HomeMy WebLinkAbout2013-09-16-Resolutions 13-245_Alice's Rd-University Ave Intersection - Railroad AgrTHE CITY OF WAUKEE,IOWA
RESOLUTION 13-245
APPROVING IMPROVEMENTS TO EXISTING PUBLIC ROAD AT GRADE
CROSSING AGREEMENT BY AND BETWEEN UNION PACIFIC RAILROAD
COMPANY AND THE CITY OF WAUKEE [ALICE'S ROADIUNIVERSITY AVENUE]
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA
WHEREAS,the City of Waukee,Dallas Couuty,State ofIowa,is a duly organized Municipal
Organization;AND,
WHEREAS,the City has requested the Union Pacific Railroad Company to improve the
existing Alice's Road and University Avenue crossing,which includes the relocation of the
existing wayside stop signal 40 feet east of current location and the installation of 40 additional
feet of concrete crossing surface;AND,
WHEREAS,the Union Pacific Railroad Company has provided an agreement related to said
crossing improvements,attached hereto as Exhibit A,which has been reviewed by the City
Attomey and fouud to be satisfactory;
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee that the
Improvements to Existing Public Road at Grade Crossing Agreement by and between Union
Pacific Railroad Company and the City of Waukee [Alice's Road/University Avenue]is hereby
approved.
Passed by the City Council of the City of Waukee,Iowa,and approved the 16th day of
SeptembeT,2013.
~r
Attest:
Rebecca D.Schuett,City Clerk
ROLL CALL VOTE
Shane Blanchard
Casey L.Harvey
Shelly Hughes
C.Isaiah McGee
Mike Watts
AYE
X
X
X
X
X
NAY ABSENT ABSTAIN
IMPROVEMENTS TO EXISTING PUBLIC ROAD AT GRADE CROSSING
FOR UNlVERSITY AVENUE DOT 193 005 R
M.P.297.30 WAUKEE INDUSTRIAL LEAD
WAUKEE,IOWA
THIS AGREEMENT,executed in duplicate this 16TH day of September,2013,by and between
UNION PACIFIC RAlLROAD COMPANY,a Delaware corporation ("Railroad"),and CITY OF
WAUKEE a municipal corporation of the State ofIowa ("Political Body").
RECITALS:
Political Body has requested Railroad to improve the existing University Avenue/Alices Road
crossing,at grade,along,over and across Railroad's track and right of way at Railroad Mile Post 297.30,
on Railroad's Waukee Industrial Lead,DOT No.193005R,in City of Waukee,Dallas County,Statc of
Iowa (the "Crossing"),to which Railroad is agreeable,but solely upon terms and conditions hereinafter
set forth,
The location of the Crossing is generally shown on the print marked Exhibit A,attached hereto
and hereby made a part hereof.
AGREEMENT:
NOW THEREFORE,in consideration of the premises and of the promises and conditions
hereinafter set forth,the parties hereto agree as follows:
1.Railroad shall provide preliminary engineering,furnish all labor,material,equipment,
supervision for,and shall relocate existing wayside stop signal 40 feet east of existing location,and
extend the existing concrete surface an additional 40'with ties,rail and ballast.
2.Political Body agrees to reimburse the Railroad for one hundred percent (100%)of
Railroad's actual labor and material costs associated with the work and materials described ill Section I
above.Railroad estimates such cost to be One Hundred FOlly Eight Thousand,Eight Hundred Twenty
Two Dollars ($148,822.00),as set forth in Estimate of Materia!and Force Accounts dated August 12,
2013 marked Exhibit n,hereto attached and hereby made a part hereof.During the performance of such
work Railroad will provide progressive billing to Political Body based on Railroad's actual costs.Actual
costs to Railroad shall include customary additives (which includes its overhead and indirect construction
costs)to materials,services and labor provided by Railroad.Within One Hundred Twenty (120)days
after Railroad has completed its work,Railroad will submit a final billing to Political Body for any
balance owed.Political Body shall pay Railroad within thirty (30)days of its receipt of progressive and
final bills submitted by Railroad.
