Ordinance No. 15,961 ORDINANCE NO. 15,961
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE
CITY CLERK TO ATTEST TO THE PUBLIC HIGHWAY AT-GRADE CROSSING
AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR THE MARKET
STREET REVITALIZATION PROJECT; AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN IN AN AMOUNT NOT TO EXCEED TWO HUNDRED TWENTY-
FIVE THOUSAND SIX HUNDRED FORTY-THREE AND NO 100 DOLLARS
($225,643.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute and the City Clerk to attest to the Public Highway At-Grade Crossing Improvement
Agreement with Union Pacific Railroad Company for the Market Street Revitalization Project. Said
agreement is attached hereto as Exhibit"A"and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Union Pacific
Railroad Company, in an amount not to exceed TWO HUNDRED TWENTY-FIVE THOUSAND SIX
HUNDRED FORTY-THREE AND NO 100 DOLLARS ($225,643.00) in accordance with the agreement
authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO 100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent
(250 o).
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by th a ote of the City Council of the City of
Baytown this the 24111 day of October, 2024.
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ANGEL ACIq N, City Glerk
APPROVED T FORM: Of.
SC ND, City Attorney
R Ordinances and Resolutions Ordinance Drafts 2024-10-24 UPRR Highway At-Grade Crossing Agreement.docc
EXHIBIT "A"
UP Real Estate Project No.: 0784198
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
Market Street
DOT 762843H
MP 24.71 — Baytown Subdivision
Baytown, Harris County, Texas
THIS AGREEMENT ("Agreement") is made and entered into as of the day of
, 20 ("Effective Date"), by and between UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, to be addressed at Real Estate Department, 1400
Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 ("Railroad") and CITY OF
BAYTOWN, a municipal corporation or political subdivision of the State of Texas to
be addressed at 2401 Market Street, Baytown, Texas 77520 ("Political Body").
RECITALS:
Presently, the Political Body utilizes the Railroad's property for an existing at grade
public road crossing over Market Street, DOT Number 762843H at Railroad's Milepost
24.71 on Railroad's Baytown Subdivision at or near Baytown, Harris County, Texas
("Existing Crossing").
The Political Body now desires to undertake as its project (the "Project") the
reconstruction and widening of the Existing Crossing for the installation of a new sidewalk
and trail and reconfiguration of traffic lanes. The Existing Crossing, as reconstructed and
widened is hereinafter the "Roadway."
The Railroad right of way being utilized for the Existing Crossing is not sufficient to
allow for the reconstruction and widening of the Roadway. Therefore, under this
Agreement, the Railroad will be granting additional rights to the Political Body to facilitate
the reconstruction and widening of the Roadway. The portion of Railroad's property that
Political Body needs to use in connection with the Roadway (including the right of way
being utilized for the Existing Crossing) is shown on the Railroad's location print marked
Exhibit A attached hereto and hereby made a part hereof (the "Crossing Area").
Presently, the Political Body also utilizes the Railroad's property for an existing at
grade public road crossing over Market Street, DOT Number 427328M at Railroad's
Milepost 0.794 on Railroad's U.S. Steel Lead Baytown Subdivision at or near Baytown,
Harris County, Texas ("Adjacent Crossing"). The Railroad's use of its property for railroad
operations at the location of the Adjacent Crossing is currently inactive.
The Project and Plans (defined below) also involve removal of Railroad's tracks at
the Adjacent Crossing and certain other work to the Political Body's roadway at the
Adjacent Crossing. The Railroad right of way utilized by the Political Body for the Adjacent
1
Crossing is not sufficient to allow for the Project work. Therefore, under this Agreement,
the Railroad will be granting additional rights to the Political Body to facilitate the work to
the Political Body's roadway at the Adjacent Crossing. The portion of Railroad's property
that Political Body needs to use in connection with the Adjacent Crossing (including the
right of way being utilized for the Adjacent Crossing) is shown on the Railroad's location
print marked Exhibit A-1 attached hereto and hereby made a part hereof. For purposes
of this Agreement, the defined term Crossing Area shall include the Adjacent Crossing,
as may be applicable.
The Railroad and the Political Body are entering into this Agreement to cover the
above.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as
follows:
Section 1. EXHIBIT B
The general terms and conditions marked Exhibit B, are attached hereto and
hereby made a part hereof.
Section 2. RAILROAD GRANTS RIGHT
A. For and in consideration of the sum of THIRTY NINE THOUSAND
SEVEN HUNDRED THIRTY DOLLARS ($39,730.00) to be paid by the Political Body
to the Railroad upon the execution and delivery of this Agreement and in further
consideration of the Political Body's agreement to perform and comply with the terms of
this Agreement, the Railroad hereby grants to the Political Body the right to use,
construct, maintain and repair the Roadway over and across the Railroad's property.
B. In further consideration of the Political Body's agreement to perform and
comply with the terms of this Agreement, specifically including but not limited to Section
17 of this Agreement, the Railroad hereby confirms it grants Political Body the right to
use, construct, maintain and repair the Adjacent Crossing over and across the Railroad's
property.
