HomeMy WebLinkAbout4.C.2. Auth. the appropriate City Official to Execute an Agreement at Valley Park Drive with U.P. Railraod Company Consent Business 4. C. 2.
Si{AK()PEE
TO: Mayor and City Council
Mark McNeill, City Administrator
FROM: Bruce Loney, Public Works Director
DATE: 07/15/2014
SUBJECT: Authorize the Appropriate City Official to Execute an Agreement at Valley Park
Drive with Union Pacific Railroad Company (D)
Action Sought
Authorize the appropriate City officials to execute an Agreement for Improvements to existing
public road at grade crossing for Valley Park Drive with Union Pacific Railroad Company.
Background
City Council approved the preparation of plans and approved plans on July 16, 2013 for Valley
Park Business Center, Project No. 2013-6. Included in these plans, is a trail along Innovation
Boulevard from Valley Park Drive to the south plat line.
The County is completing a trail along the north side of County Road(CR) 101. In order to
connect the CR 101 trail with the Innovation Blvd. trail, a crossing of the Union Pacific railroad
tracks is necessary. Attached is an area trail map showing the new trails in this area.
Attached is a drawing showing the trail connection from the CR 101 signal to Innovation Blvd.
Also attached is the Agreement that the Union Pacific Railroad requires for this trail crossing.
This Agreement has been reviewed by our City attorney. The Agreement is necessary for the
Railroad to construct the improvement to the at grade crossing for a trail connection.
Recommendation
Staff recommends approval of the agreement in order to construct the trail improvements over the
Union Pacific Railroad tracks for the trail connection from CR 101 to Innovation Boulevard.
Budget Impact
The improvements will be paid out of the Capital Improvement Fund.
Relationship to Vision
This supports Goal D: Maintain, improve and create strong partnerships with other public and
private sector entities.
Requested Action
Authorize the appropriate City officials to execute an agreement for Improvements to existing
public road at grade crossing for Valley Park Drive with Union Pacific Railroad Company
Attachments: Location Map
Agreement with UP Railroad
area trail map
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.1111111 Valley Park Business Center .
SIIAKOPEE City of Shakopee, Minnesota .
IMPROVEMENTS TO EXISTING PUBLIC ROAD AT GRADE CROSSING
FOR VALLEY PARK DRIVE DOT 185 321 T
M.P.24.15 MANKATO SUBDIVISION
SHAKOPEE,MINNESOTA
THIS AGREEMENT, executed in duplicate this day of , by and between
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"), and CITY OF
SHAKOPEE, MINNESOTA,(hearinafter the"Municipal Corporation").
RECITALS:
Municipal Corporation has requested Railroad to improve the existing Valley Park Drive
crossing, at grade, along, over and across Railroad's track and right of way at Railroad Mile Post 24.15,
on Railroad's Mankato Subdivision, DOT No. 185 321 T, in City of Shakopee, Scott County, State of
Minnesota (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 furnish all labor, material, equipment and supervision for, and shall (a)
install a 24 ft.precast concrete crossing on the main track,24' on the north side of the crossing, (b)install
three(3)cross ties using 9' material,(c)field weld two(2)rail joints,(d)surface the track if needed.
2. Municipal Corporation 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. Railroad estimates such cost to be Forty Five Thousand, Four Hundred Ninety Dollars ($45,490),
as set forth in Estimate of Material and Force Account dated June 10, 2014 marked Exhibit B, hereto
attached and hereby made a part hereof. During the performance of such work Railroad will provide
progressive billing to the Municipal Corporation 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 the Municipal Corporation for any
balance owed. Municipal Corporation shall pay Railroad within thirty (30) days of its receipt of
progressive and final bills submitted by Railroad.
3. Railroad,at its cost, shall maintain the Crossing between the track tie ends and Municipal
Corporation, at its cost, shall maintain all other portions of the Crossing. If, in the future, Municipal
Corporation elects to have the surfacing material between the track tie ends replaced with paving or some
surfacing material other than concrete planking, Railroad, at the Municipal Corporation's expense, shall
install such replacement surfacing.
4. Municipal Corporation, at its cost, shall provide all labor, material and equipment
associated with traffic control, barricades, detour signing, advanced warning signs and pavement
markings. All such work shall be in compliance with the current Manual on Uniform Traffic Control
Devices.
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5. If Municipal Corporation's contractor(s) is/are performing any work described in Section
4 above, then Municipal Corporation shall require its contractor(s) to execute Railroad's standard and
current form of Contractor's Right of Entry Agreement. Municipal Corporation 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 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 Municipal Corporation'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.
6. 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. Municipal Corporation 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 1-800-336-9193 (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 Municipal
Corporation or its contractor(s). If it is, Municipal Corporation 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.
7. Municipal Corporation, 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.
8. Covenants herein shall inure to or bind each party's successors and assigns; provided, no
right of Municipal Corporation shall be transferred or assigned,either voluntarily or involuntarily, except
by express written agreement acceptable to Railroad.
9. Municipal Corporation hereby confirms that funds have been appropriated for the work
set forth in this Agreement.
10. The person signing this Agreement on behalf of Municipal Corporation hereby confirms
that he/she is authorized under Municipal Corporation policies and procedures to execute this Agreement
and to bind Municipal Corporation to the obligations under this Agreement.
IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement as of the date
first herein written.