3.Political Body,at its cost,shall provide all labor,material and equipment associated with
traffic control,barricades,detour signing,advanced warning signs and pavement markings.Political
Body;at its cost,shaH provide an labor,material and equipment ~~sociated with the asphalting
approaches for the additional crossing surfaces installed.All such work shall be in compliance with the
current Manual on Uniform Traffic Control Devices.
4.If Political Body's contractor(s)is/are performing any work described in Section 3 above,
then Political Body shall require its contractor(s)to execute Railroad's standard and current form of
Contractor's Right of Entry Agreement.Political Body acknowledges receipt of a copy of the
Contractor's Right of Entry Agreement and understanding of its terms,provisions,and requirements,and
1
wiJI inform its contractor(s)ofthe need to execute the Agreement and to obtain and provide to Railroad
the insurance policies,binders,certificates and endorsements that are required in the Contractor's Right of
Entry Agreement.Under no circumstances will the Political Body's contractor(s)be allowed onto the
Railroad's premises without first executing the Contractor's Right of Entry Agreement and providing the
aforesaid insurance documents.
5.Fiber optic cable systems may be buried on 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.Political Body or its contractor(s)shall telephone
Railroad during normal business hours (7:00 a.m.to 9:00 p.m.,Central Time,Monday through Friday,
except holidays)at 1-800-336-9]93 (also a 24-hour number,7 day number for emergency calls)to
determine if fiber optic cable is buried anywhere on Railroad's premises to be used by Political Body or
its contractor(s).If it is,Political Body or its contactor(s)will telephone the telecommunications
company(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 Railroad's premises.
6.Political Body,for itself and for its successors and assigns,hereby waives any right of
assessment against Railroad,as an adjacent property owner,for any and all improvements made under
this Agreement.
7.Covenants herein shall inure to or bind each party's successors and assigns;provided,no
right of Political Body shall be transferred or assigned,either voluntarily or involuntarily,except by
express written agreement acceptable to Railroad.
8.Political Body hereby confirms that funds have been appropriated for the work set forth
in this Agreement.
9.The person signing this Agreement on behalf of Political Body hereby confirms that
he/she is authorized under Political Body policies and procedures to execute this Agreement and to bind
Political Body to the obligations under this Agreement.
IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement as ofthe date
first herein written.
UNION PACIFIC RAILROAD COMPANY
P ENGINEERING
Bvil//LJ'{!p,n7
Title:Mayor
CITY OFWAUJ<EEIOWAP4-II
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LOCATION OF PUBLIC AT-GRADE
ROAD CROSSING
AGREEMENT
RAILROAD WORK TO BE PERFORMED:EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY1.Relocate existing wayside stop signal 40'east
of original location.
2.lnstall40 additional feet of concrete crossing
surface including rail,ties and ballast.
WAUKEE IND LEAD
MILE POST 297.30
WAUKEE,DALLAS CO,IA
Illustrative print showing location of public road crossing
project within DALLAS COUNTY.
August 27,20 [3
WARNING
INAILOCCASIONS,U,P.COMMUNiCATION DEPARTMENT MUST BE CONTACTED IN
ADVANCE OF MlY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER-OI'TlC
CABLE.PHONE 1-800-336-9193
DATE:2013-08-12
ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK
BY THE
UNION PACIFIC RAILROAD
THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2014-02-10
DESCRIPTION OF WORK:
2013 RECOLLECTIBLE PROGRAM
WUAKEE SUBDIVISION
MP 297.30 DDTj 193005R
INSTALL 40 TF OF CROSSING SURFACE TO EXISTING CROSSING
INCLUDING TIES,RAIL,aTM AND RELATED SIGNAL COSTS.
