same from becoming a charge or lien upon property of the Licensor and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipe Line or any improvement, appliance or fixture con- nected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee s property upon property of the Licensor as compared with the entire value of such property. Exhibit 8 Page 2 of 4 0410n PL X/E LI HbLe) • Form Approved, AVP -Law Section 9. RESTORATION OF LICENSOR'S PROPERTY.' In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner nave or disturb any the other property of the Licensor in connec- tion with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipe Line, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees; against and from any and all liability, loss, damages claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the roving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. As a major inducement and consideration for the license and permission herein, the Licensee shall indemnify and hold harmless the Licensor and other companies which use the property of the Licensor, (Other Companies) their officers, agents and employees, against and from any and all liability, Toss, damage, claims, de ands, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever (including officers, agents and employees of the Licensor and of the Licensee, as well as other persons), or against and from damage to or loss or destruction of property whatsoever (including damage to the roadbed, tracks, .equipment or other property of the Licensor and Other Companies or property in their i care or custody), when such injury, death, loss, destruction or damage s due to or arises because of: I. The existence of the Pipe Line or the construction, operation, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipe Line or any part thereof, or 2. The contents in or from the Pipe Line including bursting of or Teaks in the Pipe Line, except when caused by the sole and direct negligence of the Licensor, Other Companies, their officers, agents or employees. The Licensee does hereby release the Licensor and Other Companies, their officers, agents and employees, from all liability for damages on account of damage to or loss or destruction of the Pipe Line from any cause whatsoever, including the sole and direct — negligence of the licensor and Other Companies, their officers, agents and employees. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipe line from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the tine of the construction of the Pipe Line. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option upon such termination, at the entire cost and expense of the Licensee, remove the portions of the Pipe Line located underneath its roadbed and track or tracks and retore such roadbed to as good a condition as it was in at the time of the construction of the Pipe Line,,or it may permit the Licensee to do such work of removal and restoration under the supervision of the Licensor. In the event of the removal by the Licen- sor 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 subsequent breach thereof. Exhibit B Page 3 of 4 0410n PL X/E LI 86223. Form Approved, AVP -Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipe Line for one (1) year,,or if the Licensee continues in default in the performance of any covenant or agree- ment herein contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying such default, the Licensor ney, at its option, forthwith immedi- ately 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 Tess, however, than thirty (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any trans- fer 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. Exhibit B Page 4 of 4 0410n Mr. James R. Nuse Director of Public Works The City of Round Rock 214 East Main Street Round Rock, TX 78664 Attached is License Agreement, Audit No. 1165 -42 covering use of a portion of the Railroad Company's property at or near Round Rock, Texas. In the spaces marked by an "X" please execute or arrange for execution of the attached document and have the signatures wit- nessed. Please RETURN ALL COPIES of the document for execution on behalf of the Railroad Company. Your copy of the fully executed document will be returned to you. Payment of the initial term is due upon your execution of the agreement. Please forward your check in the amount of $1,100.00 to: Please refer to 1165 -42 on your remittance. Attach. Missouri Pacific Railroad Company P. O. Box 718 Downtown Station Omaha, NE 68101 -0718 PLEASE `YOUR PIOMPT REPLY MELD SE RA Sincerely yours, R. W. CHRISTENSEN Manager -Real Estate Contracts T R A I : .,„ Y 7 . A . REAL ESTATE DEPARTMENT Mr. James R: Nuse Director of Public Works The City of Round Rock 214 East Main Street Round Rock, TX 78664 UNION PACIFIC RAILROAD COMPANY 1 BAY 261987 Attached is License Agreement, Audit No. 1165 -42 covering use of a portion of the Railroad Company's property at or rear Round Rock, Texas. The Railroad Company has authorized the installation of fiber optic cable facilities on its property in certain areas. Prior to using the Railroad Company's property covered herein, you should thoroughly review the terms and conditions of this document and contact the Railroad Company at 1- 800 - 336 -9193 to determine if a fiber optic cable is buried on the subject property. In accordance with the terms of the agreement, 48 hours in advance of entering the right of way you should arrange to notify our Roadmaster: Mr. C. W. Holman 111 South Magnolia Street Palestine, TX 75801 (214)723 -7745 Sincerely yours, ROOM 300 1416 DODGE STREET OMAHA, NEBRASKA 68179 1165 -42 R. W. CHRISTENSEN Manager -Real Estate Contracts WHEREAS, the City of Round Rock would like to construct an underground water pipeline crossing under Missouri Pacific Railroad Company property; and WHEREAS, Missouri Pacific Railroad Company is agreeable to said crossing; and WHEREAS, Missouri Pacific Railroad Company has submitted a license agreement for the underground water pipeline crossing, NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to enter into said license agreement with Missouri Pacific Railroad Company, a copy of said agreement being attached hereto and incorporated herein for all purposes. ATTEST: Dpt L a3, /911. 