Section 3. DEFINITION OF CONTRACTOR
For purposes of this Agreement the term "Contractor" shall mean the contractor or
contractors hired by the Political Body or the County of Harris to perform any Project work
on any portion of the Railroad's property and shall also include the Contractor's
subcontractors and the Contractor's and subcontractor's respective employees, officers
and agents, and others acting under its or their authority.
2
Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE
A. Prior to Contractor performing any work within the Crossing Area and any
subsequent maintenance and repair work, the Political Body shall require the Contractor
to:
• execute the Railroad's then current Contractor's Right of Entry Agreement
• obtain the then current insurance required in the Contractor's Right of
Entry Agreement; and
• provide such insurance policies, certificates, binders and/or endorsements
to the Railroad.
B. The Railroad's current Contractor's Right of Entry Agreement is marked
Exhibit D, attached hereto and hereby made a part hereof. The Political Body confirms
that it will inform its Contractor that it is required to execute such form of agreement and
obtain the required insurance before commencing any work on any Railroad property.
Under no circumstances will the Contractor be allowed on the Railroad's property without
first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the
insurance set forth therein and also providing to the Railroad the insurance policies,
binders, certificates and/or endorsements described therein.
C. All insurance correspondence, binders, policies, certificates and/or
endorsements shall be sent to:
Manager- Contracts
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street, Mail Stop 1690
Omaha, NE 68179-1690
UP Project No. 0784198
D. If the Political Body's own employees will be performing any of the Project
work, the Political Body may self-insure all or a portion of the insurance coverage subject
to the Railroad's prior review and approval.
Section 5. FEDERAL AID POLICY GUIDE
If the Political Body will be receiving any federal funding for the Project, the current
rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR
140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement
by reference.
Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD
The Political Body agrees that no Project costs and expenses are to be borne by
the Railroad. In addition, the Railroad is not required to contribute any funding for the
Project.
3
Section 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT
TO POLITICAL BODY; POLITICAL BODY'S PAYMENT OF BILLS
A. The work to be performed by the Railroad, at the Political Body's sole cost
and expense, is described in the Railroad's Material and Force Account Estimate dated
September 8, 2024, marked Exhibit C, attached hereto and hereby made a part here
of (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the
Railroad's work associated with the Project is One Hundred Eighty Five Thousand
Nine Hundred Thirteen Dollars ($185,913.00).
B. The Railroad, if it so elects, may recalculate and update the Estimate
submitted to the Political Body in the event the Political Body does not commence
construction on the portion of the Project located on the Railroad's property within six (6)
months from the date of the Estimate.
C. The Political Body acknowledges that the Estimate may not include any
estimate of flagging or other protective service costs that are to be paid by the Political
Body or the Contractor in connection with flagging or other protective services provided
by the Railroad in connection with the Project. All of such costs incurred by the Railroad
are to be paid by the Political Body or the Contractor as determined by the Railroad and
the Political Body. If it is determined that the Railroad will be billing the Contractor directly
for such costs, the Political Body agrees that it will pay the Railroad for any flagging costs
that have not been paid by any Contractor within thirty (30) days of the Contractor's
receipt of billing.
D. The Railroad shall send progressive billing to the Political Body during the
Project and final billing to the Political Body within three hundred sixty-five (365) days
after receiving written notice from the Political Body that all Project work affecting the
Railroad's property has been completed and the Project Manager has closed the Project
work order and notified the Political Body.
E. The Political Body agrees to reimburse the Railroad within thirty (30) days
of its receipt of billing from the Railroad for one hundred percent(100%)of all actual costs
incurred by the Railroad in connection with the Project including, but not limited to, all
actual costs of engineering review (including preliminary engineering review costs
incurred by Railroad prior to the Effective Date of this Agreement), construction,
inspection, flagging (unless flagging costs are to be billed directly to the Contractor),
procurement of materials, equipment rental, manpower and deliveries to the job site and
all direct and indirect overhead labor/construction costs including Railroad's standard
additive rates.
Section 8. PLANS
A. The Political Body, at its expense, shall prepare, or cause to be prepared
by others, the detailed plans and specifications for the Project, including the Adjacent
Crossing, and submit such plans and specifications to the Railroad's Assistant Vice
President Engineering-Design, or his authorized representative, for prior review and
approval. The plans and specifications shall include all Roadway layout specifications,
cross sections and elevations, associated drainage, and other appurtenances.
B. The final one hundred percent (100%) completed plans for the Project that
are approved in writing by the Railroad's Assistant Vice President Engineering-Design, or
his authorized representative, are hereinafter referred to as the "Plans". The Plans are
hereby made a part of this Agreement by reference.
C. No changes in the Plans shall be made unless the Railroad has consented
to such changes in writing.
D. The Railroad's review and approval of the Plans will in no way relieve the
Political Body or the Contractor from their responsibilities, obligations and/or liabilities
under this Agreement, and will be given with the understanding that the Railroad makes
no representations or warranty as to the validity, accuracy, legal compliance or
completeness of the Plans and that any reliance by the Political Body or Contractor on
the Plans is at the risk of the Political Body and Contractor.