PID;83932 AWO:21102
SERVICE UNIT:01 CITY:WAUKEE
MP,SUBDIV:297,30,WAUKEE
STATE:IA
DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL-------------------------------
ENGINEERING WORK
ENGINEERING 5974 5974 5974
LABOR ADDITIVE 211%12607 J.2607 12607---------------------------------------
TOTAL ENGINEERING 18581 18581 18581
SIGNAL WORK
LABOR ADDITIVE 176.51%36710 36710 36710
MATL STORE EXPENSE 6 6 6
PERSONAL EXPENSES 12630 12630 12630
SALES TAX 1SB 1BS 100
SIGNJiL 20797 4724 25521 25521
TRANSP/IB/OB/RCLW CONTR 462 462 <62-------------~-------------------------
TOTAL SIGNAL 57507 18010 75517 75517
TRACK &SURFACE WORK
BALAST 1.00 CL 1 915 916 916
BILL PREP FEE 900 900 900
El'WIRONMENTAL -PERMITS 10 10 10
EQUIPMENT RENTAL 1500 1500 1500
FOREIGN LINE FRBIGHT 551 551 551
HaNELINE FREIGHT 900 900 900
LABOR ADDITIVE 211%18256 18256 18256
MATL STORE EXPENSE 301 301 301
OTfoJ 5S1 3072 3653 3653
RAIL 80,00 LF 716 1640 2416 2416RDXING40.00 TF 3851 9282 13133 13133
SALES TAX 729 729 729
'fRK-SURF ,LIN 2874 2874 2874
W}O~LD 269 498 767 767
XTIE 32.00 EA 4919 2899 7818 7818---------------------------------------
TOTAL TRACK ,.SURFACE 31527 23197 54724 54724
LABOR/MATERIAL EXPENSE 107615
RECOLLECTIBLE/UPRR EXPENSE
EST~1ATED PROJECT COST
EXISTING REUSEABLE MAT8RIAL CREDIT
SALVAGE NONUSEABLI~t-lli'l'E1UALCREDIT
41207 ----------------
118822 0 --------
11\8822
a
a
RECOLLECTIBLE LESS CREDITS
THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION.IN THE EVENT OF
AN INCREASE OR D~CREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED,
lIPRR ~HLL BILL F.·ORnC'l'UALCONSTRUCTION COS'l'SAT THE CURRENT EFFECTIVE RATE.
Exhibit HAl[
Contractor's Right of Entry (Generic)030113
Form Approved -AVP Law
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the day of ,20,_
by and between UNION PACIFIC RAILROAD COMPANY,a Delaware corporation ("Railroad");and --ccc---~-
-,a corporation ("Contractor").
RECITALS:
Contractor has been hired by to perform work relatingto_
(the "work"),with all or a portion of such work to be performed on property of Railroad in the Vicinity of Railroad's Milepost
,------,-.,.--,_on Railroad's [Subdivision][Branch][at or near DOT No.]
located at or near ,in County,State of "as such location is in the general
location shown on the print marked Exhibit A,attached hereto and hereby made a part hereof,which work is the subject of a
contract dated between Railroad and _
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:
NOW,THEREFORE,it is mutually agreed by and between Railroad and Contractor,as follows:
ARTICLE 1 -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 terms,provisions and conditions herein contained,to enter upon and have ingress to and egress from the property
described in the Recitals for the purpose of performing the work described in the Recitals above.The right herein granted to
Contractor is limited to those portions of Railroad's property specifically described herein,or as designated by the Railroad
Representative named in Article 4.
ARTICLE 3 -TERMS AND CONDITIONS CONTAINED IN EXHIBITS B,C AND 0,
The terms and conditions contained in Exhibit B,Exhibit C and Exhibit D,attached hereto,are hereby made a part of
this Agreement.
ARTICLE 4 -ALL EXPENSES TO BE BORNE BY CONTRACTOR:RAILROAD REPRESENTATIVE,
A.Contractor shall bear any and all costs and expenses associated with any work performed by Contractor,or
any costs or expenses incurred by Railroad relating to this Agreement.
