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HomeMy WebLinkAboutRES 13-209 RESOLUTION NO.13-209 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Public Highway At- Grade Crossing Improvement Agreement with Union Pacific Railroad Company,of Omaha, Nebraska, in the amount of $1,000 to allow access for construction of new roadway pavement inside Union Pacific Railroad Company property for the Washington Boulevard Pavement and Drainage Improvement Project. The Agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 24th day of September, 2013. .�.►�����` -Jayor Becky Xmes - fw UPRR Folder No. 2294-65 PUBLIC HIGHWAY AT-GRADE CROSSING IMPROVEMENT AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY AND THE- CITY OF BEAUMONT COVERING THE SURFACE REHABILITAITON OF THE APPROACHES OF THE EXISTING WASHINGTON BOULEVARD AT-GRADE PUBLIC ROAD CROSSING (DOT NO. 762-558J) AT RAILROAD MILE POST 28.43 - SABINE INDUSTRIAL LEAD IN BEAUMONT, JEFFERSON COUNTY, TEXAS E.Xf1iE3IT "A„ City Original Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC; HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA Form Approved:AVP_Law UPRR Polder-No.: 2294-65 UPRR Audit No. 235157 EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT THIS AGREEMENT is made as of the day of > 20 , by and between UNION PACIFIC RAILROAD COMPANY,a Delaware corporation,or its predecessor in interest,with a mailing address at 1400 Douglas Street,MS 1690,Omaha,Nebraska,68179-1690 ("Railroad"), and the CITY OF BEAUMONT, a Texas municipal corporation with a mailing address at PO BoX 3827,Beaumont, Texas 77704 ("City"). RECITALS: Presently,the City utilizes the Railroad's property for the existing Washington Boulevard at- grade public road crossing, (DOT No. 762-558J), at Railroad's Mile Post 28.43 on it's Sabine Industrial Lead, in Beaumont, Jefferson County, Texas (hereinafter the "Roadway"). The City now desires to undertake as its project(the"Project")the surface rehabilitation of the approaches of the existing Roadway. The existing aforementioned roadway, as improved is hereinafter the"Roadway"and where the Roadway crosses the Railroad's property is the"Crossing Area"in the location shown on the Railroad Location Print marked Exhibit A,attached hereto and hereby made a part hereof The Railroad and the City and entering into this agreement to cover the above. AGREEMENT: NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: SECTION 1. The exhibits below are attached hereto and hereby made a part hereof. Exhibit A Railroad Location Print Exhibit B General Terms and Conditions Exhibit C Railroad's Form of Contractor's Right of Entry Agreement SECTION 2. The General Terms and Conditions marked Exhibit B,are attached hereto and hereby made a part hereof. SECTION 3. The Railroad,at City's expense,shall furnish all labor,material,equipment and supervision 2294-65 City of Beaumont,Tx Page 1 of 4 July 23,2013 Washington Boulevard Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA° Form Approved:AVP-Law for the Roadway improvement Project located within 25-feet of the nearest rail. SECTION 4. A. The City, at its expense, shall prepare,or cause to be prepared by others,the detailed plans and specifications and submit such plans and specifications to the Railroad's Assistant Vice President Engineering—Design, or his authorized representative, for review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B. The final one hundred percent(100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering—Design,or his authorized representative,are hereinafter referred to as the"Plans". The Plans are hereby made a part ofthis Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in -writing. D. Notwithstanding the Railroad's approval of the Plans,the Railroad shall not be responsible for the permitting, design, details or construction of the Roadway. SECTION 5. The Railroad,at the City's expense,shall maintain the crossing between the track tie ends. If, in the future,the City elects to have the surfacing material between the track tie ends replaced with paving or some surfacing material other than timber planking,the Railroad,at City's expense, shall install such replacement surfacing. SECTION 6. A. The City,at its sole cost and expense,shall provide traffic control,barricades,and all detour signing for the crossing work,provide all labor,material and equipment to install concrete or asphalt street approaches,and if required,will install advanced warning signs,and pavement markings in compliance and conformance with the Manual on Uniform Traffic Control Devices. B. The City, at its expense, shall maintain and repair all portions of the Roadway approaches that are not within the track tie ends. SECTION 7. If City's contractor(s)is/are performing any work described in Section 4 above,then the City shall require its contractor(s) to execute the Railroad's standard and current form of Contractor's Right of Entry Agreement attached hereto as Exhibit C. City acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms,provisions,and requirements, and will inform its contractor(s)of the need to execute the Agreement. Under no circumstances will the City's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. 2294-65 City of Beaumont,TX Page 2 of 4 July 23,2013 Washington Boulevard Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA Form Approved:AVP-Law SECTION S. Fiber optic cable systems may be buried on the Railroad'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.-City or its contractor(s)shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour number, 7 day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City or its contractor(s). If it is,City or its contractor(s)will telephone the telecommui-&ations con-ipany(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 Railroad's premises. SECTION 9. The City, for "Self and for its success nd assigns,her by waives any right assessment caner, ma I w under this cc against the Railroad, s an adjacent property n for any and improvements ma agreement. SECTION 10. Covenants herein shall inure to or bind each party's successors and assigns;provided,no right of the City shall be transferred or assigned,either voluntarily or involuntarily,except by express prior written consent of the Railroad. SECTION 11. The City shall, when returning this agreement to the Railroad (signed), cause same to be accompanied by such Order,Resolution,or Ordinance of the governing body of the City,passed and approved as by law prescribed,and duly certified,evidencing the authority of the person executing this agreement on behalf of the City with the power so to do,and which also will certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by City. SECTION 12. Upon execution and delivery of this Agreement, the City shall pay to the Railroad an administrative handling charge of ONE THOUSAND HUNDRED DOLLARS ($1,000.00). SECTION 13. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009. If the City will be receiving American Recovery and Reinvestment Act('WRRA")funding for the Project, the City agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The City confirms and acknowledges that Section 1512 ofthe ARRA provisions applies only to a "recipient" receiving ARRA funding directly from the federal government and, therefore, (i) the ARRA,reporting requirements are the responsibility of the City and not of the Railroad and(ii)the City shall not delegate any ARRA reporting responsibilities to the Railroad. The City also confirms and acknowledges that(i) the Railroad shall provide to the City the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project 2294-65 City of Beaumont,TX Page 3 of 4 July 23, 2013 Washington Boulevard Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERIC► Form Approved:AVP-Law including the Railroad's standard and customary documentation to support such billing and(ii)such standard and customary billing and documentation from the Railroad Provides the information needed by the City to perform and complete the ARRA reporting documents. The Railroad confirms that the City and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project. IN WITNESS WHEREOF,the parties hereto have caused this Supplemental Agreement to be executed as of the day and year first liereinabove written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID#94-6001323) By.-_ PAIJI,G. FARRELL Senior Manager Contracts WTI-NESS: CITY OF BEAUMONT By Printed Name:---- 2294-65 City of Beaumont,TX Page 4 of 4 July 23,2013 Washington Boulevard EXHIBIT A To Existing At-Grade Public Highway Crossing Improvement Agreement Cover Sheet for the Railroad Location Print RAILROAD LOCATION PRINT w_ 1; ACCOMPANYING A f MAINTENANCE CONSENT LETTER S ,� u rlay`I - Tra c Ne twork C c A_ j �bI781t5` 1 Y I 1 V I Washington Boulevard—DOT#762-558J f E RR MP 28.43—Sabine Industrial Lead Proposed surface rehabilitation of the approaches of an existing at-grade public i i I road crossing 1 Blvdr: ` I a ' ff ,y �.r a i 1 i r 'I . .�r t 4 �, I 300 m ., dst +sktEterlaro _ __.._ t he-Cad tj,'6dle S t - . - L7_ COp�fl§ht@ '2"01.3 Un on acifiG �ti_ E - f { , RAILROAD WORK TO BE PERFORMED: EXHIBIT "A" 1• Flagging. UNION PACIFIC RAILROAD COMPANY NOTICE: SABINE INDUSTRIAL LEND The City and/or its Contractor are responsible for ensuring that RAILROAD MILE POST 28.43 the surface rehabilitation project doesn't adversely impact the GPS: N 30.05590647°; W 94.10523264° crossing surface,nor Railroad operations. BEAUMONT,JEFFERSON CO.,TX. 'To accompany a Maintenance Consent Letter to the CITY OF BEAUMONT for the surface rehabilitation ofthe approaches of an existing at-grade public road crossing. UPRR Folder No. 2294-65 Date:July 23,2013 WARNING IN ALL OCCASIONS,U.P.COMMUNICATIONS DEPARTMENT MUST TIF,CONTACTED IN ADVANCE OF ANY WORK TO DETERMIN13 P:XISTENCTI AND LOCATION OF FIBER OPTIC CABLE, PHONE: 1-(800)336-9193 Exhibit A Railroad Location Print EXHIBIT B To Existing At-Grade Public Highway Crossing Improvement Agreement Cover Sheet for the General Terms & Conditions Union Pacific RaHroad Company 41ftAl EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICK EXHIBIT B TO EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT GENERAL TERMS AND CONDITIONS SECTION 1. CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use nr permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes,or for gas,oil or gasoline pipe lines. Any hnesconstructed on the Railroad's property byor under authority of the City for the purpose of conveying electric power or communications incidental ho the City's uoeofthepmpedyforhighwmypurpnsesuhmUbeuonshuotedinaoconJanoa with specifications and requirements of the Railroad,and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property, Nn nonparty shall beadmitted by the City use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad tu give such consent. 8� The Railroad nasen/ea the right to cross the Crossing Area with such nsi|n/ad tracks as may be required for its convenience orpurposes. In the event the Railroad shall place additional tracks upon the Crossing Area,the City shall, at its sole cost and expense, modify the Roadway to conform with all tracks within the Crossing Area. C. The right hereby granted is subject any existing encumbrances and rights(whether public orphmsb)`recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City et its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation,the right tn construct,reconstruct, maintain, operute, repair, o|ha[ renew and replace tracks, facilities and appurtenances on the propehy� and the right to cross the Crossing Area with all kinds nfequipment. E, So far as it lawfully may do so,the City will assume,bear and pay all taxes and assessments of whatsoever nature or kind(whether general, local or special)levied or assessed upon or against the Crossing Area, excepting taxes levied upon arid against the property ana component part of the Railroad's operating property. F, If any property or rights other than the right hereby granted are necessary for the construction,maintenance and use of the Roadway and its appurtenances,or for the performance of any work in connection with the Project,the City will acquire all such other property and rights at its own expense and without expense to the Railroad, SECTION 2. CONSTRUCTION OF ROADWAY A. The City, its expense,will apply for and obtain all public authority required by law,ordinance,rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, ad its expense, will furnish all necessary labor, material and equipment,and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall incfude, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of ) and all necessary drainage fooi|bies, guard rails or bmrhmra, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad, C All construction work of the City upon the Railroad's property (including, but not limited ho, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in o manner satisfactory to the Assistant Vice President Engineering-Design nfthe Railroad or his authorized representative and in compliance with the Plans, and other guidelines furnished by the Railroad. D� All construction work of the City shall be performed diligently and completed within 2 reasonable time. No part ofthe Genera[Terms- --___ Page . "' ^ �aouomForm Anpmvnu.xvr-Law mom1/10 Exhibit B Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC 141GIAWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA- Project shall besuspended, discontinued n, unduly delayed without the Railroad's written consent, and subject (osuch reasonable conditions ao the Railroad may specify. |tis understood that the Railroad's tracks at and in the vicinity nf the work will bein constant cx frequent use during