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HomeMy WebLinkAboutPW10-244 - Original - Foster Park Levee Records Martft�erne_1147r = . KENT Document WNSHINGTON CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Union Pacific Railroad Vendor Number: JD Edwards Number Contract Number: T tJ l 0 - ,2 d `/ This Is assigned by City Clerk's Office Project Name: Foster Park Levee Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: 10/19/10 Termination Date: Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: Mark Madfai Department: Engineering Detail: (i.e. address, location, parcel number, tax id, etc.): Construction of a drainage facility on the Railroad's right-of-way for the Foster Park Levee project. 5.Public\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08 AUDIT55��8 DRAIN DOC 920301 Form Approved,AVP-Law Folder No. 02584-68 DRAINAGE FACILITY & WATERWAY AGREEMENT Mile Post: 166.05, Seattle Subdivision/Branch Location: Kent, King County, Washington THIS AGREEMENT ("Agreement") is made and entered into as of October 08, 2009, ("Effective Date") by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, ("Licensor") and CITY OF KENT, a Washington municipal corporation to be addressed at 220 Fourth Ave S, Kent, Washington 98032 ("Licensee"). RECITALS: In order to improve drainage conditions the Licensee desires to construct a drainage facility in the vicinity of Licensor's right of way at Mile Posts 166 05 on the Seattle Subdivision, located at or near Kent,King County, Washington (hereinafter the "Premises") The drainage facilities to be constructed by the Licensee, at Licensee's expense, on the Premises arc hereinafter co'locttvely referred to as the "Drainage Facility' The Drainage Fduilit,, and PrXrin es QIC shown on the print dated May 18, 2010, marked Exhibit"A", hereto attached. The Railroad is agreeable to the Licensee constructing, maintaining and using the Drainage Facility upon the terms and conditions set forth herein. AGREEMENT: NOW,THEREFORE,IT IS 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 performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and use the Drainage Facility. Article 2. CONSTRUCTION WORK TO BE PERFORMED BY LICENSEE. The Licensee, at its sole expense, shall construct the Drainage Facility and perform the work described in the Recitals above and/or described in 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 02584-68 dm Articles of Agreement May 19,2010 , a �•a Article 4. DEFERRED CONSTRUCTION. The Licensor and Licensee acknowledge that conditions inherent in the Drainage Facility may cause the complete stabilization of Licensor's trackage supported by new cuts or fills to be deferred beyond the construction period, and that Licensor's operation over the roadbed during the seasoning period will impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or settling, including damage to rip-rapping or protective work in connection therewith, as well as settlement and consolidation of tracks and ballast, until the seasoning period is complete. Therefore, the Licensee will pay to the Licensor, as a part of the consideration for this Agreement, all that part of the cost and expense of extraordinary maintenance(hereinafter referred to as "Deferred Construction") associated with the Drainage Facility which can be attributed to failure of subgrade, settlement, and consolidation of subballast, or roadbed, or any combination thereof, which are incurred during the period commencing immediately following completion of the work on the Drainage Facility by the Licensee or its contractor and ending five years thereafter. The Deferred Construction costs aforesaid shall include reimbursement of the extra cost, in excess of normal maintenance costs, of maintaining embankments and that portion of said tracks above subgrade in accordance with acceptable maintenance standards, and will include cost of maintaining proper alignment, proper surface and use of ballast and other necessary materials Article 5. TERM; TERMINATION. A This Agreement shall take effect as of the date first herein written and, unless sooner terminated as set forth in Paragraphs (B) and (C) below, shall continue in full force and effect for so long as the Premises and Drainage Facility shall be used by the Licensee for the purposes set forth herein; provided, however, that if the Licensee shall abandon the use of the Drainage Facility and Premises, or any part thereof, for such purposes, this Agreement and the rights and privileges granted to Licensee herein as to the portion(s) so abandoned shall cease and tenumate at the time such portions of the Drainage Facility and Premises are abandoned. B. 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 and immediately terminate this Agreement by written notice to Licensee C. This Agreement may be terminated by either party, with or without cause, upon six (6) months written notice to the other party In the event of such notice of termination, the parties shall arrange for either the Drainage Facility to be removed, filled in and graded to accommodate the surrounding grade surface, or to encase the Drainage Facility to the standards and satisfaction of the Licensor. D. 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 Article 6. 