2016-041S:\Legal\Our pocuments\Ordinances\16\UPR Lease-Ordinance.docx
ORDINANCE NO 2� 16-�41
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING AUTHORIZATION
FOR AND RATIFICATION OF A BEAUTIFICATION LEASE AGREEMENT WITH UNION
PACIFIC RAILROAD FOR THE PURPOSE OF PROVIDING RIGHT-OF-WAY
MAINTENANCE ALONG MINGO ROAD FROM HICKORY STREET TO COOPER CREEK
ROAD; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to ratify and
execute the Lease of property, attached hereto and incorporated herein, and to carry out the duties
and responsibilities of the City under the Lease, including the expenditure of funds as provided in
the Public Agreement.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the � day of �"� ,�����,��+���°� °� ���,�-��,�,;,, , 2016.
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�.,.1'�I�.I� 1�� � N"�, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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BY. ..� '� �� ��� �� � � �������
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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Folder: 02916-06
LANCINE BENTLEY
CITY OF DENTON
215 E. MCKINNEY STREET
DENTON TX 76201
RE: Lease Covering Use of Railroad Property at Denton, Texas
Dear Ms. Bentley:
Attached for your permanent record is a fully executed original of the above-referenced Lease.
The Railroad Company has authorized the installation of fiber optic cable facilities on its properly in
certain areas. Prior to digging on the Railroad's property you must contact the Railroad Company
at 1-800-336-9193 to determine ►f this property conta➢ns �ber optic cable. In any event, you should
thoroughly review the terms and conditions of this Lease.
In compliance with the Internal Revenue Service's policy regarding Form 1099, please be advised that
94-6001323 is Union Pacific Railroad Company's Federal Taxpayer ldentification Number and we are
doing business as a corporation.
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'�'i�i}�, E�.fOmar
Asst Manager - Real Estate
(402)544-8627
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
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Audit No.
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Industrial Lease (Year To Yeae) 09-01-06 Folder No. 02916-06
(Unimproved Property)
Form Approved, Law
LFe�ISE oF PROPERTY
(irtnusrivaL LEASE - uNiMrRovEv - YEax To YEaR>
THIS LEASE ("Lease") is entered into on �' °�°�-����-� ���, 2016,
PACIFIC RAILROAD CO ANY ("Lessor") a��cl �iT� �1+" 1�1�I'�TC�N, a
corporation, whose address is 215 E. Mckinney Street, Denton, Texas 76201 ("Lessee").
I , : 1 : , ,, • � �
Article L P`1�l±.MYSI±,�• �J��..
la�tw�en UNION
"1"����� municipal
Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises") at Denton,
Texas, shown on the print dated January 29, 2015, marked Exhibit A, hereto attached and made a part
hereof, subject to the provisions of this Lease and of Exhibit B attached hereto and made a part hereof.
The Premises may be used for beautification and maintenance of railroad right of way, and purposes
incidental thereto, only, and for no other purpose. The beautification and maintenance activities consist
of: mowing, weed eating, tree care, and the removal of trash, debris and illegal signage. All personnel
who will be directly working on the maintenance of the railroad right-of-way shall be certified in
the Roadway Workers Protection On-Track Safety Program and shall comply with any and all
regulations and/or requirements established by Lessor in the performance of said work.
Article 2. TE .
The term of this Lease shall commence January 1, 2016, and, unless sooner terminated as
provided in this Lease, shall extend for one year and thereafter shall automatically be extended from year
to year.
I:�[��y►:��M�].7��M�
A. Lessee shall pay to Lessor, in advance, fxed rent of Five Hundred Dollars ($500.00)
every 60 months.
B. Not more than once every Five (5) years, Lessor may redetermine the fixed rent. If
Lessor redetermines the rent, Lessor shall notify Lessee of such change.
Article 4. INSU CE.
A. Throughout the entire term of this Lease, Lessee shall maintain the insurance coverage
required under Exhibit C hereto attached and made a part hereof. Notwithstanding insurance required in
this Agreement, the Railroad accepts and acknowledges any immunities and caps on damages applicable
under the Texas Tort Claims Act that apply to this Agreement.