progress ofthewm/kandthatmnvamoniorstoppaQenft[ains.engineaoroaramoy cause delays in the work of the City. The City hereby assumes the risk o(any such delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the State and/or the Contractor, SECTION 3. INJURY AND DAMAGE TO PROPERTY |f the City, in the performance mf any work contemplated by this Agreement orbv the failure tPdoor perform anything for which the City is responsible under the provisions of this Agreement,shall injure,damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, orbvthe Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering-Design. SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than the Railroad forces. The Railroad shall notify the City of the oon(nsoi price within ninety (QO) days after it in awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. SECTION 5. MAINTENANCE AND REPAIRS A. The City shall,at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway,except the portions between the track tie ends,which shall be maintained by and at the expense of the Railroad. B. If, in the future,the City elects to have the surfacing material between the track tie ends,or between tracks if there is more than one nsi|nlad track across the Crossing /\reo, replaced with paving or some surfacing material other than timer planking,the Railroad,at the City's expense,shall install such replacement surfacing,and in the future,to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area,the City shall bear the expense of such repairs orreplacement, SECTION 6. CHANGES IN GRADE |fat any time the Railroad shall elect, wrbe required by competent authority to, raise or lower the grade of all orany portion of the track(s)located within the Crossing Area, the City shall, at its own expense, conform the Roadway to conform with the change nf grade nf the trackage. SECTION 7. REARRANGEME T OF WARNING DEVICES If the change or rearrangement o{any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad, highway or both,the parties will apportion the expense incidental thereto between themselves by negotiation,agreement or by the order of a competent authority before the change or rearrangement inundertaken. SECTION 8. SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and gvoided, it is agreed with respect to all of said work of the City that the work will be peJbnnmd in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees,and others acting under its or their authority;and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. General Terms&Conditions ~ 2 omnuo�Form Avnmvou.�vp��� osm�/�o Exhibit B Union Pacific Railroad company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA Form Approved:AVP-Law B. Entrtion to Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform an inspection of the Roadway, minor maintenance or other activities, the City shall first provide at least ten (10)working days advance notice to the Railroad Representative. With respect to such entry on to Railroad's property, the City, to the extent permitted by law, agrees to release, defend and indemnify the Railroad from and against any loss, damage, injury, liability, claim, cost or expense incurred by any person including,without limitation,the City's employees,or damage to any property or equipment(collectively the"Loss")that arises from the presence oractivities of City's employees on Railroad's property,except to the extent that any Loss is caused by the sole direct negligence of Railroad. C. Flagging. (i) If the City's employees need to enter Railroad's property as provided in Paragraph B above,the City agrees to notify the Railroad Representative at least thirty(30)working days in advance of proposed performance of any work by City in which any person or equipment will be within twenty-five (25)feet of any track, or will be near enough to any track that any equipment extension(such as, but not limited to, a crane boom)will reach to within twenty-five(25)feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed,or stored within twenty-five(25)feet of any of Railroad's track(s)at any time,for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day notice, the Railroad Representative will determine and inform City whether a flagman need be present and whether City needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill City for such expenses incurred by Railroad. If Railroad performs any flagging,or other special protective or safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set forth in this Agreement. (ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation,holiday, health and welfare,supplemental sickness,Railroad Retirement and unemployment compensation,supplemental pension,Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime,Saturdays and Sundays,and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. if the wage rate or additional charges are changed, City shall pay on the basis of the new rates and charges. (iii) Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though City may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, City must provide Railroad a minimum of five(5)days notice prior to the cessation of the need for a flagman. If five(5)days notice of cessation is not given, City will still be required to pay flagging charges for the five(5)day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty(30)days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws_ The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety,both as concerns the City, the City's agents and employees,the officers, agents,employees and property of the Railroad and the public in general.The City(without limiting the generality of the foregoing)shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations,and enactments,shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse, and to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees,court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost,charge, or expense to the Railroad. E. No interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, General Terms&Conditions Page 3 of 5 Standard Form Approved;AVP-Law 06!01/10 Exhibit B Union Pacific Railroad Company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERICA! Farm Approved AVP-Law interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. F. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at anytime the City's engineers or the Vice President-Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. 'The City shall not cause, suffer or permit material or debris to be deposited or cast upon,or to slide or fall upon any property or facilities of the Railroad;and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. I. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President-Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President-Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof,the"vicinity of the Railroad's property"shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage,security and use of explosives as the Railroad, in the Railroad's sole discretion,may deem to be necessary, desirable or appropriate. J. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock,or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense,shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. K. Drainage. The City,at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City,at the City's own expense,shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice, Before commencing any work, the City shall provide the advance notice to the Railroad that is required under the Contractor's Right of Entry Agreement. M. Fiber Optic Cables. Fiber optic cable systems maybe buried on the Railroad'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. City shall telephone the Railroad during normal business hours(7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls)to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone Generai Terms&Conditions Page 4 of 5 Standard Form Approved,AVP-Law 06/01/10 Exhibit B Union Pacific Raifroad Company EXISTING AT-GRADE PUBLIC HIGHWAY CROSSING IMPROVEMENT AGREEMENT BUILDING AMERI(:x the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation nrother protection of the fiber optic cable prior W beginning any work on the Railroad's premises. SECTION 9. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City,or by agreement between the parties,that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. SECTION 10, OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property orfacilities, SECTION 11. BOOKS AND RECORDS The books, papers, records and accounts of Railroad,ao far os they relate to the items of expense for the materials to be provided by Railroad under this Project,or are associated with the work to be performed by Railroad under this Project,ahoU be open to inspection and audit at Railroad's offinon in Omahe. Nebroaka, during normal business hours by the agents and authorized representatives of City for a period of three(3)years following the date of Railroad's last billing sent to City. SECTION 12. REMEDIES FOR BREACH OR NONUSE A� If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement,the Railroad,in addition to any other rights and remadieo, may pwdbnn any work which in the judgment ofthe Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. B. Nonuse by the City of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad,work a termination of this Agreement and of all rights of the City hereunder. C. The City will surrender peaceable possession of the Crossing Area and Roadway upon termination of this t. Termination of this Agreement shall not affect any rights,obligations or liabilities of the parties,accrued or otherwise,which may have arisen prior totermination. SECTION 13. MODIFICATION-ENTIRE AGREEMENT No vvaiwer, modification or amendment of this Agreement ahmU be nf any force or effect un(omm made in vvhUng, signed by the City and the Railroad and specifying with particularity the nature and extent of such maiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations,understandings or agreements,whether written or oral, with respect to the work or any part thereof. General Terms&Conditions Page 5 of 5 Standard Form Approved,AVP-Law 06/0 1/10 Exhibit B EXHIBIT C To Existing At-Grade Public Highway Crossing Improvement Agreement Cover Sheet for the Form of Contractor's Right of Entry Agreement UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) BUILDING AMERICK Porm Approved:AVP Law 03/0112013 UPRR Folder No. O--older Number) UPRR Audit No.:_ (Audil)Vunzbe+) CONTRACTORS RIGHT OF ENTRY AGREEMENT {TEXAS CIT}ESICOr)NTIES} . THIS AGIZ +EMENT is made and entered into as of the' day of , 20 , by and between UNION PACIFIC RAILROAD COMP :Y,. lawarc corporation ("Railroad"); and (N"E OF CQNT" 1C'TO&,. ti a corporation (Corl)orate Status) , Contractor has been hired by (IdcYtrt ;ofPublic agency) ("Public Agency") to laerfor w`clrk relating to ti to bt.'erforrizeY�) (the "work"),with Il:Qr a portion uch'vVb , &,be performed on property of Railroad in the vicinity of Railroadilt :•,on RailAd's dale Post) (Narne of 5"ubdivision) DtT Na, :>. ocated near ` ' ,in County, `(DOT Number) ' (City) (Count)) State of ;9s:;such location is in the general location shown on the Railroad Location Print znaifidrbit? and s.,detailed on the Detailed Prints collectively marked Exhibit A-1, each attached hereto and".`66req--'made a part hereof, which work is the subject of a contract dated �,,liuveen Railroad and the Public Agency. (Date oaf C&MAgreenio3r,';: Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOVA', THEREFORE, it is mutually agreed by and between Railroad and Contractor,as follows: Fite—Refier­ence_. --_.-_— Articles of Agreement Form of Contractor's Page 1 of 3 Right of Entry Agreement UNION PACIFfC RAILROAD COMPANY CROE(TEXAS CITIES/COUNTIES) BUILDING AMERICK Form Approved:AVP Law 03/01/2013 ARTICLE, I - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors,subcontractors,officers,agents and employees,and others acting under its or their authority, ARTICLE 2- RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terns,provisions and conditions lipfe, D contained, to enter upon and have ingress to and egress from the property described i H` S for the purpose of performing any work described in the Recitals above. The rig1erein grazated to Contractor is limited to those portions of Railroad's property- specificallydescri -'T'll in,c.":,as designated by the Railroad Representative named in Article 4. .ARTICLE 3- TERMS AND CONDITIONS CONTAINED IN TS J3&AND D. The Terms wad Conditions contained 4E, 'B the-ffisurancc Requ*iffiRils' contained in Exhibit C and the Minimum Safety Requireth&ts contAi&d in kii4bit D each adached hereto,are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES`,`,`,T,6ftE 136WW"BY 1170R; RAILROAD RE PRE A. Conti-actor shall bear apy. and all cost es associated with any work performed by W-��:�penqes in ed b�k Contractor,or any costsp. -Ailroad relating to this Agreement. B th e following Railroad representative or his or her . Contractor shall coordinaW, Ldt.i - k duly authorized,,-repi-esentatiN4iK-,,,'%.e "ROM e resentative"): NarYts`&A- ddress of Nance&Address of MSM C. Contractor,at its 64"'m ex��Ak ,shall a ikuatcly police and supervise all work to be performed by Conti'"r and sha11:.bnsure.t.h*k,i.,',such woR"is performed in a safe manner as set forth in Section 7 of`kihibit B. The f§,pb t-l' ""'T"Contractor for safe conduct and adequate policing and sup - ision of ContrAO'Ws work shall not be lessened or otherwise affected by Railroad's 9 6cif cations involving the work, or by Railroad's collaboration in performafiic6-of any' rk dizby the presence at the work site of a Railroad Representative,or by compliance