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 -4 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 III 02594-68 din Articles of Agreement May 19,2010 14 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 7. INSURANCE. A. The Licensee, at its expense, shall obtain the insurance described in Exhibit C, hereto attached The Licensee will also provide to the Licensor a Certificate of Insurance issued by its insurance carrier confirming the existence of such insurance and that the policy or policies contain the following endorsement: Union Pacific Railroad Company is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the Drainage Facility located on Railroad's right of way between Mile Posts 166.05 on the Seattle Subdivision, located at or near Kent, King County, Washington. B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit C shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of the Licensor. C. All insurance correspondence shall be directed to: Folder No.: 02584-68 Director-Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street STOP 1690 Omaha,Nebraska 68179-1690 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By &-- CONTRACTS CITY By: Titt 02584-68 dm Articles of Agreement May 19,2010 r � INTERURBAN TRAIL \ EP d G GIN URBAN 0-v ate-G G G mo CITY OF KENT - v KING COUNTY - y WE en- �p- ��0. �� —_--_•�; �r* —� I�•— -p ��en_ \RAI OAD DRIDG,� _-- -RA1�OAD RIDGE N _—T II CD to— n m C)A a ^�L�miAp iSm' fo -n Lyw >oy m as J y im�� a01 ij.20 T z r —I a4>z1�2 1 �4oa 0 M � DHCZN�y _y < obi pa�E N O m � ��o' lmi� Ul )> n N o < `# - —�;`7,ly- to - - (A C(1TZA �4 -4 z On D -- - W VALLEY HW U1 0) UPM__ s mim.v. _/��M .» o� >r .AK j 4_ 71 M A 'oo m Z N A NOTE: BEFORE YOU BEGIN ANY WORK,SEE M =y AGREEMENT FOR FIBER OPTIC PROVISION. op > O mA m M EXHIBIT"A" + r 0 c KM-, — UNION PACIFIC RAILROAD COMPANY m I o x =z Kent,King County, Washmgton > $ a a Mile Post 166 05, Seattle Subdivision o i { �mx M 0 Agreement with City of Kent —'rq � Ln E /I v Ix REAL ESTATE DEPARTMENT X j1 a3 <o OMAHA,NE Date May 18, 2010 Z o m m Folder 2584-68 " ri nm <�o m ,I Ln En Drainage Exhibit B 920301Form Approved AVP - Law EXHIBIT B TO DRAINAGE FACILITY& WATERWAYAGREEMENT TERMS AND CONDITIONS Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. It shall be Licensee's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights Section 2. CONSTRUCTION,MAINTENANCE AND OPERATION. a) The Licensee shall submit the design of the Drainage Facility to the Licensor for Licensor's prior approval All work performed on property of the Licensor in connection with the construction, maintenance, repair. renewal, modification or reconstruction of the Drainage Facility shall be done to the satisfaction of the Licensor and in substantial conformance to the specifications. notes and cross sections shown on Exhibit A. b) The Licensee, at its sole expense, shall operate, maintain and use the Drainage Facility in a good and safe condition and shall keep the Drainage Facility free and clear of debris, sediment or obstructive matter which may or could interfere with or impede the proper functioning of the Drainage Facility. c) The Licensee shall not cross any trackage of Licensor with any vehicles except at existing, open public crossings. The Drainage Facility shall be installed by an approved method of construction, or if by the jacking and boring method, during jacking operations, the Licensee agrees to fill voids created between the embankment and pipe by pressure grouting. The Licensee shall provide adequate barrier protection around the entire excavation area. d) During the performance of excavating, constructing and maintaining the Drainage Facility, or any part thereof, the Licensee shall not excavate near the toe of the track embankment of the trackbed and will protect the trackbed in the design, construction and maintenance of the Drainage Facility. In the event of any settlement of the Licenser's embankment caused by excavation of the Drainage Facility, the Licensee, at its sole expense, shall restore Licensor's embankment to its proper grade and dimensions. e) Prior to the commencement of any work in connection with the construction,maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Drainage Facility where it passes Drainage Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law 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 the Vice President-Engineering Services of the Licensor and then the work shall be done to the satisfaction of the Vice President-Engineering Services 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 Drainage Facility, 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 therefor, all expense incurred by the Licensor in connection therewith, which expense shall include all assignable costs. Section 3. NOTICE OF COMMENCEMENT OF WORK. 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 Drainage Facility. All such work shall be prosecuted diligently to completion. Section 4. LICENSEV 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, relocation, removal or reconstruction of 'he DramcSe Facility, including any and all expense ­�nich may be incaned by the Licensor in connection therewith for inspection, flagging,or otherwise. Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF DRAINAGE FACILITY. 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, reinforce or encase the Drainage Facility, or move all or any portion of the Drainage Facility to such new location, 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 Drainage Facility on property of the Licensor in the location herembefore described shall, so far as the Drainage Facility remains on the property, apply to the Drainage Facility as modified, changed or relocated within the contemplation of this section Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Drainage Facility 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. Drainage Exb h Exhibit B I Drainage Exhibit B 920301Form Approved AVP- Law Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor 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 eompany(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, and will commence no work on the right of way until all such protection or relocation has been accomplished. b) In addition to other indemnity provisions in this Agreement, the 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 any act or omission of the Licensee, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (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 Licensee shall not have or seek recourse against Licensor for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Licensor's property or a customer or user of services of the fiber optic cable on Licensor's property. Section S. 