B. Not more frequently than once every two years, Lessor may reasanably modify the
required insurance caverage ta reflect then-current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
C. Upon request of Lessor, Lessee shall provide to Lessor a certifcate issued by its
insurance carrier evidencing the insurance coverage required under Exhibit C.
D. All insurance correspondence shall be directed to: Real Estate Department, 1400
Douglas Street STOP 1690, Omaha, Nebraska 68179-1690, Folder No. 02916-06.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first herein
written.
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Industrial Lease (Year To Year) 09-01-06
(Unimproved Property)
Form Approved, Law
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Section 1. II4'��'T�{�'V�1W��i�1"[�.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2. �T'!��1��"�."� I��i� �"Il`�� 1"w..i'�1� 1'I��OR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such
times as will not unreasonably interfere with Lessee's use of the Premises.
B. Lessor reserves (i) the exclusive right to permit third party placement of advertising signs
on the Premises, and (ii) the right to construct, maintain and operate new and existing facilities (including,
without limitation, trackage, fences, communication facilities, roadways and utilities) upon, over, across
or under the Premises, and to grant to others such rights, provided that Lessee's use of the Premises is not
interfered with unreasonably.
C. Lessee acknowledges that Lessor makes no representations or warranties, express or
implied, concerning the title to the Premises, and that the rights granted to Lessee under this Lease do not
extend beyond such right, title or interest as Lessor may have in and to the Premises. Without limitation
of the foregoing, this Lease is made subject to all outstanding rights, whether or not of record. Lessor
reserves the right to renew any such outstanding rights granted by Lessor or Lessor's predecessors.
D. Without limitation of Subparagraphs B. and C. above, Lessee shall not interfere in any
manner with the use or operation of any signboards now or hereafter placed on the Premises or with any
property uses in connection with such signboards (such as, by way of example and not in limitation,
roadways providing access to such signboards). In no event may Lessee construct on the Premises any
improvements that interfere in any manner with the visibility or operation of any signboards now or
hereafter on the Premises or on property in proximity to the Premises.
Section 3. ���,'�'NITrI�'I' +(J�� ��l��l'�T.
Rent (which includes the fixed advance rent and all other amounts to be paid by Lessee under this
Lease) shall be paid in lawful money of the United States of America, at such place as shall be designated
by the Lessor, and without offset or deduction.
Section 4. 7',�4.�i�� e��i� r����'���!'I�+��`I# s.
A. Lessee shall pay, prior to delinquency, all taxes levied during the life of this Lease on all
personal property and improvements on the Premises not belonging to Lessor. If such taxes are paid by
Lessor, either separately or as a part of the levy on Lessor's real property, Lessee shall reimburse Lessor
in full within thiriy (30) days after rendition of Lessor's bill.
B. If the Premises are specially assessed for public improvements, the annual rent will be
automatically increased by 12% of the full assessment amount.
Section 5. WATER RIGHTS.
This Lease does not include any right to the use of water under any water right of Lessor, or to
establish any water rights except in the name of Lessor.
Section 6. �'A�T A�l� �1;�31� �Ci� �]C�F�i���4.
A. Lessee shall use reasonable care and caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or property.
Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to any
railroad spur track(s) on or serving the Premises, free and clear from any substance which might create a
hazard.
B. Lessee shall not permit any sign on the Premises, except signs relating to Lessee's
business.
C. If any improvement on the Premises other than the Lessor Improvements is damaged or
destroyed by fire or other casualty, Lessee shall, within thirty (30) days after such casualty, remove all
debris resulting therefrom. If Lessee fails to do so, Lessor may remove such debris, and Lessee agrees to
reimburse Lessor for all expenses incurred within thirty (30) days after rendition of Lessor's bill.
D. Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises and this Lease, including, without limitation, any requirements for
subdividing or platting the Premises.
Section 7. HAZA C31�� �A�G1�I��J� 5[;f�3�TANCES AND WASTES.
A. Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
Premises for the generation, use, treatment, manufacture, production, storage or recycling of any
Hazardous Substances, except that Lessee may use, if lawful, small quantities of common chemicals such
as adhesives, lubricants and cleaning fluids in order to conduct business at the Premises. The consent of
Lessor may be withheld by Lessor for any reason whatsoever, and may be subject to conditions in
addition to those set forth below. It shall be the sole responsibility of Lessee to determine whether or not
a contemplated use of the Premises is a Hazardous Substance use.