by Corft tor witla any requests or recommendations made by Railroad Representative, ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement,and continue until unless sooner terminated as herein provided,or (Expiration Date) at such time as Contractor has completed its work on Railroad's property,whichever is earlier. Conti-actor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. File Reference Articles of Agreement Form of Contractor's Page 2 of 4 Right of Entry Agreement UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) BUILDING AMERICK Form Approved:AVP Law 0310112013 B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before coininencing any work,Contractor will provide Railroad with(i)the insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence,binders,policies,certificates and/6z endorsements shall be sent to: Union Pacific Railroad Company 1400 Douglas Street, MS 1690 Omaha, AT 68179-,R��,G?o VPRR Folder Alo. T�Wder ARTICLE 7 CONAACTOR. DISMISSAL OF 1". At the request of Railroad,Contor slialliernove.41—.6in Rail erty any employee of h `Wj-�ajlroad Repres ve in connection with Contractor who fails to conform to t anziglbf Ofor shall be suspended until such removal the.work on Railroad's property,and has occurred., Contractor shall inde ni ain tiihv claims arising from the removal of property any such employee from RaR d's ARTICLE 8- CROSSINGS; No additid Vehicular cr6Qhgs,(ifi'6144-i ft temporary haul roads)or pedestrian crossings over Railroad's tra6U11','&,8�0411,be install'64p rused-b 'Contractor without the prior written permission of Railroad. z ARTICLE 9- EXP.E1,051-MIE's. S*plosives q Mthly flammable substances shall not be stored on Railroad's property without t t of Railroad. ARTICLE 10- CROSSINGS; COMPLIANCE WITH MUTCD AND FRA GUIDELINES. A. No additional vM-0' liar crossings(including temporary haul roads)orpedestrian.crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. B. Any permanent or temporary changes, including temporary traffic control, to crossings must conform to the Manual of Uniform Traffic Control Devices (MUTCD) and any applicable Federal Railroad Administration rules,regulations and guidelines,and must be reviewed by the Railroad prior to any changes being implemented. In the event the Railroad is found to be out of compliance with federal safety regulations due to the Contractor's modifications,negligence,or any other reason arising from the Contractors presence on the Railroad's property, the Fife Reference Articles of Agreement Form of Contractor's Page 3 of 4 Right of Entry Agreement UNK N PACIFIC RAILROAD COMPANY CROF(TEXAS CITIES/00UNTIES) BUILDING AMERICA! !F Law 03/0112013 0— Contractor agrees to assume liability for any civil penalties ii-nposed upon the Railroad for such 1101)COMphance. IN WITNESS WHERE,OF, the parties hereto have duly executed this agreement. in duplicate as of the.date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID No. 94-6001323) By___ t? ,'QL G. FAW.,-, ,,-LL seiiiW',%�iaj r (Am-11m OF coN'rRw-,T,6R) Y, prititc:t tle File Reference Articles of Agreement Form of Contractors Page 4 of 4 Right of Entry Agreement UNION PACIAC RAILROAD COMPANY CROE(TEXAS CeE&COUNT a@ BUILDING AAmQ s@n6m Form Approved,AV bE 03/01113 . .�. EXHIBITS A & A.1 TO CONTRACTORS RIGHT OF ENTRY AGREEMENT Shall be the Railroad Location Print& Detailed Prints �\ . ;\ ^ CROE(TEXAS cmES/COUNTIES Page I G1 Exhibits A&A1 Standard Form Approved,AVmLa 03/01/13 Railroad Location & Detailed Prints UNION PACIFIC RAILROAD COMPANY CROE(TEXAS CITIES/COUNTIES) HUILDINGAMERICA Standard Form Approved,AVP-Law:03/01113 EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK- FLAGGING. A. Contractor agrees to notify the Railroad Representative at least thirty (30) working days in advance of Contractor commencing its work and at least ten(10)working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five(25)feet of any track, of';vi111 be near enough to any track that any equipment extension (such as, but not limited to, a crane boom)will reach toK!iflain twenty-five(25)feet of any track. No work of any kind shall be performed,and no person, equipment,machinerytool(s), material(s),vehicle(s),or thing(s)shall be located, operated, placed,or stored within twenty-five(25)feet of any of Railroad's tracf<(s)at any time,for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt,-ksuah;tt irty(30)-day notice,the Railroad Representative will determine and inform Contractor whether a flagman need be1 'sif'and whether Contractor needs to implement any special protective or safety measures. If flaggin for other speciaf�§.9tective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses lhcurred by Railrbjti:,,,.unles5`Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill<such expenses'.b th%` deral, state or local governmental entity. If Railroad will be sending the bills t6 Contractor,Contactor shall pay slt 11 bills within thirty(30)days of Contractor's receipt of billing. If Railroad performs shy flaggirl0 or other`special protective or safety measures are performed by Railroad,Contractor agrees that Contracfbt Is not reliMd of any ofitis respi nsibilities or liabilities set forth in this Agreement. E. The rate of pay per hour for each flagman will b h Prevailing.purly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and..",­ ime in a8c ance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to t i .co's of:;such l44j a composite charge for vacation, holiday, health and welfare, supplemental sickneS a el3ailroad Re#tl ment; nd unemj4byment compensation, supplemental pension, Employees Liability and Property 15��ti2�Lncl Admil'iistratiori Witt be included, computed on actual payroll The composite charge will be the prevailing compoSltc,cliar ;,in,.effetst the tlij :;the work is performed. One and one-half times the current hourly rate is paid for overtin 6`• '.a ndays'`and two and one-half times current hourly rate for holidays. Wage rates ar&,,uoject to change;;)atany'fitne l y;taw or by agreement between Railroad and its employees,and may be retroactive as a r&ulf,"Jbf,negotia#torts;:' ru11 "'fin authorized governmental agency. Additional charges on labor are also subject to r;lirie tf the wage`rate_,or additional charges are changed, Contractor(or the governmental entity, as applicable)shall 05&.on 4,66sis of the riew rates and charges. C. Reirrmbursem ht to Railroad wilfbe regUrr6d"Quoting the full eight-hour day during which any flagman is furnished,unless the flagmah'.tan be assigned to 61�`O � ilroad wi6tk during a portion of such day, in which event reimbursement will not be required fort,Ke,portlon of the day c(uryng which the flagman is engaged in other Railroad work. Reimbursement will also be required for any,--8^y_hof&%iIy,.wo k6d by the flagman following the flagman's assignment to work on the project for which Railroad is requirei'to pay t}�.fiiogrri and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even th'%h Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign -bn employee to a flagging position in compliance with union collective bargaining agreements, Contractor m.ustpto`vide Railroad a minimum of thirty(30)days notice prior to the cessation of the need for a flagman. If thirty(30)daysYlotice of cessation is not given, Contractor will still be required to pay flagging charges for the thirty(30)day notice period required by union agreement to be given to the employee,even though flagging is not required for that period. An additional ten(10)days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. 