Section 9. NON-RAILROAD IMPROVEMENTS
A. Submittal of plans and specifications for protecting, encasing, reinforcing,
relocation, replacing, removing and abandoning in place all non-railroad owned facilities
(the "Non Railroad Facilities") affected by the Project including, without limitation, utilities,
fiber optics, pipelines, wielines, communication lines and fences is required under
Section 8. The Non Railroad Facilities plans and specifications shall comply with
Railroad's standard specifications and requirements, including, without limitation,
American Railway Engineering and Maintenance-of-Way Association ("AREMA")
standards and guidelines. Railroad has no obligation to supply additional land for any
Non Railroad Facilities and does not waive its right to assert preemption defenses,
challenge the right-to-take, or pursue compensation in any condemnation action,
regardless if the submitted Non Railroad Facilities plans and specifications comply with
Railroad's standard specifications and requirements. Railroad has no obligation to permit
any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property.
B. Upon Railroad's approval of submitted Non Railroad Facilities plans and
specifications, Railroad will attempt to incorporate them into new agreements or
supplements of existing agreements with Non Railroad Facilities owners or operators.
Railroad may use its standard terms and conditions, including, without limitation, its
standard license fee and administrative charges when requiring supplements or new
agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence
5
before a supplement or new agreement has been fully executed by Railroad and the Non
Railroad Facilities owner or operator, or before Railroad and Political Body mutually agree
in writing to (i) deem the approved Non Railroad Facilities plans and specifications to be
Plans pursuant to Section 813, (ii) deem the Non Railroad Facilities part of the Structure,
and (iii) supplement this Agreement with terms and conditions covering the Non Railroad
Facilities.
Section 10. EFFECTIVE DATE; TERM; TERMINATION
A. This Agreement is effective as of the Effective Date first herein written and
shall continue in full force and effect for as long as the Roadway remains on the Railroad's
property.
B. The Railroad, if it so elects, may terminate this Agreement effective upon
delivery of written notice to the Political Body in the event the Political Body does not
commence construction on the portion of the Project located on the Railroad's property
within twelve (12) months from the Effective Date.
C. If the Agreement is terminated as provided above, or for any other reason,
the Political Body shall pay to the Railroad all actual costs incurred by the Railroad in
connection with the Project up to the date of termination, including, without limitation, all
actual costs incurred by the Railroad in connection with reviewing any preliminary or final
Project Plans.
Section 11. CONDITIONS TO BE MET BEFORE
POLITICAL BODY CAN COMMENCE WORK
Neither the Political Body nor the Contractor may commence any work within the
Crossing Area or on any other Railroad property until:
(i) The Railroad and Political Body have executed this Agreement.
(ii) The Railroad has provided to the Political Body the Railroad's written
approval of the Plans.
(iii) Each Contractor has executed Railroad's Contractor's Right of Entry
Agreement and has obtained and/or provided to the Railroad the insurance
policies, certificates, binders, and/or endorsements required under the
Contractor's Right of Entry Agreement.
(iv) Each Contractor has given the advance notice(s) required under the
Contractor's Right of Entry Agreement to the Railroad Representative
named in the Contractor's Right of Entry Agreement.
6
Section 12. FUTURE PROJECTS
Future projects involving substantial maintenance, repair, reconstruction, renewal
and/or demolition of the Roadway shall not commence until Railroad and Political Body
agree on the plans for such future projects, cost allocations, right of entry terms and
conditions and temporary construction rights, terms and conditions.
Section 13. ASSIGNMENT; SUCCESSORS AND ASSIGNS
A. Political Body shall not assign this Agreement without the prior written
consent of Railroad.
B. Subject to the provisions of Paragraph A above, this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of Railroad and Political
Body.
Section 14. SPECIAL PROVISION PERTAINING TO FEDERAL FUNDING
If the Political Body will be receiving federal funding for the Project, the Political
Body agrees that it is responsible in performing and completing all federal reporting
documents for the Project.
Section 15. TERMINATION OF ORIGINAL AGREEMENT
Upon the completion of the Project, any original agreements either governing
currently, or any agreements to be found in the future concerning the Existing Crossing
and/or Adjacent Crossing (including any real estate rights), shall terminate and the terms
and conditions of this Agreement shall govern the use, maintenance and repair of the
Roadway and Adjacent Crossing.
Section 16. ANNUAL SURFACE MAINTENANCE
A. The Railroad shall maintain the crossing surface between the track tie ends
at Political Body's expense. Effective as of three years from effective date of this
Agreement, Political Body agrees to pay to Railroad the sum of Three Thousand Nine
Hundred Twenty Six Dollars ($3,926.00) per annum, payable annually in advance, as
payment for Railroad's maintenance of the surface between track tie ends located within
the Crossing Area. See Exhibit C. The Political Body, at its expense, shall maintain and
repair all portions of the Roadway approaches that are not within the area between lines
two (2) feet outside of the rails of each track. See lower left hand corner of Exhibit C.