Contractor's ROE (Generic)030113
Form Approved"AVP Law
B.Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized
representative (the "Railroad Representative"):
C.Contractor,at its own expense,shall adequately police and supervise all work to be performed by Contractor
and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B.The responsibility of
Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise
affected by Railroad's approval of plans and specifications involving the work,or by Railroad's collaboration in performance of
any work,or by the presence at the work site of a Railroad Representative,or by compliance by Contractor with any requests or
recommendations made by Railroad Representative.
ARTICLE 5 •SCHEDULE OF WORK ON A MONTHLY BASIS.
The Contractor,at its expense,shall provide on a monthly basis a detailed schedule of work to the Railroad
Representative named in Article 4B above.The reports shall start at the execution of this Agreement and continue until this
Agreement is terminated as provided in this Agreement or until the Contractor has completed all work on Railroad's property.
ARTICLE 6 -TERM:TERMINATION.
A.The grant of right herein made to Contractor shall commence on the date of this Agreement,and continue until
___~_~~,unless soonerterminated as herein provided,or at such time as Contractor has completed its
work on Railroad's property,whichever is earlier.Contractor agrees to notify the Railroad Representative in writing when it has
completed its work on Railroad's property.
B.This Agreement may be terminated by either party on ten (10)days written notice to the other party.
ARTICLE 7 •CERTIFICATE OF INSURANCE.
A.Before commencing any work,Contractor will provide Railroad with the (i)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 endorsements shall be sent to:
Union Pacific Railroad Company
[Insert mailing address]
Attn:Fold:-e-r:-:N-o.-------
ARTICLE 8 -DISMISSAL OF CONTRACTOR's EMPLOYEE.
At the request of Railroad,Contractor shall remove from Railroad's property any employee of Contractor who fails to
conform to the instructions of the Railroad Representative in connection with the work on Railroad's property.and any right of
Contractor shall be suspended until such removal has occurred.Contractor shall indemnify Railroad against any claims arising
from the removal of any such employee from Railroad's property.
ARTICLE 9-ADMINISTRATIVE FEE.
2
Contractor's ROE (Generic)030113
Form Approved -AVP Law
Upon the execution and delivery of this Agreement,Contractor shall pay to Railroad
___--,-,.,-_:::-::-__-----;-Dollars ($~)as reimbursement for ciericai,administrative and handling
expenses in connection with the processing of this Agreement.
ARTICLE 10 -CROSSINGS;COMPLIANCE WITH MUTCD AND FRA GUIDELINES.
A.No additional vehicular crossings (including temporary haul roads)or pedestrian 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 RailroadAdministratlon rules,regulations and
guidelines,and must be reviewed by the Railroad prior to any changes being impiemented.In the event the Raiiroad is found
to be out of compliance with federal safety regulatlons due to the Contractor's modifications,negligence,or any other reason
arising from the Contractor's presence on the Railroad's property,the Contractor agrees to assume liability for any civil
penalties imposed upon the Railroad for such noncompliance.
ARTICLE 11.-EXPLOSIVES.
Explosives or other highlyflammabie substances shall not be stored or used on Railroad's property without the prior
written approval of Railroad.
IN WITNESS WHEREOF,the parties hereto have duly executed this agreement in duplicate as ofthe date first herein
written.
UNION PACIFIC RAILROAD COMPANY
By:Titl-e:---------------
(Name of Contractor)
By:Titl-e·-.--------------
3
EXHIBIT A
Exhibit A will be a print showing the general location of the work site.
EXHIBIT B
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Section 1.NOTICE OF COMMENCEMENT OF WORK -FLAGGING.