B. In no event shall Lessee (i) release, discharge or dispose of any Hazardous Substances,
(ii) bring any hazardous wastes as defined in RCRA onto the Premises, (iii) install or use on the Premises
any underground storage tanks, or (iv) store any Hazardous Substances within one hundred feet (100') of
the center line of any main track.
C. If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or
without Lessor's consent, Lessee shall furnish to Lessor copies of all permits, identification numbers and
notices issued by governmental agencies in connection with such Hazardous Substance use, together with
such other information on the Hazardous Substance use as may be requested by Lessor. If requested by
Lessor, Lessee shall cause to be performed an environmental assessment of the Premises upon
termination of the Lease and shall furnish Lessor a copy of such report, at Lessee's sole cost and expense.
D. Without limitation of the provisions of Section 12 of this Exhibit B, Lessee shall be
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to
any Hazardous Substance use of the Premises (or any property in proximity to the Prernises) during the
term of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessor's consent
to such use or any negligence, misconduct or strict liability of any Indemnified Party (as defined in
Section 12), and including, without limitation, (i) any diminution in the value of the Premises and/or any
adjacent property of any of the Indemnified Parties, and (ii) the cost and expense of clean-up, restoration,
containment, remediation, decontamination, removal, investigation, monitoring, closure or post-closure.
Notwithstanding the foregoing, Lessee shall not be responsible for Hazardous Substances (i) existing on,
in or under the Premises prior to the earlier to occur of the commencement of the term of the Lease or
Lessee's taking occupancy of the Premises, or (ii) migrating from adjacent property not controlled by
Lessee, or (iii) placed on, in or under the Premises by any of the Indemnified Parties; except where the
Hazardous Substance is discovered by, or the contamination is exacerbated by, any excavation or
investigation undertaken by or at the behest of Lessee. Lessee shall have the burden of proving by a
preponderance of the evidence that any of the foregoing exceptions to Lessee's responsibility for
Hazardous Substances applies.
E. In addition to the other rights and remedies of Lessor under this Lease or as may be
provided by law, if Lessor reasonably determines that the Premises may have been used during the term
of this Lease or any prior lease with Lessee for all or any portion of the Premises, or are being used for
any Hazardous Substance use, with or without Lessor's consent thereto, and that a release or other
contamination may have occurred, Lessor may, at its election and at any time during the life of this Lease
or thereafter (i) cause the Premises and/or any adjacent premises of Lessor to be tested, investigated, or
monitored for the presence of any Hazardous Substance, (ii) cause any Hazardous Substance to be
removed from the Premises and any adjacent lands of Lessor, (iii) cause to be performed any restoration
of the Premises and any adjacent lands of Lessor, and (iv) cause to be performed any remediation of, or
response to, the environmental condition of the Premises and the adjacent lands of Lessor, as Lessor
reasonably may deem necessary or desirable, and the cost and expense thereof shall be reimbursed by
Lessee to Lessor within thirty (30) days after rendition of Lessor's bill. In addition, Lessor may, at its
election, require Lessee, at Lessee's sole cost and expense, to perform such work, in which event, Lessee
shall promptly commence to perform and thereafter diligently prosecute to completion such work, using
one or more contractors and a supervising consulting engineer approved in advance by Lessor.
F. For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminant", or
"hazardous waste", in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. §§ 9601, et se�c ., as amended or in RCRA, the regulations promulgated pursuant to either
such Act, or state laws and regulations similar to or promulgated pursuant to either such Act, (ii) any
material, waste or substance which is (A) petroleum, (B) asbestos, (C) flammable or explosive, or (D)
radioactive; and (iii) such other substances, materials and wastes which are or become regulated or
classified as hazardous or toxic under any existing or future federal, state or local law.
Section 8. UTILITIES.
A. Lessee will arrange and pay for all utilities and services supplied to the Premises or to
Lessee.
B. All utilities and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9. LIENS.
Lessee shall not allow any liens to attach to the Premises for any services, labor or materials
furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the
right to discharge any such liens at Lessee's expense.
