UNION PACIFIC RAILROAD - PRIVATE ROAD CROSSING AGMT

(a) construction or maintenance of the road crossing, the gates, the fence and wall, or any other component of the private crossing at St. John Street, except for such items as are maintained by UP such as the crossing surface, tracks, ties, etc.; and (b) any accident or incident arising from use of the M.P. 41.7 Emergency Crossing by any authorized or unauthorized vehicles at any time (except UP vehicles), by any authorized person (except UP employees, agents and officers), or by any unauthorized person during the time the crossing is open during an emergency response or training exercise. "Vehicles" shall mean all motorized vehicles. It is the understanding of UP and City that the foregoing indemnification and hold harmless provision shall be applicable even if the Loss is caused in part by the negligence of UP or its officers, employees and agents, but UP shall not be entitled to indemnification for any loss caused by its sole negligence, recklessness or willful misconduct. (2) As a material inducement to UP to enter into this agreement, City agrees that this private crossing agreement shall not be deemed or interpreted as a construction contract within the meaning of Civil Code Section 2782(a). E. Liability Insurance. City shall provide UP with a certificate issued by City's insurance carrier providing the insurance coverage with limits of $1,000,000 for bodily injury, $1,000,000 for property damage, and $2,000,000 aggregate, and which contains the following type endorsement: Union Pacific Railroad and Southern Pacific Railroad are named as additional insured with respect to all liabilities arising out of Insured's (City's) construction, maintenance and use of the private road crossing at St. Johns Street. City may self-insure all or a portion of the insurance coverage required hereunder, subject to UP's review and approval, but City's insurance limits shall not limit City's obligation to 5