.A.Contractor agrees to notify the Railroad Representative at least ten (10)working days in advance of Contractor
commencing its work and at least thirty (30)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,or will be near enough to any track that any
equipment extension (such as,but not limited to,a crane boom)wili 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
tocated,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 wili determine and inform Contractor whether a flagman need be present and whether Contractor 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 Contractor for such expenses incurred by Railroad,unless Railroad and a federal,state or local
governmental entity have agreed that Railroad is to bill such expenses to the federal,state or local governmental entity.If
Railroad will be sending the bills to Contractor,Contractor shall pay such bills within thirty (30)days of Contractor's receipt of
billing.If Railroad performs any flagging,or other special protective or safety measures are performed by Railroad,Contractor
agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement.
B.The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour dayforthe
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-halftimes 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,Contractor (or the governmental entity,as applicable)shall pay on the basis of
the new rates and charges.
C.Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is
furnished,unless the fiagman 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 Contractor 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,Contractor must provide Railroad a minimum of five (5)days notice prior to the cessation of the need for a
flagman.Iffive (5)days notice of cessation is not given,Contractor 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.
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 eultre property including the right and power of Raiiroad 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 limes by Railroad without liability to Contractor or to any other party for compensation or damages.
Exhibit B
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c:\us.e.rn\ecngl85\de~kIQp\o;:olltrflct{lt's right ofenJ:ry (generic}030113.duux
B.The foregoing grant is also subject to all outstanding superior rights (whether recorded or unrecorded and
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 Ralkoad'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 delays in the work to be performed by
Contractor caused by such railroad operations and work are expected by Contractor,and Contractor agrees that Railroad shall
have no liability to Contractor,or any other person or entity for any such delays.The Contractor shall coordinate Its activities
with those of Railroad and third parties so as to avoid interference with railroad operations.The safe operation of Railroad train
movements and other activities by Railroad takes precedence over any work to be performed by Contractor.
Section 4.
Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by
Contractor.Contractor shall not create,permit or suffer any mechanic's or materialmen's liens of any kind or nature to be
created or enforced against any property of Railroad for any such work performed.Contractor shall indemnify and hold
harmless Railroad from and against any and all liens,claims,demands,costs or expenses of whatsoever nature in any way
connected with or growing out of such work done,·Iabor performed,or materials furnished.]f Contractor fails to promptly cause
any lien to be reieased of record,Railroad may,at its election,discharge the lien or claim of lien at Contractor's expense.
Section 5.PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A.Fiber optic cable systems maybe buried on 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.Contractor shall telephone 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 Railroad's property to be used by Contractor.If it is,Contractor will telephone the
telecommunications company(ies)involved,make arrangements for a cable locator and,if applicable,for relocation or other
protection of the fiber optic cable.Conlractor shall not commence any work until all such protection or relocation (if applicable)
has been accomplished.
b.In addition to other indemnity provisions in this Agreement,Contractor shall indemnify,defend and hold
Railroad harmless from and against all costs,liability and expense whatsoever (including,without limitation,attorneys'fees,
court costs and expenses)arising out of any ael or omission of Contractor,its agents and/or employees,that causes or
contributes to (1)any damage 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.
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.
Exhibit B
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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 ali safety,
operations and programs in connection wilh 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 followed by Railroad's own forces.As a part
of Contractor's safety responsibilities,Contractor shali notify Railroad if Contractor determines that any of Railroad's safety
standards are contrary to good safety practices.Contractor shall furnish copies of Exhibit D to each of its empioyees before
they enter the job site.
B.Without limitation of the provisions of paragraph A above,Contractor shall keep the job site free from safety
and health hazards and ensure that its employees are competent and adequateiy trained in all safety and health aspects of the
job.
C.Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be
provided to any person injured on the job site.Contractor shall promptly notify Railroad of any U.S.Occupational Safety and
Health Administration reportable injuries.Contractor shall have a nondelegable duty to controi its employees while they are on
the job site or any other property of Railroad,and to be certain they do not use,be under the influence of,or have in their
possession any alcoholic beverage,drug or other substance that may inhibit the safe performance of any work.