B. The above annual surface maintenance fee may also be re-determined by
the Railroad at any time subsequent to the expiration of five (5) years following the date
on which the annual surface maintenance fee was last determined or established. Any
such changes in the annual surface maintenance fee may be made by means of
automatic adjustment in billing.
Section 17. REINSTALLATION OF TRACKS AT ADJACENT CROSSING
Political Body hereby acknowledges Railroad has common carrier obligations and
that if Railroad, in its sole and absolute discretion, at any time in the future, determines it
is necessary to reactivate its operations in the vicinity of the Adjacent Crossing, including
traversing over the Adjacent Crossing, Railroad has the right to reinstall the track. If
Railroad approves, in its sole and absolute discretion, the continued use of the Adjacent
Crossing considering such reactivation, Political Body will enter into separate agreements
with Railroad as may be required by Railroad for the construction, cost allocations, and
continued use of the Adjacent Crossing. The Political Body will have the opportunity to
participate in determinations regarding crossing components necessary for the continued
use and agrees to financially participate in the reinstallation of the crossing from funds to
be allocated by Political Body at such time.
a
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the Effective Date first herein written.
UNION PACIFIC RAILROAD COMPANY
(Federal Tar ID #94-6001323)
By:
Printed Name:
Title:
CITY OF BAYTOWN
By:
Printed Name:
Title:
9
EXHIBIT A
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PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
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EXHIBIT B
TO
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
SECTION 1. CONDITIONS AND COVENANTS
A. The Railroad makes no covenant or warranty of title for quiet possession or
against encumbrances. The Political Body shall not use or permit use of the Crossing
Area for any purposes other than those described in this Agreement. Without limiting
the foregoing, the Political Body shall not use or permit use of the Crossing Area for
railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the
Railroad's property by or under authority of the Political Body for the purpose of
conveying electric power or communications incidental to the Political Body's use of the
property for highway purposes shall be constructed in accordance with specifications
and requirements of the Railroad, and in such manner as not adversely to affect
communication or signal lines of the Railroad or its licensees now or hereafter located
upon said property. No nonparty shall be admitted by the Political Body to use or occupy
any part of the Railroad's property without the Railroad's written consent. Nothing herein
shall obligate the Railroad to give such consent.
B. The Railroad reserves the right to cross the Crossing Area with such railroad
tracks as may be required for its convenience or purposes. In the event the Railroad
shall place additional tracks upon the Crossing Area, the Political Body shall, at its sole
cost and expense, modify the Roadway to conform with all tracks within the Crossing
Area.
C. The right hereby granted is subject to any existing encumbrances and rights
(whether public or private), recorded or unrecorded, and also to any renewals thereof.
The Political Body shall not damage, destroy or interfere with the property or rights of
nonparties in, upon or relating to the Railroad's property, unless the Political Body at its
own expense settles with and obtains releases from such nonparties.
D. The Railroad reserves the right to use and to grant to others the right to use the
Crossing Area for any purpose not inconsistent with the right hereby granted, including,
but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair,
alter, renew and replace tracks, facilities and appurtenances on the property; and the
right to cross the Crossing Area with all kinds of equipment.
E. So far as it lawfully may do so, the Political Body will assume, bear and pay all
taxes and assessments of whatsoever nature or kind (whether general, local or special)
levied or assessed upon or against the Crossing Area, excepting taxes levied upon and
against the property as a component part of the Railroad's operating property.
l
F. If any property or rights other than the right hereby granted are necessary for the
construction, maintenance and use of the Roadway and its appurtenances, or for the
performance of any work in connection with the Project, the Political Body will acquire
all such other property and rights at its own expense and without expense to the
Railroad.
SECTION 2. CONSTRUCTION OF ROADWAY
A. The Political Body, at its expense, will apply for and obtain all public authority
required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad
upon request with satisfactory evidence that such authority has been obtained.
B. Except as may be otherwise specifically provided herein, the Political Body, at its
expense, will furnish all necessary labor, material and equipment, and shall construct
and complete the Roadway and all appurtenances thereof. The appurtenances shall
include, without limitation, all necessary and proper highway warning devices (except
those installed by the Railroad within its right of way) and all necessary drainage
facilities, guard rails or barriers, and right of way fences between the Roadway and the
railroad tracks. Upon completion of the Project, the Political Body shall remove from the
Railroad's property all temporary structures and false work, and will leave the Crossing
Area in a condition satisfactory to the Railroad.
C. All construction work of the Political Body upon the Railroad's property (including,
but not limited to, construction of the Roadway and all appurtenances and all related
and incidental work) shall be performed and completed in a manner satisfactory to the
Assistant Vice President Engineering-Design of the Railroad or his authorized
representative and in compliance with the Plans, and other guidelines furnished by the
Railroad.