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 Railroad to use and maintain its entire property including the right and power of Railroad to construct,maintain,repair,renew,use,operate, change, modify or relocate railroad tracks, roadways, 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 Railroad without liability to Contractor or to any other party for compensation or damages. CROE (TEXAS CITIES/COUNTIES) Page 1 of 4 Exhibit B Standard Form Approved,AVP-Law:03/09/13 General Terms&Conditions UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES} BUILDtNG AMERICK Standard Form ,D Approved AV -Law:03101/13 B. The foregoing grant is also subject to all outstanding superior rights(including those in favor of licensees and lessees of Railroad's property,and others)and the right of Railroad to renew and extend the same,and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty(50)feet from the centerline of Railroad's nearest track,and there shall be no vehicular crossings of Railroads tracks except at existing open.-public crossings. B. Operations of Railroad and work performed by Railroad personnel and de(ayo`ih the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, andr-Contractor,agrees that Railroad shall have no liability to Contractor,or any other person or entity for any such delays. Th6 6-6tractc ,#,-Aiall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operat&s�� h`6 safe operation of Railroad train movements and other activities by Railroad takes precedence oU6r,any work to be,, Oormed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform lat;i6f Of pro­* v-I d O'fn ateri for the work J to b6performed by Contractor, Contractor shall not create, permit or suffer any mechad"1'0­`i§,,or mate4 linen's li' 49,,f any f d or nature to be created or enforced against any property of Railroad for any such work,Aftformed,'�itO TRAI ALL INDEMNIFY AND HOLD L14EN%,;CLAI STS OR EXPENSES OF " HARMLESS RAILROAD FROM AND AGAINST OR'AND A WHATSOEVER NATURE IN ANY WAY CONmff&`JrtAwTH OUT OF SUCH WORK DONE, LABOR PERFORMED, OR MATERIALS FURNISHED. [�-,���=*:,b(Jl4,TRACTOR,.',FAILS TO PROMPTLY CAUSE ANY LIEN TO BE RELEASED OF RECORD, RAILROAD MAY, AT ff;$,EEFC.T- ION, 6 ARGE THE LIEN OR CLAIM OF LIEN AT CONTRACTOR'S EXPENSE. Section 5. PROTECTION OF FIBER UP.TIG"t NBLE S1� A. Fiber optic cable system-6"ilhay be buried or '1 pro y. Protection of the fiber optic cable systems is of extreme N importance since any breakataid disrupt servl J, Iting in business interruption and loss of revenue and profits. Contractor shall nor """"J."� i ours(7:00 a.m. to 9:00 p.m.Central Time,Monday through Friday, except holidays)at 93 Is hour, -day number for emergency calls)to determine if fiber optic cable is bqjey, qd!W. d by Contractor. If it is, Contractor will telephone the anywhere -16 tions compan telecommun 11. tilved; ke arrangements for a cable locator and, if applicable, for relocation or other prote�i6n of the fiber or i trac' r shall not commence any work until all such protection or relocation(if applicable) 4a ,been qccom pi IC' s IN ADDITION TO OTHER I ' i�l MNITY PROVISIONS IN THIS AGREEMENT, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD RAILR'A "RMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE ,,w WHATSOEVER (INCLUDINPGj�', ' ITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) ARISING OUT OF ANY AGTV wb ISSION OF CONTRACTOR,ITS AGENTS AND/OR EMPLOYEES,THAT CAUSES 'N_ ­fl A,h OR CONTRIBUTES TO (!* " I YDAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON RAILROAD'S PROPERTY, AND/OR (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 RAILROAD'S PROPERTY. CONTRACTOR SHALL NOT HAVE OR SEEK RECOURSE AGAINST RAILROAD 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 RAILROAD'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON RAILROAD'S PROPERTY. CROE(TEXAS CITIESICOUNTIES) Page 2 of 4 Exhibit S Standard Form Approved,AW-Law 03/01113 General Terms& Conditions UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) BUILDING AMERICK Standard Form Approved,AVP-Law:03/01/13 Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement,Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY, A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety,operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached,to ensure uniformity with the safety standards fbIIow6,0,,.by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contraqt6i, eterrnines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, ContraPtor shall keep1h-e,-'jbb'site free from safety and health hazards and ensure that its employees are competent and adeqO'6tely trained in air4afety and health aspects of the job. C. Contractor shall have proper first aid supplies available on,theJob site"t,61hat prompt first'60;selrvides maybe provided to any person injured on the job site. Contractor shall prR. whbtity RaiQ d,,of any U.S. OccUpational Safety and Health clUf��to,control its,employees while they are on the Administration reportable injuries. Contractor shall had/,6.,`8-`nonde1 job site or any other property of Railroad, and to be dodain they d6i�',�,pt usW%� uncle.T�,#,4`influence of, or have in their• possession any alcoholic beverage, drug or other,subs h Vip,that m V inhibit tli6,s&fd'0`6ffcr rm a nce of any work. D. If and when requested by Railroad,Contractor I' to R'6*1104 d a copy of Contractor's safety plan for conducting the �',,�the obligation, to require Contractor to correct any work (the "Safety Plan"), Railroad shall h but deficiencies in the Safety Plan. The terms of I t shall�b,t.rjtrol if there are any inconsistencies between this Agreement and the Safety Plan. 