D.If and when requested by Railroad,Contractor shall deliver to Railroad a copy of Contractor's safety plan for
conducting the work (the "Safety Plan").Railroad shall have the right,but not the obligation,to require Contractor to correct any
deficiencies in the Safety Pian.The terms of this Agreement shall controi if there are any inconsistencies between this
Agreement and the Safety Plan.
Section 8.INDEMNITY.
A.To the extent not prohibited by applicable statute,Contractor shall indemnify,defend and hold harmless
Railroad,its affiliates,and its and their officers,agents and employees (individually an "Indemnified Party"or collectively
"Indemnified Parties")from and against any and all loss,damage,injury,liability,claim,demand,cost or expense (including,
without limitation,attorney's,consultant's and expert's fees,and court costs),ftne or penalty (collectively,"Loss")incurred by
any person (inciuding,without limitation,any Indemnified Party,Contractor,or any employee of Contractor or of any Indemnified
Party)arising out of or in any manner connected with (i)any work performed by Contractor,or (ii)any act or omission of
Contractor,its officers,agents or employees,or (iii)any breach of this Agreement by Contractor.
b.The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss,
and shall apply regardless of any negligence or strict liability of any Indemnified Party,except 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 the Indemnified Parties 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 any Indemnified Party.
e.The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the
termination or expiration of this Agreement.In no event shall this Section 8 or 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.
ExhibifS
Page 3 of4
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·,
Seclion 9.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 Contractor's sale expense,restore such fence and other property to the same condition as the same
were in before such fence was taken down or such other property was moved or disturbed.Contractor shall remove all of
Contractor's tools,equipment,rubbish and other materials from Railroad's property promptly upon completion of the work,
restoring Railroad's property to the same state and condition as when Contractor entered thereon.
Seclion 10.WAIVER OF DEFAULT.
Waiver by Railroad of any breach or default of any condition,covenant or agreement herein contained to be kept,
observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any
subsequent breach or default.
Section 11.MODIFICATION -ENTIRE AGREEMENT.
No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad.This
Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor
and Railroad and cancel and supersede any prior negotiations,understandings or agreements,whether written or oral,with
respect to the work to be performed by Contractor.
Seclion 12.ASSIGNMENT -SUBCONTRACTING.
Contractor shall not assign or subcontract this Agreement,or any interest therein,without the written consent of the
Railroad.Contractor shall be responsible for the acts and omissions of all subcontractors.Before Contractor commences any
work,the Contractor shall,except to the extent prohibited by law;(1)require each of its subcontractors to include the
Contractor as "Additional Insured"in the subcontractor's Commercial General Liability policy and BusinessAutomobile policies
with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing
these policies with ISO Additional Insured Endorsements CG 20 26,and CA 20 48 (or substitute forms providing equivalent
coverage;(2)require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability
Railroads"ISO Form CG 24 17 1001 (or a substitute form providing equivalent coverage)for the job site;and (3)require each
of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With
Railroads"ISO Form CA 20 701001 (or a substitute form providing equivalent coverage)for the job site.
Exhibit B
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EXHIBIT C
TO
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
Union Pacific Railroad Company
Insurance Provisions For
Contractor's Right of Entry Agreement
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 general liability (CGL)with a limit of not less than $5,000,000
each occurrence and an aggregate limit of not less than $10,000,000.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 2417 1001 (or a substitute form providing equivalent coverage)
showing "Union Pacific Railroad Company Property"as the Designated Job Site.
•Designated Construction Project(s)General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form
providing equivalent coverage)showing the project on the form schedule.
B.Business Automobile Coverage insurance.Business auto coverage written on ISO lorm CA 00 01 10 01 (or a
substitute form providing equivalent liability coverage)with a combined single limit of not less $5,000,000 for each
accident and coverage must include liability arising out of any auto (includinq owned,hired and non-owned autos).
