AgdaPkt 2013-06-24 Closed and Joint Amended 06-21_2013

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6.1.C. - Page 7 agents (collectively, City Indemnitees") from and against all liability, claims, suits, sanctions, costs or expenses for injuries to or death of any person (including, but not limited to, passengers, employees and contractors of City and Railroad) and damage to or loss of property arising out of or resulting from any negligent act or omission by the JPB, its agents, employees, contractors or subcontractors in the maintenance of the JPB Improvements or in the performance of its obligations under this Agreement. JPB's obligation to defend shall include the payment of all reasonable attorneys fees and all other costs and expenses of suit. If any judgment is rendered against City Indemnitees, or any one of them, JPB shall, at its expense, satisfy and discharge the same, so long as said claim has been timely tendered to the JPB without prejudice to JPB's rights and/or abilities to undertake a defense of said claim. j. Severability. It is the intention of the parties that should any term of this Agreement be found to be void or unenforceable for any reason, the remainder of the provision shall remain in full force and effect. 7. Control of Alcohol and Dru� Use. JPB shall ensure contractor compliance with the provisions of the Code of Federal Regulations, Title 49 (Transportation), Part 219 (49 CFR Part 219). 8. Insurance. JPB will require its contractor to provide insurance in the amount specified in the contract documents and will require its contractor to name City and JPB as additional insureds. Such endorsements must provide that the insurance required to be furnished by JPB and its contractors will be primary as regards the City, and that the City's insurance will be in excess of and not contribute to the insurance required to be furnished by JPB and/or its contractors; that the City will receive 30 day written notice of any reduction or cancellation or alteration of coverage of such insurance required to be furnished by JPB and/or its contractors; and include a severability of interest clause acceptable to the City. 9. Performance and Pavment Bond. JPB will require its contractor to provide performance and payment bonds in the full amount of the contract, including improvements in the City's right-of-way, and will require a one-year warranty period after Project acceptance. City agrees to not require additional bonds of JPB's contractor if JPB is the permittee. The bonds shall be maintained in full force and effect during the entire period of Project construction, until such work is accepted. With respect to City Improvements of the Project, Railroad shall not accept the work related to such facilities for purposes of this Section until it has received a notice of satisfactory completion from the City Engineer. 10. Dispute Resolution. Prior to commencement of any formal litigation arising out of this Agreement, the parties shall submit the matters in dispute to a neutral mediator jointly selected by the parties. The costs of said mediator shall be borne evenly by the parties involved in said dispute. To the extent the disputes remain outstanding following completion of mediation, any claim, controversy, action or proceeding arising out of or relating to this Agreement or to any document, instrument or exhibit executed pursuant to this Agreement shall be tried by a judge pro tem appointed pursuant to Article VI, Section 21 of the California Constitution and Rule 2.830, et seq. of the California Rules of Court. Said judge is to be selected by counsel for the parties from a list of retired judges furnished by the Presiding Judge of the ATTY/AGR/2013.021/JPB RAILROAD CONSTRUCTION&MAINTENANCE AGREEMENT REV:OS-29-13 VR Page 5 of 8 4799109.2