Section 10. AL'�'M��C�I�'1'�+�1�'� �L�11� �1'�v'Ii���l'V�IViF`i�`�'�� �:.LL��A6N�.1�'�.
A. No alterations, improvements or installations may be made on the Premises without the
prior consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the
Lessor in the operation of its Railroad and to such other conditions as Lessor determines to impose. In all
events such consent shall be conditioned upon strict conformance with all applicable governmental
requirements and Lessor's then-current clearance standards.
B. All alterations, improvements or installations shall be at Lessee's sole cost and expense.
C. Lessee shall comply with Lessor's then-current clearance standards, except (i) where to
do so would cause Lessee to violate an applicable governmental requirement, or (ii) for any improvement
or device in place prior to Lessee taking possession of the Premises if such improvement or device
complied with Lessor's clearance standards at the time of its installation.
D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements
of this Lease or of any governmental requirements shall not relieve Lessee of the obligation to comply
with such requirements, nor shall any consent of Lessor be deemed to be a representation of such
compliance.
Section 11. AS-IS.
Lessee accepts the Premises in its present condition with all faults, whether patent or latent, and
without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall have no duty
to maintain, repair or improve the Premises.
Section 12. ���1��,�.�� AI�Ti �l�i��+:l'"�3'�IT�''.
A. As a material part of the consideration for this Lease, Lessee, to the extent it may
lawfully do so, waives and releases any and all claims against Lessor for, and agrees to indemnify, defend
and hold harmless Lessor, its affiliates, and its and their officers, agents and employees ("Indemnified
Parties") from and against, any loss, damage (including, without limitation, punitive or consequential
damages), injury, liability, claim, demand, cost or expense (including, without limitation, attorneys' fees
and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without
limitation, Lessor, Lessee, or any employee of Lessor or Lessee) (i) for personal injury or property
damage caused to any person while on or about the Premises, or (ii) arising from or related to any use of
the Premises by Lessee or any invitee or licensee of Lessee, any act or omission of Lessee, its officers,
agents, employees, licensees or invitees, or any breach of this Lease by Lessee.
B. The foregoing release and indemnity shall apply regardless of any negligence,
misconduct or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to
any Loss determined by final order of a court of competent jurisdiction to have been caused by the sole
active direct negligence of any Indemnifed Party.
C. Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss and
shall supersede the provisions of this Section 12.
D. No provision of this Lease with respect to insurance shall limit the extent of the release
and indemnity provisions of this Section 12.
Section 13. TE INATION.
A. Lessor may terminate this Lease for Lessee's default by giving Lessee notice of
termination, if Lessee (i) defaults under any obligation of Lessee under this Lease and, after written notice
is given by Lessor to Lessee specifying the default, Lessee fails either to immediately commence to cure
the default, or to complete the cure expeditiously but in all events within thirly (30) days after the default
notice is given, or (ii) Lessee abandons the Premises for a period of one hundred twenty (120) consecutive
days.
B. Notwithstanding the terms of this Lease set forth in Article II, Lessor or Lessee may
terminate this Lease without cause upon thirty (30) day's written notice to the other party; provided,
however, that at Lessor's election, no such termination by Lessee shall be effective unless and until
Lessee has vacated and restored the Premises as required in Section 15A, at which time Lessor shall
refund to Lessee, on a pro rata basis, any unearned rental paid in advance. Notwithstanding anything to
the contrary in this Lease, if Lessee has not complied with the requirements of Section 15 A, this
Lease, together with all terms contained herein (including payment of rent) will remain in effect
until the requirements of Section 15A are met, unless Lessor, in its sole discretion, elects to
terminate this Lease.
Section 14. I�������t`� ����'i���i{;�;.
Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises,
without terminating this Lease, and relet the Premises on behalf of Lessee, collect and receive the rent
from reletting, and charge Lessee for the cost of reletting, and/or (b) terminate this Lease as provided in
Section 13 above and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may
have at law or in equity. Lessor may enter and take possession of the Premises by self-help, by changing
locks, if necessary, and may lock out Lessee, all without being liable for damages.
Section 15. V�9,C'��l'YUi� +C?�� i'���1�'11���, ��li��V,AL �i�< �_,����;�1��'� 1'���'�:TR"�"�`.
A. Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to quit or
demand for possession, and (ii) shall have removed from the Premises all structures, property and other
materials not belonging to Lessor, including all personal propeMy and restored the surface to as good a
condition as the same was in before such structures were erected, including, without limitation, the
removal of foundations, the filling in of excavations and pits, and the removal of debris and rubbish.
B. If Lessee has not completed such removal and restoration prior to termination of this
Lease, Lessor may, at its election, and at any time or times, (i) perform the work and Lessee shall
reimburse Lessor for the cost thereof within thirty (30) days after bill is rendered, (ii) take title to all or
any portion of such structures or properly by giving notice of such election to Lessee, and/or (iii) treat
Lessee as a holdover tenant at will until such removal and restoration is completed.
Section 16. FIBER C�:1'`�"���-
Lessee shall telephone Lessor during normal business hours (7:00 a.m. to 9:00 p.m.,
Central Time, Monday through Fridays, 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 on the Premises. Lessor may
change the telephone number and hours of operation by giving Lessee notice of the change. If cable is
buried on the Premises, Lessee will telephone the telecommunications company(ies), arrange for a cable
locator, and make arrangements for relocation or other protection of the cable. Notwithstanding
compliance by Lessee with this Section 16, the release and indemnity provisions of Section 12 above
shall apply fully to any damage or destruction of any telecommunications system.
Section 17. NOTICES.
Any notice, consent or approval to be given under this Lease shall be in writing, and
personally served, sent by facsimile to (402) 501-0340, by email or by reputable courier service, or sent
by certified mail, postage prepaid, return receipt requested, to Lessor at: Union Pacific Railroad
Company, Attn: AVP - Real Estate, Real Estate Department, 1400 Douglas Street, Stop 1690, Omaha,
Nebraska 68179; and to Lessee at the above address, or such other address as a party rnay designate in
notice given to the other parly. Mailed notices shall be deemed served fve (5) days after deposit in the
U.S. Mail. Notices which are faxed, emailed, are personally served or sent by courier service shall be
deemed served upon receipt.
Section 18. ASSIGNMENT.
A. Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or
transfer (by operation of law or otherwise) this Lease, without the prior consent of Lessor, which consent
may be denied at Lessor's sole and absolute discretion. Any purported transfer or assignment without
Lessor's consent shall be void and shall be a default by Lessee.
B. Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
Section 19. C`{��Tl)T&V'l�A'�l�fi�.
If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of
a condemnation or sale in lieu of condemnation, then this Lease shall automatically terminate. Lessor
shall be entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu
thereof, including, without limitation, any award or proceeds for the value of the leasehold estate created
by this Lease. Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the
condemning authority of such compensation as may be separately awarded to Lessee for Lessee's
relocation expenses, the taking of Lessee's personal property and fixtures, and the interruption of or
damage to Lessee's business.
Section 20. �'1"�"C3�23"��'�'�� �`I+;P<�.
If either parly retains an attorney to enforce this Lease (including, without limitation, the
indemnity provisions of this Lease), the prevailing parly is entitled to recover reasonable attorney's fees.
Section 21. RIGHTS AND OBLIGATIONS OF LESSOR.
If any of the rights and obligations of Lessor under this Lease are substantially and negatively
affected by any changes in the laws applicable to this Lease, whether statutory, regulatory or under
federal or state judicial precedent, then Lessor may require Lessee to enter into an amendment to this
Lease to eliminate the negative effect on Lessor's rights and obligations to the extent reasonably possible.
Section 22. MODIFICA"Tld)�1, �vVATVi'�� +�% �L;��A�l�'�", P:�'1'II�.:G 1�.��i�±.i+ �N1�,NT.
No waiver, modification or amendment to this Lease, including specifically but not limited to,
any indemnity and/or insurance requirement herein, shall be of any force or effect unless made in writing,
signed by Lessor and Lessee and specifying with particularity the nature and extent of such waiver,
modification or amendrnent. This Lease is the entire agreement between the parties, and supersedes all
other oral or written agreements between the parties pertaining to this transaction, including, without
limitation, and any other lease under which all or any portion of the Premises was leased to Lessee.