The policy must contain the following endorsements,which must be stated on the certificate of insurance:
•Coverage For Certain Operations In Connection With Railroads ISO form CA 20 701001 (or a substitute lorm
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:
•Contractor's statutory liability under the workers'compensation laws of the state where the work is being
performed.
•Employers'Liability (Part B)with limits of at least $500,000 each accident,$500,000 disease policy limit
$500,000 each employee.
II Contractor is self-insured,evidence of slate approval and excess workers compensation coverage must be provided.
Coverage muslinclude 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.
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.Contractor must maintain "Railroad Protective Liability"(RPL)insurance
written on ISO occurret jIJ8 form CG 0035 12 04 (or a substitute form providing equivaient coverage)on behalf of
Railroad as named insured,with a limit olnot less than $2,000,000 per occurrence and an aggregate of $6,000,000.
The delinition 01 "JOB LOCATION"and "WORK"on the declaration page afthe policy shall refer to this Agreement and
shall describe all WORK or OPERATIONS performed under this agreement.Contractor shall provide this Agreement
to Contractor's insurance agent(s)andlor broker{s)and Contractor shall instruct SUCll agent(s)andlor broker(s)to
ExhibltC
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procure the insurance coverage required by this Agreement.A BINDER STATING THE POLICY is iN PLACE MUST
BE SUBMITTED TO RAilROAD BEFORE THE WORK MAY COMMENCE AND UNTil THE ORIGINAL POLICY IS
FORWARDED TO UNION PACIFIC RAilROAD.
E.Umbrella or Excess insurance.If Contractor utilizes umbrella or excess policies,these policies must "follow form"
and afford no less coverage than the primary policy.
F.Pollution Liabllitv insurance,Pollution liability coverage must be included when the scope of the work as defined in
the Agreement includes Installation,temporary storage,or disposal of any "hazardous"material that is injurious in or
upon land,the atmosphere,or any watercourses;or may cause bodily injury at any time.
If required,coverage may be provided in separate policy form or by endorsement to Contractors CGl or RPL.Any
form coverage must be equivalent to that provided in ISO form CG 24 15 "Limited Poliution Liabiiity Extension
Endorsement"or CG 28 31 "Pollution Exclusion Amendment"with limits of at least $5,000,000 per occurrence and an
aggregate limit of $10,000,000.
If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-hazardous materials
from the job site,Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the
disposal site operator for losses arising from the insured facility accepting the materials,with coverage in minimum
amounts of $1,000,000 per loss,and an annual aggregate of $2,000,000.
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 as additional insured shall,to the extent provided
under ISO Additional Insured Endorsement CG 20 26,and CA 20 48 provide coverage for Railroad's negligence
whether sale or partial,active or passive,and shall not be limited by Contractor's liability under the indemnity provisions
of this Agreement.
H.Punitive damages exclusion,if any,must be deleted (and the deletion indicated on the certificate of insurance),unless
the law governing this Agreement prohibits all punitive damages that might arise under this Agreement.
I.Contractor 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.
J.Prior to commencing the work,Contractor shall furnish Railroad with a certificate(s)of insurance,executed by a duly
authorized representative of each insurer,showlnq compliance with the insurance requirements in this Agreement.
K.All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's
Insurance Guide Rating of A-and Class VII or better,and authorized to do business in the state where the work is
being performed.
L.The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release
or diminish the liability of Contractor,including,without limitation,liability under the indemnity provisions of this
Agreement.Damages recoverable by Railroad from Contractor or any third party will not be limited by tile amount of
the required insurance coverage.
Exhibit G
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EXHIBIT D
IQ
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
The term "employees"as used herein refer to ail empioyees of Contractor as weil as ail empioyees of any subcontractor or
agent of Contractor.