'X Section 8. INDEMNITY. A. TO THE EXTENT NOT�?IROHIBITED i3Y` ►PPLI6A UTE,CONTRACTOR SHALL INDEMNIFY,DEFEND AND HOLD HARMLESS ITS AFFILAVATTES, ' .1S AND THEIR OFFICERS, AGENTS AND EMPLOYEES {"INDEMNIFIED PARTIt`W' Ad ST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EX P,;�. NSOtjo-M, Dll!4&-`,'-'-'W1THOUT LIMITATION, ATTORNEY-S, CONSULTANT'S AND EXPERT'S AND COQPT COST`; (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON(INCLUDING,WITHIQ'ibk INDEMNIFIED PARTY,CONTRACTOR,OR ANY EMPLOYEE OF C 0 N T RA d6 R OR OF ANY I N60-"k­`M"'N."I F I E D PARTY)ARISING OUT OF OR IN ANY MANNER CONNECTED WITH(1) ANY WORk-, t,;RF-0.R�M)5,R�IBYCONTRACTOR,OR(11)ANY ACTOR OMISSION OF CONTRACTOR,ITS OFFICERS, AGENTS OR'MEL- -,MY BREACH OF THIS AGREEMENT BY CONTRACTOR. B. THE RIGHT TO INDEMNITY DER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS,,., Ab SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PART Y,;XtEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS'LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD. CROE(TEXAS CITIES/COUNTIES) Page 3 of 4 Exhibit 8 Standard Form Approved.AVP-Law:03/01/13 General Terns&Conditions UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) BUILDING AMERCA� E. THE PROVISIONS OF THIS SECTION 8SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. |NNO EVENT SHALL THIS SECTION 8 Og ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 8. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Cntrab// sole restore such fence and other property ioth dKi the were in before such fence was taken down or such other property was moved or.A�(brbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's prop ftffi"�romptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contract ntered thereon. Section 10.WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition,covOnaot or agreement'h6rein contained,to be kept,observed and performed by Contractor shall in no way impair the right of RailroaA, .,�vail itself of any�t�-'O`i'nedy for.ojy�subsequent breach or default. Section 11.MODIFICATION - ENTIRE AGREEMENT No modification of this Agreement shall be effec-five unle'§'�'"- cle in',.,writing and sig( Contractor and Railroad. This _btute the enti't'"n derstan ding between Contractor Agreement and the exhibits attached hereto and M`& 16p and Railroad and cancel and supersede any prior nod'idtions, un-ers.-andings or agreements,whether written or oral,with respect to the work to be performed by Contractor. Contractor shall not assign or s 6 Abk,Agredibjent, or'ti� �Jnterest therein, without the written consent of the T A subcontractors. Before Contractor commences any Railroad. Contractor shall be'resp nsi I ad"f,� ions o work, the Contractor shall,�;`,&be pt t t e t P.,proh ifQ-x law; (1) require each of its subcontractors to include the '0 gr s orah'Wial General Liability policy and Business Automobile policies e su c6h ibotor's performance of work on behalf of the Contractor by endorsing with respect to all liabilities ariM-.g these policies with ISO Additioi�9t,'4nsur,66�Eh'd.or-sem'��-. CG 20 26, and CA 20 48(or substitute forms providing equivalent M.,10-,,endorge their Commercial General Liability Policy with"Contractual Liability coverage; (2) reqd ach of its 966contraGf6:"\- Railroads"ISOA&rCG24 17 rm providing equivalent coverage)for the job site;and(3)require each of its subcontradt6rs to endorse theif i ess Automobile Policy with"Coverage For Certain Operations In Connection With Railroads" ISO F6r.rn_CA,�.0.,70,-.,,,1.,Q 011-'... substitute form providing equivalent coverage) for the job site. CROE(TEXAS CITIES/COUNTIES) Page 4 of 4 Exhibit B Standard Form Approved,Avr-Law:03101113 General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CROE �XASC!T|E�/�DUNT|FS) �v/�um**��nx�. 0 _Sf« EXHIBIT C TD CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE REQUIREMENTS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial gen ena/ GQ with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than$ insurance must be written on ISO occurrence form CG 00 01 12 04(or a substitute form providing equivale V� The policy must also contain the following endorsement,which must be st t '4 ificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a%�ubstitut f rM 6Aing equivalent coverage)showing "Union Pacific Railroad Company Property"as the Designate-a`-�J'6 Si • Designated Construction Project(s)General Aggregate,.Limit ISO`F6r.m CG 25 03 (or a��Obstitute form providing equivalent coverage)showing the project on the fqr.;1n1-s.6-'6 ule. B. BUSINESS AUTOMOBILE COVERAGE INSURAN ,�-,,,Businesg;.apto cmidr6go rit"J.'"Yon ISO form CA 00 01 (or a substitute form providing equivalent liability coverage)with,.' combindd.;singlelin-1116f , :1 s 000,000 for each accident. The policy must contain the following endorserh�.ht§,;,--.w i ',T- tated on the certificate of insurance: • Coverage For Certain Operations In Conn46-iio��' il ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage),,.k0owin `Unic� 9 e Designated Job Site. • Motor Carrier Act Enclorserneo'. dou 6tbri 1 -90) if required by law. MkVMR I' TY'lNSURANCE. Coverage must include but not be limited C. Contractor's statuto),1-(�#i4b. ,ility under thL!1'0,6�,kers' sation laws of the State of Texas. Employers'Liability(P9ft ith,limits of 61 4 st 0 each accident,$500,000 disease policy limit$500,ODO each if Contractor,�19,§6]f-insu red, oval and excess workers compensation coverage must be provided. Coverage ffirt include: liability U. S-.-`.-�-�.ngshoremen's and Harbor Workers' Act, the Jones Act, and the Outer f La 5heff, A if applicable. The policy must contain the f0I1&7"1,,ng endorsement, which must be stated on the certificate of insurance: Alternate Employer endwr966ient ISO form WC 00 03 01 A (or a subst,itute form providing equivalent coverage) showing Railroad in ule as the alternate employer(or a substitute form providing equivalent coverage). D. RAILROAD PROTECTIVE LIABILITY INSURANCE. Contractor at maintain Railroad Protective Liability written on ISO occurrence form CG 00 35 12 04(or a substitute form providing equivalent coverage)on behalf of Railroad 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 Railroad before the work may be commenced and until the original policy is forwarded h> Railroad. E. UMBRELLA OR EXCESS INSURANCE. |f Contractor utilizes umbrella or excess poiiciem, these policies must"follow form" and afford no less coverage than the primary policy. F. POLLUTION LIABILITY INSURANCE. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Fnnn Designated Sites CG003A 12 O4(or a substitute form providing equivalent liability coverago).with limits ofatleast $5.00U.000 per occurrence and an aggregate limit ofViO.U0O.O0O Standard Form Approved,AVP-Law:03/0-1/13 Insurance Requirements UNION PACIFIC RAILROAD COMPANY CROE (TEXAS C{TlESAC0UNTIE8) BUILDING AMERICk If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-hazardous materials from the job nite. Contractor must furnish to Railroad evidence of pollution |eOm| liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the moteda}s, with coverage in minimum amounts of&1.00O.008 per loss, and an annual aggregate of$2.000.U00. OTHER REQUIREMENTS G. All policy(ies)required above(except worker's compensation and employers liability)must include Railroad 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 Railroad ao additional insun*dohuU to the xt t provided under ISO Additional insured Endorsement CG 20 26,and CA 20 48 provide coverage for Railroad'sp,�otigence whether sole or partial,active or passive, and shall not be limited by Contractor's liability under the indemnit ,y. -provisions of this Agreement, H. Punitive damages law governing this Agreement prohibits all punitive damages that might arise U14ftr thJ6 jreement. ~ Contractor„ ..,~~.. '.g..