Notwithstanding the prior sentence, Lessee shall retain any and all obligations and liabilities which may
have accrued under any other such agreements prior to the commencement of the term of this Lease.
Approved:Insurance Group
Created: 2/10/06
Last Modified: 7/2/07
EXHIBIT C
Union Paci�c Railroad
Contract Insurance Requirements
Lease of Land
Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease (except as
otherwise provided in this Lease) the following insurance coverage:
A. �'�rnr�����•ci�i ���aer•al 1�a��rilit�r insurance. Commercial general liability (CGL) with a limit of
not less than $1,000,000 each occurrence and an aggregate limit of not less than $2,000,000. CGL
insurance must be written on ISO occurrence form CG 00 O1 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 O1 (or a substitute
form providing equivalent coverage) showing "Premises" as the Designated Job Site.
B. l3us���e�� �'lY�t��i7cs�a��� �`a�v�x`.���. insurance. Business auto coverage written on ISO form CA 00
O1 10 O 1(or a substitute form providing equivalent liability coverage) with a combined single limit of not
less $1,000,000 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 O1 (or a
substitute form providing equivalent coverage) showing "Premises" as the Designated Job Site.
� Motor Carrier Act Endorsement - Hazardous materials clean up (MCS-90) if required by law.
C. Wc�i 1���-�_� +�rn��c.n� �ta�n �t��cl I�rt�t�I+��cr� Li;��ail�t� insurance. Coverage must include but not be
limited to: Contractor'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 Lessee 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.
In any and all Claims against Lessor by any employee of Lessee, Lessee's indemnification obligation
under this section shall not be limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable under any workers compensation acts, disability benefits acts or other
+�.��n����av+�� la�'��f�i� �rts.
D. I'c�lluti�tt_[�i�t�il_�t� insurance. If permitted use as defined in this Lease includes any generation,
handling, enrichment, storage, manufacture, or production of hazardous materials pollution liability
insurance is required. Pollution liability coverage must be written on ISO form Pollution Liability
Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability
coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000.
If hazardous materials are disposed of frorn the Premises, Lessee must furnish to Lessor evidence of
pollution legal liability insurance maintained by the disposal site operator for losses arising from the
insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and
an annual aggregate of $2,000,000.
E. Umbrella or Excess insurance. If Lessee utilizes umbrella or excess policies, these policies must
"follow form" and afford no less coverage than the primary policy.
�ther Tt�c uiren����ts
F. All policy(ies) required above must include Lessor as "Additional Insured" using ISO Additional
Insured Endorsement CG 20 11 (or a substitute form providing equivalent coverage). The coverage
provided to Lessor as additional insured shall, to the extent provided under ISO Additional Insured
Endorsement CG 20 11, provide coverage for Lessor's negligence whether sole or partial, active or
passive, and shall not be limited by Lessee's liability under the indemnity provisions of this Lease.
G. Lessee waives all rights against Lessor and its agents, officers, directors and employees for
recovery of damages to the extent these damages are covered by the workers compensation and
employers' liability or commercial umbrella or excess liability insurance obtained by Lessee required by
this agreement.
H. 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 Lease, or (b) all punitive damages are prohibited by all states in which the Premises
are located.
I. All insurance policies must be written by a reputable insurance company acceptable to Lessor or
with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business
in the state where the Premises are located.
J. The fact that insurance is obtained by Lessee, or by Lessor on behalf of Lessee, will not be
deemed to release or diminish the liability of Lessee, including, without limitation, liability under the
indemnity provisions of this Lease. Damages recoverable by Lessor from Lessee or any third parly will
not be limited by the amount of the required insurance coverage.
k. LESSEE is allowed to retain (self-insure) in whole or in part any insurance obligation under this
Agreement. Any retention shall be for the account of LESSEE. If LESSEE elects to retain (self-insure)
any insurance required by this Agreement LESSEE agrees that it shall provide Railroad with the same
coverage that would have been provided to it by the required commercial insurance forms had LESSEE
obtained commercial insurance. For all coverage retained, self-insured, LESSEE shall provide a letter
stating that through its risk management programs it retains the balance of its insurance obligation under
this agreement and that this letter is provided in lieu of a Certificate of Insurance.