D. All construction work of the Political Body shall be performed diligently and
completed within a reasonable time. No part of the Project shall be suspended,
discontinued or unduly delayed without the Railroad's written consent, and subject to
such reasonable conditions as the Railroad may specify. It is understood that the
Railroad's tracks at and in the vicinity of the work will be in constant or frequent use
during progress of the work and that movement or stoppage of trains, engines or cars
may cause delays in the work of the Political Body. The Political Body hereby assumes
the risk of any such delays and agrees that no claims for damages on account of any
delay shall be made against the Railroad by the State and/or the Contractor.
SECTION 3. INJURY AND DAMAGE TO PROPERTY
If the Political Body, in the performance of any work contemplated by this
Agreement or by the failure to do or perform anything for which the Political Body is
responsible under the provisions of this Agreement, shall injure, damage or destroy any
property of the Railroad or of any other person lawfully occupying or using the property
of the Railroad, such property shall be replaced or repaired by the Political Body at the
Political Body's own expense, or by the Railroad at the expense of the Political Body,
and to the satisfaction of the Railroad's Assistant Vice President Engineering-Design.
SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK
The Railroad may contract for the performance of any of its work by other than
the Railroad forces. The Railroad shall notify the Political Body of the contract price
within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed
on a fixed price basis, the Political Body shall reimburse the Railroad for the amount of
the contract.
SECTION 5. MAINTENANCE AND REPAIRS
A. The Political Body shall, at its own sole expense, maintain, repair, and renew, or
cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway,
except the portions between the track tie ends, which shall be maintained by the
Railroad at the Political Body's expense.
B. If, in the future, the Political Body elects to have the surfacing material between
the track tie ends, or between tracks if there is more than one railroad track across the
Crossing Area, replaced with paving or some surfacing material other than timber
planking, the Railroad, at the Political Body's expense, shall install such replacement
surfacing, and in the future, to the extent repair or replacement of the surfacing is
necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing
Area, the Political Body shall bear the expense of such repairs or replacement.
SECTION 6. CHANGES IN GRADE
If at any time the Railroad shall elect, or be required by competent authority to,
raise or lower the grade of all or any portion of the track(s) located within the Crossing
Area, the Political Body shall, at its own expense, conform the Roadway to conform with
the change of grade of the trackage.
SECTION 7. REARRANGEMENT OF WARNING DEVICES
If the change or rearrangement of any warning device installed hereunder is
necessitated for public or Railroad convenience or on account of improvements for
either the Railroad, highway or both, the parties will apportion the expense incidental
thereto between themselves by negotiation, agreement or by the order of a competent
authority before the change or rearrangement is undertaken.
SECTION 8. SAFETY MEASURES; PROTECTION
OF RAILROAD COMPANY OPERATIONS
It is understood and recognized that safety and continuity of the Railroad's
operations and communications are of the utmost importance; and in order that the
3
same may be adequately safeguarded, protected and assured, and in order that
accidents may be prevented and avoided, it is agreed with respect to all of said work of
the Political Body that the work will be performed in a safe manner and in conformity
with the following standards:
A. Definitions. All references in this Agreement to the Political Body shall also
include the Contractor and their respective officers, agents and employees, and others
acting under its or their authority; and all references in this Agreement to work of the
Political Body shall include work both within and outside of the Railroad's property.
B. Entry on to Railroad's Property by Political Body. If the Political Body's
employees need to enter Railroad's property in order to perform an inspection of the
Roadway, minor maintenance or other activities, the Political Body shall first provide at
least ten (10) working days advance notice to the Railroad Representative. With respect
to such entry on to Railroad's property, the Political Body, to the extent permitted by law,
agrees to release, defend and indemnify the Railroad from and against any loss, damage,
injury, liability, claim, cost or expense incurred by any person including, without limitation,
the Political Body's employees, or damage to any property or equipment (collectively the
"Loss") that arises from the presence or activities of Political Body's employees on
Railroad's property, except to the extent that any Loss is caused by the sole direct
negligence of Railroad.
C. Flagging.
(i) If the Political Body's employees need to enter Railroad's property as
provided in Paragraph B above, the Political Body agrees to notify the Railroad
Representative at least thirty (30) working days in advance of proposed performance of
any work by Political Body 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 Political Body
whether a flagman need be present and whether Political Body 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 Political Body for such expenses
incurred by Railroad. If Railroad performs any flagging, or other special protective or
safety measures are performed by Railroad, Political Body agrees that Political Body is
not relieved of any of its responsibilities or liabilities set forth in this Agreement.
(ii) The rate of pay per hour for each flagman will be the prevailing hourly rate
in effect for an eight-hour day for the class of flagmen used during regularly assigned
hours and overtime in accordance with Labor Agreements and Schedules in effect at the
time the work is performed. In addition to the cost of such labor, a composite charge for
4
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, Political Body shall pay on the basis of the
new rates and charges.
