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HomeMy WebLinkAboutC02-109 Union Pacific Railroad CompanyFolder No.: 2060-66 Coz- log - to Om EXISTING PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT BETWEEN EAGLE COUNTY AND UNION PACIFIC RAILROAD COMPANY COVERING THE RECONSTRUCTION OF THE EXISTING COUNTY ROAD 28 (HILLCREST DRIVE) AT -GRADE PUBLIC ROAD CROSSING AT OR NEAR EDWARDS, EAGLE COUNTY, COLORADO Political Body Original Public Road Improvement 12/04/00 Estimated Costs Form Approved-AVP Law !_ EXISTING PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT Improvements to Existing Public Road At Grade Crossing For County Road 28 (Hillcrest Drive), DOT 253540U Mile Post 314.26, Tennessee Pass Subdivision Edwards, Eagle County, Colorado Folder No.: 2060-66 THIS AGREEMENT, executed in duplicate this day of , 2002, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"), and (the) EAGLE COUNTY, a municipal corporation of the State of Colorado (hereinafter the "Political Body"), WITNESSETH: RECITALS: The Political Body has requested the Railroad to improve the existing County Road 28 (Hillcrest Drive) crossing, at grade, along, over and across the Railroad's track and right of way at Mile Post 314.26, Tennessee Pass Subdivision, DOT No. 253540U, at or near Edwards, Eagle County, Colorado to which the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth. RaiT03M NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: 1. The Railroad shall furnish all labor, material, equipment and supervision for, and shall a) remove the existing 28-foot timber crossing, b) install a 32-foot precast concrete crossing, c) field weld rail, d) relay track at crossing with 133-pound rail, e) renew the crossties, and f) surface the track with new ballast, all at the intersection of the Railroad's main track with County Road 28 (Hillcrest Drive) at the location heretofore described, as shown generally on Railroad's print marked Exhibit A, hereto attached and hereby made a part hereof. 2. The 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 in Section 1 above. The Railroad estimates such cost to be FOURTY-FOUR THOUSAND FOUR HUNDRED FIFTY-EIGHT DOLLARS ($44,458.00), as set forth in Estimate of Material and Force Account marked Exhibit B, hereto attached and hereby made a part hereof. During the performance of such work the Railroad will provide progressive billing to Political Body based on Railroad's actual costs. Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad. Within 120 Days after Railroad has completed its work, the Railroad will submit a final billing to Political Body for any balance owed. Political Body shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the Railroad. 3. The Railroad, at its cost, shall maintain the crossing between the track tie ends. If, in the future, the Political Body elects to have the surfacing material between the track tie ends replaced with 2060-66 — Eagle County @ Edwards, CO Page 1 April 15, 2002 County Road 28 Public Road Improvement 12/04/00 Estimated Costs Form Approved-AVP Law I*W1 Folder No.: 2060-66 paving or some surfacing material other than timber planking, the Railroad, at the Political Body's expense, shall install such replacement surfacing. 4. The Political Body, 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. 5. If Political Body's contractor(s) is/are performing any work described in Section 4 above, then the Political Body 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 and hereby mad a part hereof. Political Body 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 Political Body's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. 6. 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. Political Body 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 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 the Railroad's premises. 7. The Political Body, for itself and for its successors and assigns, hereby waives any right of assessment against the Railroad, as an adjacent property owner, for any and all improvements made under this agreement. 8. Covenants herein shall inure to or bind each parry's successors and assigns; provided, no right of the Political Body shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. 9. The Political Body 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 Political Body, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of the Political Body 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 Political Body. 2060-66 — Eagle County @ Edwards, CO Page 2 April 15, 2002 County Road 28 Public Road Improvement 12/04/00 Folder No.: 2060-66 Estimated Costs Fmm Approved-AVP Law IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY B AVP-REAL ESTATE Pursuant to Resolution/Order dated hereto attached. 2060-66 — Eagle County Q Edwards, CO Page 3 April 15, 2002 County Road 28 EXHIBIT A Location & Detail Prints N i TO Nolcott �Ic 3 1 IN " �w a I✓l C J 'd Draw /CREEK RO. _ 5Y O14,'BAlnme. 8lmefAd�IIBA Oaic RAILROAD WORK TO BE PERFORMED: ILOCAIMON OF EXISTING AT- GRADE PUBLIC ROAD CROSSING RECONS [ UCllION PROJECT VIP 314.26 - Tennessee Pass Subdivision iillcrest Drive - DOT #253540U :xisting At -Grade Public Road Crossing Reconstruction Project e I �yo Tennessee Pass Subd VE51C c�Noogo o 7 c m 6 a I. Remove existing 28-foot timber crossing, install a new 32-foot precast concrete crossing, field weld rail, relay track at crossing with 133-pound rail, renew the crossties and surface the track with new ballast. 