011 Jil! / i S /I ' =nne Land, ity Secretary RESOLUTION NO. % qM -ma, MIKE ROBINSON, Mayor City of Round Rock, Texas PIPE LINE AGREEMENT CROSSING Mile Post 159.28, Austin Sub. near Round Rock, Williamson County, Texas THIS AGREEMENT is made and entered into as of the ‘2 day of Lrh� _ , 19 0 v 7 by and between MISSOURI PACIFIC RAILROAD 1/ • • , a lelaware cor oration (hereinafter the Licensor) and CITY OF ROUND RICK, a municipal corporation of 214 East Main Street, Round Rock, Texas 78664 (hereinafter the Licensee). FOLLOWS: Article 1. LICENSE FEE. Upon the execution of this Agreement, the Licensee shall pay to the Li- censor a license fee of ONE THOUSAND ONE HUNDRED DOLLARS ($1,100.00). Article 2. LICENSOR GRANTS RIGHT. In consideration of the license fee to be paid by Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate an underground water pipe line crossing (hereinafter called the Pipe Line) in the location shown and in conformity with the dimensions and specifications indicated on the attached print marked Exhibit A. Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached. Article 4. TERM. This Agreement shall take effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. Witness: IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS Witness: CITY OF ROUND ROCK DIJPUCATE ORIOINA4UCENSEFg COPY Audit No. 1165 -42 MISSOURI PACIFIC RAILROAD COMPANY Director -Real Estate Wire /Pipe Line Agmt Crossing Form App 8/86 AVP -Law NOTE:BEFORE YOU BEGIN ANY WORK.SEE AGREEMENT FOR FIBER OPTIC PROVISIONS. 1' TO FALESTNE LJP FILE, TV 6542 0 C N Scale r = 100' Office of Director -Real Estate Omaha. Nebraska APRIL 2,148T • L • G W D • b , 90 9 TO LAREDO : ry : \ 't Y 1 V Q I.T02'± TO F.F. BRIDGE NO.159.6 - R s EXHIBIT 'A MISSOURI PACIFIC RAILROAD COMPANY MR. ROUND ROCK. WILLIAMSON COUNTY. TEXAS M.P.69.28 - AUSTIN SUB. TO ACCOMPANY AGREEMENT WITH THE CITY OF ROUND ROCK COVERING AN UNDERGROUND WATER PIPELINE CROSSING. U.G. WATER PIPELINE X -ING SHOWN.... YELLOW RRCo. R/W Outlined P! X/E LI 86223 f Form Approved, AVP -Law Section I. 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, camunication, fiber optics, or other wire lines pipe lines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. (b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the sane, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. (a) The Pipe Line shall be constructed, operated, maintained, repaired renewed, modified and /or reconstructed by the Licensee in strict conformity with Union Pacific Railroad Co. Comm Standard Specification 1029 adopted November 1949, and all arendments thereof and supplements thereto, which by this reference is hereby made a part hereof, except as nay be modified and approved by the Licensor's Assistant Vice President-Engineering. In the event such Specification conflicts in any respect with the requirements of any federal state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specification shall apply. (b) All work performed on property of the Licensor in connection with the construc- tion, maintenance, repair, renewal, modification or reconstruction of the Pipe Line shall be , done under the supervision and to the satisfaction of the Licensor. (c) Prior to the comrencenent of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipe Line where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the licensor plans setting out the nethod 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 Assistant Vice President- Engineering of the Licensor and then only under the supervision of the Assistant Vice President - Engineering 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, neintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipe Line, and, in the event the Licensor pro- vides such support, the licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. (d) The Licensee shall keep and maintain the soil over the Pipe Line thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF COIMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before camencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (ID) days (or such other time as the Licensor may allow) in advance of the comrencement of any work upon property of the Licensor in connection with the construction, maintenance repair, renewal modification, reconstruction, relocation or removal of the Pipe Line. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction maintenance, repair and renewal and any and all modification, revision, reloca- tion, removal or reconstruction of the Pipe Line, including, any and all expense which may be incurred by the Licensor in connection therewith for supervision or inspection, or otherwise. Ex 8 Pa 041On1 of 4 EXHIBIT B PL X/E LI 86223 Form Approved, AVP -Law Section 5. RELOCATION OR REMOVAL OF PIPE LINE. (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property and the Licensee shall, at the sole expense of the Licensee, move all or any portion of the Pipe Line to such new location or (unless the Pipe Line extends entirely across the property of the Licensor) remove the Pipe Line from such property, as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor shall find such action necessary or desirable. (b) All the terms, conditions and stipulations herein expressed with reference to the Pipe, Line on property of the Licensor in the location hereinbefore described shall, so far as the Pipe Line remains on the property, apply,to the Pipe Line as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipe Line and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner iepair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Licensee shall telephone the Licensor at 1- 800 - 336 -9193 (a 24 -hour number) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Licensor's premises. (b) In addition to the liability terms elsewhere in this Agreement, the Licensee shall indemnify and hold the Licensor harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by, any act or omission of the Licensee, its contractor, agents and /or employees, that causes or in any way or degree contributes to (1) any damage to or destruction of any telecomunications system by the Licensee, and /or its contractor, agents and /or employees, on Licensor's property, (2) any injury to or death of any person enpIoyed by or on behalf of any telecommunications company, and /or its contractor, agents and /or employees, on Licensor's property, and /or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunciation campeny(ies). Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. (a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipe Line, and shall not permit or suffer any mechanic's or naterialman'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 fran 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 Pipe Line, to prevent the same from becoming e charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipe Line or any improvement, appliance or fixture con- nected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee s property upon property of the Licensor as compared with the entire value of such property. Exhibit B Page 2of 4 0410n PL X/E L1 86223 Moro Approved, AVP -Law '' "Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner rove or disturb any the other property of the licensor in connec- tion with the construction, maintenance, repair, renewal, nodification, reconstruction, relocation or removal of the Pipe line, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such fence and other property to the soma condition as the same were in before such fence was taken down or such other property was i 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, depends, costs and expenses of whatsoever nature, including court costs and attorneys fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. As a major inducement and consideration for the license and permission herein, the Licensee shall indemnify and hold harmless the Licensor and other companies which use the property of the Licensor, (Other Companies) their officers, agents and employees against and from any and all liability, loss, damage, claims, depends, actions, causes of action, penalties, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which nay result from injury to or death of persons whomsoever (including officers, agents and employees of the Licensor and of the Licensee, as well as other persons), or against and from da�a�e to or loss or destruction of property whatsoever (including damage to the roadbed tracks,. equipment or other property of the Licensor and Other Companies or property in their care or custody), when such injury, death, loss, destruction or damage is due to or arises because of: 1. The existence of the Pipe line or the construction, operation, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipe Line or any part thereof, or 2. The contents in or from the Pipe Line including bursting of or leaks in the Pipe Line, except when caused by the sole and direct negligence of the Licensor, Other Companies, their officers, agents or employees. The Licensee does hereby release the Licensor and Other Companies, their officers, agents and employees, from all liability for damages on account of danege to or loss or destruction of the Pipe Line from any cause whatsoever, including the sole and direct negligence of the Licensor and Other Companies, their officers, agents and employees. Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipe Line from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the tine of the construction of the Pipe Line. If the Licensee fails to do the foregoing, the licensor pay do such work of removal and restoration at the cost and expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost and expense of the Licensee, remove the portions of the Pipe Line located underneath its roadbed and track or tracks and retore loch roadbed to as good a condition as it was in at the time of the construction of the Pipe Line,,or it nay permit the Licensee to do such work of removal and restoration under the supervision of the Licensor. In the event of the removal by the Licen- sor 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 nay 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 subsequent breach thereof. Exhibit B Page 0410n3 of 4 PL X/E LI 86223 Form Approved, AVP -Law Section 13. TERMINATION. (a) If the Licensee does not use the right herein granted or the Pipe Line for one (I) year, or if the Licensee continues in default in the performance of any covenant or agree- ment 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 immedi- ately 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 mey be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any trans- fer 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 Subject benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. Exhibit B Page 4 of 4 041On