(iii) Reimbursement to Railroad will be required covering the full eight-hour day
during which any flagman is furnished, unless the flagman can be assigned to other
Railroad work during a portion of such day, in which event reimbursement will not be
required for the portion of the day during which the flagman is engaged in other Railroad
work. Reimbursement will also be required for any day not actually worked by the flagman
following the flagman's assignment to work on the project for which Railroad is required
to pay the flagman and which could not reasonably be avoided by Railroad by assignment
of such flagman to other work, even though Political Body 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, Political
Body 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, Political Body will still
be required to pay flagging charges for the five (5) day notice period required by union
agreement to be given to the employee, even though flagging is not required for that
period. An additional thirty (30) days notice must then be given to Railroad if flagging
services are needed again after such five day cessation notice has been given to
Railroad.
D. Compliance With Laws. The Political Body shall comply with all applicable
federal, state and local laws, regulations and enactments affecting the work. The
Political Body shall use only such methods as are consistent with safety, both as
concerns the Political Body, the Political Body's agents and employees, the officers,
agents, employees and property of the Railroad and the public in general. The Political
Body (without limiting the generality of the foregoing) shall comply with all applicable
state and federal occupational safety and health acts and regulations. All Federal
Railroad Administration regulations shall be followed when work is performed on the
Railroad's premises. If any failure by the Political Body to comply with any such laws,
regulations, and enactments, shall result in any fine, penalty, cost or charge being
assessed, imposed or charged against the Railroad, the Political Body shall reimburse,
and to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty,
cost, or charge, including without limitation attorney's fees, court costs and expenses.
The Political Body further agrees in the event of any such action, upon notice thereof
being provided by the Railroad, to defend such action free of cost, charge, or expense
to the Railroad.
5
E. No Interference or Delays. The Political Body shall not do, suffer or permit
anything which will or may obstruct, endanger, interfere with, hinder or delay
maintenance or operation of the Railroad's tracks or facilities, or any communication or
signal lines, installations or any appurtenances thereof, or the operations of others
lawfully occupying or using the Railroad's property or facilities.
F. Supervision. The Political Body, at its own expense, shall adequately police and
supervise all work to be performed by the Political Body, and shall not inflict injury to
persons or damage to property for the safety of whom or of which the Railroad may be
responsible, or to property of the Railroad. The responsibility of the Political Body for
safe conduct and adequate policing and supervision of the Project shall not be lessened
or otherwise affected by the Railroad's approval of plans and specifications, or by the
Railroad's collaboration in performance of any work, or by the presence at the work site
of the Railroad's representatives, or by compliance by the Political Body with any
requests or recommendations made by such representatives. If a representative of the
Railroad is assigned to the Project, the Political Body will give due consideration to
suggestions and recommendations made by such representative for the safety and
protection of the Railroad's property and operations.
G. Suspension of Work. If at any time the Political Body's engineers or the Vice
President-Engineering Services of the Railroad or their respective representatives shall
be of the opinion that any work of the Political Body is being or is about to be done or
prosecuted without due regard and precaution for safety and security, the Political Body
shall immediately suspend the work until suitable, adequate and proper protective
measures are adopted and provided.
H. Removal of Debris. The Political Body shall not cause, suffer or permit material
or debris to be deposited or cast upon, or to slide or fall upon any property or facilities
of the Railroad; and any such material and debris shall be promptly removed from the
Railroad's property by the Political Body at the Political Body's own expense or by the
Railroad at the expense of the Political Body. The Political Body shall not cause, suffer
or permit any snow to be plowed or cast upon the Railroad's property during snow
removal from the Crossing Area.
I. Explosives. The Political Body shall not discharge any explosives on or in the
vicinity of the Railroad's property without the prior consent of the Railroad's Vice
President-Engineering Services, which shall not be given if, in the sole discretion of the
Railroad's Vice President-Engineering Services, such discharge would be dangerous or
would interfere with the Railroad's property or facilities. For the purposes hereof, the
"vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's
property or in such close proximity to the Railroad's property that the discharge of
explosives could cause injury to the Railroad's employees or other persons, or cause
damage to or interference with the facilities or operations on the Railroad's property.
The Railroad reserves the right to impose such conditions, restrictions or limitations on
the transportation, handling, storage, security and use of explosives as the Railroad, in
the Railroad's sole discretion, may deem to be necessary, desirable or appropriate.
6
J. Excavation. The Political Body shall not excavate from existing slopes nor
construct new slopes which are excessive and may create hazards of slides or falling
rock, or impair or endanger the clearance between existing or new slopes and the tracks
of the Railroad. The Political Body shall not do or cause to be done any work which will
or may disturb the stability of any area or adversely affect the Railroad's tracks or
facilities. The Political Body, at its own expense, shall install and maintain adequate
shoring and cribbing for all excavation and/or trenching performed by the Political Body
in connection with construction, maintenance or other work. The shoring and cribbing
shall be constructed and maintained with materials and in a manner approved by the
Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely
to be encountered, including any stresses resulting from vibrations caused by the
Railroad's operations in the vicinity.