I.Clothing
A.Ail employees of Contractor will be suitably dressed to perform their duties safeiy and in a manner that will not
interfere with their vision,hearing,or free use of their hands or feet
Specificaily,Contractor's employees must wear:
(i)Waist-length shirts with sleeves,
(ii)Trousers that coverthe entire leg.Ifflare-Iegged trousers are worn,the trouser bottoms must be tied
to prevent catching.
(iii)Footwear that covers their ankles and has a defined heel.Employees working on bridges are
required to wear safety-toed footwear that conforms to the American National Standards Institute
(ANSI)and FRA footwear requirements.
B.Employees shail not wear boots (other than work boots),sandals,canvas-type shoes,or other shoes that
have thin soies or heels that are higher than normal.
C.Employees must not wear loose or ragged clothing,neckties,finger rings,or other loose jewelry while
operating or working on machinery.
II.Personal Protective Equipment
Contractor shail require its employees to wear personal protective equipment as specified by Railroad rules,
regulations,or recommended or requested by the Railroad Representative.
(i)Hard hat that meets the American National Standard (ANSi)289.1 -latest revision.Hard hats should be
affixed with Contractor's company logo or name.
(ii)Eye protection that meets American National Standard (ANSI)for occupational and educational eye and face
protection,287.1 -latest revision.Additional eye protection must be provided to meet specific job situations
such as welding,grinding,etc.
(iii)Hearing protection,which affords enough attenuation to give protection from noise leveis thatwiil be occurring
on the job site.Hearing protection,in the form of plugs or muffs,must be worn when employees are within:
•100 feet of a locomotive or roadway/work equipment
•15 feet of power operated tools
•150 feet of jet biowers or pile drivers
•150 feet of retarders in use (when within 10 feet,employees must wear dual ear protection -plugs
and muffs)
•
(iv)Other types of personal protacttva equipment,such as respirators,fa!!protection equipment,and face shields,
must be worn as recommended or requested by the Railroad Representative.
Exhibit 0
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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 ruies.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 empioyees 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,reflectorlzed workwear approved by the Railroad Representative.
(iii)Participate in a job briefing that wiil 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 mayor 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:
•Familiar and comply with Railroad's rules on lockout/tagout of equipment.
Trained in and comply with the applicable operating rules if operating any hy-rail equipment on-track.
Trained in and comply with the applicable air brake rules if operating any equipment that moves rail
cars or any other railbound equipment.
•
•
B.All self-propelled equipment must be equipped with a first-aid kit,fire extinguisher,and audible back-up
warning device,
C.Unless otherwise authorized by the Railroad Representative,all equipment must be parked a minimum of
twenty-five (25)feet from any track.Before leaving any equipment unattended,the operator must stop the
engine and properly secure the equipment against movement.
D.Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and
the minimum clearances to overhead powerlines.
V.General Safety Requirements
A.Contractor shall ensure that all waste Is properly disposed of in accordance with applicable federal and state
regulations.
B.Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the
Railroad Representative,if applicable.During this briefing,the Railroad Representative will specify safe work
procedures,(including On-Track Safety)and the potential hazards of the job.If any employee has any
questions or concerns about the work,the employee must voice them during the job briefing.Additional job
briefings will be conducted during the work as conditions,work procedures,or personnel change.
C.All track work performed by Contractor meets the minimum safety requirements established by the Federal
Railroad Administration's Track Safety Standards 49CFR213.
D.All employees comply with the following safety procedures when working around any railroad track:
(i)Always be on the alert for moving equipment.Employees must always expect movement on any
track,at any time,in either direction.
Exhibit 0
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(ii)Do not step or walk on the top of the rail,frog,switches,guard rails,or other track components.
(iii)In passing around the ends of standing cars,engines,roadway machines or work equipment,leave at
least 20 feet between yourself and the end of the equipment.Do not go between pieces of equipment
of the opening is less than one car length (50 feet).
(Iv)Avoid walking or standing on a track unless so authorized by the employee in charge.
(v)Before stepping over or crossing tracks,iook 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.
Exhibit 0
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