't­ [Rdp To F&vanls c 0 n�.ta\a,� M z m � X z U p w a �JJ1 EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY TENNESSEE PASS SUBDIVISION MILE POST 314.26 GPS: N 39° 39.303', W 1060 37.718' near EDWAPDS, EAGLE CO., CO. Illustrative print showing location of an existing at -grade public road crossing reconstruction project with EAGLE COUNTY. Folder No. 2060-66 Date: April 15, 2002 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800)336-9193 -,E)o+z c>{ r `A' EXHIBIT B Estimate of Material and Force Account Work ' • + - DATE: 'T001-09-Z6 1 , ESTIMATE OF MATERI4ow(ND FORCE ACCOUNT WORK i BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RECOLLECTABLE GRADE CROSSING SURFACE, EDWARDS CO, HILLCREST DRIVE, MP. 314.26 ON THE TENNESSEE PASS SUB. PROJECT COST WILL BE 100% RECOLLECT - ABLE FROM EAGLE COUNTY CO. INSTALL 1 32' CONCRETE CROSSING SURFACE INCLUDING, 160 LF OF 133LB RAIL, 31 101 TIES, GALVINIZED RAIL CLIPS AND PADS. PID: 34025 AWO: 33873 MP,SUBDIV: 314.76, TENNESSEE SERVICE UNIT: 14 CITY: HILLCREiST DR STATE: CO DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL -UPRR TOTAL ENGINEERING WORK ENGINEERING 500 500 500 LABOR ADDITIVE 70S --------------- 705 705 -------- TOTAL ENGINEERING 1205 ---------------- 1205 1205 TRACK & SURFACE WORK BALAST 2.00 CL 523 S23 523 BILL PREP 900 900 900 COMPANY EQUIPMENT USAGE 1850 1850 1850 EQUIPMENT RENTAL 4000 4000 4000 FIELD WE 31 31 31 FNCE-R/W,SND 570 570 570 FOREIGN LINE FREIGHT 80 80 80 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 9606 9606 9606 MATL STORE EXPENSE 372 372 372 OTM 406 2488 2894 2894 RAIL 160.00 LF 550 1422 1972 1972 RDXING 32.00 TF 23991 4264 6663 6663 SALES TAX s 487 487 487 SIGNS 295 295 295 TRK-SURF,LIN 4375 4375 4375 WELD 1018 793 1811 1811 X'tIE 31.00 EA 3444 2480 5924 5924 TOTAL TRACK & SURFACE 23299 19954 43253 43253 LABOR/MATERIAL EXPENSE 24504 19954-------- -------- , RECOLLECTIBLE/UPRR EXPENSE 44458 0-------- ESTIMATED PROJECT COST 44458 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE MATERIAL CREDIT 0 AECOLLECI'IBLE LESS CREDITS THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS- AT THE CURRENT EFFECTIVE RATE. Ext4i . iVl- r.t: EXHIBIT C Contractor's Right of Entry Agreement \wmw ION PACIFIC RAILROAD COMPAwdY Real Estate Department R. D. Uhrich Assistant Vice President J. L. Hawkins General Director - Real Estate Operations M. E. Heenan Director - Real Estate Operations G. L. Pinker Director - Contracts M. B. Stevenson Assistant Director - Contracts To the Contractor: D. D. Brown General Director - Real Estate G. B. Collins Director - Real Estate I K. Love General Director - Real Estate B. P. Morrissey 1800 Farnam Street Director - Real Estate Omaha, Nebraska 68102 J. P. Gade Fax: (402) 997-3601 Director - Facility Management April 15, 2002 Folder No. 2060-66 Before Union Pacific Railroad can permit you to perform work on its property for the reconstruction of the existing County Road 28 (Hillcrest Drive) at -grade public road crossing, it will be necessary to complete two originals of the enclosed Right of Entry Agreement as follows: 1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Return all copies of the Contractor's Right of Entry Agreement together with your Certificate of Insurance as required in Exhibit B-1, in the attached, self-addressed envelope. 5. Check made payable to the Union Pacific Railroad Company in the amount of $500.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 13-6400825 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. After approval of the Right of Entry Agreement and insurance certificate, one fully executed counterpart of the agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully executed agreement. Under Exhibit B-1 of the enclosed Contractor's Right of Entry, you are required to procure Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you. If you decide that acquiring this coverage from the Railroad is of benefit to you, please contact Ms. Nancy Savage at (402) 271-2215. If you have any questions concerning the agreement, please contact me at (402) 997-3620. Have a safe day! Sincerely, PAUL G. FARRELL MANAGER CONTRACTS Contractor's Right of Entry - 07/30/01 Form Approved - AVP Law 1�v■r� Folder No.: 2060-66 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 2002, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (the "Railroad"); and (Name of Contractor) corporation (the "Contractor") (State of Incorporation) RECITALS: Contractor has been hired by (the) Eagle County to perform work relating to the reconstruction of the existing County Road 28 (Hillcrest Drive) at -grade public road crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of , which work is the subject of a contract dated between Railroad and (the) Eagle County. Contractor has requested Railroad to permit it to perform the work on the portion of Railroad's property shown on the print marked Exhibit A, attached hereto and hereby made a part hereof, and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the 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 any 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 A, B, C AND D. The terms and conditions contained in Exhibit A, 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. The Contractor shall bear any and all costs and expenses associated with any work performed by the Contractor, or any costs or expenses incurred by the Railroad relating to this agreement. B. The Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): 2060-66 Eagle Co Q Edwards, CO Page 1 April 15, 2002 County Road 28 (Hillcrest Dr) Contractor's Right of Entry - 07/30/01 Form Approved - AVP Law Folder No.: 2060-66 John Travers Manager Track Maintenance Union Pacific Railroad Company 1400 West 52nd Avenue Denver, CO 80221 Phone: (303) 964-4060 FAX: (303) 964-4041 C. The Contractor, at its own expense, shall adequately police and supervise all work to be performed by the 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 the Contractor for safe conduct and adequate policing and supervision of the Contractor's work shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications involving the work, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad Representative, or by compliance by the Contractor with any requests or recommendations made by the Railroad Representative. ARTICLE 5 - TERM; TERAHNATION. 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 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 property. 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 commencing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit C of this agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be directed to: Union Pacific Railroad Company 1800 Farnam Street Omaha NE 68102 Attn.: Director Contracts Folder No.: 2060-66 ARTICLE 7 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or any subcontractor 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 property. ARTICLE 8 - ADNIINISTRATIVE FEE. Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this agreement. ARTICLE 9 - CROSSINGS. 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. 2060-66 Eagle Co @ Edwards, CO Page 2 April 15, 2002 County Road 28 (Hillcrest Dr) Contractor's Right of Entry - 07/30/01 Form Approved - AVP Law Folder No.: 2060-66 I* ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad property without the prior written approval of the Railroad. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY 02 WITNESS: Manager Contracts Title: (Name of Contractor) 2060-66 Eagle Co @ Edwards, CO Page 3 April 15, 2002 County Road 28 (Hillcrest Dr) N I s Wolcott ,Red Dmw (CREEK RO i i 917A LlInmc. BmotAflv II4A i• I I RAILROAD WORK TO BE PERFORMED: LOCAtfON OF EMSTING ATRECONSTRUCTION PROJECT — GRADE V�o�-fiX 1F 314.26 - Tennessee Pass Subdivision -lillcrest Drive - DOT #253540U testing At -Grade Public Road Crossing Reconstruction Project i r 11. Remove existing 28-foot timber crossing, install a new 32-foot precast concrete crossing, field weld rail, relay track at crossing with 133-pound rail, renew the crossties and surface the track with new ballast. Pass F0 m cj e PC eel Ridge EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY TENNESSEE PASS SUBDIVISION MILE POST 314.26 GPS: N 390 39.303', W 1060 37.718' near EDWARDS, EAGLE CO., CO. Illustrative print showing location of an existing at -grade public road crossing reconstruction project with EAGLE COUNTY. Folder No. 2060-66 Date: April 15, 2002 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE-. 1-(800) 336-9193 Contractor's ROE ExB 7/30/01 Form Approved, AVP-Law E=IT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. The Contractor agrees to notify the Railroad Representative at least ten (10) 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 the 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) 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 ten (10)-day notice, the Railroad Representative will determine and inform the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill. B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men 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 on the day of execution of this agreement. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; 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 the 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, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished, unless he 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 said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to other work, even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the 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, the 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 ten (10) days notice must then be given to the Railroad if flagging service are needed again after such five day cessation notice has been given 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 the Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wpelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Railroad without liability to the Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Railroad's property, and others) and the right of the 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. The 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 the Railroad, including without limitation, the operations of the Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done HADATATavorites%greement FormsToad Crossing Pagel Exhibit B FormsTublic Road Crossing - improvements with Est Costs.doc Contractor's ROE ExB 7/30/01 Form Approved, AVP-Law or permitted to be done by the Con- or at any time that would in any manner � 'r the safety of such operations. When not in use, Contractor's machinery �"id materials shall be kept at least fifty (50) 1eet from the centerline of the Railroad's nest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to be performed by the Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor agrees that the Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid interference with railroad operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor. Section 4. LIENS. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The 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 the Railroad for any such work performed. The Contractor shall indemnify and hold harmless the 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, labor performed, or materials furnished. If the Contractor fails to promptly cause any lien to be released of record, the 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 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. Contractor 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 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. The Contractor 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, the Contractor shall indemnify, defend and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of the Contractor, its contractor, 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, the 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. SAFI=TY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by the Railroad's own forces. As a part of the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall furnish copies of Exhibit D to each of its employees before they enter on the job site. B. Without limitation of the provisions of paragraph A above, the Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. HADATATavorites\Agreement Forms\Road Crossing Page 2 Exhibit B FormsTublic Road Crossing - Improvements with Est Costs.doc Contractor's ROE ExB 7/30/01 Form Approved, AVP-Law C. The Contractor shall have Iar first aid supplies available on the job o that prompt first aid services may be provided to any person injured on the job site. The Contractor shall promptly no-ff� the Railroad of any U.S. Occupational Sd� and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of the Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beveragd, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the Contractor to correct any deficiencies in the Safety Plan. The terms of this agreement shall control if there are any inconsistencies between this agreement and the Safety Plan. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, the Contractor shall indemnify, defend and hold harmless the Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorneys, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified Party, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (iii) any breach of this agreement by the 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. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the 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 the Contractor in any attempt to assert liability against the Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by the 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 the Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. The 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. Section 10. WAIVER OF DEFAULT. Waiver by the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the 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 the Contractor and the Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by the Contractor. HADATATavorites\Agreement Forms\Road Crossing Page 3 Exhibit B Forms\Public Road Crossing - Improvements with Est Costs.doc Contractor's ROE ExB 7/30/01 Form Approved, AVP-Law SAction 12. ASSIGNMENT - SU*ONTRACTING. IVMJ The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement, and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement. HADATAWavorites\Agreement Forms\Road Crossing Page 4 Exhibit B FormsTublic Road Crossing - Improvements with Est Costs.doc Contractor's Right of Entry ExC 07/30/01 Form Approved - AVP Law �qw/ 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 life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $5, 000, 000 each occurrence or claim and an aggregate limit of at least $10,000, 000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." • The exclusions for railroads (except where the Job site is more than fifty feet (501 from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Contractor's (and Railroad's) employees shall not be excluded • Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: Bodily injury and property damage Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." The exclusions for railroads (except where the Job site is more than fifty feet (501 from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement Employers' Liability (Part B) with limits of at least $500, 000 each accident, $500, 000 disease policy limit $500, 000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self -insured, HADATA\Favorites\Agreement Forms\Road Crossing Page 1 of 2 Exhibit C FormsTublic Road Crossing - Improvements with Est Costs.doc Contractor's Right of Entry ExC 07/30/01 Form Approved - AVP Law evidence of state approval must be provided along with evidence of, excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Liability insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. H. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. I. Prior to commencing the Work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. J. Any insurance policy shall 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(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall 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 shall not be limited by the amount of the required insurance coverage. H:IDATAXFavorites\Agreement Forms\Road Crossing Page 2 of 2 Exhibit C FormsTublic Road Crossing - Improvements with Est Costs.doc Contractor's Right of Entry ExD 07/30/01 Form Approved - AVP Law EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of the Contractor as well as all employees of any subcontractor or agent of the Contractor. I. Clothing A. All employees of the 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. Specifically, the Contractor's employees must wear: (i) Waist -length shirts with sleeves. (h) Trousers that cover the entire leg. If flare -legged 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 shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles 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 The Contractor shall 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) Z89.1 - latest revision. Hard hats should be affixed with the contractor's or subcontractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 - 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 levels that will 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 blowers 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 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 The 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: HADATATavorites\Agreement FormslRoad Crossing Page I of 2 Exhibit D FormsTublic Road Crossing - Improvements with Est Costs.doc Contractor's Right of Entry ExD 07/30/01 Form Approved - AVP Law W Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to 1°' authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractors must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. The Contractors 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 the Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor shall remove such equipment from the Railroad's property. In addition, the 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 lockoutAagout of equipment. Trained in and comply with the applicable operating rules if operating any by -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. The Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. The 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 the 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. (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. M Before stepping over or crossing tracks, look in both directions first. NO 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. HADATATavoritesVkgreement Forms\Road Crossing Page 2 of 2 Exhibit D FormsTubiic Road Crossing - Improvements with Est Costs.doc