K. Drainage. The Political Body, at the Political Body's own expense, shall provide
and maintain suitable facilities for draining the Roadway and its appurtenances, and
shall not suffer or permit drainage water therefrom to flow or collect upon property of the
Railroad. The Political Body, at the Political Body's own expense, shall provide
adequate passageway for the waters of any streams, bodies of water and drainage
facilities (either natural or artificial, and including water from the Railroad's culvert and
drainage facilities), so that said waters may not, because of any facilities or work of the
Political Body, be impeded, obstructed, diverted or caused to back up, overflow or
damage the property of the Railroad or any part thereof, or property of others. The
Political Body shall not obstruct or interfere with existing ditches or drainage facilities.
L. Notice. Before commencing any work, the Political Body shall provide the
advance notice to the Railroad that is required under the Contractor's Right of Entry
Agreement.
M. Fiber Optic Cables. Fiber optic cable systems 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 shall visit up.com/CBUD to complete and submit the
required form to determine if fiber optic cable is buried anywhere on Railroad's property
to be used by the Political Body. If it is, Political Body 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.
SECTION 9. INTERIM WARNING DEVICES
If at anytime it is determined by a competent authority, by the Political Body, or
by agreement between the parties, that new or improved train activated warning devices
should be installed at the Crossing Area, the Political Body shall install adequate
temporary warning devices or signs and impose appropriate vehicular control measures
to protect the motoring public until the new or improved devices have been installed.
7
SECTION 10. OTHER RAILROADS
All protective and indemnifying provisions of this Agreement shall inure to the
benefit of the Railroad and any other railroad company lawfully using the Railroad's
property or facilities.
SECTION 11. BOOKS AND RECORDS
The books, papers, records and accounts of Railroad, so far as they relate to the
items of expense for the materials to be provided by Railroad under this Project, or are
associated with the work to be performed by Railroad under this Project, shall be open to
inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business
hours by the agents and authorized representatives of Political Body for a period of three
(3) years following the date of Railroad's last billing sent to Political Body.
SECTION 12. REMEDIES FOR BREACH OR NONUSE
A. If the Political Body shall fail, refuse or neglect to perform and abide by the terms
of this Agreement, the Railroad, in addition to any other rights and remedies, may
perform any work which in the judgment of the Railroad is necessary to place the
Roadway and appurtenances in such condition as will not menace, endanger or interfere
with the Railroad's facilities or operations or jeopardize the Railroad's employees; and
the Political Body will reimburse the Railroad for the expenses thereof.
B. Nonuse by the Political Body of the Crossing Area for public highway purposes
continuing at any time for a period of eighteen (18) months shall, at the option of the
Railroad, work a termination of this Agreement and of all rights of the Political Body
hereunder.
C. The Political Body will surrender peaceable possession of the Crossing Area and
Roadway upon termination of this Agreement. Termination of this Agreement shall not
affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may
have arisen prior to termination.
SECTION 13. MODIFICATION - ENTIRE AGREEMENT
No waiver, modification or amendment of this Agreement shall be of any force or
effect unless made in writing, signed by the Political Body and the Railroad and
specifying with particularity the nature and extent of such waiver, modification or
amendment. Any waiver by the Railroad of any default by the Political Body shall not
affect or impair any right arising from any subsequent default. This Agreement and
Exhibits attached hereto and made a part hereof constitute the entire understanding
between the Political Body and the Railroad and cancel and supersede any prior
negotiations, understandings or agreements, whether written or oral, with respect to the
work or any part thereof.
8
Public Highway At-Grade Crossing 03 01 13
Standard Form Approved,AVP-Lae
EXHIBIT C
TO
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
Exhibit C (if applicable) will be Railroad's Material and Force Agreement Estimate.
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Contractor's Right of Entry Public
Projects Form Approved 02/09/2022
EXHIBIT D
TO
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
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 or 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. For
purposes of clarity, Contractor agrees that any CIC (defined below) hired by Contractor is a subcontractor of
Contractor and therefore included in the defined term Contractor pursuant to the foregoing sentence.
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 AND C.
The terms and conditions contained in Exhibit B and Exhibit C, attached hereto, are hereby made a
part of this agreement.
1
Contractor's Right of Entry Public
Projects Form Approved 02/092022
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 (including without limitation any CIC), or any costs or expenses incurred by Railroad relating to this
agreement.
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 and throughout the entire term of this Agreement, Contractor, at
its expense,shall procure and maintain in full force and effect the types and minimum limits of insurance specified
in Exhibit C of this agreement and require each of its subcontractors to include the insurance endorsements as
required under Section 12 of Exhibit B of this agreement.
B. Not more frequently than once every two (2)years, Railroad may reasonably modify the required
insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting
practices in the insurance industry.
C. Upon request of Railroad, Contractor shall provide to Railroad a certificate issued by its insurance
2
Contractor's Right of Entry Public
Projects Form Approved 02/092022
carrier evidencing the insurance coverage required under Exhibit B.
D. Contractor understands and accepts that the terms of this Article are wholly separate from and
independent of the terms of any indemnity provisions contained in this Agreement.
E. Upon request of Railroad, insurance correspondence, binders, policies, certificates and
endorsements shall be sent to:
Union Pacific Railroad Company
[Insert mailing address]
Attn:
Project No. 0784198
ARTICLE 8 -PRECONSTRUCTION MEETING.