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 Li:ensor in connection with the cons+,uction, ma..itena , e, repair, �euewal, modification or reconstruction of the Drainage Facility, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Drainage Facility, 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 Drainage Facility or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as compared with the entire value of such property Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Drainage Facility, 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 Drainage Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP- Law 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 moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. a) As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action,penalties, costs, and expenses of whatsoever nature, including court costs and attomeys' 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 (b)damage to or loss or destruction of property whatsoever (including Licensee's property and adjacent property and crops, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). b) To the extent it may lawfully do so, the Licensee agrees to assume the risk of loss or damage to the Drainage Facility and to indemnify and hold harmless the Licensor from any Loss which is due to or arises from (r) the installation, construction, maintenance, repair,reconstruction, removal, use or existence of the Drainage Facility and appurtenances thereto, or any part thereof, including any break in the Drainage Facility wall or structure or any leakage, flow of water or flooding from the Drainage Facility, or (n) Licensee's failure to comply with or perform any of the terms and conditions set forth in this Agreement, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor, provided, however. that the foregoing indemnification provisionF shall not apply to any claims, damages, costs and expenses that have been fully compensated for through the insurance required of Licensee in Exhibit C. or required of Licensee's contractor under the separate Contractor's Right of Entry Agreement c) Any liability of either party hereunder to one of its employees under any Workers' Compensation Act or the Federal Employers' Liability Act shall not be questioned or in any way challenged by the other party, nor shall any jury or court findings, resulting from any employee's suit against either party pursuant to any such Act(s), be relied upon or used by either party in any attempt to assert common law liability against the other. 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 Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof Section 12. 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. Drainage Exb Exhibit B Drainage Exhibit B 920301Form Approved AVP - Law Section 13. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 12 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto,their heirs, executors, administrators, successors and assigns. Drainage Exb Exhibit B PL WL/DFAINAGE INS Form Approved,AVP-Law Updated 03/01/2003 Form Approved,AVP-Law Updated 08/2006 EXHIBIT C Union Pacific Railroad Insurance Requirements Licensee shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance required in Paragraph D), procure and maintain in effect during the term of this Agreement the following insurance coverage. Licensee shall procure and maintain, or cause to be procured and maintained by its contractor, at Its sole cost and expense, Railroad Protective Liability Insurance coverage described in Paragraph D during any period of construction, maintenance, repair or reconstruction work. 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 SAC. B. Business Automobile Coveraee insurance. Business auto coverage written on ISO form CA 00 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident. 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 • Motor Carrier Act Endorsement- Hazardous materials clean up(MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance Coverage must include but not be limited to: • Licensee's and/or Licensee's contractor's statutory liability under the workers' compensation laws of the state where the Utility/Facility is located • Employers' Liability (Part B)with limits of at least $500,000 each accident, $500,000 disease policy limit$500,000 each employee If Licensee, and/or Licensee's contractor, 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. it • ,Pt/WLIDRAINAGE INS Form Approved,AVP-Law Updated 03/012003 The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Licensor before the work may be commenced and until the original policy is forwarded to Licensor. E. Umbrella or Excess insurance If Licensee, and/or Licensee's contractor, utilizes umbrella or excess policies, 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 Licensor 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 Licensor as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Licensor'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 the law govein:ug this Agreement pio-ibits all punitive damage that might arise under this Agreement 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. This waiver must be stated on the certificate of insurance. I. Prior to commencing any work, Licensee, and/or Licensee's contractor, shall furnish Licensor with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement J. All insurance policies must be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state in which the Utility is located. K. The fact that insurance is obtained by Licensee, and/or Licensee's contractor, or by Licensor on behalf of Licensee, and/or Licensee's contractor, 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 Licensor from Licensee or any third party will not be limited by the amount of the required insurance coverage