~.. ..~',.., and its insurers. also,'~.. and its agents, officers, directors and employees. This waiver mus -,stated J. Prior to commencing^ the work, Contractor shall^ '~' authorized representative of each insurer, showing cb MY :;6nce' if`64,he insat'ance requirpments in this Agreement. K. Aft insurance policies must be written by a reputable insd9oce company acceptAV6%6`-`RaiIroad or with a current Best's -Aik and Insurance Guide Rating of A-and Class VII ol�3'b ad”.'to do busine§§-In the State of Texas. L. The fact that insurance is obtained by Contra road' ��behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, witho'dlimit',tion, liabifiqiinder the indemnity provisions of this Agreement. "ll not be limited by the amount of the required insurance coverage. CROE(TEXAS CITIES/COUNTIES) Page 2 of 2 Exhibit C Standard Form Approved,AW-Law 03101/13 Insurance Requirements Ui4iON PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) SUI;.VINGAMERICA _Standard Form Approved,AVP-Law:03/01/13 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term"employees"as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. CLOTHING A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. S ecificail , Contractor's employees must wear: i. Waist-length shirts with sleeves. ii. Trousers that cover the entire leg. if flare-legged trousers ate;worn, the trouser bottoms m-Ust be tied to prevent catching. �� iii. Footwear that covers their ankles and has a defrti'tt hie[. Emp!`ctyees working on bridges are required to wear S safety-toed footwear that conforms to the lnstitute{ANSI) and FRA footwear requirements. B, Employees shall not wear boots(other than wotk-hoots) s'66— s 'Pvas-type sh'bes; f other shoes that have thin soles or heels that are higher than normal. 4 =` C. Employees must not wear loose or ragged clothing, nebkt ,f nger,�fngs,or other loose jewelry while operating or ieIs on machinery. II. PERSONAL PROTECTIVE EQUIOI W. Contractor shall require its-.,employees to wear persbt aE 3jDtective equipment as specified by Railroad rules,regulations,or recommended or requested$y the,Railroad Rel3( sentativez i- Hard hat that meetly th6-fterican Natib,1—%l Standard (ANSI)289.1 —latest revision. Hard hats should be affixed with Contractor's ctnpanyldgo or name�;, ii Eye r6ction that rtL.ets Amerl6,0n Natioh !'Standard (ANSI) for occupational and educational eye and face pro#etion,287.1—lath revt5t5tis AcltiEonal eye protection must be provided to meet specific job situations such as w6lding, grinding, etm iii. Heater g protection,whicR, rds enough attenuation to give protection from noise levels that will be occurring on the lob (te >{erlizg protection, in the form of plugs or muffs, must be worn when employees are within: • 100 feet of a locA6itive ot:roadwaylwork equipment 15 feet of power opKated tools ■ 150 feet of jet blowe'i g or pile drivers ■ 150 feet of ret�r,t tirs'in use(when within 10 feet, employees must wear dual ear protection—plugs and muffs) iv. Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. ON TRACK SAFETY Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: i. Maintain a distance of twenty-five(25)feet to any track unless the Railroad Representative is present to authorize movements. ii. Wear an orange, reflectorized workwear approved by the Railroad Representative. CROE(TEXAS CiTiESICOUNTiES) Page 1 of 2 Exhibit D Standard Form Approved,AVP-Law:03/01/13 Minimum Safety Requirements UNION PACIFIC RAILROAD COMPANY CROE (TEXAS CITIES/COUNTIES) t3UILQ(NGAMEiilCA Standard Form Approved, -Law.03/01/13 _ ff iii. Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed. Contractor must take special note of limits of track authority,which tracks may or may not be fouled,and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV, EQUIPMENT A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use,Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: i. Familiar and comply with Railroad's rules on lockout/tagout of equipments ii. Trained in and comply with the applicable operating rules if operatsn'py by-rail equipment on-track. iii. Trained in and comply with the applicable air brake rules if operationl pny equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit,,fire extinguishes ;atd'audible back-up warning device, C. Unless otherwise authorized by the Railroad Representative,all equipment must be pA d;a mint Uin of twenty-five(25) feet from any track. Before leaving any equipment unattended the ope%gr must stop the drlglfie<and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones fhat;_will be ta'; d to mark he W6orlkIhg area of the crane and the minimum clearances to overhead powerlines.. V. GENERAL SAFETY REQUIREMENTS A. Contractor shall ensure that all waste is properly disposedf,in accoCdnce with applicable federal and state regulations. B. Contractor shall ensure that all 6MO163 bft particlpaYb In anal comply with a job briefing conducted by the Railroad Representative, if applicable. During this Rbfjhg,fhe AtIIroad Repr sentative will specify safe work procedures,(including On-Track Safety)and the.potential haz&> of the je13.,,lf Fly employee has any questions or concerns about the work,the employee must voice th6 during the job b6fing. Add�tlbt�al job briefings will be conducted during the work as conditions, work procedures, or pers6nnd7; hange. £ C. All track work.performed by,i✓ontrac meets the `#!lnimum safety requirements established by the Federal Railroad Administratloh's-T`r'ack Safe ty� tandardtt D. All employee comply with the f fety procedures when working around any railroad track: i. Always?be-rp rt for`rYabving equipment. Employees must always expect movement on any track, at any time, inither'`tlirebt(tai� ii. Do not step or walk on tl b to'5 bf the rail, frog, switches, guard rails, or other track components. iii. in passing around the eidS of standing cars,engines,roadway machines or work equipment, leave at least 20 feet between yourself an.d:;t� ?'end of the equipment. Do not go between pieces of equipment of the opening is less than one car lendtl:,ffi feet). iv. Avoid walking or standing on a track unless so authorized by the employee in charge. V. Before stepping over or crossing tracks, look in both directions first, vi. Do not sit on, lie under,or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CROE(TEXAS CITIES/COUNTIES) Page 2 of 2 _ Exhibit D Standard Form Approved,AVP-Law:03/01113 Minimum Safety Requirements