If the Work to be performed by the Contractor will involve the Railroad providing any flagging protection
(or if a CIC is approved to provide flagging protection pursuant to the terms set forth herein) and/or there is
separate work to be performed by the Railroad, the Contractor confirms that no work shall commence until the
Railroad and Contractor participate in a preconstruction meeting involving flagging procedures and coordination
of work activities of the Contractor and the Railroad (and any CIC, as applicable.)
ARTICLE 9. 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 10.ADMINISTRATIVE FEE.
Upon the execution and delivery of this agreement, Contractor shall pay to Railroad One Thousand
Twenty Five Dollars ($1,025.00) as reimbursement for clerical, administrative and handling expenses in
connection with the processing of this agreement.
ARTICLE 11. 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.
Contractor's Right of Entry Public
Projects Form Approved 02/092022
ARTICLE 12.-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:
Name:
Title:
Phone:
E-Mail:
4
EXHIBIT A
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
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EXHIBIT B
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Section 1. NOTICE OF COMMENCEMENT OF WORK - RAILROAD FLAGGING -PRIVATE 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.
B. 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 approved 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.
C. Contractor shall be permitted to hire a private contractor to perform flagging or other special
protective or safety measures (such private contractor being commonly known in the railroad industry as a
contractor-in-charge("CIC"))in lieu of Railroad providing such services or in concert with Railroad providing such
services, subject to prior written approval by Railroad, which approval shall be in Railroad's sole and absolute
discretion. If Railroad agrees to permit Contractor to utilize a CIC pursuant to the preceding sentence, Contractor
shall obtain Railroad's prior approval in writing for each of the following items, as determined in all respects in
Railroad's sole and absolute discretion: (i)the identity of the third-party performing the role of CIC; (ii) the scope
of the services to be performed for the project by the approved CIC; and (iii) any other terms and conditions
governing such services to be provided by the CIC. If flagging or other special protective or safety measures are
performed by an approved CIC, Contractor shall be solely responsible for(and shall timely pay such CIC for) its
services. Railroad reserves the right to rescind any approval pursuant to this Section 1, Subsection C., in whole
or in part, at any time, as determined in Railroad's sole and absolute discretion.
D. If any flagging or other special protective or safety measures are performed by employees of
Railroad and/or any contractor of 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.
E. If any flagging or other special protective or safety measures are performed by Railroad or a CIC,
Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this
agreement.
F. The provisions set forth in this subsection are only applicable for Flagging Services performed by
employees of Railroad: 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
1
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. If flagging is performed
by Railroad, 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.
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 twenty-
five (25)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.
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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 visit www.up.com/CBUD to complete and submit the required
form 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.
Section 7. SAFETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of any Work on Railroad property 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 then current safety standards located at the below web address
("Railroad's Safety Standards") 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
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determines that any of Railroad's Safety Standards are contrary to good safety practices. Contractor shall furnish
copies of Railroad's Safety Standards to each of its employees before they enter Railroad property.
http://www.up.com/cs/groups/public/(a)uprr/(a)-suppliers/documents/up pdf nativedocs/pdf up supplier safety
reg.pdf
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 FULLEST EXTENT ALLOWED BY APPLICABLE LAW, 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, ATTORNEYS,
CONSULTANT'S AND EXPERTS 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 (1)ANY WORK PERFORMED BY CONTRACTOR, OR(11)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
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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.
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"on the subcontractor's Commercial General
Liability policy and Umbrella or Excess policies (if applicable) 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 10, and CG 20 37 (or substitute forms providing equivalent coverage; (2) require
each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability
Railroads" ISO Form CG 24 17 10 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.
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EXHIBIT C
TO
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
Union Pacific Railroad Company
Insurance Requirements For
Contractor's Right of Entry Agreement
During the entire term of this Agreement and course of the Project, and until all Project Work on Railroad's
property has been completed and all equipment and materials have been removed from Railroad's property and
Railroad's property has been clean and restored to Railroad's satisfaction, Contractor shall, at its sole cost and
expense, procure and maintain 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 Coveraae 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 70 10 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.
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
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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 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 CGLor
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 Reauirements
G. All policy(ies) required above (except business automobile, worker's compensation and employers
liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG
20 10, and CG 20 37 (or substitute forms providing equivalent coverage). The coverage provided to
Railroad as additional insured shall not be limited by Contractor's liability under the indemnity provisions
of this agreement. BOTH CONTRACTOR AND RAILROAD EXPECT THAT UNION PACIFIC RAILROAD
COMPANY WILL BE PROVIDED WITH THE BROADEST POSSIBLE COVERAGE AVAILABLE BY
OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORMS CG 20 10 AND CG 20 37.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of
insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that
may arise under this agreement, or (b) all punitive damages are prohibited by all states in which this
agreement will be performed.
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 for damages covered by the workers
compensation and employers liability or commercial umbrella or excess liability obtained by Contractor
required in this agreement where prohibited by law. 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.
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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.
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