UNION PACIFIC RAILROAD COMPANY
By
Title:
CITYOF SHAKOPEE MINNESOTA
By
Title:
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RAILROAD WORK TO BE PERFORMED: EXHIBIT "A"
1. Install 24' 9W concrete crossing panels for ped trail. UNION PACIFIC RAILROAD COMPANY
2. Install 3 crossties. MANKATO SUBDIVISION
MILE POST 24.18
3. Field weld 2 rail joints. SHAKOPEE, MN
Illustrative print showing location of public road crossing
project within SI-IAKOPEE,MINNESOTA
June 12,2014
WARNING
IN ALL OCCASIONS,UP.COMMUNICATION DEPARTML'N'I'MUST DL CONTACTED IN
ADVANCE OP ANY\YORK'I'O DETERMINF.EXISTENCE AND L(X ATION OF FIBER OPl IC
CABLE.PI IONS I-80U-3369193
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
, a corporation ("Contractor").
RECITALS:
Contractor has been hired by to perform work relating
to
(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 D.
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 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'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:
Folder No.
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 clerical,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 Railroad Administration rules,regulations and
guidelines, and must be reviewed by the Railroad prior to any changes being implemented. In the event the Railroad is found
to be out of compliance with federal safety regulations due to the Contractor's modifications, negligence,or any other reason
arising from the 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 highly flammable 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 of the date first herein
written.
UNION PACIFIC RAILROAD COMPANY
By:
Title:
(Name of Contractor)
By:
Title:
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)will reach to within twenty-five(25)feet of any track. No work
of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be
located,operated, placed,or stored within twenty-five(25)feet of any of Railroad's track(s)at any time,for any reason, unless
and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30)-day notice, the Railroad
Representative will determine and inform 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 day for the
class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in
effect at the time the work is performed. In addition to the cost of such labor,a composite charge for vacation, holiday, health
and welfare,supplemental sickness,Railroad Retirement and unemployment compensation,supplemental pension, Employees
Liability and Property Damage and Administration will be included,computed on actual payroll. The composite charge will be
the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is
paid for overtime, Saturdays and Sundays,and two and one-half times current hourly rate for holidays. Wage rates are subject
to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of
negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the
wage rate or additional charges are changed, 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 flagman can be assigned to other Railroad work during a portion of such day, in which event
reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work.
Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work
on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by
assignment of such flagman to other work, even though 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. If five(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 entire property including the right and power of Railroad to construct, maintain, repair, renew,
use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines,
pipelines and other facilities upon, along or across any or all parts of its property,all or any of which may be freely done at any
time or times by Railroad without liability to Contractor or to any other party for compensation or damages.
Exhibit B
Page 1 of 4
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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 Railroad's lessees,
licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or
permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in
use, Contractor's machinery and materials shall be kept at least fifty(50)feet from the centerline of Railroad's nearest track,
and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings.
B. Operations of Railroad and work performed by Railroad personnel and 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. LIENS.
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, labor performed,or materials furnished. If Contractor fails to promptly cause
any lien to be released 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 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. 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. 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, 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 act 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 all safety,
operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards
listed in Exhibit D, hereto attached,to ensure uniformity with the safety standards followed by Railroad's own forces. As a part
of Contractor's safety responsibilities, Contractor shall 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 employees 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 adequately 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 control 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 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, 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), fine or penalty(collectively, "Loss")incurred by
any person(including,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.
Exhibit B
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Section 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 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. 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 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.
Section 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 Business Automobile 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 1710 01 (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 70 10 01 (or a substitute form providing equivalent coverage)for the job site.
Exhibit B
Page 4 of 4
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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 24 17 10 01 (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 form 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(including 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 7010 01 (or a substitute form
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.
If Contractor is self-insured,evidence of state approval and excess workers compensation coverage must be provided.
Coverage must 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 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 occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of
Railroad as named insured,with a limit of not less than$2,000,000 per occurrence and an aggregate of$6,000,000.
The definition of"JOB LOCATION"and"WORK"on the declaration page of the 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) and/or broker(s) and Contractor shall instruct such agent(s) and/or broker(s) to
Exhibit C
Page 1
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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 Liability 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 Pollution Liability 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 sole 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, showing 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 the amount of
the required insurance coverage.
Exhibit C
Page 2
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EXHIBIT D
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
The term "employees"as used herein refer to all employees of Contractor as well as all employees of any subcontractor or
agent of Contractor.
Clothing
A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not
interfere with their vision, hearing, or free use of their hands or feet.
Specifically, Contractor's employees must wear:
(i) Waist-length shirts with sleeves.
(ii) 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
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 Contractor'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.
Exhibit D
Page 1 of 3 pages
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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 rules. Under 49CFR214, Subpart C, railroad
contractors are responsible for the training of their employees on such regulations. In addition to the instructions
contained in Roadway Worker Protection regulations, all employees must:
(i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to
authorize movements.
(ii) Wear an orange, reflectorized workwear approved by the Railroad Representative.
(iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed.
Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and
clearing the track. Contractor will also receive special instructions relating to the work zone around machines
and minimum distances between machines while working or traveling.
IV. Equipment
A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the
opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall
remove such equipment from Railroad's property. In addition,Contractor must ensure that the operators of all
equipment are properly trained and competent in the safe operation of the equipment. In addition, operators
must be:
• Familiar and comply with Railroad's rules on lockout/tagout 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. 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 D
Page 2 of 3 pages
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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, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties
and only when track and equipment have been protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace safety.
Exhibit D
Page 3 of 3 pages
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